FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Srouji [2014] FCA 50

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the Federal Circuit Court of Australia made on 13 September 2013 be set aside.

3.    In lieu thereof, it be ordered that the amended application to the Federal Circuit Court of Australia be dismissed.

4.    The respondent pay the appellant’s costs of the appeal and of the proceeding before the Federal Circuit Court of Australia.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1.    BACKGROUND TO THE APPEAL

1    On 16 August 2013, the respondent, Walid Salim Srouji (Mr Srouji) arrived at Sydney airport on a flight from Lebanon via Cairo and Singapore. He held a Subclass 601 (Electronic Travel Authority) visa permitting him to enter Australia temporarily for tourism purposes. A friend, Mirvat Al-Ayoubi (Ms Al-Ayoubi), was waiting to collect him at the airport. An airport inspector employed by the Department of Immigration and Border Protection interviewed Mr Srouji while he was in what is known as “immigration clearance”. The officer, acting as a delegate of the appellant (the Minister), gave Mr Srouji a notice under s 119 of the Migration Act 1958 (Cth) (the Act) that there appeared to be grounds for cancelling his visa and invited him to comment in purported compliance with s 121 of that Act. After Mr Srouji responded, the delegate cancelled his visa relying on s 116(1)(g) of the Act. Section 116(1)(g) enables the Minister to cancel a visa if satisfied that a prescribed ground applies to the holder. Regulation 2.43(1)(ea) of the Migration Regulations 1994 (Cth) (the Regulations) prescribes the following ground:

in the case of a Subclass 601 (Electronic Travel Authority) visa -- that, despite the grant of the visa, the Minister is satisfied that the visa holder:

(i)    did not have, at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted; or

(ii)    has ceased to have that intention.

2    Although Mr Srouji held a return ticket which he could have used to depart from Australia he was instead taken into immigration detention. He decided to lodge an application for review of the decision to cancel his visa. His review application came before the Federal Circuit Court of Australia on 5 September 2013. On 13 September 2013 the primary judge decided that the decision to cancel the visa was invalid and made three orders as follows:

(1)    The Court declares that the applicant’s sub class 601 visa was not validly cancelled.

(2)    A writ of certiorari shall issue removing the record of the visa cancellation decision into the Court to be quashed.

(3)    A writ of mandamus shall issue commanding the respondent to determine, according to law, whether the applicant is to be immigration cleared.

3    The parties agreed that order (3) was practically impossible as a result of the operation of the provisions relating to “immigration clearance” in the Act. They notified the Federal Circuit Court to this effect but did not seek to have order (3) vacated by consent. They agree that, whatever else might occur as a result of this appeal, order (3) should be set aside. Mr Srouji, for his part, applied for a Visitor (Class FA) visa while he was in Australia (and remained in immigration detention). He was granted a bridging visa pending the determination of his visitor visa and, as I understand it, was released from detention on the basis of his bridging visa. Before the Minister decided whether or not to grant him a visitor visa, but after the date on which his original visa would have expired, Mr Srouji decided to leave Australia. He left on 3 February 2014, presumably having had the holiday which, according to Mr Srouji, he had always intended to have.

4    While that might be thought to have been the end of the matter, unfortunately it is not. The Minister, for his part, decided to appeal against the decision of the Federal Circuit Court. Although Mr Srouji had left the country, the Minister considered the appeal should be maintained. Leaving aside the merits of the appeal, the Minister also had been ordered to pay Mr Srouji’s costs in the sum of $11,232. In addition, if the visa was validly cancelled then other provisions of the Act would be engaged. In particular, Mr Srouji would be affected by a “risk factor” as referred to in cl 4013 of Sch 4 to the Regulations. On that basis, Mr Srouji would not be able to obtain another visa to enter Australia within three years from the cancellation unless the Minister was satisfied of the existence of certain “compelling circumstances” or “compassionate or compelling circumstances” as referred to in cl 4013(b) of Sch 4 to the Regulations. As a result of these circumstances I do not accept the submissions for Mr Srouji that the appeal lacks utility or is of such limited utility that the Minister should not be permitted to prosecute the appeal as a discretionary matter. There is a matter which is justiciable, the resolution of which has consequences for Mr Srouji and the Minister, and the Minister is thus entitled to have his appeal heard and determined in accordance with law.

