TAHERE v Minister for Home Affairs and Anor
[2018] FCCA 3505
•5 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TAHERE v MINISTER FOR HOME AFFAIRS & ANOR | [2018] FCCA 3505 |
| Catchwords: MIGRATION – Quaere whether a person, who is not immigration cleared and is placed in an immigration detention centre in the migration zone, is in the migration zone. |
| Legislation: Migration Act 1958, ss.5, 32, 166, 172, 338, 347, 474, 476, 501 Migration Regulations 1994, cls.1219 of sch.1, 444.411 of sch.2 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 |
| Applicant: | LAVINA ANN TAHERE |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1331 of 2018 |
| Judgment of: | Judge Cameron |
| Hearing date: | 11 September 2018, 5 November 2018 |
| Date of Last Submission: | 5 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 November 2018 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the First Respondent: | Mr M. Cleary |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s cost fixed in the amount of $7,467.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1331 of 2018
| LAVINIA ANN TAHERE |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
INTRODUCTION
The applicant is a citizen of New Zealand who, upon her arrival at Sydney airport on 16 March 2018, applied to the Department of Home Affairs (“Department”) for a Special Category (Temporary) (Class TY) visa. On the same day, a delegate of the first respondent (“Minister”) refused her application on the basis that the applicant was a “behaviour concern non-citizen” and, as such, failed to meet the criterion in s.32(2)(a)(ii) of the Migration Act 1958 (“Act”) for the grant of the visa. The applicant subsequently applied to the second respondent (“Tribunal”) for a review of the delegate’s decision. However, on 3 May 2018 the Tribunal found that it did not have jurisdiction to entertain the review application. The applicant has applied to this Court for judicial review of the Tribunal’s decision.
In this judicial review proceeding the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
RELEVANT LEGISLATION
Visa criteria
Clause 1219 of sch.1 to the Migration Regulations 1994 (“Regulations”) sets out the preconditions for the making of a valid Special Category visa application. At all material times, it relevantly provided:
1219 Special Category (Temporary) (Class TY)
(1)Form: The approved form specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
…
(3) Other:
(a) An application must be made at the place, and in the manner, (if any) specified by the Minister in a legislative instrument made for this item under subregulation 2.07(5).
(aa) An applicant who holds a special purpose visa, or who does not hold a visa, must be:
(i) in immigration clearance outside Australia travelling to Australia on a pre‑cleared flight; or
(ii) in immigration clearance in Australia; or
(iii) in Australia after having been immigration cleared.
…
(b) The applicant must present a New Zealand passport that is in force to an officer or a clearance authority.
(c) Applicant is not the holder of a permanent visa.
(d) If the application is made using an authorised system, the applicant must answer the health and character questions asked by the authorised system.
The criteria for the grant of such a visa are to be found in cl.444 of schedule 2 to the Regulations, and in particular cl.444.411, which provides:
444.4—Circumstances applicable to grant
444.411
At the time of grant, the applicant must:
(a) be in Australia; or
(b) intend to travel to Australia on a pre-cleared flight and be in immigration clearance at a port outside Australia at which pre-clearance procedures are carried out.
At all material times, s.32(2)(a) of the Act also provided:
32 Special category visas
…
(2) A criterion for a special category visa is that the Minister is satisfied the applicant is:
(a) a non‑citizen:
(i) who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and
(ii) is neither a behaviour concern non‑citizen nor a health concern non‑citizen; …
Section 5(1) of the Act defines a “behaviour concern non-citizen” relevantly in the following terms:
5 Interpretation
(1) In this Act, unless the contrary intention appears:
…
behaviour concern non-citizen means a non-citizen who:
(a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b) has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i) any period concurrent with part of a longer period is disregarded; and
(ii) any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(iii) the crimes were of the same kind; or
(iv) the crimes were committed at the same time; or
(v) the convictions were at the same time; or
(vi) the sentencings were at the same time; or
(vii) the periods were consecutive; or
(c) has been charged with a crime and either:
(i) found guilty of having committed the crime while of unsound mind; or
(ii) acquitted on the ground that the crime was committed while the person was of unsound mind;
(d) has been removed or deported from Australia or removed or deported from another country; or
(e) has been excluded from another country in prescribed circumstances;
where sentenced to imprisonment includes ordered to be confined in a corrective institution.
