FEDERAL COURT OF AUSTRALIA
Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 748
MIGRATION – application for review of a decision of a delegate of the respondent to cancel the applicant’s tourist visa pursuant to s 116(1)(g) of the Migration Act and reg 2.43(1)(k) of the Migration Regulations – inquiry about grounds to cancel the applicant’s visa – privative clause decision – whether necessary to consider effect of privative clause – whether, in breach of ss 119(1) and 121(3), the interview between the applicant and the delegate did not take place at the time specified – whether in breach of ss 119(1) and 121(3), the time within which the applicant was to respond at an interview was a reasonable period – requirements of ss 119(1)(b) and 121(3)(b).
WORDS & PHRASES – “reasonable period”
Judiciary Act 1903 (Cth), s 39B
Migration Act 1958 (Cth), s 116, s 119, s 121, s 474
Migration Regulations 1994, reg 2.43(1)(k)
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited
R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 referred
O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 referred
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 referred
Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 referred
R v Murray; Ex parte Proctor (1949) 77 CLR 387 referred
The Queen v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 referred
The Queen v Coldham; Ex parte The Australian Workers’ Union (1982) 153 CLR 415 referred
Craig v State of South Australia (1995) 184 CLR 163 referred
NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 referred
NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 referred
Park v Minister for Immigration and Multicultural Affairs [2002] FCA 346 referred
NABM of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 335 referred
VBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 388 referred
Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 discussed
NADD v Minister for Immigration and Multicultural Affairs [2002] FCA 448 referred
Jia Jing Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 477 referred
Jian Zhong Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167 referred
Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 referred
Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498 referred
SBBK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 565 referred
Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 referred
Zhang Jia Qing v The Minister for Immigration and Multicultural Affairs (Burchett J, unreported decision, delivered 5 November 1997) discussed
Minister for Immigration and Multicultural Affairs v Zhang (1999) 53 ALD 261 referred
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 referred
Budiyal v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 166 referred
Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405 cited
ALEX ZHAOU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 226 of 2002
KENNY J
12 JUNE 2002
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 226 OF 2002 |
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BETWEEN: |
ALEX ZHAOU Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs of and incidental to the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 226 OF 2002 |
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BETWEEN: |
Applicant
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
introduction
1 On 19 April 2002, upon the applicant’s ex parte application, and upon undertakings given by him and Mr Yong Chao Wu, the Court ordered:
1. That the respondent be restrained until 4.15pm on 22 April 2002 or further order by himself, his servants or agents from taking any step to remove the applicant from Australia.
2. That the respondent be restrained until 4.15pm on 22 April 2002 or further order from giving effect to the … decision purportedly made on 17 April 2002 or from otherwise cancelling the prospective applicant’s tourist visa.
2 By an application, pursuant to s 39B of the Judiciary Act 1903 (Cth), which was dated 22 April 2002, the applicant, Mr Alex Zhaou, sought permanent and interlocutory relief in respect of a decision of a delegate of the respondent to cancel his visa pursuant to s 116 of the Migration Act 1958 (Cth) (“the Act”).
3 On 22 April 2002, upon undertakings given by Mr Wu and by the respondent, the Court ordered, amongst other things, that the injunction restraining the respondent from taking steps to remove the applicant from Australia continue until further order, and that the matter be fixed for trial on 29 April 2002.
relief sought and grounds advanced
4 Upon the trial of the matter on that date, the applicant sought the following relief:
1. A declaration that the decision purportedly made by ‘the Department [of Immigration and Multicultural and Indigenous Affairs]’ … ‘to cancel your [the applicant’s] visa’ and notified to the applicant by Paul Tobin on 17 April 2002 (‘the decision’) was invalid and contrary to law’;
2. Further or in the alternative, a writ of certiorari directed to the respondent calling up the decision to quash it;
3. Further or in the alternative, a writ of prohibition or an injunction directed to the respondent prohibiting him whether personally or by his servants, officers or agents from giving effect to, acting in accordance with, or relying on the decision;
4. An order that the respondent pay the applicant’s costs of and incidental to these proceedings including the application for interim relief;
5. Such other orders or relief as this honourable Court may think fit.
5 In an affidavit sworn on 22 April 2002, the applicant’s solicitor referred to four grounds of review. At the hearing, however, counsel for the applicant stated that he relied only on the following grounds as amended.
(b) … [T]he decision was made without jurisdiction in that the applicant was denied natural justice.
particulars
(i) There was no or no proper opportunity given to the applicant to understand the intention of the officers or agents of the respondent to cancel the applicant’s visa in that the applicant was interviewed without the assistance of an interpreter and without legal advice;
(ii) There was no or no proper opportunity given to the applicant to comment on the intention of the officers or agents of the respondent to cancel the applicant’s visa in that the applicant was required to provide any response within 10 minutes of the start of his interview by officers or agents of the respondent although the applicant was interviewed without the assistance of an interpreter and without legal advice;
(iii) …
(iv) In contravention of the requirements of s 119(1)(b) and s 121(3)(b) of the Migration Act the interview at which the applicant was to respond to the invitation to show why his visa should not be cancelled did not take place at the time specified being a time within a reasonable period;
(v) In contravention of the requirements of s 119(1)(b) and s 121(3)(b) of the Migration Act the time within which the applicant was to respond at an interview to the invitation to show why his visa should not be cancelled was not a reasonable period.
(c) Further or in the alternative, the decision was made without jurisdiction in that the person who made the decision failed properly or at all to take account of relevant material or considerations.
particulars
(i) The person who made the decision failed properly or at all to have regard to the matters set out in the particulars to Ground (b) herein;
(ii) The person who made the decision failed properly or at all to have regard to the applicant’s account of his circumstances and his intention to abide by the conditions of his visa.
6 By the end of the hearing, however, the applicant’s submissions were confined to the grounds expressed in par (b)(iv) and (v). Counsel for the applicant advanced no argument in support of par (c), namely, that in making the decision to cancel the applicant’s visa, the decision-maker failed to take into account a matter that he was bound to take into account. Nor did he rely on par (b)(i) and (ii) other than in connection with submissions in support of par (b)(iv) and (v).
7 In support of his application, the applicant relied upon three affidavits of Mr Wu, restaurant owner, sworn on 19 April, 22 April and 26 April 2002, and an affidavit of Mr Isaac Brott, solicitor, also sworn on 22 April 2002. (The contents of Mr Wu’s affidavits of 19 April and 22 April 2002 were identical.) In opposition to the application, the respondent relied upon the affidavits of Ms Maria Ngo, solicitor, sworn on 22 April 2002, Ms Catherine Jane Beeby, Immigration Inspector of Melbourne Airport, Tullamarine, sworn on 26 April 2002, and Mr Paul Tobin, Immigration Inspector of Melbourne Airport, Tullamarine (and the decision-maker) sworn on 26 April 2002. The applicant, Mr Wu, Mr Tobin and Ms Beeby gave evidence at the hearing and were subject to cross-examination.
facts and circumstances
8 For the reasons appearing below, I set out in some detail the facts and circumstances attending the decision.
9 By his application, the applicant challenges the decision made by the respondent’s delegate, Mr Paul Tobin, on 17 April 2002, to cancel his visa (an Electronic Travel Authority (ETA) (visitor) sub-class 976) (“the visa”). The applicant held the visa at the time of his arrival in Australia. The visa, which was valid until 17 July 2002, specified “no work” as a condition of its grant.
10 The applicant, who was born on 27 January 1979, is a citizen of the Peoples’ Republic of China. He has been resident in Hong Kong all his life. His first language is Cantonese, although he has had occasion to speak in the English language almost every month. The applicant’s usual occupation is that of cook, and he has had some years’ experience in the restaurant industry as a “Service Manager/Cook”. He said in evidence that he had studied English to the end of “Form 5 in Hong Kong”.