2.    THE STATUTORY PROVISIONs

5    As noted, s 116(1)(g) of the Act enables the Minister to cancel a visa if satisfied that a prescribed ground applies to the holder and reg 2.43(1)(ea) of the Regulations prescribes the ground as the Minister being satisfied that, despite the grant of the visa, the visa holder “did not have, at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism... purposes for which the visa was granted” or “has ceased to have that intention”.

6    The process for determining whether a visa should be cancelled in these circumstances is set out in ss 118A – 127 of the Act.

7    Section 118A provides that:

(1)    This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2)    Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

8    By s 119(1):

(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.

9    Section 120 is as follows:

(1)    In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for cancelling a visa; and

(b)    is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and

(c)    was not given by the holder; and

(d)    was not disclosed to the holder in the notification under section 119.

(2)    The Minister must:

(a)    give particulars of the relevant information to the holder; and

(b)    ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and

(c)    invite the holder to comment on it.

10    Section 121 is a key provision in this case. It provides that:

(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.

(2)    Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(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 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.

(5)    If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:

(a)    a later time within that period; or

(b)    a time within that period as extended by the Minister for a prescribed further period;

and then the response is to be given at an interview at the new time.

(6)    This section is subject to sections 125 and 126.

11    By s 124:

(1)    Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:

(a)    the holder responds to the notice;

(b)    the holder tells the Minister that the holder does not wish to respond;

(c)    the time for responding to the notice passes.

(2)    The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first:

(a)    the comments are given;

(b)    the holder tells the Minister that the holder does not wish to comment;

(c)    the time for commenting passes.

12    Sections 125 and 126 are also important to this appeal. They are as follows:

125

If a non-citizen in immigration clearance who is not taken into questioning detention is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance.

126

(1)    If a non-citizen in questioning detention who is not released before the end of the 4 hours for which he or she may be detained is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, those 4 hours end.

(2)    If a non-citizen who has been given an invitation under paragraph 119(1)(b) or 120(2)(c) (whether in immigration clearance or otherwise) is taken into questioning detention and not released before the end of the 4 hours for which he or she may be detained, the period within which he or she is to respond to the invitation is to end when, or before, those 4 hours end.

13    Section 125 refers to “in immigration clearance” which is a defined term. By s 5(1) of the Act “in immigration clearance” has the meaning given by s 172(2). Section 172(2) is in these terms:

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

(a)    is with an officer or at an authorised system for the purposes of section 166; and

(b)    has not been refused immigration clearance.

14    Section 166 concerns the obligation imposed on people entering Australia, without unreasonable delay, to present evidence as required of either their Australian passport (if a citizen) or visa (if a non-citizen). By s 166(2) the evidence must be presented at the port at which the person has arrived unless directed to an on-port by an officer.

15    The time at which a person is ceases to be “in immigration clearance” is also relevant. A person may cease to be “in immigration clearance” if “immigration cleared” or if refused immigration clearance. Section 172(1) relates to immigration clearance and provides that:

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

(a)    the person:

(i)    enters Australia at a port; and

(ii)    complies with section 166; and

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

(b)    the person:

(i)    enters Australia otherwise than at a port; and

(ii)    complies with section 166; and

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

(ba)    the person:

(i)    enters Australia by virtue of the operation of section 10; and

(ii)    at the time of the person's birth, had at least one parent who was immigration cleared on his or her last entry into Australia; or

(c)    the person is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa; or

(d)    the person is in a prescribed class of persons.

16    Section 172(3) relates to the refusal of immigration clearance and is in these terms:

(3)    A person is refused immigration clearance if the person:

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

(b)    satisfies one or more of the following subparagraphs:

(i)    the person has his or her visa cancelled;

(ii)    the person refuses, or is unable, to present to a clearance officer evidence referred to in paragraph 166(1)(a);

(iii)    the person refuses, or is unable, to provide to a clearance officer information referred to in paragraph 166(1)(b);

(iv)    the person refuses, or is unable, to comply with any requirement referred to in paragraph 166(1)(c) to provide one or more personal identifiers to a clearance officer.

