Andersson v Minister for Immigration
[2010] FMCA 958
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANDERSSON v MINISTER FOR IMMIGRATION | [2010] FMCA 958 |
| MIGRATION – Review of a decision of a delegate of the Minister for Immigration – visa was cancelled at immigration clearance at Sydney airport – whether the delegate acted ultra vires – whether the delegate failed to exercise procedural fairness – whether the delegate did not consider a relevant consideration or considered an irrelevant consideration – no jurisdictional error – application in a case dismissed. |
| Migration Act 1958 (Cth), ss.51A, 116, 117, 118A, 119, 120, 121, 166, 172, 476 Migration Regulations 1994 (Cth), reg.1.03, 2.43, 2.44, 3.02 Federal Magistrate Court Act 1999 (Cth), s.61 |
| Dao & Anor v Minister for Immigration [2008] FMCA 1000 Saeed v Minister for Immigration and Citizenship [2010] HCA 23 Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438 Dye v Commonwealth Securities Limited [2010] FCAFC 115 Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Desai v Minister for Immigration & Multicultural Affairs [2002] FCA 320 |
| Applicant: | ANDERS JIMMI JONAS ANDERSSON |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2640 of 2010 |
| Judgment of: | Nicholls FM |
| Hearing date: | 6 December 2010 |
| Date of Last Submission: | 6 December 2010 |
| Delivered at: | Sydney |
| Delivered on: | 6 December 2010 |
REPRESENTATION
| Appearing for the Applicant: | Ms Stratigos and Mr Chatterjee |
| Solicitors for the Applicant: | Surry Hills Legal Centre |
| Appearing for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
The application in a case made on 6 December 2010 is dismissed.
The substantive application, made on 6 December 2010, is set down for mention on Wednesday 15 December 2010 at 10.15am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2640 of 2010
| ANDERS JIMMI JONAS ANDERSSON |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
By way of substantive application made on 6 December 2010 under s.476 of the Migration Act 1958 (Cth) (“the Act”) the applicant puts forward three grounds to challenge the decision of a delegate of the respondent Minister to cancel his visa.
The applicant also seeks, by way of an application in a case made at the same time, interlocutory and injunctive relief seeking a stay of his removal from Australia.
When this latter matter came on for hearing, Mr Andersson was represented by Ms Stratigos and Mr Chatterjee, solicitors. The Minister was represented by Mr A Markus.
In evidence before the Court were the affidavits of Mr Iain Stewart Brady, solicitor, with annexures, for the applicant (one objection ultimately withdrawn), and the affidavit of Ms Angela Margaret Nanson, solicitor, with annexures, for the Minister (one objection also ultimately not pressed).
Background
The material before the Court reveals that Mr Andersson is a Swedish national who, relevantly, arrived in Australia on 3 March 2010,
re-entered on 30 May 2010 and 31 August 2010, and arrived again on 3 December 2010. On each arrival he was in possession of a visitors visa (Subclass 976 Electronic Travel Authority (Visitor) visa).
On the last occasion he was issued with a notice to cancel his visa. (See page 4 of the annexure to Ms Nanson’s affidavit.) The cancellation was said to be considered pursuant to s.116(1)(g) of the Act and reg.2.43(1)(k) of the Migration Regulations 1994 (Cth) (“the Regulations”).
They are in the following terms:
“Section 116(1)(g):
Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: a prescribed ground for cancelling a visa applies to the holder.
Regulation 2.43(1)(k):
In the case of the holder of a Subclass 976 (Electronic Travel Authority (Visitor)) visa -- that, despite the grant of the 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.”
On 3 December 2010 Mr Andersson remained at the airport. Page 6 of the affidavit of Ms Nanson reproduces the written reasons given to him for the consideration of the intention to cancel. What was put to him was that:
1)Since 3 March 2010, he had remained in Australia for 271 days, and was only out of Australia for 4 days. This was said not to be indicative of a temporary tourist visit to Australia.
2)On his previous arrival (31 August 2010) he had been interviewed by immigration officials and “advised” that his tourist visa was not appropriate as he had “admitted” he was in Australia because he was in a long term relationship with an Australian citizen.
