1705419 (Migration)

[2017] AATA 1900

1705419 (Migration) [2017] AATA 1900 (6 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1705419

MEMBERS:  Jan Redfern (Presiding)

John Billings

DATE:6 October 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 6 October 2017 at 2.15 pm

CATCHWORDS

Migration – Cancellation – Special Category (Class TY) visa – Subclass 444 visa – New Zealand citizen – Visa granted and cancelled while applicant in immigration clearance – Criminal charges – Extradition – Bail – Whether Tribunal has jurisdiction to review decision to cancel visa – Meaning of immigration clearance – No jurisdiction

LEGISLATION

Migration Act 1958, ss 5, 32, 116, 146, 148, 155, 159,160, 165, 166, 172, 338, 501

Migration Regulation 1994, r 5.15A

CASES

Cujba v Minister for Immigration [2001] FCA 146
Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Company Inc (1994) 181 CLR 404

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Introduction

1. This is an application for a review of a decision to cancel a subclass 444 visa, known as a ‘special category’ visa which allows New Zealand citizens to travel to and remain in Australia as long as they remain a New Zealand citizen.  The visa was cancelled on 11March 2017 just before 1:00 am after the applicant arrived at Melbourne airport at about 10:30 pm the evening before. The purpose of the applicant’s travel was to face criminal charges in Victoria. He returned voluntarily. The charges relate to conduct alleged to have occurred between 1993 and 2001 and in 2006. There is no dispute that the charges are very serious. They relate to numerous counts of sexual assault with minors and were laid following a complaint by one of the applicant’s [family members] in 2013.

2. The applicant denies the charges. He was granted bail in New Zealand in February and in Melbourne in March 2017 and a committal hearing is scheduled for mid-December 2017. If it is decided by a magistrate that there is sufficient evidence for the applicant to be committed to trial, the matter will proceed to hearing which may be listed during 2018 but it is possible, given court delays, that the trial may not be listed until 2019.

3. The applicant lived in Australia for nearly 30 years from the mid-1980s but he separated from his wife and family in 2013 and returned to New Zealand to live soon after the separation. Extradition was approved by the Magistrates Court at Melbourne in September 2016 and in February 2017 the applicant was brought before the New Zealand court for extradition.  He did not contest the application. He travelled to Australia on 10 March accompanied by two Australian Federal Police officers and was granted a subclass 444 visa on arrival at approximately 10:30pm. He was immediately escorted to an interview room, where he was met and interviewed by an officer of the Department of Immigration and Border Protection (the Department). The applicant’s visa was cancelled and it is recorded on the decision notification document that the applicant was notified of this decision at 12:56 am on 11 March 2017. The applicant was then taken into custody at Melbourne Remand Centre and after bail was granted, into immigration detention, where he has been since that time.

4. The applicant applied for review of the cancellation decision on 21 March 2017. There is no dispute that the application for review was made within time. He applied for a bridging visa on 12 April 2017, which was refused on the basis that the application was not valid. The reason given was that the applicant was not eligible to apply because he was not ‘immigration cleared’ on his arrival to Australia. The applicant was notified of this by letter dated 13 April 2017.

5. The applicant’s representatives made a request to the Tribunal for expedition of the review in July 2017.  After reviewing the request, the Tribunal formed the preliminary view that it did not have jurisdiction to review the claim because the applicant was in immigration clearance at the time the decision was made. There is no dispute that decisions made when an applicant is ‘in immigration clearance’ are not reviewable. The applicant submitted that the Tribunal had jurisdiction to hear his review because he was not ‘in immigration clearance’ within the meaning of that expression at the time of the decision.

6. This question raises significant issues for consideration. It is clear that the sole reason why the applicant travelled to Australia was to face criminal charges. He was not extradited through an involuntary process.  He surrendered himself to police for this purpose. According to the Department’s Integrated Client Search Environment (ICSE), it is apparent that the police applied for a criminal justice visa on 8 March 2017. We have not been provided with any records in relation to this visa and do not know the outcome of this application, although it appears there was an application for a criminal justice stay visa made on 21 March 2017, which was refused on 24 March 2017.[1] .