Review of decisions
The Tribunal’s jurisdiction to review the delegate’s decision arises if the decision is a “Part 5-reviewable decision” as defined in s.338 of the Act. Relevantly for the present matter, at all material times s.338(2) of the Act provided as follows:
338 Definition of Part 5‑reviewable decision
…
(2) 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 a Part 5‑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
…
Section 347(3) of the Act provides that an application for review of a pt.5-reviewable decision may only be made by a non-citizen who is physically present in the migration zone when the application for review is made. In this regard, s.5(1) of the Act defines the migration zone as:
… the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.
…
Immigration clearance
Section 172 of the Act specifies when a person is deemed to have been immigration cleared or refused and relevantly provides:
172 Immigration clearance
When a person is immigration cleared
(1) A person is immigration cleared if, and only if:
(a) the person:
(i) enters Australia at a port; and
(ii) complies with section 166; and
(iii) leaves the port at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; …
…
When a person is refused immigration clearance
(3) A person is refused immigration clearance if the person:
(a)is with a clearance officer for the purposes of section 166; and
(b) satisfies one or more of the following subparagraphs:
(i) …
(ii) the person refuses, or is unable, to present to a clearance officer evidence referred to in paragraph 166(1)(a);
…
Section 166 of the Act relevantly provides:
166 Persons entering to present certain evidence of identity etc.
Requirement to be immigration cleared
(1)A person, whether a citizen or a non‑citizen, who enters Australia must, without unreasonable delay:
(a)present the following evidence (which might include a personal identifier) to a clearance authority:
…
(ii) if the person is a non‑citizen—evidence of the person’s identity and of a visa that is in effect and is held by the person; …
BACKGROUND FACTS
Visa application
The background facts to this matter were summarised by the Minister in his written submissions in the following terms which I adopt:
2. The applicant is [a] citizen of New Zealand who travelled to Australia on 16 March 2018. The requirements for a valid application for a Special Category visa that applied at that time, as set out in item 1219 in Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations) stated:
a. An application be made on an approved form, being an incoming passenger card: cl 1219(1)
b. In circumstances where the applicant does not hold a visa, the application is made in immigration clearance in Australia: cl 1219(3)(a)(ii);
c. The applicant present a New Zealand passport that is in force to an officer or clearance authority: cl 1219(3)(b); and
d. The applicant is not the holder of a permanent visa: cl 1219(3)(c).
3. The applicant provided her passport and incoming passenger card when she arrived at immigration clearance at Sydney Kingsford Smith Airport (Sydney Airport) on 16 March 2018. The applicant had no other visas in effect. In these circumstances, she was taken to have applied for a Special Category Visa.
4. Upon arrival at Sydney Airport, the applicant attended an interview with Departmental staff at a Border Clearance Office from 11:30am [sic] to 11:55am. At the interview, Departmental officers discussed the circumstances surrounding the applicant’s removal from Australia on 2 April 2015, and the previous refusal of immigration clearance for the applicant at Sydney Airport on 24 August 2015.
5. On 16 March 2018, a delegate of the Minister refused the application for a Special Category visa. The applicant was notified of the decision at 11:10am, while she remained in immigration clearance at Sydney Airport. The delegate found that the applicant was a “behaviour concern non-citizen” (BCNC) and therefore did not meet the criterion in s 32(2)(a)(ii) of the Act. The applicant was found to be a BCNC on the basis that the applicant had been previously removed or deported from Australia or another country. ...
6. At 11:25am, the applicant was notified that she was an unlawful non-citizen and would be held in immigration detention under s 189(1) of the Act pending removal from Australia. The applicant was transferred to Villawood Immigration Detention Centre on 16 March 2018.
7. The Department attempted to remove the applicant on Australia on 17 March 2018, however this attempted removal was aborted as the applicant refused to board the aircraft.
…
9. On 18 April 2018, by way of facsimile, the applicant applied for review of the delegate’s decision to refuse the Special Category visa. In her review application, the applicant answered “Yes” to Question 16, which asked whether the applicant was in immigration detention as a result of a decision by the Department to refuse to grant or cancel a Bridging visa.
10. On 23 April 2018, the Tribunal invited the applicant to comment on its preliminary view that it had no jurisdiction. The applicant responded in a facsimile on 27 April 2018 in which she claimed there were compelling and compassionate circumstances in her case. (References omitted)
It should be recorded that the applicant was refused a Special Category visa when she landed in Australia on 16 March 2018.
The Tribunal’s decision and reasons
The Tribunal stated that at the time of lodging the review application on 18 April 2018 the applicant continued to not be immigration cleared and as a result was not physically present in the migration zone when the application for review was made.
The Tribunal found that the applicant was not in the migration zone at the relevant time. As such, the application for review was not properly made under s.347 of the Act. Consequently, the Tribunal found that it did not have jurisdiction to review the decision of the delegate.
