Weir v Minister for Immigration
[2008] FMCA 1230
•27 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WEIR v MINISTER FOR IMMIGRATION | [2008] FMCA 1230 |
| MIGRATION – Border visa given to New Zealand citizen while in immigration clearance – imposition of condition precluding further visas – whether power to impose – whether open to delegate to conclude that the applicant was ‘apparently eligible’ for a tourist visa – application dismissed. |
| Migration Act 1958 (Cth), ss.5, 32, 32(2)(a)(ii), 41, 41(1), 41(2), 41(2)(a), 41(3), 42(2A), 46(1A), 476 Migration Regulations 1994 (Cth), regs.2.05, 2.05(1), 2.05(2), Sch.1 cl.1111, 1201, 1218, 1219, Sch.2 cll.444, 676, 676.212(a), 676.613, 773, 773.213(1)(g), 773.213(1)(g)(iii), 773.611, 808, Sch.8 cl.8503 |
| Applicant: | HADLEY SIMON WEIR |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 1014 of 2008 |
| Judgment of: | Smith FM |
| Hearing date: | 27 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 27 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Turner |
| Solicitors for the Applicant: | Turner Coulson Immigration Lawyers |
| Counsel for the Respondent: | Mr A Markus |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant pay the respondent’s costs in the sum of $4,200.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1014 of 2008
| HADLEY SIMON WEIR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application filed on 22 April 2008, in which the applicant seeks relief by way of judicial review under s.476 of the Migration Act 1958 (Cth) of a decision made by a delegate of the Minister, which was communicated to the applicant by letter dated 14 April 2008. In the letter, the delegate declined to consider an application by the applicant for a class AK, subclass 808 ‘confirmatory (residence)’ visa which had been made on 1 April 2008.
The delegate declined to consider the visa application on the ground that it was invalid pursuant to s.46(1A) of the Migration Act. Under that provision, an application for a visa is invalid if the applicant is present in Australia, and if after last entering Australia he has held a visa which is subject to a condition referred to in s.41(2)(a) which has not been waived by the Minister. Such a condition is one that the holder will not be entitled to be granted a substantive visa while he or she remains in Australia.
It is not in dispute that, when the applicant last arrived in Australia on 6 March 2008, the visa upon which he was allowed to leave immigration clearance at Brisbane airport was a visa stamped in his passport with condition 8503, and that the applicant signed an acknowledgement of understanding the effect of this condition. There is no contest that it is a condition such as it is described in s.41(2)(a). The condition provided:
The holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia.
In support of the applicant’s later application for a class AK subclass 808 confirmatory visa, and in his application to this Court challenging its refusal, the applicant attempted to escape from the effects of s.46(1A) by challenging the validity of the imposition of condition 8503 on the visa granted to him at Brisbane airport on 6 March 2008.
In effect, therefore, the present judicial review application challenges the validity of two decisions made by delegates of the Minister under the Migration Act, in which the contended invalidity of the second decision is based on the contended invalidity of the first. It is necessary, therefore, to consider the visa which was granted at Brisbane airport, and the power of the Minister’s delegate on that occasion to impose condition 8503 on the applicant’s stay in Australia.
The evidence before the Court is that the applicant arrived at Brisbane airport on a flight from Dubai without holding any visa to travel to or enter Australia, and was interviewed while detained in immigration clearance. He is a New Zealand citizen, and under the provisions of s.42(2A) citizens of New Zealand are exempted from the obligation that they “must not travel to Australia without a visa that is in effect”. However, the entitlement of New Zealanders to enter Australia without conditions is dependent upon the grant to them at the airport of a ‘special category’ subclass 444 temporary visa, which is provided for under s.32 of the Migration Act.
Under s.32(2)(a)(ii) it is a criterion for a special category visa that the New Zealand citizen is not a “behaviour concern non‑citizen”. As defined in s.5 of the Migration Act, a “behaviour concern non‑citizen” means a citizen who has a defined record of conviction of a crime. The officers at Brisbane airport formed the opinion that the applicant was such a person, for reasons which are not disclosed in the evidence. The correctness of this opinion is not challenged.
In that circumstance, the applicant’s ability to enter Australia was dependant upon the officers at the airport finding him eligible for, and granting him, a ‘border’ visa in class TA subclass 773. Such temporary visas are available to be granted to persons in a wide variety of defined circumstances, including persons in the applicant’s situation entering immigration clearance without a visa.
At some point in the course of the proceedings at Brisbane airport the applicant completed a form 871 which is described as an “application for a border visa (class 773)”. In this application signed by the applicant, he stated:
2
The purpose of my/our intended stay in Australia is:
(tick appropriate answer)
Resuming residence in Australia
*
Other
R „ Give details
VISITING Relatives
The words ‘visiting relatives’ is a hand written insertion.
The form was also completed to state that the applicant had funds available, and had the occupation of a “managing director”. Details of “business acquaintances, relatives or friends in Australia” were then provided. The form gave the address of one of these people as the applicant’s address while in Australia. Question 5 of the form stated:
5
Intended period of stay in Australia
30 days
The form also confirmed the conviction, which appears to have caused the refusal of a special category visa.
