Tan v Minister for Immigration
[2007] FMCA 753
•23 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TAN v MINISTER FOR IMMIGRATION | [2007] FMCA 753 |
| MIGRATION – Where application for spouse visa invalid under s.48 on the basis that previous application for protection visa was refused – whether Department failed to comply with s.194 Migration Act1958 – whether Court could require the Minister to consider the application notwithstanding s.48. |
| Migration Act 1958 (Cth), ss.46, 48, 194, 195 |
| United Grocers, Tea and Dairy Produce Employees’ Union of Victoria Complainants v Linaker (1916) 22 CLR 176 Halsbury’s Laws of Australia, [190-25] |
| Applicant: | PETER KWONG CHIN TAN |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG2772 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 24 April 2007 |
| Date of Last Submission: | 24 April 2007 |
| Delivered at: | Sydney |
| Delivered on: | 23 May 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Slattery Thompson |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Phillips Fox |
ORDERS
Application dismissed.
Applicant to pay the Respondent’s costs assessed in the sum of $5000.00.
The name of the Respondent be amended to “Minister for Immigration and Citizenship”.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2772 of 2006
| PETER KWONG CHIN TAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
In his amended application filed on 26 March 2007 the applicant seeks:
“1) an order that the applicant is not s.48 Migration Act 1958 “barred” from applying for a substantive visa due to the breaches by an officer of the respondent;
2) an order in the nature of certiorari;
3) an order in the nature of mandamus directing the respondent to consider the applicant’s spouse visa application.”
The factual matrix which the applicant claims entitles him to the orders he seeks is as follows:
The applicant is a Singaporean citizen, who relevantly entered Australia in 1992 on a false name and passport. On 13 September 1994 he was granted a bridging E (Class WE Subclass O50) bridging (general) visa. On 30 November 1994 he was convicted in Victoria of importation of narcotics and sentenced to life in prison. His sentence was recalibrated on 20 March 1995 to one of a 25-year term. On
25 November 2004 he was released on parole and transferred to immigration detention within a prison. On 18 July 2005 he was transferred to Villawood Immigration Detention Centre. On
2 December 2004 shortly after his transfer into immigration detention the applicant was interviewed by a DIMIA officer. The applicant claims that he was not offered the services of an interpreter in relation to that interview, that he did not understand what the interview was about, that he did not sign the record of interview form or fill it in English and did not understand Part 4 of the notice addressed to him headed “YOUR DETENTION” which stated:
“Although you are in detention you may still be eligible to apply for a substantive visa
à you only have two (2) working days to apply for a visa, beginning midnight 12.00am (tonight) and à if you need more time you may apply for a further five (5) days to complete your application; but à you must make this request in writing within the next two (2) working days.There is no time limit on any application for a bridging visa or a protection visa. If you would like more information on applying for a visa please ask an immigration officer for the information sheet Visa Options.
The notice which I have set out above was issued in order to comply with s.194 Migration Act 1958 (the “Act”) and to bring to the applicant’s attention the provisions of s.195 of the Act:
“[194] Detainee to be told of consequences of detention
As soon as reasonably practicable after an officer detains a person under section 189,
the officer must ensure that the person is made aware of:(a) the provisions of sections 195 and 196; and
(b) if a visa held by the person has been cancelled under
section 137J – the provisions of section 137K.[195] Detainee may apply for visa
(1) A detainee may apply for a visa:
(a) within 2 working days after the day on which section 194 was
complied with in relation to his or her detention; or(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply – within the next 5 working days after those 2 working days.
(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time.”
It is the applicant’s case that he told the migration officials that he wanted to apply for a spouse visa. No assistance was given to him in relation to the provision of forms for that visa. The two days expired and the applicant had not asked for the further five days permitted. After his transfer to Villawood Immigration Detention Centre in July 2005 the applicant applied for a bridging visa E (Class WE) which was refused. He claims that he was not advised of his rights pursuant to s.194 at the time of his transfer into detention at Villawood. At some time between July 2005 and November 2005 the applicant, with the assistance of a migration agent, determined to file a protection visa application. The applicant says that he was told by the migration agent that he could not apply for any other form of substantive visa. On 17 November 2005 the applicant lodged a protection visa application which was refused. On 7 March 2006 the Refugee Review Tribunal affirmed the delegate’s decision to refuse the protection visa. The applicant applied to this court for review of the decision of the RRT but later withdrew it. On 26 November 2006 the applicant lodged a spouse visa application. That application was deemed invalid by the delegate because of the provisions of s.48 of the Act:
“[48] Non-citizen refused a visa or whose visa cancelled may only apply for particular visas
(1) A non‑citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) either:(i) after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.”
on the grounds that he had been refused the temporary protection visa that he had previously applied for. On 26 September 2006 the applicant applied for review of that decision and it is that application, now amended in the form set out in [1] of these reasons, that is before me.