THE PROCEEDING IN THIS COURT
In her application the applicant alleged:
1. The applicant found Constructive failure by delegate to exercise his jurisdiction because it failed to grappled directly with important elements of the statutory task, that the applicant contend she was never confer to 12 months or more imprisonment, the cancellation decision, deportation and intention to cancel were invalid because it up held a decision based on invalid.
PARTICULARS
(a) Section 501(2) of the act purported to require the respondent, relevantly, to cancel the applicant’s visa where the respondent was satisfied that the applicant did not pass the character test because of the operation of s.501(b)(a) (substantial Criminal record, on the basis of s.501(7)(c) (sentencing to term of imprisonment of 12 months or more), and the applicant contended she had not serve a sentencing of imprisonment on a full-time basis in any custodial institution in Australia or New Zealand.
(b) Once the relevant provisions of s.501(2) had been met by the applicant, the respondent considered she had no discretion other than to cancel the applicant’s visa and detained the applicant, that the decision can only be reviewable under s.338(2) of the Act.
(c) The cancellation of the applicant’s visa under “behaviour concern” and the consequential detention of the applicant, in the circumstances where the respondent considered that she had no discretion to do otherwise, rendered the decision of the respondent unlawful.
(i) a situation the applicant was not the subject of removal from Australia to New Zealand, rather it was her ex-partner and;
(ii) alternatively, the applicant was not subject to 12 months or more imprisonment, she only volunteered to spend sometime with her ex-partner who later became abusive to her in New Zealand.
(iii) the applicant contended she fear harm from her ex-partner and she still hold that fear.
(iv) The AAT decision on the 03 May 2018 constructively failed to to carry out its statutory task genuinely, about the applicant’s true information, Para 7 of the AAT decision, in her “statement of decision and reasons” asserted that the applicant departed Australia on the 02 May 2018 this is erroneous and she fell into jurisdictional error.
2. The delegate of the Minister failed to lawfully consider the “behaviour concern” and how it affected or will affect the protection of the Australia community, that being central to the power to refuse or cancel a visa held by non-citizen and thus a “relevant consideration”.
PARTICULARS
(a) Failure to consider and address the likelihood or otherwise of the applicant “behaviour concerns” to the Australia community, It is therefore appropriate to set out the delegate finding with respect to that contention.
(b) The delegate of the Minister relied on supposition rather than evidence of behaviour concerns.
(c) Failure to assessing the behaviour and consider evidence going to that concerns, and the degree of concerns posed by the applicant.
(i) the applicant contend she been living in Australia all her life, she came to Australia when she was a minor in 1987 with all her family and non of her family in New Zealand.
(ii) A situation the applicant has 5 children born in Australia, they are all Australia citizens including a minor 13 years old, that it was incumbent on the department to have provided her with a relief but failed. The decision of the delegate should be quashed with cost.
3. Leave to fill amended application with particulars and any supplementa1y affidavit and any relevant documents
When the matter was before the Court for hearing on 11 September 2018, it became apparent that as an unrepresented litigant, the applicant may have sought inappropriate relief. Consequently, I made the following orders:
1. The matter stand over for further hearing to 5 November 2018 at 2:15pm.
2. The parties file further submissions on:
a) whether, if the second respondent was correct to hold that it had no jurisdiction to review the decision of the delegate made on 16 March 2018, the Court has jurisdiction to review that decision, and, if it does:
b) whether the delegate’s decision is affected by jurisdictional error for the reasons alleged by the applicant in the application filed on 4 June 2018, and
c) any other issues the parties consider relevant to the relief the applicant seeks.
3. The applicant file and serve any further written submissions and any further evidence on which she will rely on or before 2 October 2018.
4. The first respondent file and serve any further written submissions and any further evidence on which he will rely on or before 23 October 2018.
5. The applicant file and serve any evidence or written submissions in reply on or before 30 October 2018.
6. Parties have liberty to apply on 3 days’ notice.
Consideration
I have some difficulty with the Tribunal’s conclusion that if a person is not immigration cleared, they are not in the migration zone. The Minister was not asked to prepare submissions on this point, and so the matter will not turn on it, but I am not aware of where in the Act it is said that a person who is not immigration cleared and is taken beyond the border and placed in an immigration detention centre, is not in the migration zone. I wonder whether or not he or she is simply an unlawful non-citizen.
In any event, the Tribunal was correct to conclude that it had no jurisdiction, because at the time the application for review was made, the applicant had been refused immigration clearance, and had not subsequently been immigration cleared, and fell within the operation of s.338(2)(c).
