Tan v Minister for Immigration and Citizenship

[2007] FCA 1427

FEDERAL COURT OF AUSTRALIA

Tan v Minister for Immigration and Citizenship
[2007] FCA 1427

PETER KWONG CHIN TAN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1048 OF 2007

RARES J
28 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1048 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

PETER KWONG CHIN TAN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	28 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs.

2.The appellant pay the costs of one half day for 7 August 2007.

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 1048 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

PETER KWONG CHIN TAN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	28 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court:  Tan v Minister for Immigration [2007] FMCA 753. The appellant is a Singaporean citizen who entered Australia in 1992 on a false name and passport. In September 1994 he was granted a bridging (E class WE subclass 050) bridging (general) visa. On 30 November 1994 he was convicted, in Victoria, of importation of narcotics and sentenced to life imprisonment. That sentence was recalibrated in 1995 to a 25 year term and on 25 November 2004 the appellant was released from imprisonment on parole. However, he was instantaneously transferred to immigration detention within the Port Phillip Prison in Victoria because he did not hold a valid visa.

2. On 2 December 2004 he was interviewed in immigration detention at Port Phillip Prison by an officer of the then Department of Immigration and Multicultural and Indigenous Affairs. That officer was required, pursuant to s 194 of the Migration Act 1958 (Cth), to ensure that Mr Tan was made aware of the provisions relevantly of s 195 of the Act. Section 195 provides as follows:

   ‘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.’

3. The trial judge found that he was not satisfied that there was compliance with ss 194 and 195 and that finding has not been disputed. The officer interviewed the appellant in English and without an interpreter. The appellant had some understanding of English, on his Honour’s findings, but the degree, for present purposes, of his understanding is not necessary to explore.

4. Because the appellant was not properly informed of his rights in accordance with s 195(1) the time under s 195(1) never commenced to run in which he could apply for any visa, including the visa he said he wanted to apply for, being a spouse visa.

5. On 18 July 2005 the appellant was transferred to the Villawood Immigration Detention Centre close to Sydney in New South Wales. He applied there for a bridging visa E (class WE) which was refused. Once again there was no attempt by the officers of the Minister to comply with the requirements of ss 194 or 195. No doubt, one could readily infer that this was because the Villawood officials assumed previous compliance in late 2004 when the appellant was taken into immigration detention.

6. The appellant gave evidence at the trial claiming that he had informed the departmental officer who had interviewed him at Port Phillip Prison that he wished to apply for a spouse visa.

7. At that time, he had been married to his wife for about 14 years.  She resided in Australia.  However, no information was given to Mr Tan about making such an application during that interview.  He gave evidence to his Honour that later, when he arrived at Villawood, he asked about a spouse visa and was told he was not allowed to make such an application.  He said that he was later told that he could, however, apply for a protection visa.

8. Indeed, Mr Tan gave evidence that one day when he was at Villawood he saw a television program concerning a Vietnamese person who had been sentenced to death in Singapore which considerably frightened him.  This was because there were allegations, for which no charges, to the appellant’s knowledge, or in the evidence, had ever been laid, that the Singaporean authorities wished to speak to him concerning a murder that had occurred prior to his leaving that country.  There is no evidence before me to suggest that the appellant is in any way involved in complicity in the murder or that he is wanted for it.  Nonetheless he claimed that he felt fear about being returned to Singapore once he saw the television program.

9. Mr Tan then spoke to a person from a refugee organisation who advised him immediately to apply for a protection visa.  He had been told that he would have to return to Singapore if he had no visa to stay in Australia.  He said that he was frightened and terrified of being returned to Singapore and that is when he spoke to a migration agent.  His Honour did not make any finding as to the circumstances in which the services of the migration agent were engaged.  Mr Tan gave evidence that she was engaged by the department.  Nonetheless it seems clear enough that Mr Tan wished to speak to somebody who could assist him in making an application to stay in Australia.  He said to his Honour that he was informed by the migration agent that he could only apply for a protection visa.