3)He advised that he and his partner intended to apply for the relevant visa for him to remain in Australia with his partner. He was advised to attend at the department’s offices to do so. As at 3 December 2010 no such application had been made.
4)On previous arrivals he indicated on his relevant passenger cards that he intended to stay as follows:
i)3 March 2010: 1 month.
ii)30 May 2010: 1 day.
iii)31 August 2010: 7 days.
iv)3 December 2010: 2 months.
This was considered to be indicative of attempts to mislead the department as to his real intention as to his length of stay in Australia.
5)He stated on his passenger cards that his occupation is “waiter”, yet he otherwise “admitted at interview” that he had been unemployed since leaving Sweden.
6)Text messages on his mobile telephone revealed to be from and to a person identified as “Karen”, indicated that he worked with a Karen and replaced her on shifts when she was unable to work.
7)At the interview (3 December 2010) he denied being employed or receiving remuneration for “helping” Karen, who was a friend and who was employed at “the Waterfall Café”.
8)Immigration officials contacted the owner of the café, “Joe”, who advised that Mr Andersson was not employed by him, but that he had asked him “to help him on some occasions”.
9)This “help” was said by Joe to be advice as to how to set tables and how to liaise with customers. Yet at interview, Mr Andersson stated that he “helped” by “serving food, making and serving coffee and cleaning up at the end of the night”.
In all, the notice put to the applicant indicated that:
“Doubts have been cast on your bona fides as a genuine tourist due to the:
1. lengthy time you have remained in Australia;
2. the misleading information supplied on your IPC;
3. previous counselling concerning a more appropriate visa yet no application lodged;
4. inconsistencies in your’s and Joe’s story;
5. text messages from Karen asking you to work her shift for her.”
Mr Andersson’s responses are reported in the delegate’s decision record (page 10 of the affidavit of Ms Nanson):
“- with Karen, I only replaced her once.
- I was not employed by him & only helped him out a few times.
- my visa is for 1 yr with multiple entry so I have to leave the country.
- I never intended to mislead anybody or authority.
- on my IPC I put my last employment from Sweden.
- we intend to apply for a partner visa in Jan 2011 through our lawyer.
- I love my partner. - I want to say & live with my partner.
-I would not break the law.”
The delegate’s reasoning was that the reasons for cancelling the visa outweighed the reasons not to cancel. These reasons were (at Attachment “C” at page 15 of Ms Nanson’s affidavit) that:
“You have remained in Australia for approximately 8 months since 03/03/2010.
This is not indicative of a ‘genuine tourist’.
You were interviewed by DIAC officers upon your last arrival 31/08/2010 & counselled to approach DIAC to apply for a more appropriate visa.
You & your partner have not approached DIAC.
Your previous passenger cards are misleading in the amount of time you say you intended to remain in Australia.
You departed Australia 30 November 2010 7 flew to New Zealand. Whilst you were in New Zealand you obtained another UD976 (ETS short term tourist visa).
This was in direct conflict to the counselling you received upon your previous arrival.
Texts on your mobile phone indicate you have worked whilst in Australia on your tourist visa.
You attempted to explain these texts by saying you had provided help to a friend who works at the ‘Waterfall Café’.
When the owner of the Waterfall Café was contacted his version of the help you provided was inconsistent with yours.”
The visa was cancelled pursuant to s.116(1)(g) and reg.2.43(1)(b). Mr Andersson was taken into immigration detention and arrangements were made to remove him from Australia at 5.00pm on 6 December 2010. The current applications were made by solicitors on his behalf that morning.
Before the Court
The current issue for the Court is whether the substantive application raises an arguable case or a serious issue to be tried such that the stay of removal be granted to allow the matter to proceed to a final hearing.
The substantive application before the Court is in the following terms:
“The Applicant submits that the Department has committed jurisdictional error in its decision of 3 December 2010 by:
1. Performing actions ultra vires in:
a) Issuing the applicant with a verbal condition to lodge a partner application;
b) Conducting investigations into the purpose of the applicant’s entry, and compliance with visa conditions, while the applicant was being held in immigration clearance.