11 The applicant arrived at Melbourne Airport on the morning of 17 April 2002. In the baggage hall, he told an officer of the Australian Customs Service (“ACS”) that he had only AUD$60 plus some shipping receipts for kitchenware, amounting to approximately AUD$1500. He said that he would be reimbursed for the amounts shown on the receipts by a contact in Australia. Mr Tobin met him shortly thereafter, at around 11.05am. Mr Tobin asked the applicant whether it was true that he had only AUD$60 in his possession, and whether he would be reimbursed for the amount of the shipping receipts. After he apparently answered “yes” to both questions, Mr Tobin escorted him to the Immigration Office at the Airport.
12 Before deciding to cancel the applicant’s visa, Mr Tobin questioned him in relation to, amongst other things, the reason for his visit to Australia, his contacts in Australia, and the manner in which he intended to support himself in Australia. Mr Tobin twice telephoned Mr Wu, the applicant’s only contact in Australia. The total duration of the period commencing from when the applicant met Mr Tobin until Mr Tobin made the cancellation decision was a little over sixty minutes. Part of the applicant’s interview with Mr Tobin was tape-recorded.
cancellation of the applicant’s visa
The Immigration Office
13 Mr Tobin’s evidence was that, after leaving the baggage hall, and before he began to question the applicant, he explained that he wanted to discuss the applicant’s visa, and informed him that “I can get an interpreter on the phone if needed”. Mr Tobin said that the applicant did not respond to his reference to an interpreter. The applicant did not recall Mr Tobin saying that an interpreter was available. For the reasons given below, it is unnecessary to determine whether or not Mr Tobin said anything to the applicant about an interpreter.
14 A short time after Mr Tobin and the applicant arrived at the Immigration Office, the applicant asked Mr Tobin whether he, the applicant, might telephone his Australian contact, Mr Wu (referred to by the applicant as “Mr Yong” or “William”). Mr Tobin replied that he, Mr Tobin, would make the call. The applicant was left in an interview room while Mr Tobin went elsewhere to make the call to Mr Wu. Having made the call, Mr Tobin returned, this time accompanied by a woman (later identified as Ms Beeby).
15 Mr Tobin again questioned the applicant and, at the same time, tape-recorded the conversation. Mr Tobin began telling him that Mr Wu was expecting him “to turn up and work” at his restaurant as a service manager/cook. The applicant denied that this was his intention and, when asked by Mr Tobin why Mr Wu would have made such a statement, he responded, “He recommend me. I don’t know. He interested in me”.
16 The applicant admitted that, apart from the AUD$60, he had only the expectation that Mr Wu would reimburse him for the cost of shipping the kitchenware. When asked where would he stay and how would he get to Box Hill (where Mr Wu carried on his restaurant), the applicant said:
Just what has he – $60 and I will live with him, live with him.
…
Because he get a restaurant and I can live there.
17 When Mr Tobin specifically said:
Well, we’re looking at why you’re actually coming to Australia.
The applicant answered:
Just travel a while and bring back the money (indistinct) the goods for my friends, that’s all.
18 In the course of the interview, the applicant stated that he had no guide book about Australia and no camera but added:
He said that he would let me to travel a while and I told him (indistinct) I live with him easily.
19 When the applicant reiterated his request to speak with Mr Wu, Mr Tobin arranged for Mr Wu to be telephoned a second time. Mr Tobin told the applicant that:
I’ve just spoken to the airport manager here. They’ve agreed to contact William [Mr Wu] again. I’m going to ask William exactly the same questions that I asked him before, okay? While I’m asking those questions, you’re not allowed to interrupt, okay? Do you understand that?
20 This second telephone call took place about forty minutes after the first telephone call. The evidence given by Mr Tobin, Ms Beeby and Mr Wu was that the contents of the two telephone conversations were substantially the same. It is, therefore, convenient to deal with both conversations at this point.
The telephone calls to Mr Wu
21 Mr Wu’s evidence (which was given with the aid of a Cantonese interpreter) was that he was working in his restaurant in Station Street, Box Hill, a suburb of Melbourne, at about 11.00am on 17 April 2002, when he received a telephone call from a man who identified himself as an officer of the Department of Immigration and Multicultural and Indigenous Affairs. This was Mr Tobin. Mr Wu said that he had difficulty in understanding Mr Tobin and in recalling the precise details of his conversations with him. These difficulties arose, so Mr Wu said, from his own “not very good” English, and also because he answered the call at his restaurant which “is very noisy”. Further, at the hearing, Mr Wu stated that he had answered “yes, yes” to a number of Mr Tobin’s questions merely out of courtesy. He said that, whilst he had not specifically told Mr Tobin that he could not hear him properly, he had informed Mr Tobin that he could not hear his questions clearly.
22 Mr Wu agreed with Mr Tobin that Mr Tobin had commenced by asking him whether he was “expecting someone today”, and that he had answered that he was expecting the applicant, Alex Zhaou. In his affidavit of 22 April 2002, Mr Wu deposed that, when asked whether the applicant was going to work for him, he replied that he “would be delighted to have the applicant work for [him] as chef if he wanted to, but that [he] would have to check with [his] solicitor if that would be permitted in accordance with the applicant’s visa”. Mr Wu further deposed that he was “always careful to ensure that [his] employees conformed to the laws of Australia”. He added that he misunderstood the reason for Mr Tobin’s telephone calls.
23 In his second affidavit of 26 April 2002, Mr Wu deposed that, had Mr Tobin explained the situation correctly, he would have “confirmed that [he] believed Alex was simply a tourist, the son of family friends who [he] was going to put up while he stayed in Melbourne”. Also in his second affidavit, Mr Wu gave a more detailed account of his first conversation with Mr Tobin. After Mr Tobin had introduced himself and asked whether Mr Wu was expecting someone, Mr Wu deposed that the following conversation ensued:
PT: Alex said he would work in your restaurant … Right?
YW: Yes … if he can?
PT: You’re going to employ him full time or part time?
YW: If I can I would employ him full time.
PT: What position you give him?
YW: Well … Ah … service, manager, something like that.
PT: Does he have any experience?
YW: Yes.
PT: How long?
YW: I believe he has more than 3 years experience in the restaurant, because I have reference for him.
PT: Do [you] owe any money to Alex?
YW: No.
PT: Alex says you owe him money?
YW: Oh yes, that’s right, because Alex bought me some goods and equipment from Hong Kong.
PT: How much do you owe him?
YW: I don’t know exactly how much, because I don’t know exactly for shipping, I guess about HK$8000.00.
24 According to Mr Wu, there was also an exchange in the following terms:
PT: Will he live with you during his stay in Australia?
YW: Might not, maybe yes, maybe no, if he choose live his relative or other friends he can do so.
PT: How much you pay to him?
YW: We never discuss for that.
PT: When you want him start?
YW: I have to ask my solicitor if he can, if he can I like him to start as soon as he wants.
PT: Well O.K. I will call you back later.
25 Mr Wu said that, in the course of his second conversation with Mr Tobin, he stated that he had a reference concerning the applicant. He deposed, however, that:
I did not mean that I ever got sent a written reference from his employer in Hong Kong, but that I had spoken to his boss in Hong Kong when I was there, and he had spoken highly of Alex. Again I repeated that I would be happy to employ Alex but I thought that he was just coming to visit and would have to check with my solicitors that I could employ him.