   [1] ICSE

7. In any event, it is apparent that the applicant was granted a subclass 444 visa on entry to Australia. The cancellation of the visa before the applicant was permitted to leave the airport appears to have had the impact of excluding any right to have the cancellation decision reviewed. It also appears that the applicant is unable to apply for a bridging visa. As such, the applicant is unlawful and is likely to remain in immigration detention until the criminal trial is concluded, notwithstanding that he has been granted bail by the criminal courts.

8. Given the seriousness of this issue, submissions were requested from the applicant and the Secretary of the Department on whether the Tribunal had jurisdiction to review the cancellation decision. At the request of the applicant’s representative, the applicant was invited to a hearing to give him and his representative the opportunity to make oral submissions. The applicant and his representative attended a hearing on 29 August 2017.  The applicant gave evidence about matters that were relevant to the question of jurisdiction.  He was given time to make further submissions after the hearing but has not done so. The Department did however submit a written argument on 25 August 2017, addressing the issue of whether the applicant was in immigration clearance at the time the applicant’s visa was cancelled.

9. We have concluded that the Tribunal does not have jurisdiction to review the cancellation decision. Our reasons follow.

   Legislative framework and question for determination

10.Non-citizens from New Zealand may obtain permission to travel to and stay in Australia under a special category visa, being subclass 444, the criteria for which are set out in s.32 of the Migration Act 1958 (the Act) and r.5.15A of the Migration Regulations 1994 (the Regulations). Relevantly, to be eligible for a special category visa, an applicant must be a New Zealand citizen who holds a New Zealand passport which is in force and is not a behaviour or health concern. The expression ‘behaviour concern non-citizen’ is defined in s.5 of the Act and in essence includes a non-citizen who has been convicted of one or more crimes and sentenced to imprisonment for at least one year, or to periods that add up to at least one year. It also includes a non-citizen who has either been found guilty or acquitted of a crime committed while of unsound mind, or has been removed or deported from Australia or another country or has been excluded from another country in certain circumstances which are not relevant to this case.

11.The Minister may refuse a visa under s. 501 of the Act on character grounds.[2]

[2] Under s.501(1) the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

12.Relevant to this case, a special category visa may be cancelled under s.116(1)(e), which provides that the Minister may cancel a visa if satisfied that:

the presence of its holder in Australia is or may be, or would or might be, a risk to:

(i) the health, safety or good order of the Australian community or a segment of the Australian community; or

(ii) the health or safety of an individual or individuals;

13.If satisfied that the ground for cancellation under s.116 is made out, the decision maker has discretion whether to cancel the visa. The decision maker must therefore proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances. The Act and Regulations do not specify any mandatory considerations that should be taken into account by the decision maker when exercising the discretion, nor has the Minister issued any directions under s.499 of the factors to be considered. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal should have regard to all relevant matters, including but not limited to, matters identified in the Department’s Procedures Advice Manual - PAM3 ‘General visa cancellation powers’. It is a long established principle that the Tribunal on review is considering the matter afresh based on the material before it and is not bound by the findings of the delegate. It is also well established principle that the Tribunal should have regard to lawful government policy unless there are cogent reasons to the contrary.

14.The departmental guidelines cover such matters as:

(1)the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia;

(2)      the extent of compliance with visa conditions;

(3)degree of hardship that may be caused (financial, psychological, emotional or other hardship);

(4)circumstances in which ground of cancellation arose. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

(5)      past and present conduct of the visa holder towards the department;

(6)if the breach relates to a breach of r.2.43(1)(la) by a subclass 457 visa holder - mitigating, compassionate and compelling factors;

(7)whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Migration Act which prevent the person from making a valid visa application without the Minister’s intervention;

(8)      whether there would be consequential cancellations under s.140;

(9)whether any international obligations would be breached as a result of the cancellation, and

(10)     any other relevant matters.