2. Failing to accord the applicant with procedural fairness
a) In failing to provide a reasonable period to the applicant in respond to matters raised by way of notice under s119 of the Act.
3. Taking into account irrelevant considerations and failing to take into account relevant considerations, being:
a) The applicant’s “failure” to comply with a direction made ultra vires, being the verbal condition to lodge a partner application;
b) The fact that the applicant’s passport had expired, and was therefore forced to apply for a new visa to re-enter Australia, but for which he held a valid visa that covered the applicant’s proposed period of stay;
c) The applicant had a plane ticket to his country of origin departing from Australia;
d) That the applicant had been recently diagnosed with HIV, and the applicant’s partner was still awaiting test results, being a matter directly relevant to the applicant’s intention to apply for a permanent visa in Australia.”
Before the Court the applicant pressed the three grounds of the substantive application and a further “proposed” ground. Each was said to individually meet the threshold of an arguable case to be heard.
Ground One
Ground one as pleaded alleges that the delegate acted “ultra vires” by “issuing the applicant with a verbal condition to lodge a partner application” and “conducting [certain] investigations into the purpose of the applicant’s entry… while the applicant was held in immigration clearance”.
I agree with Mr Markus that the applicant’s prayer, ultimately as this was explained in submissions, even at its highest did not disclose an arguable case.
A number of elements were variously pressed during submissions.
The applicant concedes that the delegate can conduct an investigation at the airport, but that any such investigation is limited to the matters set out in s.166 of the Act (“Immigration Clearance”). These matters are evidence of the traveller’s identity, and information relevant to this, and information required by the Act or Regulations (relevantly reg.3.02 dealing with passenger cards and proof of visa).
The argument was that as the applicant was in “immigration clearance” the delegate was limited to those matters. Having raised matters outside the scope of s.166, the delegate acted “ultra vires”.
The difficulty with this submission is that, while the applicant may indeed have been in immigration clearance, within the meaning as generated by s.172, at the material time, another event intervened to engage s.116 of the Act. Namely the consideration of the cancellation of his visa.
Section 117(1)(b) makes it clear that the type of visa held by the applicant may be cancelled by the Minister, or his delegate, while the applicant was in immigration clearance. For the applicant’s argument to have any chance of success it would need to be directed to the delegate acting outside the scope of the power conferred by s.116. In this regard it was not. The delegate plainly had the power to pursue the “inquiry” that was conducted.
A second line of attack in ground one, and said to be relevant also to ground three, was that the delegate relied on an irrelevant consideration. Namely that the applicant had been “counselled” on his previous entry to apply for a permanent visa, and that the delegate then relied on this counselling “as a condition” imposed on the applicant’s visa to then cancel the visa. The argument was that the delegate did not have the power to do this.
The submission, to those parts of ground one and three that is said to apply, is misconceived.
The facts before the Court, as they emerge from the relevant annexures to the affidavits of Mr Brady and Ms Nanson, are clear.
When the applicant previously arrived in Australia on 31 August 2010 he presented a visa which had been presented on two previous occasions over a six month period. That visa was clearly a visa granted on the basis that the applicant’s intention in coming to and entering Australia was for the purpose of tourism.
The applicant’s pattern of travel up to that point, and his attempt to
re-enter Australia in August 2010, clearly gave rise to a view that the applicant was not intending to enter Australia as a tourist. This was said to be reinforced by the fact, not denied by the applicant, that he had a partner in Australia who was an Australian citizen.
The definition of “tourism” for the purposes of the Act is found in reg.1.03:
“Tourism means participation in activities of a recreational nature including amateur sporting activities, informal study courses, relaxation, sightseeing and travel.”
The grounds for cancellation of a visa pursuant to s.116 are set out in reg.2.43. The delegate cancelled Mr Andersson’s visa on the ground set out at reg.2.43(1)(k):
“In the case of the holder of a Subclass 976 (Electronic Travel Authority (Visitor)) visa – that, despite the grant of the 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.”
Any plain reading of the delegate’s decision record, even though it is expressed in dot point “short form”, reveals the following analysis:
1)The applicant had remained in Australian effectively for eight months since he first arrived.
