Le v Minister for Immigration
[2008] FMCA 1497
•29 October 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LE & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1497 |
| MIGRATION – Cancellation of 456 visas – applications for urgent interim writs of prohibition to prevent deportations – reasonable period to respond to notice of intention to consider cancellation of a visa – reasonableness of the period allowed is objective matter to be determined by the Court. |
| Migration Act 1958, ss.5, 116, 117, 119, 121, 338, 474, 476 Migration Regulations 1994, reg.2.43 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Agar v Hyde (2000) 201 CLR 552 Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 748 Guiseppe v Registrar of Aboriginal Corporations (2007) 95 ALD 554 Dao v Minister for Immigration & Citizenship [2008] FMCA 1000 ReMinister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 |
| Applicant: | CONG CHAU LE |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2774 of 2008 |
| Applicant: | BUI THANH NGUYEN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2775 of 2008 |
| Applicant: | CUNG LE HUU |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2777 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 29 October 2008 |
| Date of Last Submission: | 29 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 29 October 2008 |
REPRESENTATION
| Counsel for the Applicants: | Mr M. Gerkens |
| Solicitors for the Applicants: | FCG Legal Pty Ltd |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
SYG 2774/2008
The application for interim relief be refused.
Pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,500.
SYG 2775/2008
The application for interim relief be refused.
Pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,500.
SYG 2777/2008
The application for interim relief be refused.
Pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 the application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2774 of 2008
| CONG CHAU LE |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
SYG 2775 of 2008
| BUI THANH NGUYEN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
SYG 2777 of 2008
| CUNG LE HUU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
Introduction
Before the Court are three applications for urgent interim relief. The three applicants are Vietnamese citizens who seek writs of prohibition against the respondent Minister to prevent him from deporting them from Australia consequent upon the cancellation of their class UC subclass 456 (Business Short Stay) visas last Friday, 24 October 2008. Each of the applicants is currently in detention and has been in detention since shortly after arrival at Sydney Kingsford-Smith Airport on 24 October 2008.
Purportedly pursuant to s.116(1)(g) of the Migration Act 1958 (“Act”) and reg.2.43(1)(i) of the Migration Regulations 1994 (“Regulations”), different ministerial delegates decided to cancel the 456 visas held by the applicants following the applicants’ arrival in Australia. That is to say, the visas were cancelled on the basis that the applicants did not have an intention only to stay in, or to visit, Australia temporarily for business purposes.
In addition to the urgent interim relief they seek, each of the applicants also seeks final orders that the Minister show cause why relief should not be granted in respect of the cancellation of each of their visas. The matters are listed today for the additional purpose of determining whether the Minister should be required to show cause.
By way of final orders, each of the applicants seeks in amended applications filed yesterday:
a)a declaration that the decision to cancel his visa was unlawful and invalid;
b)a writ of certiorari quashing that decision; and
c)an order that the Minister be prohibited from relying upon or giving effect to the decision.
The applicants also seek costs.
The Court’s jurisdiction
The delegates’ decisions were migration decisions as that term is understood for the purposes of the Act. In this regard, s.5 of the Act provides:
“migration decision” means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non‑privative clause decision.
At first blush it might appear that the decisions in question were “primary decisions” in respect of which s.476(2)(a) of the Act provides that this Court does not have jurisdiction. Section 476(4) defines “primary decision” in the following terms:
(4) In this section:
“primary decision” means a privative clause decision or purported privative clause decision:
(a)that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed) …
However, s.338 of the Act, which identifies those decisions reviewable by the Migration Review Tribunal, relevantly provides:
(3) A decision to cancel a visa held by a non‑citizen who is in the migration zone at the time of the cancellation is an MRT‑reviewable decision unless the decision:
(a) …
(b) is made at a time when the non‑citizen was in immigration clearance …
The parties agree that, at the relevant times, the applicants were in immigration clearance.
For these reasons, I conclude that the Court has jurisdiction to deal with each of the applications currently before it.
Arguable case
Prohibition on an interim basis will not be ordered unless, similarly to an application for an urgent injunction, there is a real question to be tried or there is a prima facie case to support the issuing of the writ.
In this sense, and because of the nature of the application for final relief which is made in migration matters in this Court, the applications for urgent relief are also necessarily linked to the question of whether the Minister should be called upon to show cause why final relief should not be granted, a matter which, as I say, is also before the Court today. As these proceedings are ultimately judicial review proceedings in relation to migration decisions, the matter to which the Court must address itself is whether the delegates’ decisions were affected by jurisdictional error as that is the only basis upon which they can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
An order to show cause will not be made and, instead, the proceedings will be dismissed pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 if an applicant does not have an arguable case against the respondent. The authorities show that such a dismissal will not be ordered except where the lack of a cause of action is clearly demonstrated (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129), the claim is groundless (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 per Dixon J at 91) or there is a high degree of certainty about the outcome (Agar v Hyde (2000) 201 CLR 552 per Gaudron, McHugh, Gummow and Hayne JJ at 575-576).