15.If a visa is cancelled, the former visa holder will become unlawful unless they are granted a bridging visa. If a person is unlawful they will be detained (s.189) but if that person makes a request in writing to the Minister to be removed from Australia, they must be removed as soon as ‘reasonably practicable’ after the request (s.198(2)). As such, a person whose visa has been cancelled and who does not have a bridging visa will remain in immigration detention until their immigration status is resolved.

16.Broadly speaking, for the Migration and Refugee Division of the Tribunal to have jurisdiction to review a decision, the decision must be a ‘Part 5-reviewable decision’ or a ‘Part 7-reviewable decision’ as defined in the Act. Section 338 of the Act sets out the definition for a ‘Part 5-reviewable decision’. A decision to cancel a subclass 444 visa is a decision made under Part 5 of the Act. As this is not controversial we do not propose to set out the legislative provisions relevant to this. Relevantly, s.338(2)(c) provides that a decision is a ‘Part 5-reviewable decision’ if

the decision was not made when the non-citizen:

(i)  was in immigration clearance; or

(ii)  had been refused immigration clearance and had not subsequently been immigration cleared; [emphasis added]

17.Section 166 provides that a person who enters Australia, whether citizen or non-citizen, must present certain information to a ‘clearance authority’ or ‘clearance officer’ without unreasonable delay so they can be immigration cleared.

18.The expression ‘immigration clearance’ is defined in s 172 as follows:

Immigration clearance

When a person is immigration cleared

(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.

When a person is in immigration clearance

(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.

When a person is refused immigration clearance

(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.

When a person bypasses immigration clearance

(4)  A person, other than a person who is refused immigration clearance, bypasses immigration clearance if:

(a)  the person:

(i)  enters Australia at a port; and

(ii)  is required to comply with section 166; and

(iii)  leaves that port without complying; or

(b)  the person:

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

(ii)  is required to comply with section 166; and

(iii)  does not comply within the prescribed period for doing so.

19.A ’clearance authority’ means a ‘clearance officer’ or ‘an authorised system’ and a ‘clearance officer’ means “an officer, or other person, authorised by the Minister to perform duties for the purposes of this Division” (refer s.165 of the Act).

20.Given it is apparent that applications for a criminal justice visa were made both before and after the applicant arrived in Australia, it is relevant to note, for completeness, that Division 4 of Part 2 of the Act contains provisions relating to criminal justice visas.  The objects of the Division are set out in s.141 as follows:

Object of Division

This Division is enacted so that, if the administration of criminal justice requires the presence in Australia of a non-citizen, that non-citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration.

21.Section 155 provides for criminal justice visas to be granted and s.160 allows for conditions to be imposed under the Regulations. Relevant to the facts in this case, an authorised state official may apply for a criminal justice entry and/or stay certificate in respect of offences against any law of the State (ss. 146 and 148) and the Minister has the ‘absolute discretion’ to grant the visa if the relevant criteria are met (s.159).

22.Having regard to the legislative framework and submissions made in the case, the question for determination is whether the decision made to cancel the applicant’s subclass 444 visa was made when he was in immigration clearance. This turns on a factual finding about when and where the decision was made and the proper construction and application of s.172(2) of the Act.

Background facts and evidence

23.The key facts in the case are not in dispute.

24.According to the applicant, he was arrested in a city in New Zealand on 8 February 2017 and appeared before a New Zealand court shortly thereafter. He was unaware that charges had been laid against him or the nature of those charges until his arrest. He said he was shocked. The applicant decided not to contest the extradition proceedings and arrangements were made for him to travel to Australia to face the charges. He made arrangements to stay with friends in Melbourne and to obtain work during the period that he was expected to be in Australia to deal with the criminal process. His partner from New Zealand travelled with him on the same flight to Australia but she was not allowed to sit near him.