2)The applicant left and re-entered Australia after a very short period on three previous occasions.
3)On the last occasion the applicant was “counselled” (which in context could be said to be “advised” or even “warned”) that this pattern of travel, when seen in context with his openly admitted “partner” relationship with an Australian citizen, gave rise to a concern as to the applicant’s motivation and intention in seeking entry again.
The delegate’s reasoning was that, in spite of being put on notice as to the concerns about these matters evoked in the context of relevant immigration requirements, the applicant had done nothing to address these concerns. He simply ignored them, and continued with his previous conduct to seek entry as a tourist.
The central question for the delegate in considering the cancellation of the visa was whether Mr Andersson ever had, or ceased at least as at 3 December 2010, to have an intention only to visit Australia temporarily for the purposes of tourism.
In making this assessment the delegate was plainly entitled to take into account the applicant’s relevant conduct. That he was on notice as to conduct that gave rise to a strong inference that he was seeking to enter Australia other than for a tourist purpose was a relevant consideration for the delegate.
The relevant test required the decision maker to reach a requisite level of satisfaction as to the applicant’s “intention”. The applicant’s relevant conduct, what he knew to be permissible or impermissible as a tourist, were plainly relevant factors to the consideration under the test.
This when combined with the applicant’s relevant statements on his passenger cards submitted on each occasion of arrival in Australia, his unsuccessful attempts to explain work activities in Australia, and his reported statement that he wanted to stay to live with his partner (in context it was open to the delegate to see this as wanting to stay in Australia), all formed the probative basis for the delegate’s satisfaction that the applicant was seeking to enter Australia other than as a tourist (Attachment “C” to the decision record).
There is nothing in the material before the Court to suggest that the warning given to the applicant was a condition imposed on his visa. Nor does any plain reading of the decision record give rise to any such inference.
At all times the applicant’s conduct was a matter for him. That he chose to ignore the warning, advice, or “counselling” ultimately must be borne by him.
It must also be said that at a more general level, and in the context of considerations of fairness, the applicant can hardly be said to have been surprised by what transpired on 3 December 2010, given the notice he had been given on 31 August 2010.
The delegate’s findings were open to her on what was before her. The applicant’s complaints now can only be seen, as Mr Markus correctly submitted, as an attempt to cavil with factual findings of the delegate which were open to make on what was before her.
Grounds one and three (a), as explained by the applicant’s legal representatives, do not reveal an arguable case such as to warrant the injective relief sought by the applicant now. It must be said further that, in light of the evidence before the Court and the relevant law, these are misconceived.
Ground Two
In ground two the applicant pleads a failure to accord procedural fairness. This is said to be a failure to provide the applicant with a “reasonable period” of the Act to respond to the matters raised by the notice of intention to cancel the visa, pursuant to s.119.
The legislative basis for the applicant’s ground is said to be that:
1)The visa was cancelled pursuant to s.116.
2)Section 119 provides that, if the Minister is considering cancellation under s.116, a notice with particulars of the grounds for cancellation is to be given to the visa holder and comments invited.
3)Relevantly, s.121(3)(b) applies to the circumstances of this case to provide that the time for the applicant to provide his comments is to be a “reasonable period”.
The applicant’s arguments ultimately relied on what was found in a decision of this Court, Dao & Anor v Minister for Immigration [2008] FMCA 1000 (“Dao”). In essence, this case relevantly involved a notice, as in this case, and the application of s.121(3). Relevantly, the Court found, with reference to a number of Federal Court judgments, that (at [33]):
“… it appears to me that the preferred view is that compliance with s.121(3) requires a decision-maker to have regard to the particular circumstances of the case in order to fix a reasonable time as described in that section.”
The circumstances considered by the Court were that the decision maker had given evidence that he generally adopted a practice of giving 20 minutes for these purposes. The Court found that the time set as the “reasonable period” was as a result of usual practice, and not the consideration of the circumstances of the case.
His Honour also found (at [34]) that having regard to the “… language barriers it was unlikely that 20 minutes would be sufficient.” Even though his Honour noted that “… the actual period allowed turned out to be far longer” the relevant “comments” by Federal Court judges led to what was described as a “technical” conclusion that there had not been compliance with s.120(3) (at [35]).