If there is no basis to require the Minister to show cause why the decisions are not affected by jurisdictional error there is no basis to grant the interim relief sought.
The applicants’ allegations
The allegations made by the applicants have some common aspects and some individual aspects.
Matters common to each application: alleged breach of s.121(3)(b)
Each of the applicants allege that the delegates’ decisions to cancel their visas were made in breach of s.121(3)(b) of the Act in that the delegates failed to allow the applicants a reasonable period in which to make a response to an invitation under s.119(1)(b) of the Act.
As already noted, the power to cancel the applicants’ visas is found in s.116 of the Act which relevantly provides:
116 Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(g)a prescribed ground for cancelling a visa applies to the holder …
Section 117 of the Act provides that the visa held by a non-citizen may be cancelled under s.116 when the non-citizen is in immigration clearance. However, before a visa may be cancelled, the Minister must provide notice to the visa holder of the fact that he is considering cancelling the visa. In this regard, s.119(1) provides:
(1) Subject to Subdivision F (non‑citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non‑disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
As I have said, the applicants place reliance on s.121(3)(b). Relevantly, s.121 provides:
121 Invitation to give comments etc.
(1)An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
(b) at an interview between the holder and an officer; or
(c) by telephone.
(2)…
(3)Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
(a)…
(b)at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
Here, the applicants were invited to give their response to their respective notices of intention to consider cancellation in an interview. As no time has been prescribed for the purposes of s.121(3)(b), the Minister must give a visa holder a reasonable period within which to provide his or her response to the matters raised in the notice. The applicants say that, in the circumstances, the time given to them to provide a response to the minister’s delegates was, in each case, not a reasonable period.
In Mr Le’s case, he was advised at 4:30pm on 24 October 2008 that at an interview to be held at 4:45pm he would be given an opportunity to comment on the delegate’s intention to cancel his visa and to give reasons why the visa should not be cancelled. He was further advised that he would need to provide his comments within ten minutes of the start of the interview.
Mr Nguyen received similar advice at 4:55pm in relation to an interview to commence at 5:10pm. Mr Le Huu was told at 5:00pm that his opportunity to comment would be given in an interview to commence at 5:25pm.
The determination of what period would be reasonable to allow a visa holder to comment on material set out in a notice of intention to consider cancellation (“NOICC”) is a matter for the Court to determine based on an assessment of the evidence of the surrounding circumstances. In this regard, I respectfully adopt what Kenny J said in Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 748 at [78]:
… what is a reasonable period for the purposes of s.121(3)(b) of the Act would fall to be considered in light of all the circumstances of the case as they existed when the time of the interview is fixed. These circumstances may include the nature of the cancellation grounds that the decision-maker is considering, the personal attributes of the visa holder (i.e., age, facility in the English language, physical infirmity or well-being), the presence of an interpreter or lawyer, the visa holder’s familiarity with the matters of concern to the decision-maker, the circumstances in which the decision falls to be made, and the availability of matters corroborative of the applicant. Regard would also be taken of the statutory context and purpose of s.121(3)(b) of the Act.
I also make reference in this regard to Guiseppe v Registrar of Aboriginal Corporations (2007) 95 ALD 554.
In Dao v Minister for Immigration & Citizenship [2008] FMCA 1000, Riethmuller FM said that s.121(3) requires a decision-maker to have regard to the particular circumstances of the case in order to fix a reasonable time for response to a NOICC. During the course of the hearing today it was submitted by the applicants that his Honour’s comments necessitated an examination of the matters taken into account by the delegates when setting the time periods for responses to the notices. I do not agree that that is what his Honour was saying but, if I am wrong, with great respect I disagree with his Honour. The determination of the reasonableness of a period of time requires consideration of the time, not the process by which it was set. The reasonableness of the period and the reasonableness of the process are separate concepts. If the period set is objectively reasonable, what purpose is served by considering the process by which it was reached? Conversely, if the period is not reasonable, no amount of good faith and diligence by the delegate will prevent a finding of jurisdictional error.
The evidence in these cases concerning the applicants and how reasonable the periods were in their circumstances is not weighty. They do not speak English but each of them had the important part A of the NOICC and the detailed annexure read to him in Vietnamese through an interpreter. Evidence was taken from each of the three delegates involved in these decisions and I found them to be honest witnesses endeavouring to recall the relevant events as comprehensively and accurately as they could. Each of them said that they checked with their applicant and their telephone interpreter that each could understand the other. I am satisfied that each applicant was properly notified pursuant to s.119, noting particularly that s.119(3) permits notification to be made orally.