25.The applicant said that he surrendered himself into the custody of two Australian Federal Police (AFP) officers prior to the flight and handed over his passport to them. He flew out of Auckland on 10 March 2017 in the evening, after some delay, and arrived at Melbourne International Airport at about 10:30 pm. He completed an incoming passenger card before landing. The applicant said that he was accompanied by the AFP officers while on the aeroplane, on disembarking and at the time he entered the immigration area at the Airport in Melbourne.  He said they all went to an immigration officer who was behind a glass window. The AFP officers presented their passports and, because they were holding his passport, they also presented the applicant’s passport to the immigration officer. He recalls it was stamped but says he did not know that he was being granted a visa allowing entry to Australia. He was not aware that a visa was required for entry to Australia by New Zealand citizens.

26.The applicant recalls that the AFP officers spoke to the immigration officer at the window but says that immigration officer did not speak to him. His passport was stamped and immediately after this he was led to an interview room nearby. The AFP officers left the applicant into the room by himself and an immigration officer walked into the room. He was given a lengthy document to read but cannot recall what it said because he was very tired at this stage. The immigration officer asked him some questions and then left the room. After what he says was ‘quite a long time’, the immigration officer returned with another document. She asked him to sign the document but he cannot recall whether he read it or what was in the document. He signed the document but says he was very tired and was really not taking anything in. He said that the immigration officer did not explain the document to him or that he had been granted a visa that had just been cancelled. He said he was not given a copy of the decision at that time. After this he was taken out of the room and was again accompanied by the AFP officers. He went down an escalator accompanied by the AFP officers and was taken directly to the Melbourne Remand Centre. He did not collect his baggage and was not allowed to leave the airport by himself.

27.The applicant says he was held at the Melbourne Remand Centre for four days and attended a bail hearing, where he was granted bail. However, he was not released and the magistrate told him that because his visa had been cancelled he would be taken into immigration detention. The applicant said that this was the first time he realised that his visa had been cancelled. The Tribunal was provided with an undertaking of bail dated 7 April 2017, which is clearly not a record of the original bail hearing because of its date. This undertaking noted that bail was varied to the applicant’s own undertaking with a surety in the sum of $10,000. Special conditions included that the applicant was to report to a local police station on Mondays, Wednesdays and Fridays twice a day, that he was to reside at a particular address in a Melbourne suburb, and that he was to surrender his passport and any other valid travel documents. It was also noted that he was not to leave Australia or the State of Victoria and that he was not to have contact with any witnesses for the prosecution or to go within 200 metres of any place where the complainants may work or live or to approach or remain within 10 metres of any complainant.

28.According to submissions from the Secretary, the applicant presented his New Zealand passport and completed incoming passenger card to an officer of the Department. He was eligible for a subclass 444 visa and one was granted at that time. It is also noted as follows:

During this process, a CMAL [Central Movement Alert List] alert was triggered and consistent with normal practice, [the applicant] was transferred to a second ABF officer who considered whether there were grounds to cancel his Subclass 444 visa. He was escorted to a border entry office for a formal interview as part of this process.

[The applicant] was issued with a Notice of Intention to Consider Cancellation (Form 1111) and invited to comment. Following [the applicant’s] response and based on all the information available to the Delegate at the time of the interview, a decision was made to cancel his Subclass 444 visa using the power in section 116 of the Migration Act 1958 (the Act) at 00.46 hrs on 11 March 2017.

29.This is consistent with the evidence of the applicant except  the applicant says that he did not present his passport to immigration officials but rather this was done by the AFP officers. The Tribunal does not have any direct evidence about the CMAL alert. It may be that the Departmental officer advised the applicant or the AFP officers there was an alert and the applicant needed to be interviewed. It is possible this happened but the applicant did not hear this because he was tired at this time. Whatever the case, it is not relevant to the question of whether the applicant was in immigration clearance at the time the cancellation decision was made.