His Honour took the view that principles at common law, if applicable, would have led to a different conclusion, given that the time actually allowed was far greater.
However, his Honour found he had to “decide in accordance with the strict terms of s.121”. “Strict compliance” was required. In the circumstances there had not been strict compliance, therefore the decision to cancel the visa was not lawful.
I should just note that Saeed v Minister for Immigration and Citizenship [2010] HCA 23 (“Saeed”), a judgment of the High Court handed down after Dao, does not alter the situation such as to necessarily benefit either party in the current proceedings. In Saeed the High Court found, with reference to s.51A (Subdivision AB of Part 2), a section which provided that what appeared in that subdivision was to be taken as the exhaustive statement of the natural justice hearing rule: “in relation to the matters it deals with”.
In Saeed the particular matter at issue was found not to be dealt with by that subdivision, and therefore the principles of common law procedural fairness applied.
In the current case s.121 appears in Subdivision E of Part 2. This contains a mirror to s.51A, namely s.118A. In the current circumstances, however, the critical matter, that is the giving of a reasonable period to provide comments to the notice, is plainly a matter dealt with by the subdivision.
The applicant therefore, on the analogy of Dao, argues that “strict compliance” with s.121(3) is required. It must be said, with respect, I have some difficulty with what is meant by this term in this context. If the reasoning is that compliance with s.121(3) requires the decision maker to have regard to the particular circumstances of the case to fix a reasonable time, then it is difficult to see what the word “strict” adds to this obligation.
In any event, the applicant argues that there is nothing in the notice to show that the delegate turned her mind to the question as to whether the period allowed, ten minutes (pages 4 and 5 to the affidavit of Ms Nanson), was a reasonable period.
Further, and importantly, the circumstances of this case give rise to inferences that the period set was not a reasonable period.
First, it was argued that Mr Andersson had a “problem with the English language’. This is said to be apparent with regard to some of the things he wrote on his passenger cards. He misspelt: “New Zeland” (page 18 of the annexure to the affidavit of Ms Nanson). In response to the question as to his intended length of stay in Australia, he replied “01” days. The submission was that this shows he did not understand the question. Further, Mr Andersson was from a non-English speaking country.
Second, the submission was also directed to the reported response by Mr Andersson to the matters put to him. These were said to contain very little information or detail (see page 10 of the affidavit of Ms Nanson).
Third, a further period would have been reasonable because Mr Andersson could then have provided more material in response to the invitation to comment.
It is accepted that what is a “reasonable period” for the purposes of s.121(3) must be ascertained with reference to the particular circumstances of each case.
This includes the circumstance that the consideration of cancelling the applicant’s visa was being done at the airport. The applicant’s submission that the period provided was not reasonable because other periods prescribed for different purposes of the Act provide for longer periods must be rejected.
The applicant’s written submissions, provided during the course of the hearing, refer to reg.2.44 and to the period of five days prescribed where the invitation to comment is directed to a person in Australia. The argument appears to be (item 15 under Ground two) that the period provided was not a “reasonable period” “as defined by the regulations”.
Given that it was otherwise conceded that the period was not prescribed (what is meant by “defined”, in context, was left unexplained), then the argument is that, by analogy with other, albeit prescribed periods, the period provided was not a reasonable period.
That the period was not prescribed while other situations were subject to a prescribed period in itself seems to highlight the paucity of this argument. Further, reg.2.44 is directed to s.119(2), s.120 and s.121(2), none of which apply in the current circumstances.
That five days is prescribed where the comments are to be provided other than at an interview reflects, in part, the logistics required in providing comments by whatever other means may be employed.
But as the applicant otherwise submits, it is to the circumstances of this case that regard must be had. The circumstances were that the applicant was at the airport. To suggest that he should have been given a period analogous to five days while at the airport is, with respect, absurd.
To suggest that the applicant should otherwise have been immigration cleared, allowed entry, and given five days to make his comments, ignores the very circumstances that on his previous arrival he was immigration cleared and allowed entry notwithstanding concerns at that time. The applicant ignored the opportunity offered to him at that earlier time.
