Chan, Choy Hiong v Minister for Immigration and Multicultural Affairs
[1998] FCA 1357
•27 OCTOBER 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION – application for review of decision of Immigration Review Tribunal – whether applicant had a substantive visa – whether applicant detained unlawfully whilst holding a valid visa – estoppel against the performance of statutory duty - classes of visa – application for protection visa – bridging visa – whether error of law
Migration Act 1958 (Cth), s 13, 15, ss 29(1), (2), (3), 37, 64(4), 65, 67, 82(1), (3), 172(1)(a), 189, 196, 474(4), and 476(1)(g)
Migration Regulations 1994, rr 2.01, 2.02, 2.03, 2.04, 2.05, 2.20(7), (8), (9), (10) and (11)
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1992) 21 FCR 193, applied.
Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303, applied.
CHOY HIONG CHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 967 of 1998
HELY J
SYDNEY
27 OCTOBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 967 of 1998
BETWEEN:
CHOY HIONG CHAN
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
HELY J
DATE OF ORDER:
27 OCTOBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The application is dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 967 of 1998
BETWEEN:
CHOY HIONG CHAN
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
HELY J
DATE:
27 OCTOBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HELY J: The applicant arrived in Australia on 30 May 1998 from Malaysia. She was the holder of a visitors visa (subclass 976) which permitted her to remain in Australia until 30 August 1998. The visa was subject to a condition (8th Schedule of the Migration Regulations 1994 (“the Regulations”) condition 8101), that the holder must not engage in work in Australia, and was given on the basis that the applicant intended to visit Australia temporarily, for tourism purposes.
On 14 July 1998, the applicant applied for a protection visa, which application was refused on 11 August 1998. The letter of 11 August 1998, advising of the refusal of that application stated that the applicant had been granted a Bridging Visa A which allowed her to remain in Australia lawfully for a period of 28 days, and if application for review of the decision not to grant a protection visa was made within that period, the bridging visa would subsist until 28 days after a final decision was made on the application.
The letter contained the following statements which are of particular relevance to the present application:
"…Your Bridging Visa A is in effect only if the last substantive visa granted to you has ceased or has been cancelled.
If you are the holder of a substantive visa, you must abide by the conditions to which your substantive visa is subject, including any work restrictions.
If you have ceased to be the holder of a substantive visa and your Bridging Visa A is in effect, you have permission to work in Australia for the period that your Bridging Visa A remains in effect. …"
On 12 August 1998, the applicant was detained at the Harmony Health Centre, Fairfield, and her visitors visa cancelled pursuant to s 116 of the Migration Act 1958 (Cth) (“the Act”). The basis for the cancellation was that the Harmony Health Centre was a brothel, in which the applicant was working, contrary to the "No work" condition of the visitors visa. It was the applicant's contention that she was not in breach of that condition, as she was engaged at the Harmony Health Centre in learning therapeutic massage on a voluntary basis and without receiving remuneration or other benefits.
However, no application for review of the decision cancelling the visitors visa was made and the applicant remains in immigration detention.
On 17 August 1998, application was made for a Bridging Visa E (Class WE)– Subclass 050 (“Bridging Visa E”). That application was refused by the Minister's delegate on 20 August 1998, and on the same day the applicant lodged with the Refugee Review Tribunal (“the RRT”) an application for review of the decision refusing a protection visa.
On 24 August 1998, application was made to the Immigration Review Tribunal ("IRT") for a review of the decision refusing the Bridging Visa E. On 1 September 1998, IRT affirmed the decision refusing the grant of a Bridging Visa. The reasons for the decision of the IRT in that respect were provided on 14 September 1998.
On 15 September 1998, application for an Order of Review was made in relation to the decision of the IRT refusing the grant of a Bridging Visa E. Notwithstanding the terms of the application, I have treated it as encompassing claims that:
-The detention of the applicant pursuant to sections 189 and 196 of the Act is unlawful, having regard to the Bridging Visa A issued on 11 August 1998, and the cancellation of the visitors visa on 12 August 1998.
-IRT erred in its conclusion that the applicant was in breach of the "No work" condition of her tourist visa either because she was not working, or if she was, she had permission to work whilst in Australia.
-IRT erred in considering the applicant against subclass 050 rather than subclass 051.
If and insofar as these claims are not squarely raised by the application for review, I would be prepared to grant the necessary amendments so as to allow them to be considered.
Unlawful Detention
On cancellation of a visa, the former holder becomes an unlawful non-citizen unless immediately after the cancellation, the former holder holds another visa that is in effect (s 15). An unlawful non-citizen is to be detained (s 189), and to be kept in immigration detention until the grant of a visa, or the occurrence of one of the other events referred to in s 196.
It was the applicant's contention that the Bridging Visa A granted to her on 11 August 1998, lay dormant until the cancellation of her visitors visa on 12 August 1998, whereupon the Bridging Visa A came into effect. That visa entitles her to remain in Australia lawfully for a period which will expire 28 days after the disposition of her application for a review of the decision not to grant a protection visa.
