Sukhera v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1427

FEDERAL COURT OF AUSTRALIA

Sukhera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1427

MIGRATION – judicial review – Migration Review Tribunal – student visa – unlawful cancellation of visa – where student visa was cancelled on incorrect grounds – of no effect.

Migration Act 1958 (Cth) ss 47, 116, 119,474F

Plaintiff S157 v Commonwealth (2003) 211 CLR 476
Broken Hill Proprietary Co Ltd v Trade Practices Tribunal (1980) 31 ALR 401

MOHAMMAD SUKHERA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 2561 of 2003

ALLSOP J
8 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2561 of 2003

BETWEEN:	MOHAMMAD SUKHERA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	8 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT:

1.Declares that the purported cancellation of the applicant’s visa on 15 September 1999 was of no effect and had no effect in law on the then existing visa held by the applicant.

2.Declares that the respondent Minister was not in July 2002 or thereafter precluded by s 47 of the Migration Act 1958 (Cth) from considering and determining the student visa application lodged by the applicant on 30 July 2002.

3.Orders that an order in the nature of mandamus issue requiring the Minister to consider and determine the student visa application made by the applicant on 30 July 2002.

4.Orders that the Minister take such steps as are reasonably practicable to inform herself of the nature and content of the application made by the applicant on 30 July 2002 in order to comply with order 3.

5.Orders that the respondent pay the applicant’s costs.

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	NSD 2561 of 2003

BETWEEN:	MOHAMMAD SUKHERA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	8 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks declarations and orders in connection with a decision of a delegate of the respondent Minister which decision, subject to one argument of the Minister, exhibited clear jurisdictional error.  Relief is opposed.  To explain why, it is best to set out the facts, simple and regrettable in part, as they are.

   The Facts

2. On 18 September 1996, the applicant was granted a student visa to undertake university studies in Australia.  A further visa was granted to him on 29 July 1998 relating to a course expected to be completed by 30 June 2002 and valid until 30 July 2002.  A condition of the visa (condition 8202) was that he must satisfy course requirements.

3. On 15 September 1999, an officer of the Department purported to cancel the applicant’s visa.  The errors and inadequacies in that decision are revealed by the following history of events.

4. On 5 July 1999, an officer of the Department wrote to a tertiary institution where the applicant had been in attendance and asked to be advised of the applicant’s examination results and if he was meeting course requirements.

5. By facsimile dated 23 July 1999 the institution informed the Department as follows:

   As requested please be advised that student SUKHERA MOHAMMAD AWAIS – RMIT No.  9809434D, has no results nor has he paid his fees for semester 1/99 and in breach of his student visa. [sic].

6. This information was completely wrong.  In fact, at the beginning of 1999, the respondent had changed his enrolment to another tertiary institution and had deferred his first semester at that second institution because his father had become ill.  He returned to Australia for semester 2, 1999, which he completed successfully.  He subsequently transferred to a third tertiary institution, where he has completed a Bachelor of Commerce degree.  There was no suggestion that any of these changes involved a breach of any visa condition.

7. By letter dated 26 July 1999, an officer of the Department purported to send the applicant a notice of proposed cancellation under s 119 of the Migration Act 1958 (Cth) (the Act). Inaccurately, that notice said, amongst other things:

   It has come to the Department’s attention that there may be grounds for cancellation of your visa under section 116 of the Migration Act 1958 (the Act).  The Department received information from RMIT 26 July 1999, stating that you have failed to complete your nominated course and not paid fees, therefore failing to satisfy the requirements of your nominated course.

8. This letter was sent to an address other than the applicant’s last known residential address.  That is, the letter was sent to an address which was other than that contemplated by the Act and regulations for despatch of such a letter, and at which the applicant did not reside.  The applicant did not receive the notice.

9. On 27 July 1999, the first institution sent a further note indicating that the applicant had not sat his exams for semester 1, but that he was still enrolled for semester 2, 1999.  This too was completely wrong.

10. On 3 August 1999, the Department’s notice of intention to cancel was returned (undelivered) to the Department.

11. On 15 September 1999, an officer of the Department purported to cancel the applicant’s visa.  A notice of this decision was sent to the same address as the previous notice and did not reach the applicant.

12. When the applicant attended the Department on 30 July 2002 to lodge an application for a further student visa, supporting papers and the required fee, he was informed of the earlier (purported) cancellation.  He was told that the application for a further visa could not be accepted because of the (purported) cancellation and that the application he wished to file was an invalid application because of the (purported) cancellation.  He took away the original of the application, which the counter officer refused to accept.  The applicant was not given a copy of the decision record on 30 July 2002.  This was not provided (notwithstanding requests) until February 2003.