26 Mr Wu’s evidence at trial was to similar effect, although he stated that Mr Tobin told him that “Mr Zhaou said that he was going to work in [his] restaurant”. Further, although he could not recall whether Mr Tobin specifically asked him “Why is [the applicant] visiting you?” or “What will [the applicant] be doing in Australia?”, his evidence was, in summary, that he was under the impression that he would assist the applicant if he indicated to Mr Tobin that he would be willing to employ the applicant at some point, and that he may have said something like “I hope I can employ him”, or “if [the applicant] can, I would like to employ him … as a service manager, something like that”. Mr Wu said that Mr Tobin “ gave … the impression that if [he] said things like that that would help [the applicant] and if I employ, if I sponsor him, that would help him”. Mr Wu said that he had no “definite idea [of] employing [the applicant]”, and “[t]hat’s why I said to Mr Tobin that I have to check with my lawyer and if he can I will like him to start as soon as possible”. He said that he had no agreement with the applicant about any wages that might be paid. He conceded that he had told Mr Tobin that, “Yeah, he sent me his resume or references”, or something to that effect, adding that he “used the word, reference, because [he had] spoken to [the applicant’s] employer before and his employer spoke very highly of him”. Mr Wu stated that he tried to give Mr Tobin the impression that he was careful to ensure that his employees abide by the laws of Australia, although he may not have used those precise words. Mr Wu denied saying that the applicant might rent a property while in Australia. Rather, according to Mr Wu, he said that he “suggest that, well, he can either stay with his relatives, if he has any, or he can get himself a place”. Mr Wu added, “I only said that he could live with his relatives or friends. I did not say that he could rent a house.” Subsequently, Mr Wu said “[A]ll I tried to tell Mr Tobin is that Mr Zhaou got his own right. He can either stay with me or he can stay with his friends or relatives. I did say that I would look after him.” Earlier, however, Mr Wu had said in evidence that he did not mention to Mr Tobin the possibility of having the applicant stay with him.
27 In an affidavit sworn in the proceedings, Mr Tobin gave the following account of his first telephone conversation with Mr Wu (whom he referred to as “William” and “Mr Yong”):
I then went to the rec room and called the mobile telephone number on the incoming passenger card. A male voice answered and I said ‘Is your name William?’ He said ‘Yes’. I asked if he was also known as Mr Yong and he said ‘Yes’. He asked who I was and why I was ringing. I told him my name and where I was ringing from but did not give him any other information. I asked ‘Are you expecting someone into Australia today?’ His answer was vague and I do not recall it, but he did say that Alex Zhaou was coming. I asked him ‘What is the purpose of Alex’s visit?’ He said ‘To work in my restaurant.’ To the best of my recollection he said that Alex Zhaou would work as a service manager chef.
28 Mr Tobin deposed that he and Ms Beeby then asked a number of questions about the position to be taken by the applicant at Mr Wu’s restaurant. Mr Tobin deposed:
To the best of my recollection [Mr Wu] said that he expected Mr Zhaou to take a full time position, that there had been no discussion regarding salary at this stage, that he had received references from Mr Zhaou, that the name of the restaurant was Best Food Gallery, and that he did expect to reimburse Mr Zhaou for shipping invoices but that he didn’t know exactly how much. After saying that Mr Zhaou would work at the restaurant, Mr [Wu] said that he would be referring it to his solicitor.
29 Mr Tobin’s evidence was that, in the course of the second conversation, Mr Wu added that he thought that the applicant would be “renting accommodation and would not be staying with him”. Mr Tobin denied that Mr Wu had said “that he would be delighted to have Mr Zhaou work for him as chef if he wanted to, but that he would have to check with his solicitor if that would be permitted in accordance with his visa”.
30 In his evidence at trial, Mr Tobin denied that his questions could have given Mr Wu the impression that he could help the applicant by indicating a willingness for the applicant to work for him. According to Mr Tobin, it was only once, during the second conversation, that Mr Wu had said “I hope he will work in my restaurant” and had mentioned something about having to check with his solicitor. Mr Tobin denied that Mr Wu had said to Mr Tobin that he could not understand him, or that he could not hear him properly.
31 In connection with the first conversation between Mr Tobin and Mr Wu, Ms Beeby deposed:
At an early point in the conversation, either through something said by [Mr Tobin] or the other speaker, I understood that the other speaker was called ‘William’. [Mr Tobin] asked William, ‘Are you expecting someone to arrive today?’ William said ‘Yes’. [Mr Tobin] asked him ‘Who is that?’ William said ‘Zhaou’. [Mr Tobin] asked William ‘Why is he visiting you?’ or ‘What will he be doing in Australia?’ William said ‘I know him through …’ and then he said a name I cannot recall. William went on: ‘I hope he will work in my restaurant’. [Mr Tobin] asked ‘Doing what?’ William said ‘Yeah, Yeah, Service Manager, Cook. He has … years experience in the restaurant industry as service manager, cook. He has good qualifications.’ [Mr Tobin] asked William ‘Have you arranged this work with Mr Zhaou?’ William said ‘Yeah, yeah, he sent me his resume (or references).’ … [Mr Tobin] asked William again ‘So he will be working in your restaurant?’ William said ‘Yes I hope so.’ [Mr Tobin] asked William ‘Have you made any arrangements to pay him for work?’ William said “No, not yet.’ [Mr Tobin] asked William ‘Do you owe him any money for items purchased overseas?’ or ‘Did you ask him to purchase items for your restaurant overseas?’ William said ‘Yes I did’. [Mr Tobin] asked him ‘How do you intend to pay him?’ William said ‘By cheque or cash. We haven’t worked that out yet. Whatever he wishes.’ [Mr Tobin] asked ‘When will you pay him?’ and William said ‘straight away’. [Mr Tobin] asked ‘Do you know how much money you owe him?’ William said ‘Yeah about $2000 or $2,500 I think he said’. [Mr Tobin] said ‘You think? So you’re not sure exactly how much?’ William said ‘Not so sure but I trust him. I will pay him.’
32 Ms Beeby deposed that at this point Mr Wu hesitated and said “Yeah, Yeah, he will be working in my restaurant if he is allowed to work I will have to ask my solicitor.” At the conclusion of the interview, Mr Tobin asked “What arrangements have you made if any with Mr Zhaou?” and Mr Wu said “He sent me his resume. He has good experience. Yes he will do work with me”. Ms Beeby added that, during one of the conversations, Mr Wu said that he was not sure where the applicant would be staying and that he might rent a house. She also deposed that Mr Wu did not use the word “delighted”, and she did not recall him saying “if he wanted to” in answer to an inquiry as to whether the applicant would work for him. She said that Mr Wu did not say that he was “always careful to ensure that my employees conformed to laws of Australia”, and that he did not initially mention the solicitor.
33 Ms Beeby’s evidence at trial was to similar effect. Her evidence was that, when Mr Tobin asked what the applicant would be doing while in Australia, Mr Wu replied “I hope he will work in my restaurant. … as [a] service manager, cook”. Ms Beeby denied that Mr Tobin had said words to Mr Wu to the effect of “I’ve been told”, or “[the applicant] has said that he’ll be working in your restaurant.” Ms Beeby also denied that there was anything about the two conversations between Mr Wu and Mr Tobin that could have given Mr Wu the impression that Mr Tobin wanted him to supply a character reference for the applicant. Further, she could not recall Mr Wu saying that he could not hear Mr Tobin clearly, or that he could not understand the questions that Mr Tobin asked. She acknowledged that there was some background noise, but stated that it was her belief that Mr Wu understood what was being asked of him.
