Shaukat v Minister for Immigration
[2004] FMCA 510
•13 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SHAUKAT v MINISTER FOR IMMIGRATION | [2004] FMCA 510 |
| MIGRATION – Migration Review Tribunal – injunction – refused – no merit – whether court does not have power to re-instate visa – no estoppel where department officer makes representation inconsistent with statutory duty. |
Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575
(6 November 2000)
Fang v Minister for Immigration [2004] FMCA 280
Fang v Minister for Immigration and Ethnic Affairs (1997) 135 ALR 583
Minister for Immigration and Multicultural Affairs v Sharma (1999) FCA 31 (29 January 1999)
| Applicant: | KHURAM ALI SHAUKAT |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MZ 1031 of 2004 |
| Delivered on: | 13 August 2004 |
| Delivered at: | Melbourne |
| Hearing Date: | 13 August 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr W.S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application filed 9 August 2004 is dismissed.
The applicant shall pay the respondent's costs fixed in the sum of $4000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 1031 of 2004
| KHURAM ALI SHAUKAT |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application by Khuram Ali Shaukat (the Applicant) filed on 9 August 2004 seeking orders preventing the applicant from being removed from Australia by the respondent. The application is supported by an affidavit by the applicant and the matter has been brought before this court as a matter of urgency in circumstances where it was considered appropriate to at least bring the matter before this court to determine if there is indeed a proper basis upon which injunctive relief should be granted in an application of this kind and to otherwise hear the parties in relation to the substantive issues.
The applicant is unrepresented and it is clear from the material filed that to some extent there is a lack of understanding of the power and role of the court in matters of this kind. What is clear, however, is that the applicant is concerned that if an order is not made by this court, then he will be at immediate risk of being removed from Australia.
It was on that basis that the application was listed before the court as a matter of urgency.
Counsel for the respondent has provided a court book which sets out relevant documents in this matter and has also relied upon and adopted an outline of argument. Both the outline of argument and the court book were provided to the applicant at court this day and
I provided the applicant with the opportunity to consider the contents of those documents and for that purpose stood the matter down for a brief period of time so that he could consider his position.
The background details in this application have been appropriately and accurately set out in the respondent's outline of submissions and indeed the chronology is not significantly in dispute in this matter. The applicant is a citizen of Pakistan born on 10 January 1980. He entered Australia on 7 July 2001 as the holder of a student temporary class TU subclass 560 visa granted on 4 July 2001. On 18 July 2001 the applicant was granted a student temporary class TU subclass 570 visa. That visa was to remain in effect until 30 November 2003. It was subject to condition 8202 of schedule 8 of the Migration Regulations 1994.
The applicant's enrolment in his course of study with the education provider was cancelled on 14 August 2003. On 28 November 2003 a delegate of the respondent cancelled the applicant's subclass 570 visa as he had failed to comply with condition 8202. The applicant was granted a bridging E class WE subclass 050 bridging general visa on the basis that he would apply for merit review of the decision to cancel the visa. The applicant in fact made an application to the Migration Review Tribunal (the MRT) on 9 December 2003 seeking to review the delegate's decision. On the basis of that application for review a further bridging E subclass 050 visa was granted to the applicant on 5 January 2004.
The applicant was successful in his application before the MRT which made a decision on 21 April 2004 to set aside the delegate's decision and to substitute a decision that the applicant's visa was not validly cancelled. The applicant was then granted two further bridging
E class WE subclass 050 bridging general visas on 30 July 2004 and 3 August 2004. Each of those bridging visas was granted on the basis that the respondent was satisfied that the applicant was making acceptable arrangements to depart Australia. It is appropriate to note that in the final visa application the applicant had indicated an intention to depart Australia by 17 August 2004. That much is clear from the application in the bridging visa set out in of the court book. It is also clear from that document that the basis upon which the bridging visa was then granted was referred to as the applicant making or as the subject of arrangements to depart. A similar indication was given in relation to the earlier bridging visa to which I referred. The visa period ended on 9 August 2004. I should also add that the temporary student visa which was the subject of cancellation set aside by the MRT, in any event, was due to expire and did expire on 30 November 2003. It is not in dispute that the applicant currently has no extant visa applications.