30.The Secretary submitted that the respondent entered immigration clearance when he presented at the primary line and presented his passport and incoming passenger card. It was further submitted that the applicant was not immigration cleared at that time as he did not leave the port with the permission of a clearance officer. The applicant was not refused immigration clearance at that time but he remained in immigration clearance and was referred to a second Departmental officer to determine whether or not there were grounds to cancel. It was submitted that the applicant continued to be in immigration clearance until his visa was cancelled, at which time he was refused immigration clearance.

31.The Tribunal was provided with a copy of the Notice of intention to consider cancellation, the Record of decision to cancel and the Notification of the decision. This was pre-printed form which was completed with typewritten information. It was 14 pages long with printing on the reverse side of each page and there were three different documents included in the one form, being headed Parts A, B and C.

32.Part A is headed “Notice of intention to consider cancellation under section 116 of the Migration Act 1958 (For use in immigration clearance)”.

33.This document is three pages long. It was signed by the applicant on the third page. It was dated 10 March 2017 and the time that was recorded in the document was ‘23:30’. The applicant’s details were inserted on the first page. It was noted that a possible ground for cancellation was under s.116(1)(e). On page 1, there is an instruction to include the specifics of the ground and the information “because of which the ground appears to exist”. It is noted that the Minister may cancel visa if satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health and safety of good order of the Australian community segment of the Australian community.

34.The delegate recorded that she relied on a document entitled “Charge Sheet and Warrant to Arrest” provided by the Victorian Police which evidenced that the applicant was charged with sexual offences committed against children under the age of 16 in Australia. The delegate further noted that there appeared to be grounds for cancellation based on the nature of the alleged offences, the circumstances of the facts in the case, the fact that the law enforcement agency had concluded there was a proper basis to bring the charge or charges against the applicant, and the fact that Victoria Police had advised they considered the applicant to be a risk to the safety of the Australian community, specifically minors. The Notice extracted s.116 of the Act (on the reverse of the second page), invited the applicant to comment on the Notice, and advised that an interview would commence at 23:40, namely in 10 minutes. The Notice also referred to the department guidelines referred to above.

35.Part B is the Record of decision. It is seven pages long with four pages of visa conditions, none of which are relevant to a subclass 444 visa.

36.On the first page of Part B there is provision for the immigration officer to provide a summary of why the visa holder considers the grounds for cancellation either exist or do not exist. The immigration officer recorded that the applicant said he was innocent of the charges and had been deeply affected by these charges brought forward. It is also noted that the applicant feels he is entitled to be represented on an unbiased standing of the law against the alleged charges. The Record of decision recorded that the delegate was satisfied that grounds existed under s.116(1)(e) for the cancellation of the visa. The form then requires the delegate to complete the details of the evidence and findings on which this assessment is made. The delegate repeated the information set out in the Notice of intention and the response provided by the applicant that he was innocent of the charges and noted as follows:

I acknowledge the visa holder’s response however he is not being assessed on the outcome of the indictable offences which will be heard in a court of law at a later date. Victoria Police have assessed the visa holder as a direct risk to the Australian community, specifically minors. I am satisfied that the visa does pose that risk.

37.In dealing with a summary of the reasons the applicant gave as to why his visa should not be cancelled, the delegate noted that the applicant stated that the purpose for the visa was to go to court to fight alleged charges and that confinement would affect his legal standing. The delegate also noted that the applicant said he was granted bail in New Zealand and that detention would hinder his ability to legally represent himself. The delegate noted that the purpose of the applicant’s travel to and stay in Australia was to face the criminal charges but found that as Victoria Police had advised they considered the visa holder to be a direct risk to the safety of the Australian community, specifically minors, this should be given little weight.