34 Over speaker-phone, the applicant (together with Ms Beeby) heard the second conversation between Mr Tobin and Mr Wu. The applicant’s evidence (given with the aid of a Cantonese interpreter) was that the conversation commenced by Mr Tobin asking Mr Wu questions about what he, the applicant, would do while in Australia. He heard Mr Wu say “I hope [the applicant] will work in my restaurant. … He [the applicant] has some years’ experience in the restaurant industry as service manager/cook”. When asked whether there were any arrangements regarding the applicant’s pay, Mr Wu said “No, not yet”. Mr Wu mentioned that he owed him, the applicant, money, although he indicated that he could not state exactly how much without first looking at the shipping receipts. Sometime towards the end of the conversation, Mr Wu mentioned his solicitor, although the applicant could not recall precisely what was said about the solicitor. He did not hear anything said about his “resume” or about where he would be staying while in Australia.
35 As appears from the foregoing, there are numerous inconsistencies between the accounts of the conversations given by Mr Tobin and Ms Beeby on the one hand, and Mr Wu on the other. Mr Wu’s evidence that he told Mr Tobin that he could not understand what Mr Tobin was saying found no support in the evidence of Mr Tobin and Ms Beeby. Nor did it find any support in the applicant’s account. Indeed, the applicant’s account of the second conversation substantially accorded with that of Ms Beeby. Mr Wu’s account of the conversations was not entirely reliable. I prefer the evidence of Ms Beeby and the applicant (and Mr Tobin to the extent that he is supported by Ms Beeby) to the evidence given by Mr Wu.
36 It must be borne in mind that Mr Wu stated in evidence that he had difficulty in recalling the conversations. Further, in the context of employing the applicant, Mr Wu’s evidence that he said several times “if I can” was vague, and inconsistent with the evidence of both Mr Tobin and Ms Beeby. Ms Beeby heard Mr Wu say “I hope …” at times, and Mr Tobin recalled him saying this once. The applicant recalled Mr Wu saying “I hope …” and gave no evidence that Mr Wu said “If I can …”. I prefer the evidence of Ms Beeby (and of Mr Tobin and the applicant to the extent that it is consistent with Ms Beeby) on this point to that of Mr Wu. The words “I hope …” are consistent with Mr Tobin’s understanding of the import of his conversations with Mr Wu.
37 Mr Wu’s statements in evidence that he would have answered Mr Tobin differently if he had known the purpose of Mr Tobin’s calls seriously diminishes his credibility as a witness. He was, it seems, prepared to say whatever he thought would suit the applicant best, rather than to say whatever he knew to be the case. Equally, by his evidence, he apparently admits that what he said in the two telephone calls was calculated by him to give Mr Tobin the impression that the applicant would be working for him. Further, if it matters, there is nothing in the evidence that would indicate that something said by Mr Tobin could have given Mr Wu the mistaken impression about the purpose of his call, save for Mr Wu’s unsupported assertion to this effect.
38 Moreover, Mr Wu’s evidence about what he said to Mr Tobin concerning the applicant’s accommodation was not consistent. As already noted, Mr Wu changed his evidence in the course of giving it. I accept that, as Mr Wu said at one stage in his evidence, he told Mr Tobin that the applicant might “get himself a place”, and that Mr Tobin and Ms Beeby understood that to mean that he might rent some accommodation.
39 Further, in the course of the hearing, it became clear that, whilst Mr Wu had been assisted in preparing his affidavits by an employee of his solicitor who spoke Mandarin, he had not been assisted by a Cantonese speaking interpreter when he came to swear his affidavits. I accept, as the respondent, submitted that Mr Wu’s affidavits were unreliable, particularly on points of detail and expression. At trial, a number of passages in these affidavits were shown to be inaccurate or wrong.
40 In summary, I found Ms Beeby and the applicant to be reliable witnesses, although the applicant’s evidence about the second conversation was necessarily limited by his command of the English language (discussed below). Mr Wu’s evidence on some points was not credible, and on others, unreliable. Although Mr Tobin was reliable on most matters, he was, plainly enough, concerned to preserve the integrity of his decision-making. This concern may have affected his perception of what occurred.
The interview continued
41 After the first telephone conversation between Mr Tobin and Mr Wu, the applicant was questioned further by Mr Tobin, in the presence of Ms Beeby. After the second telephone conversation between Mr Tobin and Mr Wu, the applicant was questioned further by Mr Tobin. Ms Beeby was present at the recommencement of the interview following the second telephone call but, according to her, she left the interview with the applicant “within a few minutes”, and had no further involvement with the matter. After the second telephone call, the applicant agreed that Mr Wu “expect me to come here to work with him but (indistinct) before”. The applicant denied, however, that he had sent Mr Wu “reference papers regarding [his] work experience”.
42 After giving his passport to Mr Tobin, the applicant asked whether Mr Tobin might “want to cancel [his] visa?”. Mr Tobin replied “Possibly might talk to you about it”. Mr Tobin continued:
What I’m giving you now is called a notice of intention to cancel your visa (indistinct) grounds for cancelling your visa today – you’re a non-genuine visitor to Australia, in that we believe that you’re coming in to Australia to work at the restaurant in Box Hill, okay? The Migration Act gives you the opportunity to comment on the intention to cancel your visa and to give reasons why the visa should not be cancelled, okay. We believe we have grounds under subsection 116(1)(g) in regulation 2.43(1)(k) of the Migration Act, okay. The interview will provide you with the chance to comment why grounds of a cancellation do not exist, okay, and why your visa should not be cancelled, okay. The interview will be held here at Melbourne Airport on 17 April 2002 beginning at 11.40am which is 10 minutes from now, which is when you’ll need to provide your comments, okay. If you choose not to comment, the Immigration Officer may make his or her decision based on the information available to him.
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’ll be immigration cleared and allowed to enter Australia. The factors that we’re considering [in] making the decision are the purpose of your travel to Australia, the extent of non-compliance with the conditions on your visa, the degree of hardship which may be caused to you or your family, the circumstances in which the grounds for cancellation arose, your behaviour in relation to the department now and on any previous occasion. Do you understand all this?
43 When the applicant stated that he did not understand all that Mr Tobin had just said, Mr Tobin repeated his explanation, reiterating that he believed that there were grounds to cancel the applicant’s visa. Mr Tobin stated, “The reason is because we’re not satisfied you’re a genuine visitor to Australia, okay?”. Mr Tobin added:
[Y]ou get 10 minutes to think about the reasons why you believe your visa should not be cancelled, okay, and the things we look at are the purpose you travelled to Australia and the extent of the non-compliance with the conditions on your visa, okay.
44 Just before Mr Tobin left the applicant alone in the interview room at about 11.36am (see Mr Tobin’s evidence below), he said “I’ll be back in about five minutes, okay, to start the interview.” As Mr Tobin deposed (and the tape of the interview bears out):
The interval of time between when I placed in front of the applicant the notice of intention to consider cancellation and the time when the formal interview for his response began, was not a period when no discussion at all took place. I was in the interview for some of the period, explaining the notice to the applicant and answering questions about it.
45 Mr Tobin added:
At 11.36 am I left the interview room. Having reviewed the tape, I estimate that it is likely that I took a little time longer than 4 minutes to return to the room, so it is not correct to say the applicant responded at exactly 11.40 am. Working from the tape, I have roughly estimated the time it is likely to have been by working back from the time I terminated the interview and turned the tap off. On terminating the interview, I said it was 12.05 pm. Roughly 17 minutes of tape time elapses between the time I re-commenced the interview and the termination of the interview. The real time was probably longer, because of the voice activation function of the dictaphone stopping the tape during this period from time to time. I estimate that the interview probably recommenced a few minutes after 11.40 am.
46 Shortly after this final part of the interview commenced, Mr Tobin and the applicant had the following exchange:
Mr Tobin: Yes, okay. Why do you believe that your visa should not be cancelled today?
Mr Zhaou: Because I’m [just*] a visitor stay here, yeah, and not be used to work here. I get a job in Hong Kong [I no need to*] work in Australia, I think. I’m just looking around. I have my friends to organise the goods – something. Could I ask you something there?
