SZSSJ v Minister for Home Affairs

[2019] FCCA 382

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSSJ v MINISTER FOR HOME AFFAIRS [2019] FCCA 382

Catchwords:
MIGRATION – Whether Federal Circuit Court has jurisdiction to determine claims for relief directed to decisions made by a delegate of the Minister for Immigration and Citizenship to cancel a bridging visa and not to grant a further bridging visa - whether such decisions are decisions reviewable under Part 5 of the Migration Act 1958 (Cth) (Act) and, for that reason, “primary decisions” within the meaning of s.476(4) of the Act – whether Court has jurisdiction to determine claim for declarative relief directed to asserted actions of officers of the Department of Immigration and Citizenship said to constitute an unlawful detention of the applicant – no jurisdiction to determine any of the claims for relief made in application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 48, 338, 474, 474A, 476

Cases cited:

Ellis v Wallsend District Hospital  (1989) 17 NSWLR 553

Applicant: SZSSJ

Respondent: MINISTER FOR HOME AFFAIRS

File Number: SYG 575 of 2018

Judgment of: Judge Manousaridis

Hearing date: 19 February 2019

Date of Last Submission: 19 February 2019

Delivered at: Sydney

Delivered on: 22 February 2019

REPRESENTATION

Applicant in person

Solicitors for the Respondent: Ms H Dejean of Australian Government Solicitor

DECLARATION

1. The Court does not have jurisdiction to determine the claims for relief made in the application filed on 2 March 2018.

ORDER

1. The application filed on 2 March 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 575 of 2018

SZSSJ

Applicant

And

MINISTER FOR HOME AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

1. The respondent (Minister) applies for an order that the application filed by the applicant on 2 March 2018 be dismissed on the ground that this Court does not have jurisdiction to determine the claims for relief made in that application.

2. The application that was filed on 2 March 2018 relates to two decisions made by a person identified as “Linda” on 3 October 2012. The first is a decision to cancel a bridging visa E (Bridging visa) held by the applicant (Cancellation Decision). The Bridging visa was cancelled on the ground that the applicant had failed to comply with condition 8511. That condition required the applicant to present to the Department of Immigration and Citizenship (as the Department of Home Affairs was then known) (Department) a fully paid departure ticket by 10.30 am on 3 October 2012. The second decision (Refusal Decision) is a decision made on the same day, namely to refuse to grant the applicant a further bridging visa (Further Bridging visa).

3. Before I consider the matter further, it would be convenient if I set out the circumstances in which the Cancellation Decision and the Refusal Decision were made, and the reasons they were made. These circumstances are set out in documents recording the decisions and events leading to the decisions that are annexed to the applicant’s affidavit made on 1 March 2018, and which the applicant submits are fraudulent.

Circumstances in which the decisions were made

1. On 3 October 2012 the applicant attended the Department’s South Wales Compliance Client Services in Sydney. He there told officers of the Department he did not have a fully paid ticket to present to the Department.

2. At 4.25 pm on 3 October 2012 the applicant received a “Notice of intention to consider cancellation” of the Bridging visa. It identified as a possible ground for cancelling the Bridging visa the applicant’s not having presented to the Department by 10.30 am on 3 October 2012 a fully paid departure ticket. The applicant did not provide any reason why the ground for cancellation did not exist. He did provide, however, reasons why the Bridging visa should not be cancelled.

3. The applicant said he intended to purchase a ticket to depart, but he did not receive the funds from his friend who had promised him the money because his friend had spent the money intended for him gambling; he could get money to buy a ticket and present the ticket to the Department on 8 October 2012; the applicant intended to apply for a protection visa before he attended the interview, but he could not because he needed a justice of the peace to sign the form; the applicant did not want to breach a visa condition; and he thought he might be detained.

4. The delegate decided to cancel the Bridging visa, and the applicant was given a document titled “Notification of decision” (Notification of Cancellation Decision). Paragraph 5 of that document included the following information:

   If you do not hold any other visa, you are now an unlawful non-citizen. Unlawful non-citizens are liable to be detained and removed from Australia.

5. Paragraph 6 of the Notification of Cancellation Decision is titled “Review rights”. It states that the applicant is “eligible to apply for review of this decision by the Migration Review Tribunal (MRT)”. The paragraph then sets out three boxes next to which are printed the times by which an application for review may be made to the MRT. The first and third boxes, but not the second box, are ticked, and these are the boxes next to the following text:

   two (2) working days after the day on which you received this notice, if you had a bridging visa cancelled and you are in immigration detention because of that cancellation.

   . . . .

   one (1) working day before the expiry of the time period specified above, if you obtained and you choose to give the application to an immigration officer at a detention centre or at an office at an airport.

