Sidhu v Minister for Immigration and Citizenship

[2007] FCAFC 128

FEDERAL COURT OF AUSTRALIA

Sidhu v Minister for Immigration and Citizenship [2007] FCAFC 128

MIGRATION – appeal against decision of a single Judge of this Court reviewing the decision of a delegate of the Minister – in error, evidence of a visa was placed in the appellant’s passport – she used this to enter Australia on two occasions – she was subsequently informed of the error and the evidence removed – whether the giving of such evidence under s 70 of the Migration Act 1958 (Cth) equates to the grant or deemed grant of a visa

Migration Reform Act 1992 (Cth)
Migration Legislation Amendment Act 1994 (Cth)
Migration Act 1958 (Cth) ss 13, 14, 15, 29, 33, 34, 42(4), 65(1)(a), 66, 67, 70, 77, 82, 109, 116, 128, 134, 137Q, 140, 166, 189, 198, 500A, 501, 501A, 501B
Migration Regulations 1994 (Cth) reg 2.43(2)
Migration Reform (Transitional Provisions) Regulations 1994 (Cth) reg 9

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited

Crock, Immigration and Refugee Law in Australia (Federation Press, 1998)

SHARON SIDHU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND PRINCIPAL MIGRATION OFFICER, AUSTRALIAN HIGH COMMISSION, MALAYSIA

No SAD 38 of 2007

BRANSON, FINN AND MANSFIELD JJ
16 AUGUST 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 38 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SHARON SIDHU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

PRINCIPAL MIGRATION OFFICER, AUSTRALIAN HIGH COMMISSION, MALAYSIA
Second Respondent

JUDGES:	BRANSON, FINN AND MANSFIELD JJ
DATE OF ORDER:	16 AUGUST 2007
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 38 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SHARON SIDHU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

PRINCIPAL MIGRATION OFFICER, AUSTRALIAN HIGH COMMISSION, MALAYSIA
Second Respondent

JUDGES:	BRANSON, FINN AND MANSFIELD JJ
DATE:	16 AUGUST 2007
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The Migration Reform Act 1992 (Cth) as amended by the Migration Legislation Amendment Act 1994 (Cth) abandoned altogether the old system governing physical admission of non-citizens into Australia. It had involved, variously, visas, entry permits and exempt entry. In its stead, possession of a valid visa that was in effect became the sole criterion for determining the lawful status of a non-citizen within Australia: see generally Crock, Immigration and Refugee Law in Australia, 52 ff (Federation Press, 1998).  A non-citizen in the Australian migration zone who holds such a visa is a “lawful non-citizen” for the purposes of the Migration Act 1958 (Cth); a non-citizen in the migration zone without such a visa is an “unlawful non-citizen”: see Migration Act 1958, s 13 and s 14. The appellant, Ms Sharon Sidhu, is not an Australian citizen.

2. The short question in this appeal is whether on 1 September 1994, when this new scheme for non-citizen admission into the country came into effect, Ms Sidhu, had been granted or else now holds a Transitional (Permanent) visa permitting her now to enter, and to remain indefinitely, in Australia.  If she has such a visa, it can only be by virtue of the deeming effect of reg 9 of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) (“the Transitional Regulations”).  That regulation provides:

   “9.A non-citizen who, immediately before 1 September 1994, held an old visa of the kind known as: 

   (a)       an Authority to Return;  or

   (b)a Return Endorsement; 

   is taken, on 1 September 1994, to have been granted a transitional (permanent) visa permitting the holder:

   (c)to travel to and enter Australia within 3 years after each departure from Australia;  and 

   (d)to remain indefinitely in Australia.”

3. It is common ground that the Return Endorsement previously held by Ms Sidhu was no longer in effect immediately before 1 September 1994.  Nonetheless, Ms Sidhu now contends that, in consequence of events which have occurred since 1994, she satisfies the requirements of reg 9. 

   BACKGROUND

4. Ms Sidhu is a Malaysian citizen.  She was issued a Malaysian passport in 1975.  In 1976 she was granted an Authority to Return to Australia which was valid for travel to Australia “within three years from date of last departure”.  After she had been granted a new passport in 1984 she was, in 1985, provided with a Return Endorsement in that passport.  This endorsement was the successor to the Authority to Return.  It also contained the same “three years from the date of last departure” limitation.  She continued to comply with that limitation until the 1990s.  She left Australia after a complying visit on 7 April 1991.  Her Return Endorsement ceased to be in effect on 7 April 1994.  She obtained a new Malaysian passport in 1994 and then returned to Australia for the first time since 1991 on 16 October 1996.  On this occasion she presented both her 1984 passport (which contained evidence of her Permission to Enter) and her 1994 passport at entry and on her departure.

5. In September 1997 she applied to the Australian High Commission in Kuala Lumpur for evidence that she was the holder of a Return Endorsement and that it be placed in her 1994 passport.  This passport was endorsed with a label (BF111) which was evidence of a Transitional (Permanent) visa granted pursuant to reg 9 of the Transitional Regulations that had come into force on 1 September 1994.  The endorsement again contained the three year from last departure limitation.  Ms Sidhu travelled to Australia in 1999 and 2002 on her 1999 passport relying upon the same endorsement.