13. On 24 December 2002, the applicant sought to review the cancellation decision in the Migration Review Tribunal (the “Tribunal”). The applicant challenged the purported cancellation on procedural and substantive grounds. It was said that the cancellation was invalid because no lawful notice had been given under s 119. It was also said that, in any event, there was no ground for cancelling this visa that existed. On 10 November 2003, the Tribunal set aside the cancellation decision and substituted a decision that the visa not be cancelled.

14. By this time (10 November 2003), the applicant’s former visa had expired.

15. The practical substance of the present difficulty facing the applicant arises from the attitude taken by the Minister from December 2003 to the position of the vindicated (it might be thought) applicant.

16. On 3 December 2003, the applicant (through his solicitor) wrote to the Department to seek its acknowledgment that, in light of the setting aside of the cancellation decision, the Department would proceed on the basis of the student visa application lodged by the applicant on 30 July 2002.

17. On 16 December 2003, an officer of the Department indicated that the Department would not proceed on that basis, because, it was said, the setting aside of a cancellation decision by the Tribunal had only a prospective application and did not constitute a setting aside ab initio.

18. The practical consequences of the Minster’s attitude is that if the applicant wishes to continue his (hitherto successful) studies in Australia, as he does, he must seek another student visa, but from outside Australia and only after some lapse of time.  Yet, if it had not been for the Minister (through the Department) acting without statutory or other authority, the applicant would have been in a position to apply for such a visa in Australia and without leaving Australia.

    The Relief Sought and Underlying Issues

19. By a further amended application filed in Court on 28 October 2004 the applicant claims the following relief:

    1.A declaration that the respondent’s purported cancellation of the applicant’s visa on 15 September 1999 was void and had no effect at all.

    2.A declaration that Minister was not precluded by s 48 [sic 47] of the Migration Act 1958 from considering and determining the student visa application lodged by the applicant on 30 July 2002.

    3.In the alternative to 2, a declaration that, since the decision of the MRT of 10 November 2003, the Minister has not been precluded by s 48 [sic 47] of the Migration Act 1958 from considering and determining the student visa application lodged by the applicant on 30 July 2002.

    4.An order requiring the Minister to consider and determine the student visa application made by the Applicant on 30 July 2002.

    5.An order requiring the Minister to consider and determine a student visa application lodged by the applicant within fourteen days of this order on the basis that it be treated as a sufficient replica of the application actually lodged on 30 July 2002.

    6.To the extent that an extension of time is required, the Applicant seeks leave to extend time for the purposes of the present application.

    7.Such other order as the Court considers appropriate.

    8.Costs.

20. As argument proceeded, Mr Bromwich, who appeared on behalf of the respondent Minister, accepted that the orders sought depend on the correctness of one of two propositions put forward by the applicant in the alternative. First, it was said, the original purported cancellation was of no effect to cancel the visa. Thus, on this basis, the applicant made a valid application on 30 July 2002, and that s 47 of the Act required that it be considered by the Minister. In the circumstances, the Minister was required by law and could be compelled by order of this Court to deal with the applicant on the footing that there was an application before her for a visa made on 30 July 2002 not dealt with by her or the Department. Secondly, the same conclusions are reached, but by reason of the effect under the Act of the Tribunal decision setting aside the delegate’s decision. This setting aside was ab initio and so the position as at 30 July 2002 is now to be judged as if the delegate’s decision had not been made.

21. Before dealing with these matters, it should be noted that during argument a number of complications of a temporal character were resolved. Mr Bromwich initially indicated that there was a degree of futility in the orders based on the lapse of time, the fact that the visa that was being sought in July 2002 had lapsed by now, and he submitted that there was an unreality in “winding back the clock”. In truth these difficulties do not, or may not, arise. If the Minister, through the Department, has acted without statutory authority, and if a purported decision was ineffective to affect legal rights as at July 2002, that should be declared and the Minister should be ordered to deal with the applicant on the basis of the rights and obligations provided for by Parliament. As I understand the position from the submissions of Mr Lloyd, who appeared for the applicant, orders of the kind set out in 4 to 6 at [19] above will allow the applicant, through the application process, to provide further information to the Department and refine his requests in a way which will provide him with an opportunity of the kind that he had in July 2002. Certainly, it has not been demonstrated that the relief would be futile.

    The Status of the First Decision

22. The first “decision” lacked statutory foundation. The Act was not complied with in a number of important respects. The notice was sent to the wrong address for the purposes of the operation of the Act and regulations. Thus no notice was given to the applicant. Further, the notice was defective in a number of respects as to its content. There was no debate before me contrary to the proposition that the decision to cancel was made without statutory authority and in breach of the statutory provisions providing for notice before cancellation of a visa under s 116. It was thus not a decision “under” the Act.

23. The consequence of such absence of authority or want of jurisdiction were described by the High Court in Plaintiff S157 v Commonwealth (2003) 211 CLR 476 at 506 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ as “no decision at all”.