6. There is also a note that forms part of the Notification of Cancellation Decision, which includes the following:

   Note to the delegate: If the visa cancellation was a bridging visa, and the visa holder is in immigration detention because of that cancellation, the second option should be struck out and the first and third options are to be selected. . . .

7. The Notification of Cancellation Decision also states that because the applicant’s visa has been cancelled, s.48 of the Migration Act 1958 (Cth) (Act) prescribes a limited number of visas for which the applicant may be eligible to apply. It states that these classes of visas are printed on page 6. These include “Bridging A, B, C, D, E, F or R”.

8. The final matter to note is that the applicant signed the Notification of Cancellation Decision and by doing so acknowledged he had received the notification.

9. The applicant then applied for the Further Bridging visa. According to a letter from the Department to the applicant dated 3 October 2012 (which is annexed to the applicant’s affidavit made on 1 March 2018), the applicant applied for the Further Bridging visa while at the Department’s Sydney office. There is also in evidence a document titled “Record and notice of decision Bridging visa E – subclass 050” (Notification of Refusal Decision). The document is in prescribed form 1211, and it contains a number of details provided in rectangles and boxes contained in the form. Under the heading “Applicant in detention” there is printed the question: “Has a Detention Review Officer been informed of the application?” There then appear three boxes with the text “No”, “Yes” and “Not applicable” next to them respectively. The box next to the words “Not applicable” is ticked, and next to that box are the words “Applicant is not in immigration detention”.

10. A delegate of the Minister refused to grant to the applicant the Further Bridging visa. The delegate did so for reasons that included the following:

    Applicant presented with a partially completed application for a Protection visa. [The applicant] has had numerous opportunities to lodge a valid application, [sic] I am not satisfied he wold make a valid application for a substantive visa within any set time frame. As such he does not meet Migration Regulation 050.212(3), (3A), (4), (4AA), (4AAA), (4AB), (4AB), (5), (5A), (5B), (6), (6AA), (6B), (8), (9) & (9)(c)(ii) for the grant of a BVE.

    . . . .

    The client has condition 8511 imposed on his visa. Client failed to present a ticket by 10.30am on Wednesday, 3^rd October 2012.

    Based on this information, I am not satisfied that [the applicant] has made satisfactory arrangements to depart Australia and therefore does not satisfy the requirements for Regulation 050.212(2).

    Therefore [the applicant] does not meet 050.212(1).

11. The applicant placed his signature on the letter dated 3 October 2012 from the Department under the printed words “I have received this letter and the attachments”. I infer from the applicant’s signature on the letter that he was given the letter together with the Notification of Refusal Decision while he was present at the Department’s office.

Ground of application and applicant’s submissions

1. The application contains one ground (errors in original):

   1.The applicant’s detention was unlawful;

   Particulars

   a)the applicant was detained while he was still lawfully holding a visa;

   b)the staffs of the department had produced and relied upon fraudulent documents after the Applicant was detained;

   c)the department forcefully and unlawfully violated the legal and human rights of the applicant.

2. Given the decision in relation to which the application was filed was made more the 35 days before the applicant filed the application – in fact more than five years – the application states an extension of time is required. The grounds for extension are:

   1.   The department has produced and relied upon fraudulent documents.

   2.   The department forcefully and unlawfully violated the legal and human rights of the applicant.

   3.   It is an abomination of justice.

3. The applicant, who is not legally represented, also relied on an affidavit and submissions which repeat the matters stated in the affidavit. The applicant there asserts that on 3 October 2012 he went to the Department’s office at Haymarket with a protection visa application and “relevant payment for that application”. As soon as the immigration officer learned from the applicant about his family background, “perhaps within 100 seconds, they locked me up in that room”. The applicant further says that “[t]hey prevented me from lodging the Protection visa that I had legal [sic] right to lodge”, and that “[l]ater on that evening have [sic] forced me to sign their fraudulent documents to (unlawfully) legitimise their unlawful detention”.

4. The applicant was not cross-examined on his affidavit. Ms Dejean, who appeared for the Minister, did not cross-examine the applicant because she submitted the matters asserted in the affidavit were not relevant. That the applicant was not cross-examined does not mean I am bound to accept the matters asserted in it.[1] And I do not accept the truth of the assertions made in the affidavit to the extent they are inconsistent with the facts as recorded in the Notification of Cancellation Decision and in the Notification of Refusal Decision, whether or not those assertions are relevant. First, the applicant acknowledged to me that he has held these documents since 3 October 2012, yet he has not at any time before he filed the application commencing this proceeding asserted to the Department or to any other person in authority that any of the matters recorded in the documents are incorrect, or that the documents are fraudulent. Second, the applicant also acknowledged to me that he had not in any previous proceeding claimed that he had been unlawfully detained by officers of the Department and prevented from lodging an application for a protection visa. Third, the applicant’s claims of fraud are no more than bald assertions, unsupported by particulars or evidence. Fourth, the assertions contained in the documents were recorded at or very near the time the events they purport to record occurred.