17    Section 126 refers to “questioning detention”, which is different from “immigration detention” as referred to in s 172(1). “Questioning detention”, under s 5(1), means detention under s 192. “Immigration detention” means being in the company of, and restrained by, an officer or being held by, or on behalf of, an officer in nominated places including in a detention centre established under the Act.

18    Section 192, dealing with questioning detention, contains provisions including the following:

(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.

…

(3)    An officer may question a non-citizen detained because of this section about the visa and matters relevant to the visa.

(4)    A non-citizen detained under subsection (1) must be released from questioning detention if the officer becomes aware that the non-citizen's visa is not one that may be cancelled under Subdivision C, D or G of Division 3 or section 501 or 501A.

(5)    A non-citizen detained under subsection (1) must be released from detention within 4 hours after being detained, unless the non-citizen is detained under section 189 because of subsection 190(2).

(6)    If the non-citizen has been detained because of subsection (1) more than once in any period of 48 hours, the 4 hours provided for by subsection (5) is reduced by so much of the earlier period of detention as occurred within that 48 hours.

(7)    In finding out whether 4 hours have passed since a non-citizen was detained, the following times are to be disregarded:

(a)    if the detainee is detained at a place that is inappropriate for questioning the detainee, the time that is reasonably required to take the detainee from that place to the nearest place that is appropriate;

(b)    any time during which the questioning is suspended or delayed to allow the detainee, or someone else on the detainee's behalf, to communicate with a legal practitioner, friend, relative, guardian, interpreter or consular representative of the country of which the detainee is a citizen;

(c)    any time during which the questioning is suspended or delayed to allow a person so communicated with or an interpreter required by an officer to arrive at the place where the questioning is to take place;

(d)    any time during which the questioning is suspended or delayed to allow the detainee to receive medical attention;

(e)    any time during which the questioning is suspended or delayed because of the detainee's intoxication;

(f)    any reasonable time during which the questioning is suspended or delayed to allow the detainee to rest or recuperate.

19    A number of aspects of this statutory scheme are apparent.

20    First, order (3) of the primary judge’s orders could not be complied with. Mr Srouji had not been “immigration cleared” because he had left the airport in “immigration detention” (s 172(1)(a)(iii)). Further, when the order was made, Mr Srouji was no longer “in immigration clearance” (ss 172(2) and 166). Accordingly, he could not be “immigration cleared” despite the setting aside of the cancellation of his visa.

21    Second, the statute does not contemplate a person remaining “in immigration clearance” for any lengthy period of time. Indications to this effect are numerous. A person must present evidence of their entitlement to enter Australia without unreasonable delay (s 166(1)). The person must present this evidence at the port at which they arrived (s 166(2)). A person is “in immigration clearance” only for so long as the person is with an officer or at an authorised system for the purpose of s 166, being the presentation of the evidence (s 172(2)). If taken into questioning detention there is a four hour time limit, albeit subject to the exclusions in s 192(7). Section 192(7), however, relates to all forms of questioning detention, not just questioning detention when a person is attempting to enter Australia at a port (s 192(1)). Accordingly, the exclusions from the four hour time limit in s 192(7), when dealing with a person in questioning detention while “in immigration clearance”, must be understood as applying in a context where the person in question is with an officer at the port of arrival for the purpose of presenting the evidence required by s 166. Everything has to take place while the person is “in immigration clearance, which may only take place at the port of arrival, unless the person is directed to another port.

3.    DISCUSSION

22    The primary judge correctly identified that the question whether Mr Srouji was given a reasonable time to respond at an interview as required by s 121(3)(b) was an objective one (at [1]). The primary judge also referred appropriately to the relevant decision of Zhaou v Minister for Immigration [2002] FCA 748 at [78] in which Kenny J said:

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.