38.The delegate noted that the applicant had raised concerns that confinement would hinder his ability to legally represent himself but found that the applicant had a lawyer and that detention would not affect his ability to appear in court or meet with legal representatives during the court process. The delegate also noted that there were no children who would be adversely affected if the applicant’s visa was cancelled but acknowledged that cancellation may result in “some inconvenience and/or emotional hardship”. The delegate recorded that she did not consider the likely hardship encountered to be excessive in light of the visa holder’s circumstances but gave “some weight to this factor”. She gave little weight to the circumstances in which the ground for cancellation arose because the applicant did not address this during the interview. Weight in the applicant’s favour was given for the fact that the applicant had been co-operative during the current process. The delegate noted among other things that the applicant would be subject to a bar under s.48 of the Act on applying for certain visas, that he would be affected by the risk factor under public interest criteria which may affect eligibility for other visas in the future, and that he may be liable for detention and removal from Australia. The delegate noted that these issues may cause the visa holder some inconvenience but noted “[w]hilst these issues may cause a visa holder some inconvenience I do not consider that inconvenience to be excessive in light of the visa holder’s circumstances”. The delegate gave little weight to this factor.

39.The Record of decision states  that after weighing up all this information, the delegate decided to cancel the visa.

40.Part C is the Notification of the decision to cancel. It is a one page document, signed by both the delegate and the applicant.  It was dated 11 March 2017 at 00.56.

41.The Tribunal was provided with the Charges Sheets but there was no other information in the cancellation file recording the advice of Victoria Police that they considered the applicant to be a “direct risk to safety of the Australian community, specifically minors”.

42.The applicant provided a letter dated 6 June 2017 from New Zealand Police, addressed to the applicant’s partner, which stated as follows:

Dear Ms [name omitted from decision record]

Re: Official Information Act request transferred from: NZ Crown Law

Your request for information from the Crown Law Office, New Zealand (Attached), was transferred to New Zealand Police (NZ Police) pursuant to section 14 (b)(ii) of the New Zealand Official Information Act 198.2, on the basis that the information requested relates to functions more closely associated with NZ Police.

You asked various questions about the circumstances of [the applicant’s] extradition from New Zealand and raised allegations of mistreatment of [the applicant] by Victoria Police and Australian Border Force (Immigration) subsequent to his arrival in Australia.

The extradition

[The applicant’s] extradition came to New Zealand in the usual way for Australian requests made under Part 4 of the New Zealand Extradition Act 1999. The relevant Australian police force sent the request through the New Zealand Police Liaison Officer.  The local Crown Solicitor was engaged to appear on the proceedings in accordance with prior general approval from the Attorney-General for Part 4 requests.

Part 4 extradition requests proceed on what is commonly known as a "backed warrant" basis.  In proceedings before the New Zealand court, the person whose extradition is sought is not entitled to adduce, and the court is not entitled to receive evidence to contradict an allegation that the person has engaged in the conduct constituting the offence for which surrender is sought.  Evidence that there is a case to justify trial is not required to be produced or given at the eligibility hearing.

In the case of [the applicant], he did not contest the extradition.  Rather, he consented to the surrender.  According to a Minute of  a judge of a New Zealand District Court 24 February 2017, [the applicant] consented to the surrender and signed a waiver of rights to apply for habeas corpus or to lodge an appeal having been advised by an experienced counsel.

New Zealand Police are not privy to any advice that [the applicant] may have received from legal counsel, whether in New Zealand or Australia, with regard to the prospects of him obtaining bail on return to Australia.  Bail considerations once an extraditable person has been surrendered to Australia are dealt with in Australia by Australian authorities.

New Zealand Police is not aware of there being any previous issue about other people who have been extradited from New Zealand to Australia being held in Australian immigration detention while awaiting trial.  [The applicant’s] case appears to be an unusual one. The New Zealand Police liaison officer and our INTERPOL office have been made aware of the issue. I also intend to confirm what steps might be taken by the Australian Police force seeking extradition in order to avoid a similar outcome in future cases.  New Zealand Police obviously has no authority with regard to [the applicant’s] immigration status now that he is in Australia.  No doubt you will be seeking consular assistance for [the applicant] and assisting him with any available immigration applications and appeals.