10. Ultimately, one again can infer that by the time anyone saw him in Villawood they would have assumed that the minister had caused compliance with ss 194 and 195 of the Act to occur and that therefore, as a consequence of s 195(2), the only relevant visa for which Mr Tan could make a valid application so as to be able to remain in Australia was a protection visa.

11. His Honour found that in November 2005 Mr Tan chose to apply for a protection visa and that no one had forced him to do so although, as Mr Tan said to his Honour, he did that in circumstances where he had been told by the migration agent that he could only apply for the protection visa and could not apply for a spouse visa as he had asked.

12. The minister called no evidence.  His Honour found that Mr Tan’s application for a protection visa was one which met the requirements of ss 46 and 47 of the Act.  There is no dispute before me that he was correct to do so.  As a consequence, the minister was obliged to consider it as a valid application under s 47, which she did.  She refused it because she was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention.

13. In that circumstance, his Honour found that s 48 of the Act was engaged.  That provides that a non-citizen in the position of Mr Tan who did not hold a substantive visa and, after last entering Australia, had been refused a visa (being the protection visa) could not apply subsequently for any visa for which Mr Tan would otherwise be eligible to apply.

14. The claims Mr Tan made before his Honour were that:

    ·the officers of the minister had failed to comply with s 194 of the Act which amounted to a jurisdictional error and a denial of natural justice;

    ·the protection visa application was invalid.  As a result he claimed that s 48 did not operate to prevent the appellant from seeking a spouse visa, as he had subsequently sought to do.

15. The particulars of the amended application tried by his Honour were that:

    ·Mr Tan had been released from criminal detention and transferred to immigration detention in late November 2004, following which he had been seen by the officer on 2 December 2004;

    ·section 194 had not been complied with;

    ·on or about 18 July 2005 Mr Tan had been transferred to the Villawood Immigration Centre, but again had not been informed as to his rights under s 194, and had lodged ‘under protest’ an application for a protection visa ‘… as he had no option’ to make a ‘substantive’ application;

    ·the migration agent had failed to advise him of his rights, and had submitted an application for a protection visa which was frivolous.

    THE TRIAL JUDGE’S REASONS

16. His Honour held that s 48 of the Act operated to preclude Mr Tan from now applying for a spouse visa and no estoppel arose to prevent the minister applying and relying on s 48 of the Act. He then rejected the claim that a failure to comply with s 194 resulted in the protection visa application either not being a valid application for the purposes of ss 46 and 47 of the Act or not being able to be relied on by the minister. The trial judge found that, in the circumstances of the case, nothing would prevent s 48 from taking effect according to its terms, so that the Court was not able to make the orders which the appellant had sought.

17. His Honour found that he did not accept that the appellant had made his protection visa application ‘under protest’. His Honour explained that Mr Tan’s claim to have made the application ‘under protest’ was intended to convey that either it had been made against his wishes or that he had been told incorrectly it was the only application he could make, and that therefore (because s 194 had not been complied with) the application had not been validly made.

18. The trial judge did not accept that the protection visa application was invalid.  But he said that that application:

    ‘… 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 [the appellant] a right to pursue his spouse visa had he been properly advised.’
    (Tan [2007] FMCA 753 at [22])

19. His Honour then also found that this mistake did not make the application itself invalid.  This was because it complied with the requirements of s 46 of the Act and the regulations.  The circumstances under which Mr Tan made the application could not invalidate it, as they were not matters going to its validity under s 46.  He observed, and I agree, that it is unfortunate that the minister does not have power to correct an error by permitting a further application, as he may do in the case of a protection visa under s 48B.  Accordingly, his Honour rejected the argument that there had been any jurisdictional error by the minister or other error entitling the appellant to relief.

20. His Honour did not make any clear findings concerning whether Mr Tan articulated to the officer at Port Phillip Prison or any officer of the minister at Villawood that he desired to make a claim for a spouse visa, nor did his Honour make a finding as to what passed between the appellant and the migration agent.  Nonetheless, the trial judge made it clear that it was the appellant’s case that he had told the migration officials he wanted to apply for a spouse visa (Tan [2007] FMCA 753 at [5]). His Honour’s observation that had Mr Tan been properly advised, he would have had a right to pursue the spouse visa, suggests that it is safe to infer that his Honour would have accepted that evidence.