23    At [12] – [14] the primary judge reasoned as follows:

12. The uncontested evidence is that Mr Srouji had disembarked in Sydney after a long plane journey from Lebanon via Cairo and Singapore. He had had little sleep over three days. In Cairo he had to be evacuated due to civil disturbances. He suffers from high blood pressure and high cholesterol and had apparently suffered a mild heart attack shortly prior to coming to Australia. All of this was known to the delegate.

13. Mr Srouji was only given 20 minutes to respond to the Notice of Intention to Cancel his visa after an interview which had begun some two and a half hours earlier (with several interruptions and adjournments and following an earlier bag search). He initially was given to understand that the interview related to the question of whether he would be immigration cleared. Mr Srouji made clear to the delegate that he held a valid visa and obviously felt he was entitled to enter Australia. It was only when Mr Srouji was given the Notice of Intention to Cancel his visa that he understood that the visa might be taken from him. Although he had been willing to participate in the interview and was anxious to get it over with quickly initially, I am concerned that his capacity to deal adequately with the Notice of Intention to Cancel was affected by his tiredness, the late hour and his state of health.

14. Further, Ms Al-Ayoubi had been waiting at the airport to collect Mr Srouji. She was distressed when he did not appear. It is common ground that the delegate spoke to Ms Al-Ayoubi in order to seek information which would either corroborate or discredit what Mr Srouji had said to the delegate at the interview. To the extent that Ms Al-Ayoubi’s evidence conflicts with that of the delegate, I prefer that of the delegate for the reasons explained above. However, even on the account of the delegate, Ms Al-Ayoubi’s information tended to corroborate the proposition that Mr Srouji was a genuine tourist. The delegate gave evidence that she did not take into account Ms Al-Ayoubi’s information. Whether that was because it was not of assistance in supporting the cancellation decision, or because she did not want to have to disclose it to Mr Srouji, or (as stated) because the delegate had difficulty in confirming Ms Al-Ayoubi’s identity is not clear.

15. Counsel for Mr Srouji contends that the information provided by Ms Al-Ayoubi did form part of the decision to cancel the visa. That is strongly contested by counsel for the Minister. The delegate, under cross-examination, stated that she did not take it into account although she had sought out the information as relevant information. In my view, because the information proffered by Ms Al-Ayoubi was supportive of Mr Srouji as a genuine tourist, and because it was not taken into account, and because Ms Al-Ayoubi was waiting at the airport in order to be spoken to again (but no one came back to her to further assist, even though she had been told to wait), the period of time to respond was inadequate. Sufficient time needed to be given to at least locate Ms Al-Ayoubi so that her information could be clearly understood and taken into account.

16. For these reasons, I find that s.121(3)(b) of the Migration Act was breached and Mr Srouji should receive the relief sought in the amended application.

24    I am unable to accept these reasons or the conclusion reached. The reasons do not give any weight to the statutory scheme or the numerous provisions within it indicating that it is not contemplated that a person may remain in immigration clearance for a lengthy period. While it was necessary to consider Mr Srouji’s tiredness, ill health, the late hour, and how long he had already been questioned these factors had to be weighed in the overall statutory context. Further, it is not to the point that the evidence of Ms Al-Ayoubi may have corroborated Mr Srouji’s contentions. The issue is whether the period of time Mr Srouji was given to respond to the invitation to comment on the notice of proposed cancellation was a reasonable period. The period of 20 minutes to respond was not unreasonable given that Mr Sirouji had dealt with the interview, had asked for and had been offered rest breaks, was not in any apparent physical distress and, of course, was in immigration clearance at the airport under a statutory regime having the manifest intention that no-one should remain in immigration clearance, their immigration status undetermined, for any lengthy period.

25    I also disagree with the other reasons the primary judge gave for determining that the cancellation of Mr Srouji’s visa was invalid.

26    To the extent that the position of Ms Al-Ayoubi is concerned, I can see nothing in the legislative scheme which would require the Minister’s delegate to take into consideration such information as Ms Al-Ayoubi could have given. No doubt, if it had been reasonably practical to do so, the merits of the decision might have been improved if the officer had taken further steps to clarify the information Ms Al-Ayoubi gave, but there is no basis in the statute for concluding that there was any mandatory legal obligation for the officer to do so. The merits of the decision to cancel the visa are not a matter for this Court.