Thus it is submitted that on 12 August 1998, and thereafter, the applicant was not an unlawful non-citizen, notwithstanding the cancellation of her visitors visa, but a lawful non-citizen (s 13) holding a visa (Bridging Visa A) that was then, and is now in effect. The consequence is that her detention is, and always has been, unlawful.
The basis for this contention is that the Department of Immigration and Multicultural Affairs ("DIMA") letter of 11 August 1998 (Exhibit 'A') says, in substance, that once the visitors visa is cancelled, the Bridging Visa A is in effect.
If the DIMA letter correctly stated the effect of the Act and the Regulations, or had its own force irrespective of the true effect of the Act and the Regulations, then I would have concluded that the applicant's contentions were soundly based. But the question is whether the DIMA letter does correctly state the law, and whether it has any operation of its own.
The Statutory Scheme
Section 29(1) of the Act provides that the Minister may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia. A visa is taken to be granted by the Minister causing a record of it to be made (s 67).
Section 37 provides for a class of temporary visas, to be known as Bridging visas which may be granted under Subdivision AF. The effect of sections 82(3) and 64(4) is that a Bridging visa may be dormant during the subsistence of a substantive visa.
The criteria to be satisfied at the time of application for a Bridging Visa A, in their application to the facts of the present case, include requirements that:
the applicant has made an application for a protection visa which has not been finally determined (010.211(2)(a) and (b));
the applicant held a substantive visa at the time of application for the protection visa, namely the visitors visa (010.211(2)(c)).
Regulation 2.05(3) provides:
“…2.05(3): for the purposes of section 29(2) and (3) of the Act (which deals with the period during which the holder of a visa may travel to, enter and remain in Australia), the limits on the period within which a person may:
(a) remain in Australia; or
(b) travel to, enter and remain in Australia;
as the case requires, under the authority of a visa of a particular subclass are specified in the relevant Part of schedule 2.”
Clause 10.5 of the second schedule specifies the period during which the holder of a Bridging Visa A is permitted to remain in Australia. Clause 010.511 provides:
“010.511 In the case of a visa granted to a non-citizen who has applied for a substantive visa – bridging visa:
(a) coming into effect:
(i) on grant; or
(ii)when the substantive visa (if any) held by the holder ceases: and
(b)permitting the holder to remain in Australia until:
(i)if the Minister’s decision in respect of the substantive visa application is to grant a visa – the grant of the visa; or
(ii)if the Minister’s decision in respect of that application is to refuse to grant a visa – 28 days after the holder is notified of that refusal; or
(iii)if the substantive visa application is refused and the holder applies for merits review of that refusal – 28 days after notification of the decision of:
(A) the review authority; or
(B)if the holder has the right to apply to another review authority for merits review of the decision of that review authority and so applies – 28 days after notification of the decision of that other review authority; or
(iv)the grant of another bridging visa to the holder in respect of the same substantive visa application; or
(v)if the holder withdraws his or her application for a substantive visa or an application to a review authority – 28 days after that withdrawal; or
(vi)if the substantive visa (if any) held by the holder is cancelled – that cancellation.”
The effect of the Statutory Scheme
It seems to me that the effect of this clause is that the Bridging Visa A granted to the applicant on 11 August 1998, comes into effect when her visitors visa 'ceases'. There is no specification in the Act when a substantive visa 'ceases' But, in my view a substantive visa 'ceases' when, for whatever reason, it no longer operates as a ministerial permission to do the acts otherwise authorised by the visa. That may occur by effuction of time. It may also occur if the visa is cancelled. Section 82(1), which provides that a visa which is cancelled ceases to be in effect on cancellation, supports or compels the latter conclusion.
But one of the events which brings to an end the permission otherwise granted by a Bridging Visa A to remain in Australia is the cancellation of the substantive visa (the visitors visa), the existence of which enabled the applicant to meet the requirements for the grant of a bridging visa in the first place (Cl 010.511(b)(vi)).
That produces the rather odd consequence that the event which enlivens the operation of the Bridging Visa A also brings it to an end. But, in my opinion it is reasonably clear that in the case of an applicant whose entitlement to a Bridging Visa A is dependant on meeting the requirements of Cl 010.211(2), the permission to remain in Australia granted by the Bridging Visa terminates if the substantive visa required to be held by Cl 010.211(2)(a) is cancelled.
Accordingly, in my opinion, on the proper construction of the Act and the Regulations, Bridging Visa A had no effect beyond 12 August 1998. On and from that date the applicant became an unlawful non-citizen exposed to immigration detention, unless and until a Bridging Visa E was granted in her favour. Subject to considerations of estoppel, the applicant's status cannot be altered or improved by the erroneous statement in the DIMA letter of 11 August 1998 that:
-"Your bridging Visa A is in effect … if … (your tourist visa) ... has been cancelled."
DIMA has no entitlement to specify limits on the period within which a person may remain in Australia more generous than those for which s 29, Regulation 2.05 and the second schedule provides.