21. The appellant has argued that his Honour erred on the following three bases:

    (1) Mr Tan had been denied natural justice at the interview on 2 December 2004 because no interpreter had been present.  That amounted to a jurisdictional error.

    (2)The finding of non compliance with ss 194 and 195 of the Act required a further finding that the Minister’s conduct amounted to a jurisdictional error because it prevented the appellant from applying for a spouse visa.

    (3)The failure to comply with ss 194 and 195 invalidated Mr Tan’s application for a protection visa.

    Ground One:  Denial of Natural Justice at Port Phillip Prison

22. In my opinion, this ground goes nowhere. His Honour found there was a failure to comply with s 194 of the Act. The evidence demonstrated that finding was indubitably correct. The finding is not challenged. It does demonstrate a lamentable failure in compliance with the scheme for protecting persons’ rights which the Parliament prescribed and which was not followed in this case. Some pages in Mr Tan’s ‘record of interview with suspected unlawful non-citizen’ which should have been completed to record all that occurred in the interview on 2 December 2004 were not completed in accordance with the statutory requirements and Mr Tan was not informed of his rights.

23. Nonetheless, the failure to comply with s 194 simply meant that Mr Tan was not then subject to any time limit in making an application for such visa as he may later have wished to make. Had he been properly informed of his rights at Port Phillip Prison he would have had to make any application within a period of seven working days from the date of the interview. In this sense, the failure to comply with the Act caused no problem for Mr Tan. But in another sense, the non-compliance was calculated to mislead persons who later dealt with him, which gave rise to the other grounds of appeal.

24. After the interview in Port Phillip Prison persons who dealt with Mr Tan would have been entitled to assume that s 194 of the Act had been complied with and that, accordingly, if he wanted to apply for a visa, beyond some reasonable time after he went into immigration detention at Port Phillip Prison, he would only be able to apply for a protection visa. Certainly, by the time Mr Tan arrived at Villawood, I infer that anyone dealing with his case for the purposes of immigration law would have assumed that he had been informed of his rights under s 194 in accordance with the Act, and that s 195(2) would have applied to him.

    Ground Two: Was the Minister estopped by the failure to comply with ss 194 and 195?

25. As I have said, from the time of the interview at Port Phillip until Mr Tan made his application for a protection visa in November 2005, there was in law no statutory or other impediment to prevent him from applying for a spouse visa.  He was free to do so.  Equally he was free to do as he ultimately did:  apply for a protection visa.  The failure of the officer at the interview at Port Phillip Prison to inform Mr Tan of his rights did not prevent him from exercising them.  Indeed, had he sought legal advice and been able to give proper instructions, he may well have been informed that he was free to make whatever application he wished.

26. Mr Tan argues that because he had been incarcerated for the preceding 12 years in circumstances where the terms of his imprisonment gave him few rights and little freedom, he was likely to accept statements from persons in authority as to what options were open to him. Moreover, he was not free to seek whatever advice he wanted at any time and in circumstances of his own choosing because of the circumstances of his detention, either in prison or, later, in immigration detention. While the failure to comply with s 194 is, as I have said, a feature of this case which is lamentable, it does not have the legal consequence that is asserted, namely that Mr Tan could not apply for any visa, including a spouse visa, as he wished, prior to making his application for the protection visa.

27. Rather the failure to comply simply enabled Mr Tan to make an application for any visa he wanted at any time until he had been informed of his rights in accordance with s 194. I am unable to see how a failure to comply with s 194 could give rise to an estoppel against the Minister. Mr Tan argued that because the officer at Villawood and the migration agent both asserted to him that he could not apply for a spouse visa, but could only apply for a protection visa, the Minister was estopped from relying on the conclusive effect of s 48 based on the finding that Mr Tan’s application for a protection visa was valid. This argument should be rejected.