27    Otherwise, I do not accept that Mr Srouji was denied procedural fairness in all of the circumstances either because he was not told sufficiently clearly what the interview was about at the beginning of the interview or because he was not told that he could seek advice and assistance at that time. Again, the statutory provisions and the context are critical. The primary judge considered that Mr Srouji was in questioning detention from the outset of the interview. Although it is not material to the outcome, I disagree. The officer could not subject Mr Srouji to questioning detention other than in accordance with s 192(3) of the Act. Section 192(3) only permits an officer to detain a person if they reasonably suspect the person will attempt to evade the officer or other officers or otherwise not co-operate with the officer. It is apparent that Mr Srouji was willing to co-operate with the officer. There is no suggestion of any kind that he would otherwise have tried to evade the interview or not co-operate. Accordingly, the officer had no power to place him in questioning detention and did not do so.

28    In terms of the interview preceding the giving of the notice, it is not apparent to me why procedural fairness required Mr Srouji to be told that he was being interviewed in order to determine whether to issue to him a notice inviting him to comment on reasons for the proposed cancellation of his visa. This is to impose an obligation to give notice of a potential notice. The case is analogous to Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2010) 195 FCR 318; [2011] FCAFC 88 in which held that the issuing of a show cause notice was “the beginning of the process which engages the appellant’s entitlement to be accorded procedural fairness”. In the present case, the beginning of the process requiring Mr Srouji to be accorded procedural fairness was the notice given under s 121. Even if this be wrong, I would conclude that the giving of the notice under s 121 and the opportunity Mr Srouji had to respond cured any initial denial of procedural fairness. The relevant decision was not a decision to suspect that there might be circumstances indicating Mr Srouji’s visa should be cancelled. The relevant decision was the decision to cancel his visa, which Mr Srouji was given both notice of and an opportunity to respond before the visa was cancelled. In any event, I do not accept that Mr Srouji was not given adequate notice of the purpose of the interview. “Immigration clearance” might be a term of art, as the primary judge said, but when the interview preceding the giving of the notice is considered as a whole it is apparent that Mr Srouji was put on notice that the issue was whether he would be cleared to enter Australia despite having a visa.

29    In terms of the indication that Mr Srouji gave after his visa cancellation that he would like the assistance of a lawyer and his consulate, neither circumstance supports the conclusion that Mr Srouji was denied procedural fairness by not being offered access to a lawyer or his consulate before the visa was cancelled. Again, nothing in the statutory scheme supports the notion that procedural fairness required this to be done. Indeed, s 118A of the Act makes plain that there was no such statutory obligation. If procedural fairness is otherwise implied in respect of the interview preceding the issue of the notice then the issue of the content of the obligation has to be considered. The content cannot be determined absent consideration of the statutory context. Consistent with the statutory scheme as described above, I am unable to accept that the officer was bound to put Mr Srouji on notice that he could, if he wished, try to contact a lawyer or his consulate. Contrary to the conclusion of the primary judge at [24] Mr Srouji had no right to obtain advice and assistance. Nor did he have a right to be informed of an opportunity to do so. The question is whether the decision to cancel Mr Srouji’s visa was conditioned on the officer having put Mr Srouji on notice of an opportunity to obtain advice and assistance from a lawyer or his consulate. Expressed in this way, it should become clear that the answer to the question must be in the negative. Conditioning the power to cancel a visa of a person in immigration clearance on being told of, and thus in fact given, such an opportunity would be inconsistent with the statutory scheme.

30    I consider that there was not a proper basis to conclude that the decision to cancel Mr Srouji’s visa was vitiated by jurisdictional error. For these reasons, the appeal should be allowed, the orders of the Federal Circuit Court set aside, and Mr Srouji should pay the costs of the Minister of the appeal and the hearing below.

Associate:

Dated:    18 February 2014