Mr Tobin: Yep.
Mr Zhaou: Could I be a tourist visa – to change that to a working visa or student visa or something?
Mr Tobin: It is possible to do.
Mr Zhaou: Yeah.
Mr Tobin: Yeah.
Mr Zhaou: So how come you just – well, that – I need to work here. I am – and other things.
…
Mr Tobin: Okay. It is possible, but what is your intention now? Is it your intention to come in and work for him?
Mr Zhaou: No.
Mr Tobin: No. Do you agree that you’ve sent him work references?
Mr Zhaou: No.
…
Mr Zhaou: No, it’s not mine, but maybe the other guy’s, the boss or something.
[* indicates that these words can be heard on listening to the tape although they do not appear on the written transcript.]
47 The applicant denied that he intended to rent a house while in Australia, and reiterated that he was still employed in Hong Kong “but I just get a long holiday”. The applicant repeated “I just travel around and bring the things for him”. In answer to Mr Tobin’s question “How are you going to travel around for three months on $60 … ?”, the applicant said “I get a receipt from him”. Mr Tobin then said “You’ve got $A1500, $1560 roughly Australian for three months. How are you going to support yourself?” The applicant answered “And I get parents in Hong Kong (indistinct) number or something.” When Mr Tobin repeated the question, the applicant answered “I (indistinct) because I live with him and I move out in a month (indistinct)”. Mr Tobin went on to ask “Why did[n’t] you bring that money with you? You haven’t got a credit card”. The applicant replied “I got something” … “I leave it in Hong Kong”. When asked why he had no camera, the applicant replied, “He told me that he’d get a camera or something … . I need to get some more space for his goods”.
48 Mr Tobin ultimately informed the applicant:
On the basis of what you are saying, okay, I’m not satisfied that you’re a genuine visitor to Australia, okay? I believe that you are coming into Australia to work at this gentlemen’s restaurant, okay. You can’t give me an idea of your definite plans in Australia, okay. William has told us that he’s expecting you to work at his restaurant. You’ve also got a lack of funds if you were just a tourist to Australia for three months. The funds aren’t enough to support a three-month stay in Australia. On that basis I’ve decided to cancel your visa today.
The interview ended at 12.05pm. Since 22 April 2002, the applicant has been detained at an Immigration Detention Centre.
The Form 1111
49 The above account shows that, at about 11.30am, Mr Tobin signed a “notice of intention to consider cancelling a visa”. The notice, which was Part A of Form 1111, identified as a possible ground for cancellation “non genuine visitor”, pursuant to s 116(1)(g) of the Act and reg 2.43(1)(k) of the Migration Regulations 1994 (“the Regulations”). The notice stated that an interview was to be held that day, commencing at 11.40am, in order that the applicant might comment upon the proposed cancellation. It said “You will need to provide your comments within 10 minutes of the start of the interview”. On giving the notice to the applicant, Mr Tobin twice explained the notice to him. Mr Tobin then left the applicant alone in the interview room, returning a few minutes after 11.40am.
50 Mr Tobin completed Part B – Record of Decision to Cancel Visa, on Form 1111, by indicating that the applicant had responded to the notice (which was Part A) and had not given reasons why the ground for cancellation did not exist. He decided that the applicant was not a genuine tourist, notwithstanding that he repeatedly denied that he intended to work for Mr Wu and claimed that he was “just a visitor”. Under the heading “Grounds for Cancellation”, Mr Tobin wrote:
[The applicant] has limited funds to support stay as visitor. 3rd party (friend William) stated [the applicant] to work at his restaurant as service manager/chef. [The applicant] has sent him work references. Wished him to start work ASAP.
…
Considered however given weight to 3rd party info[rmation] [the applicant] could not explain satisfactorily what he would do in Australia or how he would support himself. Genuine tourist would bring [credit card] or enough money to support stay.
…
Not satisfied [the applicant is a] is a genuine tourist/visitor – lack of funds. 3rd party info[rmation] indicates [that the applicant has an] intention to work in Australia.
The Immigration Inspector’s report
51 The next day, on 18 April 2002, Mr Tobin prepared an Immigration Inspector’s Report. Under the heading “Circumstances Reported”, “Summary” Mr Tobin stated:
[The applicant] referred from ACS baggage as had limited finances AUD$60.
No credit cards.
Had shipping receipts which [the applicant] claim William (friend in Australia) would reimburse him for. Approx $5000HK dollars (approx $1500AUD).
[The applicant] arrived holder of 976 Visitor ETA.
On IPC indicated 3 month stay, visit friend – usual occupation cook.
[The applicant’s] first trip to Australia.
[The applicant] ticketed on PR Airlines – HK – Manilla – Melbourne – Manilla – HK.
[The applicant] cancelled 116(1)(g) and 2.43(1)(k) – lack of funds, non-genuine intention to work.
[The applicant] sent IDC.
… .
52 In his report, Mr Tobin also stated, amongst other things, that:
[The applicant] spoke English extremely well and did not wish to use an interpreter.
[The applicant] stated the purpose of his trip was for a holiday and to deliver the items (items for a restaurant) to his friend William. Was unsure of William’s surname.
…
Interview suspended whilst William was contacted. William stated that he owned a restaurant in Box Hill … . He was going to employ [the applicant] as a service manager/chef. They had not discussed a salary as yet. William expected the position to be full time. He indicated [the applicant] had relevant qualifications as he had been sent his work references. He expected him to start work ASAP. William indicated there had been no discussion regarding accommodation but believed [the applicant] may rent a property.
…
Interview recommenced with [the applicant]. I put to [the applicant] that his intention was to work in Australia at William’s restaurant. [The applicant] denied this and stated that I had not contacted William and that I was making this up.
I suspended interview again and spoke to William by phone with [the applicant] present in room. Again William reiterated everything he had stated earlier.
I again put it to [the applicant] that he was coming to Australia to work, [the applicant] indicated that he was not and that he was just here on a holiday. Denied he had sent William work references and could not explain why William would say these things.
…
[At formal interview, the applicant] again stated he was just here for a holiday and that he would not work – why would he work in Australia when he could work in Hong Kong.
I asked [the applicant] to explain how he would support himself if he was just here on a holiday for 3 months with AUD$1500. [The applicant] believed he had enough although he did not know how much things cost. He also had a lack of knowledge about places to visit or where he would visit. [The applicant] also did not have a camera with him – believed he could borrow William’s. I indicated to [the applicant] I did not believe AUD$1500 was enough to support as a visitor for 3 months. [The applicant] stated he could borrow of [sic] William – also parents could send him money.
…
In making decision I placed weight on information received from William – [The applicant] unable to justify why William would be so forthcoming with this information if it was not true. Seemed William’s story more plausible than [the applicant’s]. [The applicant] unable to explain why a third party would make up a story if it was not true.
Additional matters
53 At trial, the applicant and Mr Wu said that they had known one another for a few years. They had met in Hong Kong and shared a mutual interest in a specialised style of Asian cuisine. The applicant had shown Mr Wu around Hong Kong when he had come to purchase goods for his restaurant business. The applicant said that he had been introduced to Mr Wu through friends, who were relatives of Mr Wu. Mr Wu said that he had met the applicant in Hong Kong when he had visited a restaurant at which the applicant was working. The restaurant-owner was a friend of Mr Wu’s relatives.
54 I note that Mr Wu gave a rather different account of his relationship with the applicant in the affidavits sworn by him. He deposed, amongst other things, that the applicant was “a friend of [his]”; that he had invited him to visit when he travelled here as a tourist; and that he is “the son of family friends who [m he] was going to put up while he stayed in Melbourne”.