   [1] Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, at pages 587-588

5. I therefore accept as true the matters of fact recorded in the Notification of Cancellation Decision and in the Notification of Refusal Decision. I will, however, also consider whether I have jurisdiction on the assumption that the applicant’s claims are true.

What is the object of the application?

1. At the hearing before me the applicant said that his true complaint related to what he claimed was his unlawful detention by the officers of the Department on 3 October 2012, and that he challenges the Cancellation Decision and the Refusal Decision because he had been told there had to be a decision before he could file an application in this Court. The applicant claimed he was unlawfully detained before the Bridging visa was cancelled. The first question I must determine, therefore, is whether the object of the application filed on 2 March 2018 is the Cancellation Decision and the Refusal Decision, or whether it is the asserted unlawful detention of the applicant before the cancellation of the Bridging visa. In my opinion, it is both.

2. That is apparent from the following:

   a)The applicant crossed a box that appears in the application filed with this Court next to which are printed the words (emphasis in original):

   Decision made by the Minister or another person under the Migration Act.

   Name of decision-maker: Ms. Linda

   Office held: Department of Home Affairs (then Department of Immigration and Citizenship) Position number . . . .

   Date of the decisions:    03/10/2012

   This indicates that the application is directed to the delegate’s decisions to cancel the Bridging visa and not to grant the Further Bridging visa.

   b)In his application the applicant seeks an “order that the decisions of the Minister be quashed”, and a “declaration that the detention of the Applicant was unlawful”.

   c)The application contains a single ground, namely, the applicant’s detention was unlawful.

3. Thus, by his application the applicant seeks orders quashing the Cancellation Decision and the Refusal Decision and a declaration that he was unlawfully detained before the Cancellation Decision was made. The question is whether this Court has jurisdiction to determine one or both of these claims for relief.

Court’s jurisdiction

1. The starting point is s.476(1) of the Act, which provides:

   Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

2. The expression “migration decision” is defined in s.5 of the Act to mean a “privative clause decision” or a “purported privative clause decision” or a “non-privative clause decision” or an “AAT Act migration decision”. These expressions, in turn, are defined in s.474(2), (3), (4) and (6), and s.474A of the Act respectively. Relevant to the case before me is the definition of “privative clause decision” given in s.474(2) of the Act, namely:

   a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

3. Also relevant is s.476(2)(a) of the Act which provides that this Court “has no jurisdiction in relation to . . . a primary decision”. The expression “primary decision” is defined in s.476(4) of the Act to mean:

   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); or

   (b)that would have been so reviewable if an application for such review had been made within a specified period; or

   (c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).

4. It would be convenient if I consider separately, on the one hand, this Court’s jurisdiction in relation to the Cancellation Decision and the Refusal Decision and, on the other, this Court’s jurisdiction in relation to the applicant’s claim for a declaration.

Jurisdiction in relation to decisions

1. Whether or not the Cancellation Decision or the Refusal Decision are reviewable under Part 5 turns on those provisions of Part 5 that deal with the review of decisions. Given the decisions were made in October 2012, the reviewability of the decisions should be considered in the light of the Act as it stood at that time, although, as it so happens, there have been no substantive amendments to those provisions after 3 October 2012.[2]

   [2] Being the Act taking amendments up to Act No.113 of 2012

2. The starting point is s.348 of the Act which provided that if an application is properly made to the MRT “for review of an MRT-reviewable decision, the [MRT] must review the decision”. Thus, as it stood at the time of the Cancellation Decision and the Refusal Decision, a decision was reviewable under Part 5 by the MRT; and it was reviewable only if the decision was a “MRT-reviewable decision”.

3. The expression “MRT-reviewable decision” was defined in s.338 of the Act to include the decision identified in the section. Relevant to the case before me is s.338(4) of the Act which provided:

   The following decisions are MRT‑reviewable decisions:

   (a)a decision to refuse to grant a bridging visa to a non‑citizen who is in immigration detention because of that refusal;

   (b)a decision to cancel a bridging visa held by a non‑citizen who is in immigration detention because of that cancellation.

4. The expression “immigration detention” was defined in s.5 of the Act to mean, among other things, “being in the company of, and restrained by . . . an officer”. The word “officer” was defined in s.5 of the Act to mean, among other things, “an officer of the Department”.