The applicants suggest that the detailed statutory and regulatory provisions which were included in the NOICCs should also have been read to them in Vietnamese and that a failure to do so amounted to a breach of s.119. The first thing to say in relation to this is that this was not pleaded and was not part of the applicants’ case. However, the applicants sought to sidestep that difficulty by submitting that a failure to translate the terms of the statute and regulation meant that the applicants did not know what the proper basis for a response would be and consequently the time they were allowed was not reasonable. However, there is no evidence that the applicants did not understand what was incumbent upon them. None of them gave evidence. But, in any event, the detailed annexures to each of the notices when read to the applicants could have left none of them in any doubt that the Minister’s delegates were unconvinced of their claims to be business travellers. I find that any failure to read out the content of the relevant statutory and regulatory provisions does not have any bearing on the reasonableness of the periods they were given to respond to the NOICCs.
A reference was also made to the fact that a large body of statutory words was given to the applicants as part of the NOICCs and that they were entitled to a legitimate expectation that they would have time to read it all. However, as Gleeson CJ said in Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, the ultimate question remains whether there has been unfairness, not whether an expectation has been disappointed. There is no basis to conclude, given the information which was given to the applicants and the absence of evidence from them, that the provision of the statutory documents rendered the response periods not reasonable.
It was pointed out that the applicants had travelled to Australia from overseas but there is no evidence that this affected their ability to consider the information to which they were invited to respond.
As the applicants themselves did not give evidence, there is really very little on which to base a decision that the periods they were given to respond were, in the circumstances, unreasonable. Indeed, I conclude that they were not. The issues were relatively straightforward and the officers’ concerns were put squarely to each of the applicants. The time they were given was not a long time but it was sufficient for them to formulate responses to the notices. I find that each of the periods of time allowed to each of the applicants was reasonable and satisfied the requirements of s.121(3)(b).
In those circumstances, it must be concluded that the applicants have no arguable case that the delegates’ decisions in any of their cases were affected by jurisdictional error by reason of a breach of s.121(3)(b).
Additional allegations common to Messrs Le and Nguyen
In addition to the allegation concerning the supposed breach of s.121(3)(b), Messrs Le and Nguyen also allege that:
The decision-maker failed to make a finding necessary to found the decision to cancel the visa and, thereby, misconstrued and misapplied the test required by s.116(1)(g) & Regulation 2.43(1)(i).
As already noted, s.116(1)(g) provides:
116 Power to cancel
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(g)a prescribed ground for cancelling a visa applies to the holder …
Regulation 2.43(1)(i) relevantly provides:
2.43 Grounds for cancellation of visa (Act, s 116)
(1)For the purposes of paragraph 116 (1) (g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
…
(i) in the case of the holder of:
(i)a Subclass 456 (Business (Short Stay)) 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 stay in, or visit, Australia temporarily for business purposes;
It has to be kept in mind that the basis of the application for final relief is that the delegate’s decision is affected by jurisdictional error, not whether the decision of either of the relevant delegates was factually correct. In Mr Nguyen’s case the delegate identified, by way of attachment to the “Notification of Decision” document the reasons why the delegate was satisfied that Mr Nguyen met the visa cancellation criteria of reg.2.43(1)(i) thus empowering the delegate to cancel his visa under s.116(1)(g). The same situation applied in respect of Mr Le, except that that the reasons were written in the “Notification of Decision” document itself, not in an attachment.
Based on the facts which the delegates set out in the documents recording and notifying their decisions, both delegates stated that they were satisfied that the visa holder did not have, at the time of the grant of the visa, or had ceased to have, an intention only to stay in, or visit, Australia temporarily for business purposes. The inclusion of the word “not’ where first appearing in the statement at the end of attachment “B” to the notification to Mr Nguyen can be taken to be a typographical error.
These two applicants have submitted that because their decisions were expressed in terms that the applicants did not have at the time of the grant of their visas or had subsequently ceased to have the intention to be business travellers, the decisions were not really decisions required by the Act. That is to say, the applicants submitted that the delegates should have committed to a decision that a particular applicant did not have that intention at the outset or should have committed to a decision that the applicant had had such an intention but no longer did. They said that the delegates could not express their decisions in the alternative. However reg.2.43(1)(i) does not require the Minister’s delegate to do such a thing. Its express terms permit a delegate to chose either of the alternatives or to use both. It is concerned with the fact that a visa holder lacks the intention to be a business traveller, not when the visa holder lost that intention or whether he or she never had it.
In such circumstances, the delegates were empowered to make the decisions they did and no jurisdictional error is disclosed in this connection. I also note Reithmuller FM’s helpful discussion of this issue in Dao’s case.
Mr Le
Mr Le alone raised one final ground of review which was expressed as follows:
The decision was made on the basis of information not provided to the Applicant and was therefore made in breach of the rules of natural justice. Paragraph 2 of the Notice of Intention to Consider Cancellation refers to an Attachment A which was not provided to the Applicant.
This ground was not pressed.
Conclusion
For these reasons, I conclude that the applicants have not raised arguable claims for relief. Their applications will be dismissed pursuant to r.44.12 and their applications for interim relief will be refused.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 6 November 2008