Forster v Minister for Immigration (No.2)
[2017] FCCA 2678
•1 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FORSTER v MINISTER FOR IMMIGRATION (No.2) | [2017] FCCA 2678 |
| Catchwords: MIGRATION – Consideration of whether a proposed representation was made by the applicant to an officer –– steps taken by the applicant consistent with the applicant understanding that no transmission had taken place to date – unreliable and inconsistent evidence given by the applicant – amended application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.256, 476 |
| Cases cited: AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 |
| Applicant: | DEBRA MARIE FORSTER |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 364 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 1 November 2017 |
| Date of Last Submission: | 1 November 2017 |
| Delivered at: | Sydney |
| Delivered on: | 1 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Edwards |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Counsel for the Respondent: | Mr P Hannan |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Court extends time under s 477 of the Migration Act 1958 (Cth) up to and including 3 July 2017.
The amended application is dismissed.
The applicant pay the respondent’s costs fixed in the amount of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 364 of 2017
| DEBRA MARIE FORSTER |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a non‑reviewable decision made by the delegate on 18 May 2017, determining that the applicant had not made representations within the 28 day prescribed time period as to why the visa cancellation decision made on 16 January 2017 should be revoked. I accept that the non-reviewable decision on 18 May 2017 is within this Court’s jurisdiction. An explanation was given for the delay in the commencement of these proceedings in this Court and time was extended under s 477 of the Act up to the date of filing of the application in this Court.
The ground in the amended application is as follows:
1. The respondent erroneously refused to consider representations made by the applicant to revoke the decision to cancel her visa.
Particulars
On 16 January 2017 the respondent made a decision to cancel the applicant’s Class TY (subclass 444) Special Category visa under s 501(3A) of the Migration Act 1958 (Cth) (Act) and invited her, within 28 days, to make representations to the Minister about revocation of the decision.
At the time of the decision to cancel her visa the applicant was serving a full-time sentence of imprisonment at Brisbane Women’s Correctional Centre, Wacol, Queensland. She was in a segregated section of the prison.
Around 30 January 2017 the applicant provided representations to the respondent by handing the representations to a correctional services officer at Brisbane Women’s Correctional Centre.
The correctional services officer was an “officer” of the respondent by reason of the definition of “officer” in subparagraph (g) of s 5(1) of the Act, having been authorised in writing by the respondent to be an officer for the purposes of the Act (see also P. Ruddock, Authorisation of Correctional Services and Prisons officers to be officers for the purposes of the Migration Act 1958, Commonwealth of Australia Gazette, GN 36, 13 September 2000).
The respondent was, accordingly, required to consider the applicant’s representations about the revocation of her visa.
In summary, Mr Edwards of counsel relied upon the decision of the learned Perry J in AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 to contend that on the facts asserted by the applicant, a proposed representation was provided to an officer under the Act prior to the expiry of the 28 day period. Mr Edwards submitted that the failure to transmit the same gave rise to a denial of procedural fairness whereby there was a jurisdictional error in the decision made on 18 May 2017.
The applicant in the present case gave evidence to the effect that she provided the document to an officer named Danny on 30 January 2017. Mr Edwards submitted that the applicant should be accepted in relation to that evidence and that in those circumstances, the determination on 18 May 2017 is the subject of jurisdictional error.
The applicant was cross-examined and in that regard, the applicant did not impress me in relation to being a witness of truth in relation to the events that occurred concerning the handing of documents to officers of a place in which she was then imprisoned. Materially, it is apparent in the present case that the applicant took steps on 23 February 2017 after the 28 day period had expired to have the representations transmitted to the Minister. That step is entirely consistent with the applicant understanding that no transmission had taken place to date.
The applicant gave evidence that she did not receive any transmission in relation to the sending of any document. The applicant asserted she made repeated attempts to get someone to take and transmit the document. I do not accept that any officer named Danny took the documents on 30 January 2017. The applicant gave inconsistent evidence about assertions of having provided a document to Danny earlier than 30 January 2017.
The applicant’s evidence in this regard is unreliable and the Court does not accept that any document was handed by the applicant to Danny or any other person at the correctional centre by the applicant prior to the expiry of the 28 day period. In these circumstances, the decision in AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 is clearly distinguishable. In the circumstances of the present case, it is apparent on the applicant’s evidence, that the applicant fully appreciated there had been no transmission of the representations to the Minister prior to the expiry of the 28 day time period.
The applicant gave evidence that on receipt of the notice she fully understood the time period of 28 days. Further, Mr Hannan of counsel drew attention to the language of s 256 of the Act. Whilst I accept that the applicant was not in immigration detention at that time, the essence of the reasoning of the learned Perry J was that there was a denial of procedural fairness in circumstances where a person had handed a document to an officer whilst in a position where that person believed the document had been sent. There is no suggestion in the case of AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557 that there was any understanding by the applicant in that case that the documents had not in fact been transmitted.
The evidence in the present case is clear that the applicant appreciated that there had been no transmission within the 28 day period. If I had found that the document had been handed to the officer at the correction centre by the applicant, I would not regard the principle identified in the decision of the learned Perry J as being distinguishable on the grounds identified by Mr Hannan in respect of the language of s 256 of the Act.
In light of the Court’s findings, no jurisdictional error as mentioned in the amended application is made out. The amended application is dismissed.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street
Date: 10 November 2017
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