Further, what occurred on that occasion (31 August 2010) is centrally part of the circumstances of this case. By the time of his arrival on 3 December 2010 at the airport, the applicant would have been squarely on notice of the central issue in what turned out to be the consideration of the cancellation of his visa. Namely that to enter, and to be allowed to enter, Australia with the type of visa that he held he would have to have the intention of doing so far the purposes of tourism.
The applicant was squarely on notice that his conduct (travel patterns, stay in Australia and the relationship with an Australia citizen) were of concern for immigration purposes.
That aspect of what the applicant was asked to comment on, and his previous travel history and its relevance, were not new to him. He had been told this previously on 31 August 2010 at the airport. In these circumstances 10 minutes was a “reasonable period”.
The complaint now that the applicant had some difficulty with the English language and that this operated on the period of what could be said to be “reasonable” must also be rejected.
The applicant makes no complaint that he asked for an interpreter and one was not provided to him. The relevant part of the decision record (pages 5 and 14 of Ms Nanson’s affidavit) shows that an interpreter was “not utilised”.
Further, and importantly, the applicant’s complaint now with what he is reported to have said was not to challenge the accuracy of what was reported, but its length and lack of detail. This on its own does not reveal any difficulty with the English language. Rather, his comments, albeit brief, and in the circumstances of the reporting appropriately so (this did not purport to be a transcript of what he said), revel that he was responding to the issues raised and that he capably attempted to address the concerns put to him.
Ultimately, no complaint is made now that he required, asked for, and was denied the services of an interpreter at anytime.
Further, as Mr Markus submitted, the applicant’s communications with “Karen” as shown on his mobile telephone (pages 16 and 17 of the affidavit of Ms Nanson) reveal the applicant as someone able to communicate in English at least at the level required to deal with the matters raised at the airport.
The submission that his answer to the question as to his length of stay in Australia on his passenger card reveals his lack of comprehension in English must on its own, and in all the circumstances, be described as a poor submission (pages 18 to 20 of the affidavit of Ms Nanson).
The occasion pointed to was the passenger card provided on 30 May 2010. On the other occasion the applicant variously answered “7” days (31 August 2010), “3” or overwritten “1” month (on 3 March 2010) and “2” months (3 December 2010) (for the latter see page 6 of the annexure to the affidavit of Ms Nanson).
If anything his answer by 3 December 2010 in all the circumstances allows an inference that he well understood the question. It is difficult to escape the conclusion that he did not want to give the “correct” answer. Whatever the case, it does not allow the inference which the applicant’s lawyers say should be drawn.
During the course of argument, reference was made by the applicant’s solicitors to another matter that could have been raised by the applicant in response to the notice to cancel the visa, but was not. It was ultimately put that he did not do so because the time provided was not a reasonable time.
The matter is referred to at ground three (d).
I should note that the matter referred to in this complaint sat behind the applicant’s request for an order suppressing his name. This Court does have power to make such an order pursuant to s.61 of the Federal Magistrate Court Act 1999 (Cth). But no argument was put before the Court in support of the making of such an order, let alone reference to the overriding principles of open justice (see Computer Interchange Pty Ltd v Microsoft Corporation [1999] FCA 198; (1999) 88 FCR 438, 442 per Madgwick J and Dye v Commonwealth Securities Limited [2010] FCAFC 115 at [6] and [10] per Rares J).
In any event, the matter is a matter of health. It was never made clear before the Court why what was set out at ground three (d) was not put to the delegate at the airport in the time provided, or more pointedly why the time provided prevented him from doing so.
In the circumstances the submission cannot succeed. If the applicant felt this was a relevant matter then one or two sentences alerting the delegate to the issue, would have been sufficient. If the matter was considered to be one of great delicacy, then there is nothing to show that even if a greater period were provided he would have raise the issue in any event. There is nothing from the applicant now to say that this would have occurred. At its highest, the submission is one of possibility.
Nor did the applicant indicate to the delegate that there was something further he wished to put but needed time to consider, or consult, such that the period provided was not adequate and therefore, on his view at least, not a “reasonable period”. The applicant was silent on this.