The remainder of your questions appear to be asking for an opinion rather than official information. Therefore those parts of your request are refused pursuant to Section 18(e) of the Official Information Act 1982 in that the information does not exist.

Allegations about treatment while in detained Australia

You should direct any complaint about treatment by one of the Australian agencies while in Australia through the respective organisation's complaint process or the Australian Ombudsman. Links to relevant sections of their respective websites are below.

you are not satisfied with my response to your request you have the right to complain to the Office of the Ombudsmen (NZ) and seek an investigation and review of my decision.

43.If the Tribunal had jurisdiction and this matter proceeded to review, the Tribunal would have ordinarily sought further information from either the Secretary or the Victoria Police to assess the nature of the risk, particularly given there is evidence the applicant was granted bail. For instance, court’s deliberations and the question of whether bail was opposed would have been relevant to the review.

Consideration

44.The question for determination is whether the Tribunal has jurisdiction to review the decision made by the delegate to cancel the visa.

45.The Secretary submitted that the applicant was in immigration clearance at the time the decision was made and therefore the Tribunal does not have jurisdiction to conduct a review. The Secretary relied on the decision of Branson J in Cujba v Minister for Immigration [2001] FCA 146 as authority to support this contention.

46.The applicant’s representative submitted that once he had been granted his visa he proceeded through to the baggage claim and was therefore no longer in immigration clearance at the time the decision was made. It was submitted that he was recalled to attend the cancellation interview after he was released into the baggage claim area. This submission was abandoned during the hearing based on the evidence given by the applicant that he did not enter the baggage claim area.

47.The representative made these further submissions. The applicant should have been taken to have been refused immigration clearance at the same time as his visa was cancelled. Based on the reasoning of Branson J in Cujba, the period of immigration clearance came to an end simultaneously when the decision to cancel the visa was completed by virtue of s.172(3)(b)(i). In other words, the applicant’s status of being in immigration clearance did not persist at the time when the decision to cancel his visa was completed. The Tribunal should give a beneficial construction to s. 172 and 338 in circumstances where the review provision is remedial in nature (Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Company Inc (1994) 181 CLR 404). The applicant was therefore not in immigration clearance at the time the decision was made and the provisions of s.338(3) do not apply to exclude jurisdiction.

48.In Cujba the applicant presented his visa upon his arrival at Sydney airport and passed through immigration and customs. While attempting to collect his luggage he was approached by a security officer, taken back into the immigration area then interviewed by a Departmental officer after which his visa was cancelled. The circumstances in Cujba are therefore similar to the circumstances in this case except the applicant did not leave the immigration area as Mr Cujba was allowed to do. Mr Cujba did not make an application for review to the Migration Review Tribunal in time but he argued that the Tribunal otherwise had jurisdiction to conduct the review because he was not in immigration clearance at the time his visa was cancelled. The facts in this case are nearly identical to the facts in the present case. We are bound by the decision in Cujba, which remains the most authoritative judicial determination on the interpretation and operation of ss. 172(2) and 338(3).

49.In Cujba Branson J considered the relevant provisions and concluded that the decision to cancel Mr Cujba’s visa was made when Mr Cujba was in immigration clearance. The decision was therefore not reviewable by the Tribunal but was a judicially reviewable decision within the meaning of s.476(1) of the Act. (That provision has since been substantially amended). Relevantly, Branson J observed at [14] to [17] as follows;

14Subsection 172 is not an easy section to construe. It is to be construed in its context within the Act, and in particular in the context of Div 5 of Pt 2 of the Act. Counsel were not able to refer me to any authorities directly relevant to its construction. Although Sackville J gave consideration to s.172 of the Act in Han v Minister for Immigration & Multicultural Affairs [2000] FCA 1071, he was not called on to consider the issues here raised.