28. First, his Honour made no express finding that either of those conversations occurred, although his Honour appeared to accept that Mr Tan would have intended to pursue his spouse visa, had he been properly advised.  I also accept that that is so.

29. Secondly, the obligation in s 194 is imposed on the officer who detains a person, here Mr Tan. The Minister administers a department of State and the Act pursuant to his or her appointment under s 64 of the Constitution. The responsibility for compliance with s 194 is not on the Minister, it is on the officer. On the other hand, s 47 obliges the Minister to consider a valid application for a visa when one is made. While the officer may have failed to comply with s 194, the Minister is the person who must comply with s 47(1). After the Minister has fulfilled his function of either granting or refusing a valid application, such as the one made by Mr Tan for a protection visa, the consequence is that s 48(1) prevents him from thereafter considering any application for a spouse visa made by Mr Tan in the present circumstances.

30. I am unable to see how, as the amended notice of appeal asserts, the Minister can be estopped from considering or granting the spouse visa application.  Even if Mr Tan were misled by the erroneous advice of the officer or his migration agent, the Act provides no exception for that to affect the validity of the protection visa application which was actually made by Mr Tan.

    Ground Three:  Was the protection visa application invalidated?

31. The third ground of appeal asserted that his Honour had erred by failing to find that the contravention of s 194 had invalidated the protection visa application. This may be another way of putting the second ground. In essence, the failure to comply with s 194 had nothing to do with the protection visa application other than the assertion by Mr Tan that he made it induced by a belief in his mind, created through statements he said were made by the officer at Villawood and the migration agent. In effect, those persons acted on the basis that s 195(2) only permitted him to pursue that application.

32. As his Honour found, Mr Tan may have been acting under a mistake of law as to his ineligibility to apply for a spouse visa when he applied for a protection visa.  But the latter was a valid application which s 47(1) required the Minister to consider.  The Minister’s obligation to consider a valid application under s 47(1) only ceased if one of the events in s 47(2) occurred, namely that the application was withdrawn, granted or refused, or it could no longer be considered because of the operation of either s 39 or s 84.

33. By force of s 47(3) the Minister was precluded from considering an application that was not a valid one.

34. Mr Tan pursued an application for review to the Refugee Review Tribunal against the Minister’s refusal to grant his protection visa.  It is difficult to see how that conduct of Mr Tan was consistent with his present claim that the application for a protection visa was invalid in the first place.  In SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [53] Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ said:

    ‘[T]here are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap, should not be heard to complain that the detriment vitiates the decision made.’

1. I am of opinion that the present is such a case. No allegation of fraud has been made here. However, the circumstances in which Mr Tan now finds himself result, at least in part, from a failure to comply with s 194 of the Act by every officer in whose custody for immigration detention he found himself.

2. That said, it seems to me that the minister should be mindful that in Melbourne Steamship Company Limited v Moorehead (1912) 15 CLR 333 at 342 Griffith CJ said that there was an:

   ‘… old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects.’

3. Mr Tan is not a subject but an alien. However, I do not think that the standard of conduct for fair play changes. There is a reasonable basis for thinking that Mr Tan may well have applied for a spouse visa had he been properly advised. While on my findings that has no legal effect because Mr Tan’s protection visa application, though misguided, was valid, it may have had an unfortunate practical effect by precluding the consideration of whatever rights he may otherwise have had on their merits. No doubt that may be a matter that can be taken into account if it is relevant at a later time. Given his criminal record, Mr Tan may or may not have been granted a spouse visa but he did not have an opportunity to make such an application because he was incorrectly advised that, in substance, s 195(2) prevented him doing so.

4. In those circumstances it appears to me that I should dismiss the appeal with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:  Dated:  12 September 2007

Counsel for the Appellant:	S El-Hanania
Solicitor for the Appellant:	Slattery Thompson
Counsel for the Respondent:	GT Johnson
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	28 August 2007
Date of Judgment:	28 August 2007