55 Whilst in Hong Kong, Mr Wu had asked the applicant whether he would like to come to Australia and work in Mr Wu’s restaurant. At that stage, the applicant had declined Mr Wu’s offer. Mr Wu said in evidence that:
[W]hen I invited Mr Zhaou [to] come to work for me and he just say no because he doesn’t want to leave his family and leave his job in Hong Kong and come to Australia. But – and then I invited him to come to visit me and he say yes. So I say, ‘Well, if you come as a tourist I would to’ – ‘I would you live with me and I will look after you’.
56 The applicant and Mr Wu had remained in contact, communicating by e-mail (in English) and telephone (in Cantonese). The applicant maintained that his primary reason for visiting Australia was “for purpose of trip” in order to “open [his] horizons”. Both the applicant and Mr Wu said that Mr Wu had requested that the applicant bring the kitchen items with him.
57 The applicant stated in evidence that he knew that Mr Tobin was escorting him to the Immigration Office to discuss his visa, and that he had no difficulty in understanding “the majority” of Mr Tobin’s questions. He had understood that Mr Tobin was concerned that he was going to work in Mr Wu’s restaurant while in Australia. He conceded that, in the formal interview immediately prior to the cancellation of his visa, he had said everything that he wanted to say in order to persuade Mr Tobin that he was simply a tourist and that he did not intend to work whilst in Australia.
58 As Mr Tobin or Ms Beeby confirmed, the applicant said in evidence that he had not asked for an interpreter or a lawyer. He also said that he did not know that such help was available. He stated that he had subsequently asked Mr Wu whether he could and should have the services of an interpreter or a lawyer.
59 At the hearing, Ms Beeby stated that she thought the applicant “was good at speaking and understanding English”. Mr Tobin expressed the view that the applicant spoke English “extremely well”. Having listened to the taped conversation and having seen the applicant give evidence, I accept that the applicant understands English quite well and certainly better than he speaks it. I accept that he did, indeed, understand most of Mr Tobin’s questions and his purpose in asking them. Although not fluent in colloquial (Australian) English, the applicant was able to communicate his answers effectively to Mr Tobin and Ms Beeby.
60 At the hearing, Mr Tobin explained that he specified 10 minutes because “This is my usual practice, and I understand it to be the usual practice of other officers to specify 10 minutes for this purpose”. In cross-examination, he added, that the period of 10 minutes is the “norm”. As the respondent noted, however, the applicant did not claim, in evidence or otherwise, that there was anything else he would or could have added had he had a longer opportunity to consider the matter, or that he had had an inadequate time to consider his response. The applicant was not re-examined on his admission that he had said everything that he wanted to say.
legislative framework
61 The applicant’s visa was cancelled pursuant to s 116(1)(g) of the Act and reg 2.43(1)(k) of the Regulations. Section 116(1)(g) relevantly provides that the Minister may cancel a visa if “a prescribed ground for cancelling a visa applies to the holder”. Regulation 2.43, which is headed “Grounds for cancellation of visa”, relevantly stipulates that:
For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
…
(k) in the case of the holder of a Subclass 976 (Electronic Travel Authority (Visitor)) visa – that, despite the grant of a visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit Australia temporarily for tourism purposes; … .
62 Subdivision E of Div 3 of Pt 2 of the Act relates to the procedure for cancelling visas, including visas of the type which the applicant held. Section 119, which falls within subdiv E, relevantly provides:
(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its a 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.
(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
63 Section 120 deals with the information that must be given to the visa holder. Section 121 (which is relied on in this case) relevantly provides as follows:
(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
(b) at an interview between the holder and an officer; or
(c) by telephone.
…
(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within in a prescribed period or, if no period is prescribed, within a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.
…
(6) This section is subject to sections 125 and 126.
64 There was no “prescribed period” for the purposes of s 121(3)(b): cf reg 2.44. Section 121(5) has, therefore, no application. Sections 125 and 126 are also not presently relevant. Section 124 permits the Minister to cancel a visa at any time after notice has been given under s 119 and after the holder has responded to the notice or said that he or she does not wish to respond or after the time for responding to the notice has passed. No issue arises under s 127, which deals with notification of the decision.
65 The decision to cancel Mr Zhaou’s visa (“the decision”) was made, and the proceeding commenced, after the repeal and substitution of Pt 8 by the Migration Legislation Amendment (Judicial Review) Act 2001, No 134 of 2001 (“the MLA(JR) Act”). Section 474 of the Act, as amended by the MLA(JR) Act, applies to the decision, which is a “privative clause decision”: cf subss 474(2), (4) and (5). Subsection s 474(1) provides:
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
the parties’ submissions
66 In the applicant’s first set of written contentions (amounting to 72 pages), the applicant submitted that:
[T]here is jurisdictional error involving a breach of the rules of natural justice and/or the duty of procedural fairness as pleaded in paragraph 5(b)(iv)(v) of the Amended Application which it is submitted comes within the Hickman principles and takes the decision out of the protection afforded by the privative clause. The breach of the duty to afford procedural fairness which the Applicant alleges is that of failing to afford him the time to which he was statutorily entitled to consider the response to a notice of intention to cancel his visa he would make at an interview in accordance with an express requirement of Division 3 of part 2 of the Act. This involved non-compliance with s 119(1)(b) when read together with s 121(3)(b) of the Act. These provisions … constitute a code of procedure which must be strictly observed. On any view of the evidence … the applicant was not given the period of ten minutes to consider, reflect upon or think about what he was going to say when the interview commenced.
The effect of what took place was that the interview took place or began too early as the applicant simply did not have the time specified of ten minutes. Despite advising the applicant he had ten minutes in effect he only had something in the region of four minutes … to consider his response.
67 In the same written contentions, the applicant also submitted that “there was another breach of the express requirements of the Act; the time specified in the invitation was not a reasonable period in the circumstances of the case”. He submitted that the period was “arbitrary and inflexible”, imposed by the decision-maker “without regard to the circumstances”, including the “dominant position of the interviewer; state official”; “arrival of applicant after long overnight flight”; and the “applicant was clearly not fluent in English; he spoke it as a second language”. The applicant also referred to “evidence of misunderstanding or doubt of the meanings of words … and nuances; the presence of significant amounts of legalese in the matters read out to the applicant which after the first reading he said he did not understand and the general tenor of the interview”.
68 The applicant’s counsel repeated these submissions at the hearing. Whilst acknowledging that the decision was a “privative clause decision” for the purposes of s 474 of the Act, counsel contended that compliance with s 121(3) was an “indispensable” or “essential” condition” for jurisdiction, and that the alleged breaches were not mere “procedural deficiencies”. The breaches, so he contended, amounted to jurisdictional error, and that as such, they were not protected from review by s 474(1) of the Act.
69 The respondent submitted that the applicant’s alleged grounds were incapable of supporting judicial review. As the respondent noted, s 474(1) is in substantially the same form as a provision considered in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, the interpretation of which was discussed by Dixon J at 615. His Honour said:
Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.
70 The “Hickman conditions” as they may conveniently be called, have been restated on numerous occasions by the High Court: see, e.g., R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 at 423 per Murphy J and at 427 per Deane and Dawson JJ; O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 248-249 per Mason CJ, at 274-275 per Brennan J, at 286 per Deane, Gaudron and McHugh JJ and at 304 per Dawson J; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 179-181 per Mason CJ, at 194-195 per Brennan J, at 210-211 per Deane and Gaudron JJ, at 222 per Dawson J, at 233 per Toohey J and at 241 per McHugh J; and Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 631 per Gaudron and Gummow JJ.