In the application before this court the applicant has sought the orders to stop/remove a departure order from DIMIA; to restate (sic) – which I take means to reinstate his visa as MRT has remitted his visa application to the Department and he further claims he was wrongly advised regarding the student visa application lodgment after the MRT remitted his visa back to the department.
It is not necessary for me to refer to the interlocutory relief claimed in the application, save that I accept in the present circumstances that effectively the applicant seeks interlocutory relief of a kind which would prevent his removal from the country and otherwise relies upon what he describes in the application and supporting affidavit as receiving misleading information from relevant departmental officers as to whether or not he should wait for a period of some five weeks after the MRT decision or otherwise delay making application for another visa.
During the course of the submissions made on behalf of the applicant
I have had due regard to the fact that he is not represented. I permitted him to raise from the bar table concerns he had in relation to advice allegedly received from certain departmental officers. As a matter of law for reasons which will become apparent it is not necessary for me to otherwise refer to that material or indeed require the applicant to prepare affidavit material in relation to those matters. I simply note the general nature of the complaint made by the applicant arising out of those alleged discussions and/or representations concerning delay and procedures which he should follow.
It is noted, however, that in the court book a file note appears at page 25 which is a note dated 28 November 2003, that is, the date of the delegate's decision to cancel the visa, where the author states,
“Advised a/n that MRT might set aside cancellation, but that he would have to return offshore to be granted a new visa if they did, as it was unlikely he could lodge a new application within 28 days of the visa expiry.”
On a proper reading of the material that advice was correct.
It is submitted on behalf of the respondent that the substance of the relief sought by the applicant in his application before this court appears to be reinstatement of the student visa and as a consequence prevention of his removal from Australia. The respondent submits that there is in fact no basis in law for this court to reinstate the visa. Reliance has been placed upon the decision of the Federal Court in Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575 (6 November 2000) where His Honour Katz J stated relevant principles at paragraph 26 as follows:
“26.The Act provides for the grant of visas either to travel to and enter Australia or to remain in Australia or both (subs.29(1) of the Act). Visas to remain in Australia (whether also visas to travel and enter Australia) may be visas to remain until a specified date (par 30(2)(a) and 28 of the Act). Such visas cease to be in effect on the specified date (subs 82(7) of the Act). The period beginning when a visa is granted and ending when the visa ceases to be in effect is called the ‘visa period’ (subs 5(1) of the Act, definition of ‘visa period’). Subsection 68(3) of the Act provides that ‘[a] visa can only be in effect during the visa period for the visa’. No provision is made generally in the Act for the extension of the visa period of a visa to remain in Australia. The only exception to that omission is in the case of that class of visas called temporary safe haven visas ...”
Relying upon that authority, as indicated, the respondent submits that there is no basis in law to reinstate the visa. In my view, having regard to that authority, the submission is clearly correct. I do not accept that in an application of this kind this court has power to make an order of a kind which would effectively be an order reinstating the visa. It is equally clear, as submitted by the respondent, that currently in the absence of any other bridging visa or indeed other visa for which he may have applied that the applicant not being the holder of a valid visa then I cannot resist the conclusion that at present he may be regarded as an unlawful non-citizen. The consequences which flow from that is that clearly he is at risk of being detained and removed. It is not necessary for me to further draw any conclusions about his current status other than to note the fact that it is a matter for the applicant as to whether he seeks to make application for any other visa and that application presumably will be dealt with in accordance with the Migration Act and regulations.