24. Thus, unless some provision of the Act can be seen to ameliorate the effect of the absence of statutory authority under Subdivision E of Division 3 of Part 2 of the Act (containing the procedure for cancellation of cancelling visas under Subdivision D which includes s 116) the purported decision to cancel the applicant’s visa had no effect on its status as a valid existing visa as at 30 July 2002.

25. Section 474 of the Act was not advanced as such a section. What was advanced was the regime for review by the Tribunal. I reject that submission. There is no exhibited statutory intention in Part 5 to vary the content of the authority of the Minister or her delegates in how she or they is or are obliged to proceed in cancelling a visa. Part 5 is ameliorative – but by providing review, not by widening the authority of the decision-maker, or by lessening the consequences of failure to adhere to statutory command.

26. It may be, as the respondent argues, that the Tribunal’s power to set aside and substitute only works prospectively.  That may be, in particular, where there has been no jurisdictional error revealed, or where matters of judgment or assessment are relevant and there can be said to be no “error” of the original decision maker.  Nevertheless, the ordinary consequence of setting aside a decision by a review tribunal is to void it ab initio: Broken Hill Proprietary Co Ltd v Trade Practices Tribunal (1980) 31 ALR 401, 410-11 per Bowen CJ.

27. Whatever may be the answer to that question (including the utility of the question as one of general application), here the underlying delegate’s decision was not such as to affect the existence of the existing visa.  The later superimposition of the Tribunal’s decision does not remove the jurisdiction or power of this Court to declare that and make orders consequential upon such declaration.  Nor does it in any way make the matter before the Court hypothetical.

28. Thus, the applicant is in substance entitled to the relief that he seeks.

29. Order 5 as sought provoked a submission that the Court had no power to make such an order. A factual difficulty gives rise to this complication. After the applicant was told by the Departmental officer on 30 July 2002 that his visa had been cancelled and as a consequence the application that he was making was not valid under the Act, the document which the applicant was attempting to file was handed back to him. He took it away. In the meantime it has been lost. Thus, it is said, the application that was made needs to be reconstructed and there is no power in the Court to order another document to be considered. I reject these submissions. One needs to understand what has happened. On 30 July 2002 an officer of the Commonwealth wrongly asserted to the applicant that his application was not otherwise valid for a reason which was incorrect. At that time (and now) the applicant was (and is) entitled to an order that the valid application he made be considered: see s 47 of the Act. The application was not voluntarily withdrawn. It was rejected at the counter. The application was manifested in a piece of paper. However, the application was the request being made at the time for the visa, manifested as it was in a piece of paper. The Minister had a statutory obligation at that time which was not complied with. There is still an application before the Department. The wrongful rejection of it does not gainsay the proposition that the request was never withdrawn; it was wrongly rejected.

30. It would plainly be within the power of the executive deriving from s 61 of the Constitution to take steps to reconstruct, as best it could, the information within an application in circumstances where the document had been accidentally destroyed while in the Department’s possession.

31. In my view, it is not a question of an absence of power for an order such as order 5, but the proper framing of it.  There could be little doubt that the Minister would be entitled to take all reasonably practicable steps to inform herself of the nature and content of the application made on 30 July 2002 and to consider that application.  That being within her power it is open to this Court to order that those steps be taken in order to give efficacy to the valid application otherwise made on 30 July 2002.

32. The evidence before me was sufficient upon which to conclude that the only basis upon which the application made by the applicant on 30 July 2002 was rejected was the purported cancellation decision.  No argument was put to me that there was, or was any evidence of, any other flaw in the visa application.  The evidence before me was sufficient to infer that there was no other apparent deficiency in the application disentitling the applicant from orders in terms of those claimed.

33. By reason of the jurisdictional errors in the making of the original cancellation decision, I do not see the need for an extension of time to bring these proceedings.  If there were any such requirement, I would without hesitation grant that extension.  No submissions were put to the contrary.

34. The orders of the Court will be:

    1.Declares that the purported cancellation of the applicant’s visa on 15 September 1999 was of no effect and had no effect in law on the then existing visa held by the applicant.

    2.Declares that the respondent Minister was not in July 2002 or thereafter precluded by s 47 of the Migration Act 1958 (Cth) from considering and determining the student visa application lodged by the applicant on 30 July 2002.

    3.Orders that an order in the nature of mandamus issue requiring the Minister to consider and determine the student visa application made by the applicant on 30 July 2002.

    4.Orders that the Minister take such steps as are reasonably practicable to inform herself of the nature and content of the application made by the applicant on 30 July 2002 in order to comply with order 3.

    5.   Orders that the respondent pay the applicant’s costs.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            8 November 2004

Counsel for the Applicant:	Mr S Lloyd
Solicitor for the Applicant:	Parish Patience Immigration Lawyers
Counsel for the Respondent:	Mr R Bromwich
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 October 2004
Date of Judgment:	8 November 2004