A possible explanation as to why this matter was not raised, and one which allows an inference to be drawn that this was a conscious decision by the applicant, is to be found with reference to the applicant’s written submissions at ground two (c).
The complaint is that the “immigration system places additional burdens” on those with health issues. Although not put before the Court in any evidentiary context, the submission was that the applicant “was forced to obtain specialised migration advice in relation to any prospective permanent application” (item 4 and ground two (c)).
The argument appears to be that the period given was not “reasonable” because a “reasonable period” would have given him the opportunity to have raised this issue.
First, this issue on its face is not relevant to the question as to whether the applicant intended to enter Australia for tourism purposes. This is said with reference to the relevant definition at reg.1.03 and with reference to reg.2.43(1)(k).
Second, if anything it may have provided a further ground to support the cancellation. That is, the intention to enter Australia was not solely for the purposes of tourism, but for the purpose of where the applicant and his partner could, or would, live, given the circumstances raised by this issue.
Whatever the situation, what is clear is that it does not reveal that the period provided in all the circumstances was not a reasonable period.
To the extent that some argument may also be implied that the delegate failed to take into account a relevant consideration, then this matter was not put before the delegate by the applicant. There is no evidence whatsoever before the Court that the delegate otherwise knew of this issue.
The delegate dealt with all of the applicant’s objections to the cancellation of the visa (see pages 6, 11, 13 and 15 of the affidavit of Ms Nanson). No error is otherwise revealed in this regard.
In initial submissions there was also a suggestion that the applicant had been denied procedural fairness because he was denied legal representation at the airport.
It was never explained where this obligation on the delegate to provide such an opportunity was said to arise. No authority was put in support of this proposition that the applicant had any such entitlement. In any event there is nothing before the Court to show that the applicant asked for any such assistance at the airport.
In his affidavit Mr Andersson’s solicitor, Mr Brady, states that the applicant informed him that he was told that he could have legal representation, but was not given the opportunity to contact him. Further, that he attempted to contact he applicant but was “denied contact”.
In evidence before the Court this was explained as that Mr Brady had attempted to contact Mr Andersson by ringing his mobile telephone number, but was unable to speak to him. There was no response to the call.
There is no obligation to provide legal assistance in these circumstances. The opportunity appears, on Mr Brady’s evidence, to have been offered, but was not effected. This does not reveal any failure of procedural fairness on the part of the delegate.
In all, ground two in its various facets, either as pleaded or as argued, does not reveal an arguable case such as to warrant a further opportunity before this Court.
Ground Three
Grounds three (a) and (d) have been dealt with above. They too do not reveal an arguable case arising from the delegate being said to have taken into account an irrelevant consideration or failing to take into account a relevant consideration.
Grounds three (b) and (c) make reference to the “fact” that the applicant was “forced” to apply for a new visa because his passport had expired, but otherwise held a “valid” visa, and to the “fact” that he had “a plane ticket to his country of origin departing Australia”.
It was never explained before the Court how these were irrelevant considerations taken into account by the delegate. The matters considered by the delegate are plainly set out. These were not at issue. Conversely, nor was it ever explained how these were relevant matters that should have been taken into account.
The material before the Court reveals that the delegate was plainly focussed on the issue of the applicant’s intention in seeking to enter Australia, and dealt with each of the matters put by the applicant. The delegate knew of the applicant’s travel and visa history (see for example the date of issue of the visa at page 4 to Ms Nanson’s affidavit, Attachment A at page 6 for the relevant travel history, passport at page 10 and the applicant’s reported comments).
That the delegate chose not to give weight, or gave certain weight to other matters before her does not go to the issue of legal error as asserted in this ground. In all, as Mr Markus submitted, the ground as pleaded and explained seeks impermissible merits review (Minister for Immigration, Local Government and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). No arguable case is revealed.
Proposed Ground Four
During the course of the hearing the applicant’s representatives indicated that they would seek to add a “ground four” to the application. I allowed argument as to the ground to see if an arguable case would emerge.