It is accepted by the Minister that but for the existence of the application for a protection visa and the effect of s.48 of the Act this court would have power to direct the Minister to consider an application for a spouse visa filed by the applicant if it found as a fact that the provisions of ss.194 and 195 were not complied with. The applicant argues that the effect of a failure to comply with ss.194 and 195 of the Act negates the effect of s.48 on the ground that can best be summed up as one of estoppel. The applicant argues that the Minister, having failed to comply through his officers with the statutory obligations of ss.194 and 195 should not be allowed to utilise s.48 as a bar to making a valid application which the applicant would have made had he been properly made aware of his rights. The applicant also argues that the protection visa was made “under protest and against the wishes of the applicant” and was therefore not validly made. It was made because the applicant was told that the protection visa application was the only application he could make at the time.
The applicant gave evidence. He first claimed that he neither spoke nor understood English but after cross-examination when it was pointed out to him that he had been in this country for over 15 years he modified this to claim that he spoke very little English and understood only short sentences. He used the services of an interpreter. The applicant told the court that there was no interpreter present at the meeting with the DIMIA officer on 2 December 2004. He told the court he understood he could apply for a spouse visa at the time. He said that he mentioned that he could apply for a spouse visa; that he asked the officer about it but he was not given any information. He denied the response to question 2: “Do you want the help of an interpreter during this interview?” which was “No – I can understand English” was in his handwriting. He said that he did not know who wrote it. He denied that his signature appeared at the end of the document and on each page. The applicant was asked what happened at Villawood about applying for a visa. He stated that when the DIMIA officer came to see him there he asked about an application for a spouse visa but “they did not let me do that, the migration officer told me about a protection visa. She was a female.” He was asked when he first met the migration agent and he stated that he saw her at Villawood. He asked her to apply for a spouse visa but she told him that he could only apply for a protection visa. She told him that he could win that case. The applicant told the court something about what was behind the protection visa application. He had heard at Villawood (or possibly in prison prior) about the execution of a Vietnamese boy for drug offences in Singapore. He became very concerned that if he returned to Singapore he would be arrested there and his life might be in danger. It was for that reason that he did not wish to return to Singapore.
The applicant was cross-examined by Mr Reilly on behalf of the Minister. He stated that the interview with the DIMIA official in December 2004 was very short because there was no interpreter and he couldn’t answer the questions. He denied that the signature which appears at the bottom of each page of this 9 page document was his. Mr Reilly pointed out that the signature on the document was similar to the signature on the applicant’s affidavit. The applicant responded that he didn’t know how his signature got on to the DIMIA document but he did agree that the response to question 19, which is written in Chinese characters, was written by him. Mr Reilly asked him why he spoke no English when he said on his protection visa application that he did speak English and the applicant stated that he could not speak English for a long time and he did not understand complicated legal concepts. The applicant was unable to explain what he meant when he said that he had applied for his protection visa under protest other than to say that he meant that he wished to apply for a spouse visa but he was not allowed to do so.
“Mr Reilly: You chose to put it in?
Applicant: Yes.
Mr Reilly: No one forced you?
Applicant:I wanted to apply for a spouse visa but she said I can only apply for a protection visa.”
The DIMIA officer who completed the form was not called to give evidence. Mr Reilly accepts the consequences of this failure but argues that I should not be satisfied of the truth of the applicant’s claims concerning the alleged breaches of ss.194/195.
The applicant admits to speaking some English. He has been in the country for a long time albeit having spent most of that time in prison. As persons of Chinese descent are not over-represented in the prison population it is difficult to believe that he would not have had to communicate in English with prison officers or associated staff or other prisoners. I accept that the responses to the questions in the form were not written by the applicant but if they were not dictated by him then they would have to have been invented by the officer. The nature of those responses gives me more confidence that they were responses made and dictated by the applicant. For example:
Question 16: “Do you have any debts to the Australian government?”
Response: “Not too sure.”
Question 17: “What is your current address and telephone number? Do you have any evidence that this is your address? Who else lives there?”
Response: “I have been in prison for a very long time”
Question 18: “Do you use the same name and personal particulars that you have given above? If not, what name and personal details did you give on entry to Australia?”
Answer: “I come here and throw away the passport. Someone else’s passport.”
I have also compared the signature of the applicant on his affidavit and the signatures on the form. I believe they bear sufficient similarity for the applicant to have the onus of convincing me that they are not his. He has not done so. At the end of the questionnaire document is the document headed “YOUR DETENTION” to which I previously referred. At the end is question 7: “What would you like to do?” and there are seven additional questions:
Question
Response
“1 Do you want to apply for a visa?