6. In 2003 she sought and obtained a new Malaysian passport.  She again applied to have her right of entry evidenced in her passport.  A delegate of the Minister placed a further BF111 label in her passport.  Before the passport was returned to her the delegate was advised that the applicant was not entitled to a BF111 visa because she was absent from Australia for more than three years between April 1991 and October 1996. 

7. When Ms Sidhu collected her 1999 and 2003 passports, the 1999 passport had been stamped “LABEL INOPERATIVE”.  The 2003 passport included a document entitled “Australian Visa” which was also stamped “LABEL INOPERATIVE”.  On 12 November 2003 the Australian High Commission in Malaysia wrote to her advising of her correct immigration status:

   “On 25 September 2003 you applied to have your Authority to Return [ATR] reevidenced into your new passport.  Departmental records indicate that you were absent from Australia for more than three years between 1991 and 1996.

   Under Regulation 9 of the Migration Reform (Transitional Provisions) Regulations your ATR permitted you:

   ·travel to and enter Australia within three years after each departure from Australia;  and to remain indefinitely in Australia. 

   As the holder of an ATR your right to indefinite permanent residence in Australia was dependent on your return to Australia at least once every three years.  Your failure to do so caused your ATR to cease on 7 April 1994 and it is not possible to reevidence an ATR that you do not hold.

   The earlier reevidence of your ATR in 1997 was an administrative error on the department’s part.

   Should you wish to regain Australian permanent residence you may apply for a Resident Return Visa or re-apply for migration.

   Should you wish to travel to Australia on a temporary basis you may apply for a visa appropriate to the purpose of your trip.”

8. Unable to secure the reinstatement of her BF111 visa, Ms Sidhu instituted the proceedings that led to this appeal. She sought – and seeks – an order in the nature of a writ of mandamus and/or an injunction requiring the respondent Minister to give her evidence of her Transitional (Permanent) visa pursuant to s 70 of the Migration Act.

9. It is unnecessary to refer to errors made by the Department of Immigration in the period 1989 to 1993 relating to Ms Sidhu’s Return Endorsement.  While of significance at first instance, they have no relevance in the appeal.

10. Before indicating how Ms Sidhu’s case has been put, it is necessary to refer in a little detail to the scheme and structure of the Act as it relates to visas.

    THE ACT

    (a)       Non-citizens and visas

11. A primary function of the Migration Act is to regulate the entry into, and presence in, Australia of aliens (or non-citizens): see the preamble to the Act. As already noted, since 1994 the possession of a valid visa that is in effect is the sole criterion for determining the lawful status of a non-citizen within Australia. A non-citizen within Australia without a visa in effect is an unlawful non-citizen: s 14; see also s 42(4). The Act contains detailed provisions for the mandatory detention and for the removal from Australia of unlawful non-citizens: see Part 2 Divisions 7 and 8.

12. A visa is simply a permission granted to a non-citizen to travel to and enter Australia and/or to remain in Australia: s 29; the Act and/or the Migration Regulations 1994 (Cth) prescribing classes of visas and their respective criteria. As a rule, it is the Minister (or his delegate) who is required to grant a visa if, after considering a valid visa application, the Minister is satisfied that the requirements specified in s 65(1)(a) of the Act have been met. The way a visa is granted by the Minister is by the Minister causing a record of it to be made: s 67. Exceptionally, visas are granted by force of deeming provisions of the Act or of the Regulations: see e.g. ss 33 and 34 of the Act and reg 9 of the Transitional Regulations; and without a record of the grant being made. Unless a visa itself otherwise specifies, it has effect as soon as it is granted and remains in effect during the visa period for the visa in question: s 68. If a visa ceases to have effect or is cancelled (see below), its former holder, if in the migration zone, becomes on cessation or cancellation an unlawful non-citizen unless, immediately after cessation or cancellation, that person holds another visa that is in effect: s 14(1) and s 15; see also s 77 and s 82.

13. Section 66 obliges the Minister, subject to certain exceptions, to notify an applicant of the decision to grant or refuse a visa, but failure so to notify does not affect the validity of the decision itself.

14. The visa in issue in this appeal, if it has been granted, has been granted by a deeming provision.

    (b)       Evidence of a visa

15. Importantly for present purposes, s 70 of the Act provides:

    “Subject to the regulations, if a non-citizen is granted a visa, an officer is to give the non-citizen evidence of the visa.”

16. This obligation applies both to visas granted by the making of a record of it and to visas deemed to have been granted by force of the Act or Regulations. The Regulations provide the ways in which evidence of a visa is to be given. A principal function of the s 70 evidencing is to provide a non-citizen with evidence of a visa that is in effect. Such evidence must be shown to a clearance officer when undergoing immigration clearance on entering Australia: see s 166; see also Crock, Ch 4.

17. To anticipate matters, the present appeal turns critically on the effect to be attributed to the evidence of a deemed visa given under s 70 when all of the requirements for that visa have not been satisfied.