In further written submissions, filed on 23 October 2018, the Minister agreed with that understanding, although he addressed it in the following way:
8. The definition of “primary decision” is set out in s476(4). Subsection 476(4) provides:
(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); 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).
9. A “privative clause” decision is defined in s474. It is not disputed that the delegate's decision in the present matter is a "privative clause" decision under s474(2).
10. However, it is also not disputed that the delegate's decision in the present matter is not a decision that is reviewable either under Part 5 or Part 7 or Part 7AA. The definition of a Part 5-reviewable decision is found in s338. In particular, visa in the present case, a special category visa (subclass TY444), does not satisfy any of the requirements of s338(2), and therefore the delegate’s decision in respect of that visa is not a “Part 5-reviewable decision”. Parts 7 and 7AA of the Migration Act have no application to the present matter.
11. Consequently, it is clear that the delegate's decision in the present matter is not a "primary decision".
12. As the delegate's decision does not come within the definition of a "primary decision", s476(2)(a) of the Migration Act does not apply. Consequently, because the delegate's decision is not a "primary decision", this Court has jurisdiction under s476(1) to hear and determine the application for review in these proceedings.
As the delegate’s decision was, in my view, not a pt.5-reviewable decision, it is not a primary decision, as defined by s.476(2)(a) of the Act, and is therefore reviewable by this Court. I conclude that the Tribunal’s decision that it did not have jurisdiction to consider the review application was correct. It seems to me that it may have arrived at that conclusion by an erroneous method, but nevertheless its conclusion was right; and even if I were to refer the matter to the Tribunal for rehearing, it would have to reach the same conclusion. Therefore, to the extent that the Tribunal’s decision may be affected by jurisdictional error, in the exercise of discretion, I would not set it aside.
That then turns attention to whether the delegate’s decision was affected by jurisdictional error. As I said, because the Tribunal did not have jurisdiction, by reason that the delegate’s decision was not a pt.5-reviewable decision, the delegate’s decision is one which can be reviewed by this Court, pursuant s.476 of the Act.
That then leads to a consideration of the grounds which the applicant has pleaded in the application she filed on 9 May 2018.
Ground 1
Particulars (a) and (b) refer to s.501(2) of the Act. It provides:
501 Refusal or cancellation of visa on character grounds
…
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
It is clear that that subsection does not apply to this case, because this case does not concern a visa cancellation. It must be kept in mind that when the applicant arrived in Australia earlier this year, she was not the holder of a visa, but, in other circumstances, would have expected to have been granted a Special Category visa on her arrival at the border, given that she is a New Zealand citizen.
Particulars paragraph (c) suffers from the same difficulty, but does appear to raise an issue requiring consideration, namely, whether the delegate erred in concluding that the applicant failed to meet the character criterion of the Special Category visa.
As noted by the Minister in his written submissions, this contention misses the point, in that the character concern relevant to the applicant was her removal from Australia, admittedly with her agreement, on 16 March 2015. Exactly three years later, the delegate expressly said, in her notification of refusal of the applicant’s Special Category visa, that it was that removal which was the basis of the refusal to grant the Special Category visa. The delegate’s report, relevantly of events preceding the visa refusal, which is reproduced at pp.35 to 39 of the Court Book which was Exhibit A, does not suggest consideration of irrelevant material or failure to consider relevant material.
The presently relevant criteria for the grant of a Special Category visa are found in s.32(2) of the Act, and in s.5(1) in the reference to and definition of “behaviour concern non-citizen”. In this case the relevant “behaviour concern non-citizen” criterion was that in paragraph (d) of the definition and it was properly taken into account.
Ground 2
The second ground of the application alleged that the delegate misconstrued the appropriate test applicable to whether a person was a “behaviour concern non-citizen”. However, the matters which the applicant has contended for in paragraph 2 of her application were not matters which the delegate was required to consider under the definition of “behaviour concern non-citizen”. In this case, the only matter which was relevant was the fact that the applicant had been removed from Australia in 2015.
The second ground of the application does not disclose jurisdictional error on the part of the delegate.
Ground 3
In the third ground of her application the applicant sought a procedural order, but it was not addressed and so need not be considered.
CONCLUSION
For these reasons, jurisdictional error on the part of the delegate has not been demonstrated.
In all the circumstances, therefore, it is necessary and appropriate to dismiss the application as a whole.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 6 December 2018
CORRECTIONS
Paragraph 18 line 5 – replace “not in immigration clearance, and then” with “not immigration cleared and”.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Jurisdiction
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Judicial Review
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Procedural Fairness
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Standing
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Statutory Construction
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Appeal
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