15It seems to me that the construction of the section for which Mr Cujba contended could lead to anomalies. On that construction a person could enter Australia at a port, comply with s.166 of the Act, not be refused immigration clearance and yet be neither immigration cleared nor in immigration clearance (eg because he or she, while not with an officer for the purposes of s.166, had not left the port of his or her entry) and not have bypassed immigration clearance. I doubt that the legislature intended such a result (ie that a person might have no status recognised by the Act in respect of immigration clearance).

16The preferable construction of Div 5 of Pt 2 of the Act, in my view, is that a person enters immigration clearance, at the latest, when he or she commences to comply with s.166 of the Act. This will ordinarily be when he or she is first with a clearance officer for the purpose of showing the clearance officer the evidence, and giving the clearance officer the information, required by subs 166(1). Subsection 172(1) is plainly intended to provide exhaustively for the circumstances in which a person is to be regarded as immigration cleared. The words "... if, and only if ..." make this clear. However, subs 172(2), by contrast, contains no equivalent words. For the reasons given above, I do not accept that the subsection is intended to deal exhaustively with the circumstances in which a person is in immigration clearance. In my view, a person who enters immigration clearance will ordinarily remain in immigration clearance until immigration cleared or until refused immigration clearance. No submissions were addressed to the Court touching on the situation of persons who bypasses immigration clearance (see subs 172(4)). These reasons, therefore, say nothing with respect to the position of such a person so far as immigration clearance is concerned.

17The terms of subs 172(2) are consistent with what, in my view, Div 5 of Pt 2 of the Act read as a whole in any event makes clear, namely that a person is in immigration clearance when he or she is first with a clearance officer for the purposes of s.166 of the Act. However, I consider that the primary purpose of subs 172(2) is to make it clear that a person remains in immigration clearance for the whole of the time that he or she is with an officer for the purposes of s.166 (ie for the purpose of showing the officer the evidence, and giving the officer the information, required by subs 166(1)). This purpose extends, in my view, to ensuring that a person remains in immigration clearance where, although the person has neither been immigration cleared nor refused immigration clearance, he or she leaves the port or other place of arrival with a clearance officer. A person might be taken from a port or other place of arrival in such circumstances where compliance with s.166 is not immediately possible, or might more conveniently take place away from the port or other place of arrival.

50.Cujba is therefore authority for the proposition that a person remains “in immigration clearance” until the process of clearance is finalised.  The applicant contends that the clearance process came to an end simultaneously with the time that the cancellation decision was made because the applicant would be taken to have been “refused immigration clearance” at the same time his visa was cancelled by reason of the operation of the provisions in ss. 172(2) and (3). This submission does not assist the applicant. The decision to cancel a visa is a precondition to the refusal of immigration clearance under s.172(3) and therefore logically precedes the refusal of immigration clearance.

51.Even if we accept that the cancellation decision and the refusal of immigration clearance were simultaneous, this does not advance the applicant’s submission. Having regard to the reasoning of Branson J in Cujba, a person will be in immigration clearance until the process has been completed. Accordingly, the immigration clearance process cannot be completed until, in a case such as this, the former visa holder has been refused immigration clearance. If the cancellation decision and refusal are taken to be simultaneous, it cannot be said that the cancellation decision occurred after the immigration clearance process had been finalised. Therefore the applicant would still be in immigration clearance. 

52.In our view, when a visa is cancelled as part of the immigration clearance process, the decision will not be reviewable by the Tribunal.  As such, unless judicial review is available, a former visa holder will not be entitled to review of the delegate’s decision. In the present case, the applicant cannot request removal from Australia because of his bail conditions and so may remain in immigration detention until the finalisation of his criminal trial.

Decision

53.The Tribunal does not have jurisdiction in this matter.

Jan Redfern
Deputy President

John Billings
Senior Member