No
2 Do you want to apply for revocation of the automatic cancellation of your student visa?
N/A
3 Do you want to leave Australia as soon as possible?
Yes
4 Do you want to arrange your departure?
Yes
5 Do you want the department to arrange your departure?
Yes
6 If you want the department to arrange your departure, you must
submit a written request to the Minister. Do you want to do this
now?Yes
7 Do you want the information sheet Visa Options?
No”
Interestingly there is provision on this page for signatures of the interviewee, the interpreter and the interviewer. There are no such signatures. On page 4 there is an interviewee statement acknowledging that he has read the notice and understands it or had it read to him in his own language and had understood it. That has not been signed, then there is an interpreter’s statement which has not been completed, understandably because there was no interpreter. In the absence of any evidence from the officer I am not able to make a finding that the contents of this part of the statement were made known to the applicant which would include Part 4 dealing with the application for a visa. I am in some doubt whether or not the questions which I have set out above under the heading “What would you like to do now?” were asked of him because whilst they seem to me to be a natural continuation of the questions asked on the interview form and I have accepted those answers were dictated, this part of the form is unsigned. Also, as the form says, “Your answers to these questions are not binding – they indicate current preferences only”, it was not necessary for the applicant to have an intention to apply for a spouse visa for the requirements of s.194 and s.195 to be complied with. They stand on their own.
It follows from the above that I cannot be satisfied that there was full compliance with ss.194 and 195 of the Act. I must now consider whether this failure avails the applicant in any way.
This is not a case where the Minister or the administrative decision-maker has any discretion to determine whether a visa can be granted under s.48 Migration of the Act. The section merely provides that if a non-citizen is refused a visa, he or she cannot apply for any visa other than “a visa of a class prescribed for the purposes of this section”, which does not include visas of the type that the applicant applied for. But can an estoppel be made out against the explicit provisions of the statute which would allow the court to make the order requested?
Estoppel in the face of a statute
Halsbury’s Laws of Australia provides (at [190-25]):
“Estoppel cannot be invoked to negative the operation of a statute.”
This view was articulated in United Grocers, Tea and Dairy Produce Employees’ Union of Victoria Complainants v Linaker (1916) 22 CLR 176. Griffith CJ, in dismissing the application, stated that ‘no estoppel will prevail against the law’. An estoppel cannot operate to prevent or hinder the performance of a positive statutory duty: Southend-on-Sea Corporation v Hodgson (Wickford) Ltd [1962] 1 QB 416 at 423 per Lord Parker CJ. Similarly, in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993, the appellants alleged that the respondents were estopped, by reliance on a default judgment previously obtained in their favour, from contending that the appellant was a moneylender under Moneylenders Ordinance 1951. The respondents pleaded that the appellants were moneylenders within the meaning of the Moneylenders Ordinance 1951, and that the transaction was a moneylending transaction and given the provisions of the Ordinance the loans were not recoverable. The effect of the ordinance was to render moneylending transactions void in particular circumstances. Viscount Radcliffe opined [at AC 1015]:
“The respondent has invoked in support of its defence a principle which appears in our law in many forms, that a party cannot set up an estoppel in the face of a statute . . . Given a ‘statutory obligation of an unconditional character’ it is not open to the court to allow the party bound by that obligation to be barred from carrying it out in the operation of an estoppel.”
This principle is well-accepted in Australian law. In Considine v Citicorp Australia Ltd [1981] NSWLR 657, Wootten J referred to Kok Hoong and continued:
“In this case the effect of allowing the defendant to rely on the estoppel would be to negative the statutory provision in s 3(4) of the Hire Purchase Act . . .In effect, the upholding of the defendant’s contention would be to make the section inapplicable to cases where the hirer had represented to the owner that the provision of the section had been complied with. An estoppel cannot operate to frustrate the section in this way.”
Here, the effect of the estoppel would be to make the section inapplicable in circumstances where the applicant had made an application that had been refused, and produce an outcome that is contrary to the direct provisions of the Act.
It is even less likely that a court will be prepared to make a finding of estoppel in the realm of public law on the basis that to do so would be to fetter the discretion accorded to the Minister or the decision-maker: Minister for Immigration v Kurtovic (1990) 92 ALR 93 at 111 per Gummow J. No estoppel will be found where an estoppel would “create a power in the Minister or an officer to do an act which is ultra vires”: Sidhu v Minister for Immigration [2007] FCA 69 at [148].
In Minister for Immigration v Petrovski (1997) 154 ALR 606 Tamberlin J considered at length the application of estoppel to public administrative law. The applicant had erroneously been issued with an Australian passport by the Department and was informed, several years later, upon application to sponsor his wife and her child for permanent residency in Australia, that his application was unsuccessful because he was not an Australian citizen. The relevant section of the Citizenship Act 1948 (Cth) gave the Minister discretion to refuse an application.