Estoppel
I do not think that there is any room for the operation of doctrines as to Estoppel in the circumstances of the present case. First, there was no detrimental change in position by the applicant on the faith of the DIMA letter of 11 August. Second, there can be no estoppel against the performance of the statutory duty to detain an unlawful non-citizen imposed by s 189 of the Act, or against the operation of s 196 of the Act. Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1992) 21 FCR 193, 207-219; Minister for Immigration and Ethnic Affairs v Petrovski (1997) 73 FCR 303.
Accordingly the claim that the applicant's detention is unlawful fails.
Breach of the "No work" condition
There is no application for review of the decision cancelling the visitors visa, hence the issue of whether there was a breach of condition 8101 in relation to that visa does not arise directly. It may, however, arise indirectly, because a "No work" condition would be imposed upon a Bridging Visa E, and an important factor in the IRT's conclusion that it was not satisfied that the applicant would abide by such a condition was the alleged breach of the equivalent condition imposed in relation to the visitors visa.
The application challenges the IRT's finding that the applicant was working on 12 August 1998, although it does not specify the legal basis relied upon for that challenge. A finding of fact may only be challenged in this Court under s 476(1)(g) and then only if s 476(4) is satisfied. It is not necessary in the circumstances of the present case to give close attention to the operation of s 474(4), because there was evidence on other material before the IRT, capable of sustaining a conclusion that the applicant was working on 12 August 1998. There was also a rational basis on which IRT could conclude that it was not satisfied that the applicant would abide by a "No work" condition.
The inference that the applicant was working at the Harmony Health Centre is available from the following:
The applicant came to Australia on a visitors visa, but had not undertaken any tourist activities (p 65.8).
The applicant was found on premises that the Fairfield Police, and the migration officers who conducted the raid, believed to be a brothel (p 65.5).
The applicant claimed to have been there for one week (p 66.3).
Four of the eight women working there had been detained because of immigration breaches (p 66.4).
The applicant stated to the Department after her arrest that she had to make a living and that she had already made an application to work (p 63.8).
IRT did not accept the applicant's denial of knowledge that the premises were a brothel (p 65.66).
IRT did not accept the applicant's account that she was on the premises receiving training in therapeutic massage voluntarily and without payment.
The applicant had very little in the way of financial resources (p 70), there was no evidence of ties to the Australian community (p 69) or friends to support her.
IRT, having heard the applicant's evidence, rejected it as evasive, contradictory and untruthful (p 65.6).
It was open to the IRT not to be satisfied that the applicant would abide by a condition preventing her from working should she be granted a Bridging Visa E because of its findings that:
-The applicant was working on 12 August 1998, in breach of the conditions of her visitors visa.
-The applicant's financial condition and lack of Australian connections were such that she would have no choice but to work if she remained in this country.
Bridging Visa A and the "No work condition"
Breach of the "No work" condition of the visitors visa occurred in the period up to 12 August 1998. On no view of the matter could the Bridging Visa A have authorised work on the part of the applicant prior to 12 August 1998.
Subclass 050 and 051
In a letter of 7 October 1998, to the Registrar of the Court, the applicant suggested that IRT mistakenly considered the application against subclass 050 rather than subclass 051. Subclass 051 is only available where the applicant is an eligible non-citizen referred to in Regulation 2.20(7), (8), (9), (10) or (11) [0.51.211]. Those sub-regulations apply only to non-citizens who were refused immigration clearance, or bypassed immigration clearance. The applicant does not satisfy that description. The stamp appearing at p 30 of the Relevant Documents (Exhibit 'B') shows that the applicant was immigration cleared on 30 May 1998, (see s 172(1)(a)).
Accordingly this claim fails.
Error of law – s 476(1)(e)
The applicant was not legally represented, hence I considered whether the IRT made an error of law by posing the wrong question for its determination, even though this issue was not raised by the application.
IRT was satisfied that criteria 050.211 and 050.212 were satisfied. It then proceeded to consider criteria 050.213 and 050.214. If IRT were satisfied that those criteria were met, then it would follow from s 65 of the Act that the Bridging Visa E should be granted, without any need to enquire (see Exhibit 'B' p 20) whether the grant of a bridging visa to the applicant is in the best interests of the community.
Instead of assessing, on the basis of the materials before it, whether IRT was satisfied that the applicant would abide by each of the conditions to be imposed upon the visa, IRT "had regard to the relevant Departmental Migration Series Instruction" and proceeded to record its response to questions apparently posed by that Instruction. Some, at least, of those questions were not germane to the issue which the IRT was required to address.
At the very least, the procedure adopted by the IRT was a distraction from the task at hand. But in the end, I have come to the conclusion that it did not amount to a material error of law. I have reached that conclusion because a central issue before the IRT was its satisfaction or otherwise that the applicant would abide by the "No work" condition. It was not so satisfied. There were ample materials before it to justify that conclusion.
Accordingly the procedure adopted by the IRT did not result in reviewable error.
The result is that the application is dismissed.
I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely
Associate:
Dated: 27 October 1998.
Representative for Applicant: Mr H Kabir
Migration AgentCounsel for the Respondent: Mr N Williams with S. McNaughton Solicitor for the Respondent: Australian Government Solicitor
Mr A. PearsonDate of Hearing: 22 October 1998 Date of Judgment: 27 October 1998
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