71 Relying on R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399-400, The Queen v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 252, and The Queen v Coldham; Ex parte The Australian Workers’ Union (1982) 153 CLR 415 at 418-419, the respondent submitted that, in the context of a privative clause, apparent restrictions or restraints on power are construed as being directory in nature. A failure to observe them did not, he said, give rise to jurisdictional error, and a decision-maker whose decision is protected by a privative clause will exceed jurisdiction only if one of the Hickman conditions is breached. The respondent submitted that his approach was consistent with Craig v State of South Australia (1995) 184 CLR 163 at 179, since a privative clause was an example of a “contrary legislative intent”, removing limitations otherwise implied into a grant of jurisdiction.
72 The respondent submitted (and I accept) that his approach is supported by a number of decisions of single judges of the Court: see e.g., NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 per Gyles J; NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 per Tamberlin J; Park v Minister for Immigration and Multicultural Affairs [2002] FCA 346 per Hely J; NABM of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCA 335 per Beaumont J; VBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 388 per Heerey J; Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 (“Turcan”); NADD v Minister for Immigration and Multicultural Affairs [2002] FCA 448 per Conti J and Jia Jing Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 477 per Hill J.
73 The respondent relied particularly on the decision in Turcan, a case involving the cancellation of a visa pursuant to s 128 of the Act, in which Heerey J held that, in introducing the privative clause, it was unlikely that the Parliament’s intention was to permit judicial review beyond the Hickman grounds, or that some particular features of the detailed legislative scheme contained in the Act were intended to be “inviolable”: see [2002] FCA 397 at [40]-[41]. His Honour held that none of the Hickman grounds were made out in that case, and that the decision was not reviewable by the Court: [2002] FCA 397 at [47]-[51].
74 As the applicant observed, however, other decisions of single judges of the Court have taken a different approach: see, e.g., Jian Zhong Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167 per Mansfield J (“Wang”); Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 per Wilcox J; Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498 per Finkelstein J (“Kwan”); SBBK v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 565 per Tamberlin J; and Awan v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 594 per North J. The applicant relied particularly on the decision of Mansfield J in Wang and Finkelstein J in Kwan.
For the reasons given below, it is unnecessary in this case to consider further the operation and effect of s 474(1) of the Act, which has recently been the subject of argument before a Full Court (Black CJ, Beaumont, Wilcox, French, and von Doussa JJ) in the cases of NAAV of 2001 v. Minister for Immigration and Multicultural and Indigenous Affairs, NABE of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs, Anare Sua Ratumaiwai v. Minister for Immigration and Multicultural and Indigenous Affairs, Minister for Immigration and Multicultural and Indigenous Affairs v Jian Zhong Wang, and Turcan v Minister for Immigration and Multicultural and Indigenous Affairs.
consideration of the applicant’s grounds
Par (b)(iv) ground
75 By par (b)(iv) of his amended grounds, the applicant alleged that, contrary to ss 119(1)(b) and 121(3)(b) of the Act, the interview with Mr Tobin “did not take place at the time specified”. The evidence is that, at about 11.30am on 17 April 2002, Mr Tobin gave the applicant a notice under s 119(1) of the Act. Amongst other things, in conformity with s 121(3)(b) of the Act, the notice stated that the applicant was invited to an interview that was to be held at 11.40am that day, in order that he might show why his visa should not be cancelled. According to Mr Tobin (whose evidence I accept on this point) this interview was in fact held “a few minutes after 11.40am”. The few minutes’ delay in commencing the interview could not, on any view, constitute a material departure from the time that had been specified in the notice pursuant to s 121(3)(b). No error of law is shown in this regard.
Par (b)(v) ground
76 The principal ground relied on by the applicant at trial was that expressed in par (b)(v) of his amended grounds. Reference to s 121(3)(b) of the Act, which is set out above, shows that the interview was to take place “at a time specified in the invitation, being a time … within a reasonable period”. The applicant alleged, in par (b)(v), that “the time within which [he] was to respond at an interview … was not a reasonable period”.
77 As Burchett J remarked in Zhang Jia Qing v The Minister for Immigration and Multicultural Affairs (unreported decision, delivered 5 November 1997) at p 15, “the specification of a reasonable place and a period for a visa holder’s response to the invitation referred to in s 121 must take account of the circumstances”. His Honour held that, in the circumstances of that case, it was not reasonable to require the applicant to respond “when and where he had been kept for so long without eating, and after he had indicated … that he was feeling unwell”. The decision was upheld on appeal, although the Full Court did not consider this aspect of his Honour’s decision: see Minister for Immigration and Multicultural Affairs v Zhang (1999) 53 ALD 261 at 273-274 per French and North JJ.
78 Absent s 474 considerations, what is a reasonable period for the purposes of s 121(3)(b) of the Act would fall to be considered in light of all the circumstances of the case as they existed when the time of the interview is fixed. These circumstances may include the nature of the cancellation grounds that the decision-maker is considering, the personal attributes of the visa holder (i.e., age, facility in the English language, physical infirmity or well-being), the presence of an interpreter or lawyer, the visa holder’s familiarity with the matters of concern to the decision-maker, the circumstances in which the decision falls to be made, and the availability of matters corroborative of the applicant. Regard would also be taken of the statutory context and purpose of s 121(3)(b) of the Act.
79 In this case, at the time Mr Tobin gave the applicant a notice under s 119(1) of the Act, the circumstances were as follows.
(a) Prior to giving the notice, Mr Tobin had made the applicant aware that he was considering cancelling his visa and, in particular, that he was concerned that the applicant intended to work as a service manager/cook in Mr Wu’s restaurant. Mr Tobin had drawn the applicant’s attention to the considerations that tended to support this view. They were:
·that his only contact in Australia was Mr Wu, a restaurant proprietor;
·that the applicant was an experienced cook;
·that the applicant had only AUD$60 in cash and a claim against Mr Wu for reimbursement based on shipping receipts amounting to AUD$1500;
·that the applicant had no credit cards with him;
·that the applicant had stated no specific plans for touring Australia;
·that the applicant had no camera or guidebooks with him;
·that the applicant’s statement that he would stay with Mr Wu did not accord with Mr Wu’s statements about the applicant’s accommodation;
·that Mr Wu had stated he was expecting the applicant and that he hoped that he would employ the applicant, full-time, as a service manager/cook in his restaurant;
·that Mr Wu had stated that he had a work reference regarding the applicant; and
·that there was no apparent reason why Mr Wu’ statements would be false.
(b) Mr Tobin had twice telephoned the applicant’s contact, Mr Wu, who had apparently understood Mr Tobin’s questions, and the applicant had heard one of these conversations.
(c) The applicant had not claimed (and nothing indicated) that he did not understand the substance of what Mr Tobin was putting to him.
(d) The applicant’s command of the English language was sufficient for him to understand and respond adequately to Mr Tobin’s questions. As already noted, the taped record of Mr Tobin’s discussion with the applicant shows that, although the applicant was not fluent in idiomatic (Australian) English, he understood Mr Tobin’s questions and responded to them adequately (sometimes after questions were repeated).
(e) There was nothing to indicate that the applicant could not physically cope with the interview at this time.
80 As Mr Tobin’s Immigration Officer’s Report shows, these matters were, in substance, the matters upon which he subsequently relied in making his decision. Having regard to the circumstances, it could not be said that it would not have been open to Mr Tobin to take the view that a ten-minute period (or something like it) was a “reasonable period” for the purposes of s 121(3)(b).
81 Further, the applicant has not since stated that, prior to Mr Tobin’s giving the notice under s 119(1), he did not understand that his visa was under consideration for cancellation, on the ground that he was not a genuine tourist but was intending to work in Mr Wu’s restaurant. As already noted, the applicant did not claim, in evidence or otherwise, that there was anything else he would or could have added had he had a longer opportunity to consider and make his response. In particular, he has not claimed that, if he had had more time, he would have said more, or pointed to additional material in support of his touring intentions. Indeed, at the time of the interview, he did not ask for more time to consider and make his response.