    (c)      Cancellation of visas

18. All that needs be noted here is that visas once granted are not irrevocable. The Act prescribes a number of bases upon which a visa may be cancelled: see e.g. ss 109, 116, 128, 134, 137Q, 140, 500A, 501, 501A and 501B. Save in certain exceptional cases: see e.g. reg 2.43(2) of the Migration Regulations; the power to cancel is discretionary. The effect of cancellation, if the visa holder is in the migration zone at the time, is to render the person concerned an unlawful non-citizen and as such liable to mandatory detention: s 189; and removal from Australia: s 198.

    THE PRESENT APPEAL

19. The primary Judge, Lander J, dismissed Ms Sidhu’s application, his Honour holding that because her Return Endorsement (i.e. her “old visa”) ceased to have effect after 7 April 1994, she was unable to take advantage of the provisions of reg 9 of the Transitional Regulations as she could not satisfy the temporal requirement that, “immediately before 1 September 1994”, she held a Return Endorsement. His Honour also rejected her arguments that in consequence of her subsequently having been given s 70 evidence of a Return Endorsement to which she was not entitled and having been permitted to later enter Australia, the respondent Minister waived or else was estopped from denying that she was entitled under reg 9 to a Transitional (Permanent) visa.

20. On the appeal, Ms Sidhu does not challenge his Honour’s estoppel conclusion.  However, she does contend, first, that Lander J should have concluded that when the 1997 evidence of the Return Endorsement was given, it was a valid “decision” made by the officer concerned as to whether Ms Sidhu satisfied the reg 9 requirement.  The fact that she did not satisfy the temporal requirement, it is said, did not invalidate the decision because, on the basis of the principles for ascertaining legislative purpose endorsed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]-[93], non-compliance with reg 9 did not have this consequence. Secondly, Ms Sidhu challenges Lander J’s conclusion that compliance with the reg 9 temporal requirement was not in the circumstances waived when the s 70 evidence was given in 1997.

21. We mean no disrespect to counsel for Ms Sidhu in not setting out in any detail his ingenious contentions in support of the first of the above grounds or the evidence relied upon in support of the waiver ground. Both are premised upon a view taken of s 70 of the Migration Act which we are unable to accept and which is fatal to this appeal.

22. The Act draws a clear distinction between the s 65 grant or a deemed grant of a permission (i.e. a visa) to travel to and enter Australia and/or to remain in Australia, the s 66 notification of the decision to grant that permission or its refusal (in cases of visa granted by the Minister under s 67) and the s 70 evidencing of that permission. While the latter two of these – notification and evidencing – have their place and purpose in the scheme of the Act, the grant or deemed grant is the hinge upon which turns the Act’s regulation of alien entry into, and presence in Australia. Absent that permission being in effect, a non-citizen cannot lawfully enter or remain in Australia. Neither the erroneous notification of a decision to permit entry etc, nor the erroneous evidencing of a visa not in fact granted or deemed granted, is a substitute for such a permission. It is only the permission in force that can secure lawful entry. This said, an erroneous evidencing of a visa may enable a non-citizen to be mistakenly immigration cleared under Pt 2 Div 5 of the Act – as happened to Ms Sidhu in 1999 and 2002. Nonetheless, such a person would not be a lawful non-citizen as the evidence itself would not be of “a visa that is in effect”: cf s 166(1)(a)(ii).

23. The accurate performance of the s 70 duty may well be affected by considerations going to the adequacy of the Department’s own record keeping or to the care with which the s 70 “officer” accesses those records. But the s 70 task imposed is of a routine, administrative character. While the section does not confer any discretionary function on the “officer” – it imposes a mandatory obligation to give evidence of a visa that has been granted – the proper performance of that duty necessarily requires that a mental process be engaged in leading to the officer’s reaching a state of satisfaction in respect of the non-citizen in question that he or she has been granted, or is deemed to have been granted, a visa. That state of satisfaction, though, relates to whether or not evidence should be given in a particular case, and that is all. It has no bearing upon – and in this sense is unrelated to – the anterior question whether or not a visa (deemed or otherwise) has in fact been granted.

24. If the officer, in error, refuses to give a non-citizen the evidence to which he or she is entitled, an appropriate order can be made compelling the performance of the s 70 duty. Importantly, such an error itself has no bearing on whether or not that non-citizen has been granted a visa. It is likewise when the officer in error gives a visa to a non-citizen who is not the grantee or deemed grantee of a visa.

25. Within the scheme of the Act, the statutory function of a s 70 officer is to give evidence of a visa granted. It is not to grant a visa. In the context of the visa provisions of the Act and their purpose, the legislative intent manifest in s 70 is that, if a non-citizen is granted a visa, he or she is entitled to evidence of it, but not otherwise.

26. The appeal should be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Finn and Mansfield.

Associate:

Dated:        16 August 2007

Counsel for the Appellant:	Mr S Owers
Solicitor for the Appellant:	Camatta Lempens
Counsel for the Respondent:	Mr C Horan
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 August 2007
Date of Judgment:	16 August 2007