5. In my opinion, s.338(4)(b) of the Act applied to the Cancellation Decision. On the making of the Cancellation Decision the applicant was in immigration detention because of the Cancellation Decision. That is, the applicant was in the company of, and restrained by, an officer of officers of the Department. That is apparent from the manner in which the delegate completed that section of the Notification of Cancellation Decision, which was premised on the applicant being in immigration detention because of the cancellation of the Bridging visa.

6. It is further apparent from the applicant’s claims. If I were to accept as true the applicant’s assertions of fact that he was detained before the Cancellation Decision was made, the applicant nevertheless claims he continued to be detained after the Bridging Visa was cancelled. In those circumstances the applicant would still have been in the company of, and restrained by, an officer of officers of the Department because of the Cancellation Decision.

7. In making these findings I have not ignored the delegate’s having crossed a box in the Notification of Refusal Decision that signified the applicant was not in immigration detention. Although that evidence by itself might suggest the applicant was not in immigration detention, it does not outweigh the inferences that are available to be drawn from the matters to which I have already referred in finding that on the making of the Cancellation Decision the applicant was in the company of, and restrained by, an officer of the Department and, therefore, in immigration detention within the meaning of that expression as defined in s.5 of the Act.

8. I am also of the opinion that s.338(4)(a) of the Act applied to the Refusal Decision. As I have already noted, the applicant applied for the Further Bridging visa while in the Sydney office of the Department, and, as I have already found, the applicant was given the Notification of Refusal Decision at the Sydney office of the Department. Given the findings I have already made that the applicant was in immigration detention on the making of the Cancellation Decision, I also find that the applicant remained in the company of, and restrained by an officer or officers of the Department, and therefore remained in immigration detention, immediately after the applicant was given the Notification of Refusal Decision, and that he was in immigration detention because of the Refusal Decision.

1. My conclusions are premised on findings that the applicant was in immigration detention because of the making of the Cancellation Decision and the Refusal Decision. Even if the evidence does not justify those findings, the Cancellation Decision and the Refusal Decision would each have been a “MRT-reviewable decision” and, therefore, decisions that are reviewable under Part 5 of the Act. The Cancellation Decision would have fallen within the class of decisions identified in s.338(3) of the Act, which provided as follows:

   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)is covered by subsection (4); or

   (b)is made at a time when the non‑citizen was in immigration clearance; or

   (c)was made under subsection 134(1), (3A) or (4) or section 501.

2. And the Refusal Decision would have fallen within s.338(2) of the Act, which provided as follows:

   A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is an MRT‑reviewable decision if:

   (a)the visa could be granted while the non‑citizen is in the migration zone; and

   (b)the non‑citizen made the application for the visa while in the migration zone; and

   (c)the decision was not made when the non‑citizen:

   (i)was in immigration clearance; or

   (ii)had been refused immigration clearance and had not subsequently been immigration cleared; and

   (d)where it is a criterion for the grant of the visa that the non‑citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i)the non‑citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

   (ii)an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

3. For these reasons, both the Cancellation Decision and the Refusal Decision are decisions that are reviewable under Part 5 of the Act or, at least, would have been reviewable had an application for such review been made by the applicant within the prescribed time. That, in turn, means that each of the Cancellation Decision and the Refusal Decision is a “primary decision” within the meaning of s.476(4) of the Act and that this Court does not have jurisdiction in relation to those decisions.

Jurisdiction in relation to declaration

1. The declaration the applicant seeks is directed to the circumstances of what he claims is his unlawful detention. The relevant acts on which this claim is based are the asserted actions of officers of the Department before and after the delegate cancelled the Bridging visa. The question is whether the applicant’s assertions of fact, if true, point to something that can arguably be characterised is a “migration decision” within the meaning of s.5 of the Act; that is, as a “privative clause decision”, being a “decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)”. In my opinion those asserted facts, assuming they are true, point to nothing that can reasonably be characterised as a “migration decision” before the making of the Cancellation decision. And to the extent the declaratory relief relies on challenging the lawfulness of the Cancellation Decision and the Refusal Decision, each of those decisions, as I have already found, are a primary decision in relation to which the Court does not have jurisdiction.

2. The Court, therefore, does not have jurisdiction to entertain the claim for declaratory relief that the applicant had been unlawfully detained before or after the making of the Cancellation Decision or the Refusal Decision.

Conclusion and disposition

1. The Court does not have jurisdiction to determine the claims for relief made in the application filed on 2 March 2018. I propose, therefore to make a declaration to that effect, and to dismiss the application. I will consider the question of costs when I pronounce my orders.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 22 February 2019