82 Counsel for the applicant referred to the fact that the applicant might have said more about his earlier rejection of Mr Wu’s offer of work in Australia. It is not, however, clear how this would have assisted him. In any event, as the respondent pointed out, the applicant mentioned the matter to Mr Tobin in the course of his questioning on 17 April 2002. There is nothing to indicate that he could not have said more about the matter had he so wished.
83 The applicant’s counsel conceded that it is unnecessary in this case to determine whether Mr Tobin made the applicant aware that he might have the services of an interpreter if he wished. Counsel contended, however, that the terms in which Mr Tobin first sought to explain the s 119(1) notice were “legalese” and that the applicant had not understood them.
84 It may be accepted that the applicant did not understand what Mr Tobin first said about the notice since he specifically said as much. In six ensuing minutes, however, at the applicant’s request, Mr Tobin explained again, and more slowly, the significance of the notice. The tape of the interview shows that the applicant well understood that Mr Tobin was considering cancellation of his visa on the basis that he was intending to work at Mr Wu’s restaurant, and not merely to tour the country.
85 As already noted, in written submissions, counsel for the applicant also submitted that the time fixed under s 121(3)(b) was not “within a reasonable period” because Mr Tobin fixed it “without regard to the circumstances”, including the “dominant position of the interviewer; state official”; “arrival of applicant after long overnight flight”; and that the “applicant was clearly not fluent in English; he spoke it as a second language”. He also referred to “evidence of misunderstanding or doubt” and the “legalese” mentioned above.
86 There may be numerous matters that a decision-maker may take into account (and that are not in law irrelevant), although the decision-maker would not be bound at law to take them into account: see Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39-40 per Mason J. Although the matter was scarcely (if at all) argued, I am not persuaded that any of the matters to which the applicant referred was a matter that a decision-maker was bound, as a matter of law, to consider in fixing a time under s 121(3)(b). More importantly, given the amended grounds of review on which the applicant relied, as already indicated, in the circumstances of this case, a failure to consider the matters to which the applicant referred does not require a finding that the time fixed for the interview was not “within a reasonable period”.
Remaining matters
87 Subject to s 474 of the Act, there remain two matters that might have led to a finding that there was been error of law in the making of the decision. The first was raised by Mr Tobin’s evidence that, in stipulating a ten-minute period, he had acted in conformity with his own and others’ usual practice, and had not given any particular consideration to the circumstances of the applicant’s situation. Plainly enough, the failure to have regard to the particular circumstances may result in the fixing of a time that is not “within a reasonable period” for the purposes of s 121(3)(b), but it need not do so. As already noted, in the circumstances of this case, it could not be said that it was not open to Mr Tobin to regard the stipulated time as being “within a reasonable period”.
88 It may be that, in fixing a time in conformity with s 121(3)(b) of the Act, a decision-maker is obliged to have regard to the particular circumstances and ought not to fix a time solely by reference to standard practice: cf Budiyal v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 166 at 174 per Tamberlin J. Leaving aside the effect of s 474 of the Act and having regard to Mr Tobin’s evidence, this might have constituted a separate and independent ground of review. It was not, however, a ground raised by the applicant in his amended grounds. These amended grounds alleged, in par (c), only a failure to have regard to “relevant material or considerations” in making the decision (i.e., the decision to cancel the applicant’s visa). (As already stated, the applicant did not seek to support par (c) at the hearing.)
89 The second matter that might have militated in favour of the applicant’s case was that there was less than ten minutes between the time when Mr Tobin left him alone in the interview room and when Mr Tobin returned to commence the interview in accordance with the s 119(1) notice. As already noted, in conformity with s 121(3)(b) of the Act, the notice, which was given at about 11.30am, stated that there was to be an interview at 11.40am. In conformity with s 119(1)(b), the notice also specified that the applicant would need to provide his comments “within 10 minutes of the start of the interview”. That is, for the purposes of s 121(3)(b), the time specified, was 11.40am (i.e., ten minutes after the notice was given) and, for the purposes of s 119(1), the time specified was “within 10 minutes of the start of the interview”. This was the effect of the notice, notwithstanding anything that Mr Tobin might have believed about it.
90 As Goldberg J observed in Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405 at 422:
There is a lack of congruity in relation to the procedure provided by ss 119-121 where the Minister or the Minister’s delegate invites the visa-holder to show at an interview between the visa-holder and a departmental officer that the grounds for cancellation of the visa do not exist and that there is a reason why the visa should not be cancelled. Assume a situation where the time specified for the purpose of s 119(1)(b) is half an hour. That specification identifies the time up to which and within which the visa-holder has the opportunity to show that the grounds do not exist for cancellation or that there is a reason why the visa should not be cancelled. Once that time has expired the Minister or the Minister’s delegate takes the next step. … [I]f the invitation to respond is specified to be at an interview, then s 121(3)(b) requires the invitation to specify the time at which the interview is to take place, that is to say, the time at which the interview is to commence. In such circumstances the time specified by s 119(1)(b) cannot also be the time required to be specified for the purposes of s 121(3)(b).
91 The evidence shows that the interview in fact began a few minutes after 11.40am, which was the time specified in the notice in conformity with s 121(3)(b). As already stated, the few minutes’ delay did not amount to error of law. According to Mr Tobin (whose evidence I accept on this point) about 17 minutes of tape time elapsed between the start of the interview and its termination, although the “real time was probably longer”. That is, the evidence establishes that the applicant was afforded the ten minutes from the start of the interview, specified in accordance with s 119(1)(b), to show that grounds to cancel his visa did not exist, and that his visa should not be cancelled. Indeed, the evidence indicates that the applicant may have been afforded more than ten minutes for this purpose.
92 Counsel for the applicant focussed on the fact that the applicant was not left alone for a ten-minute period to consider his response at the interview to be held under s 119. After giving the s 119(1) notice, Mr Tobin told the applicant that “we’ll be holding a formal interview … in 10 minutes’ time, which is 11.40”. At the time it was made (about 11.30am), the statement was true, since the interview was to be held at 11.40am. As it turned out, however, part of the period between the giving of the s 119(1) notice and the commencement of the interview was spent in Mr Tobin explaining to the applicant the effect of the notice. When the interview began “a few minutes after 11.40am”, the applicant had been on his own between over 4 and up to 7 minutes. This does not, however, show that there has been any error of law. There is nothing in the Act or elsewhere in the law that would require that a visa holder be left alone for a period before an interview pursuant to s 119(1), although as a matter of fairness, it may well be appropriate to afford him or her an undisturbed opportunity to consider the position. In this case, the applicant had a little more than ten minutes from the giving of the notice to consider his position, both with the assistance of Mr Tobin and by himself. The fact that the applicant was not alone for the entire ten minutes does not provide any basis for finding an error of law.
summary
93 The applicant’s case relied upon alleged failures to comply with obligations under ss 119(1) and 121(3) of the Act, to invite the visa holder to respond to a notice under s 119(1) within a specified time and to specify a time in the invitation for an interview that is “within a reasonable period”. The applicant advanced grounds that have not been made out. It is, therefore, unnecessary in this case to discuss further the operation of s 474 of the Act.
94 For the reasons given, the application should be dismissed with costs.
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I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. |
Associate:
Dated: 12 June 2002
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Counsel for the Applicant: |
Mr J Gibson |
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Solicitor for the Applicant: |
Isaac Brott & Co |
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Counsel for the Respondent: |
Mr P Gray |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
29 April and 1 May 2002 |
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Date of Judgment: |
12 June 2002 |