Tamberlin J found that there had been representations made to Mr Petrovski, but that no estoppel arose. His Honour made the following comments in general in relation to estoppel (at 628-9):
“In relation to the application of estoppel in public law, based on principles of ostensible authority, Gummow J [in Minister for Immigration v Kurtovic] said (at FCR 213; ALR 114):
“Any such development here would be the first true exception or qualification to the general rejection of estoppel in public law.”
This statement in Kurtovic assumes that no estoppel doctrine has yet emerged in Australian public law. Kurtovic has been extensively cited and applied in a number of subsequent decisions including the recent full Federal Court decision in Polat.
Mason CJ in Quin, like the US Supreme Court in Heckler v Community Health Services of Crawford County Inc 467 US 51 (1984) (quoted by Gummow J in Kurtovic), was not prepared to close the door on estoppel in public law but neither judgment attempts to formulate with any precision the principles by reference to which particular cases are to be decided when such an estoppel is asserted. There is, of course, much to be said for the observation of the majority in Heckler (at 60-1) that:
“ . . .Though the arguments the government advances for the rule [against estoppel] are substantial, we are hesitant, when it is unnecessary to decide this case, to say that there are no cases in which the public interest in ensuring that the government can enforce the law free from estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honour, and reliability in their dealings with government.”
It must be borne in mind, however, that the Chief Justice and Rehnquist J in that case expressly disassociated themselves from the above remarks and that neither the High Court nor any other Australian court has to date accepted such a statement of principle.”
Does the failure to comply with ss.194-195 affect the operation of s.48?
The primary objective of statutory construction is “to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute”: Project Blue Sky v Australian Broadcasting Authority (1998) 153 ALR 490 per McHugh, Gummow, Kirby and Hayne JJ at [69]. To determine whether an act done in breach of a condition is valid, the test is to ask “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”: Project Blue Sky at [93]. Each case must turn on the particular statutory regime: Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6 per Meagher JA and Powell JA at [37].
Sections 194 and 195 have not been interpreted in such a way that the failure to comply with their requirements would invalidate a decision made under another part of the Act. In Ahonima v Minister for Immigration [2001] FCA 764 the applicant contended that a failure to inform her of her rights under ss 194-195 meant that her application for a visa should not have been refused under s.48A. At [31] Allsop J said:
“[31] The third paragraph of the first applicants’ submissions state that the delegate failed to make the first applicant aware of her rights under ss 195 and 196 of the Act in accordance with s 194. I have earlier discussed and referred to the significant likelihood that the first applicant is mistaken in her evidence that this was not referred to. However, it does not matter. Neither this failure, nor the alleged misleading statements to which I have earlier referred, provides or provide grounds of review. They are not decisions under the Act. They are conduct undertaken by, or not undertaken by, the delegate, which is not part of the process of making the relevant decision. Each is a matter collateral to the decision which was made . . . .
[32]There was no decision involved in these misleading statements, if indeed they were misleading, or in the failure to inform the first applicant of her rights under ss 195 and 196, if in fact that occurred.I refer to the decision of Drummond J in Molisi v Minister for Immigration [2001] FCA 420, where his Honour was dealing with a similar question of a complaint about conduct, which did not involve a decision.” [emphasis added]
In Nguyen v Minister for Immigration [2004] FMCA 551 the applicant was refused a business visa and subsequently applied for a spouse visa. The application was found to be invalid upon the operation of s.48. Smith FM stated at [17]:
"Whatever the background circumstances to the making of the application, and whatever circumstances might suggest the desirability of receiving and processing the application in question, the Minister did not have power in the present case to consider the application.”
It is clear that in the circumstances of this case nothing will prevent s.48 taking effect according to its terms so that the court cannot make the orders sought. I should make it clear that I do not accept that the applicant made his protection visa application “under protest” although it may have been made under a mistake of law as at the time it was made the non-compliance with ss.194-195 would have given the applicant a right to pursue his spouse visa had he been properly advised. Does this make the application itself invalid so that the applicant can say that there is no previous application for s.48 to respond to? I do not think so. This is because what constitutes a valid application has been exhaustively articulated in s.46 Act and provisions there made additionally for regulations to prescribe criteria that must be satisfied and other matters pertaining to validity. The application for a protection visa made by Mr Tan fulfilled the requirements of the section. It was valid. The circumstances under which it was made cannot invalidate it if they are not matters referred to in the section. It is unfortunate that the Minister does not have the power to correct the error by permitting a further application as he may do in the case of a protection visa under s.48B. But that is a policy matter and does not assist in deciding this case.
In the absence of jurisdictional error by the delegate the application will be dismissed. The applicant shall pay the respondent’s costs assessed in the sum of $5000.00.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 23 May 2007
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