In essence, I understand the proposed ground to be an assertion of a misunderstanding and/or a misapplication of the relevant law. This was said to be with reference to the definition of “tourism” (as set out above).
The applicant’s argument was first explained as being that the delegate misconstrued what is meant by: “… to visit Australia for tourism purpose” as it appears in reg.2.43(1)(k) and when understood in light of the definition of “tourism” (reg.1.03).
The submission was that the delegate thought that the applicant was intending to come to Australia for “a more permanent reason rather than just recreational”. This was subsequently explained as being that the fact that the applicant was in a relationship with his partner did not automatically preclude him from meeting the definition of “tourist” as defined for the purposes of the Act.
Initially the applicant’s representatives sought to rely on Desai v Minister for Immigration & Multicultural Affairs [2002] FCA 320. The submission was that in a similar argument the applicant in that case was successful before the appellate Court (by a 2 to 1 majority). When it was pointed out that in fact the applicant had been unsuccessful (by a 2 to 1 majority) the applicant did not press reliance on this case. (See per Mansfield J at [56] and per Emmett J at [78].)
In any event, what was left of this proposed ground was that the applicant’s relationship with an Australian citizen did not mean that he could not meet the definition of “tourist”.
The proposed ground is untenable on what is before the Court. I cannot see that the delegate misunderstood or misapplied the relevant law in this regard. Annexure “C” (page 15) of Ms Nanson’s affidavit relevantly sets out the delegate’s reasoning. The definition of “tourism”, when read with the ground for cancellation (reg.2.43(1)(k)), requires the applicant to have an intention only (emphasis added) to visit Australia for the purposes of recreation etc.
The delegate reasoned that the applicant’s actions were inconsistent with him being a “genuine tourist”. That is that his various conduct, his pattern of stay and length of stay in Australia, his misleading information on his passenger cards, the inconsistent statements as to whether he worked whilst in Australia, when taken with his stated intention to remain permanently with his partner (wherever that may be said to be), were seen by the delegate as being factors in finding that the applicant’s intention in entering Australia was for a purpose other than as encompassed in the definition of “tourism”. Namely, that he was seeking to remain in Australia for a different purpose, and not only (emphasis added) as a “tourist”.
This finding was open to the delegate on what was before her.
The charge that the delegate took the view that the relationship “automatically” precluded the applicant from meeting the definition of “tourism” must be rejected. The delegate made no such finding, nor did she proceed on an “automatic” basis.
When plainly understood, the delegate’s reasoning was not that the existence of the relationship by itself precluded him from being seen as coming to Australia for tourism purposes. But that his conduct on 31 August 2010 in seeking to enter Australia to be with his partner when considered with his relevant response to the notice of intention to cancel his visa that he wanted to stay and live with his partner when considered with the other relevant circumstances as set out at Attachment “C” to the decision (page 15 of Ms Nanson’s affidavit), led to the satisfaction that he did not, at the relevant times, have an intention only to visit for tourism purposes. That is, there was also another purpose. The basis of the cancellation was not the fact of the relationship per se.
This was open to the delegate on what was before her. No error is revealed. For current purposes the proposed ground as prayed and explained does not reveal an arguable case.
Conclusion
In all, the grounds in the substantive application, and even the proposed additional ground, do not reveal a serious issue at law that requires a further opportunity so that it can be fully aired. Nor, for that matter, that what is posed now rises to any arguable case in the circumstances presented.
This is sufficient to warrant dismissal of the interlocutory application seeking a stay on the applicant’s removal form Australia. There is no need in the circumstances for the Court to consider what is required or desirable in any balance of convenience. The application in a case made on 6 December 2010 is therefore dismissed.
I make no such order in relation to the substantive application. Even though the grounds as pleaded provide no utility for any further hearing the Minister, through his representative, sought that the substantive application remain on foot. It was never made clear why this position was taken. Nonetheless, and notwithstanding the apparent inconsistency in the Minister’s position given the findings and orders made, and the reasons for those findings, I set that matter down for further mention on 15 December 2010.
No orders as to suppression as sought by the applicant are made at this time. Nor any order as to costs. They await any further submissions if pressed.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 10 December 2010
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