Perhaps of more significance in the present case is the alleged representation in conversations which in part are referred to in the brief affidavit in support of the application and which also in part have been referred to in the applicant's submissions to the court. I have considered the nature and extent of the alleged representations, and even allowing for the most generous interpretation of those representations and indeed permitting the applicant to rely upon statements made from the bar table in addition to the affidavit material, I am satisfied that on the basis of the material before me that as a matter of law it could not be claimed in the present case that some form of estoppel would apply which would prevent the respondent from taking the action that it is able to take under the relevant legislation.
Where departmental officers make representations of the kind alleged the representations themselves will not give rise to estoppel. I refer to the authorities relied upon by the respondent. I further refer to a decision of this court in the matter of Fang v Minister for Immigration [2004] FMCA 280 at [82] and [87] as follows:-
“82.It was further submitted by the respondent that the estoppel relied upon would be substantive. Its effect would be to deprive the respondent of the power to cancel the visa when s.116(3) of the Act provides he must do so if the prescribed circumstances exist. The law, it was submitted, does not recognise an estoppel based on a representation when that would interfere with the exercise of a statutory power or the performance of a statutory duty by an executive body (see Wyong Shire Council v Associated Minerals Consolidated Ltd (1972) 1 NSWLR 114 at 142; Rubrico v Minister for Immigration and Ethnic Affairs (1989) 23 FCR 208; Roberts v Repatriation Commission (1992) 39 FCR 420 at 425; Minister for Immigration and Ethnic Affairs v Kurtovic; Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 at 105, 107; Formosa v Secretary Department of Social Security (1988) 46 FCR 117.
…
87.The Department and its officers must act according to statutory power and I accept the authorities relied upon by the respondent in the submissions set out in paragraph 82 of this judgment.”
In my view, the circumstances of this case are similar to the circumstances of the case to which I have referred and otherwise similar to other authorities to which the respondent has properly referred. I accept that as a matter of law that it is now settled that estoppel would not operate so as to grant relief against non-compliance with the requirement that a statute intends should be satisfied or to extend the authority of a decision-maker beyond that given by the statute.
The Respondent referred to the decision of His Honour Carr J in the matter of Fang v Minister for Immigration and Ethnic Affairs (1997) 135 ALR 583 at 600 as follows:-
“It is not necessary to decide whether the first respondents’ servants took steps to induce the appellants to assume that the acts of filling in the Bio-data forms and undertaking the compliance interviews constituted the making of applications for protection visas. This is because, even if they had done so, in my opinion no estoppel could arise. In my view, parliament has required that an application must be made in accordance with s45. In those circumstances an estoppel may not arise to cure non-compliance with a requirement of an Act of parliament; Formosa at FCR 124 and Minister for Immigration and Multicultural Affairs v Polat (1995) 37 ALD 394 at 399”.
I have further been referred to and apply the decision of His Honour Weinberg J in the matter of Minister for Immigration and Multicultural Affairs v Sharma (1999) FCA 31 (29 January 1999). In that decision at paragraph 44 his Honour stated the following when considering similar issues to those raised in the present case:
“It may fairly be said that it is scarcely convenient, and hardly fair, to require a person such as the respondent, who has had her student visa wrongly cancelled, and who, having had that decision set aside, now wishes to make application for a new visa, to leave the migration zone in order to have her application considered. That seems, however, to be the plain effect of the relevant provisions of the Act and of the regulations. The fact that the respondent is, in any event, and perhaps fortuitously, outside Australia at present, at least ameliorates to some degree the inconvenience or hardship which the present statutory regime visits upon her.”
In the present case I apply and adopt what his Honour said in that case, although it is clear in the present case that unfortunately for the applicant there is no ameliorating impact upon the effect of the relevant provisions of the Act or Regulations as he remains in Australia. Nevertheless, that unfortunate effect does not alter the conclusion as a matter of law which I must inevitably reach in this application. Based upon the authorities relied upon by the respondent and the matters otherwise referred to in this decision, it is my conclusion that the order of the court which is appropriate in this matter is that the application be dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 13 August 2004
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