On the page of the form which records the decision, the approval to issue a border visa is recorded with a reference to sub‑regulation “773.713(1)(g)”. Such a sub‑regulation does not exist, and I consider that this was clearly an error, and that reference was intended to be made to Sch.2 cl.773.213(1)(g) of the Migration Regulations, as the criterion under which the visa was granted.
This is confirmed by a hand written annotation made on the visa which was actually stamped in the applicant’s passport. It has annotations indicating the imposition of conditions, including “8503 NO FURTHER STAY”. It indicates that it was granted as a temporary visa valid until 5 April 2008, and it also has the annotation “REG 773.213(1)(g)”.
In my opinion, the evidence clearly shows that the visa was granted by a delegate upon the opinion that the criterion in Sch.2 cl.773.213(1)(g) was the applicable criterion upon which the border visa could, and should, be granted.
That criterion states:
773.213
(1)The applicant is:
(g) a person who:
(i) has entered Australia without a visa that is in effect; and
(ii) seeks to remain in Australia on a temporary basis; and
(iii) appears to the Minister, from information in the application, to be a person:
(A)who is eligible for the grant of a Tourist (Class TR) visa; or
(C)who is, apart from the requirements of paragraph 1223A (3) (a) of Schedule 1 and clause 456.411 of this Schedule, eligible for the grant of a Subclass 456 (Business (Short Stay)) visa; or
(D)who is, apart from the requirements of subitem 1224 (3) of Schedule 1 and clause 771.411 of this Schedule, eligible for the grant of a Transit (Temporary) (Class TX) visa.
Of the three possible classes of visa which are referred to in criterion 773.213(1)(g)(iii), it appears to me more probable than not that the decision‑maker regarded the applicant as satisfying the category referred to in (A), being “a Tourist (Class TR) visa”, rather than the other two categories. Certainly the evidence before me, particularly as to how the visa application form was completed, left it clearly open to the delegate to have arrived at that opinion as the basis for deciding what conditions to attach.
Moreover, it seems reasonable to infer that the applicant was probably guided to insert “visiting relatives” in his visa application form, so as to make clear that he was inviting reference to one of the primary criteria for a tourist (Class TR) visa. This is that an applicant “seeks to visit Australia ... for the purpose of visiting an Australian citizen, or Australian permanent resident, who is a parent, spouse, child, brother or sister of the applicant” (see Sch.2 cl.676.212(a)).
The power or duty of the Minister’s delegates to attach conditions upon the grant of a visa arises under s.41 of the Migration Act. Under s.41(1) regulations may provide that visas are subject to specified conditions. Under s.41(2), these may include a condition such as condition 8503, precluding the grant of further visas. Under s.41(3), the Minister is given an additional discretion to specify that a visa is subject to “such conditions as are permitted by the regulations for the purposes of this subsection”. The imposition of mandatory or discretionary conditions is then implemented by regulation 2.05:
2.05Conditions applicable to visas
(1)For the purposes of subsection 41 (1) of the Act (which deals with conditions that apply to a visa), the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included.
(2)For the purposes of subsection 41 (3) of the Act (which deals with conditions that may be imposed on a visa), the conditions that the Minister may impose on a visa are the conditions (if any) referred to as being conditions that may be imposed in the Part of Schedule 2 that relates to visas of the subclass in which the visa is included.
In relation to border (class TA) visas, Sch.2 cl.773.611 provided in relation to the conditions that could be attached to the visa given to the applicant:
773.6Conditions
773.611Conditions applicable to the visa for which the applicant is apparently eligible.
In relation to tourist (class TR) visas, Sch.2 cl.676.613 relevantly provided:
676.6Conditions
…
676.613 In any other case:
(a) conditions 8101, 8201 and 8205 must be imposed; and
(b) condition 8503 may be imposed.
Applying all these provisions, the power of the delegate at Brisbane airport on 6 March 2008 to attach condition 8503 to the applicant’s border subclass 773 visa, turns upon whether it was open as a matter of law to that delegate to form the opinion that “the visa for which the applicant is apparently eligible” for the purposes of cl.773.611, was a tourist (class TR) visa, subclass 676, so as thereby to give rise to the discretionary power to impose a condition 8503 by reference to cl.676.613.
In my opinion, this question must be answered against the applicant, based upon my above recitation of the evidence before the Court. In particular, in my opinion, it was plainly open to the delegate to form the opinion “from information in the application” (see cl.773.213(1)(g)(iii)) that the applicant was “apparently eligible” for a tourist visa on the basis of an intention to visit relatives in Australia for a temporary period. I am, therefore, not satisfied that the imposition of condition 8503 was in any way affected by jurisdictional error vitiating the exercise of the delegated power to impose conditions upon the grant of the border visa.
On that basis, the essential ground which was argued for vitiating the second decision, the refusal of a subsequent subclass 808 ‘confirmatory (residence)’ visa on the basis of eligibility as a former Australian permanent resident, has not been established.
Faced with the above evidence from the Departmental file, the applicant’s solicitor today sought an adjournment of the hearing to permit the tender of further evidence concerning events at Brisbane airport on 6 March 2008. He relied on a brief affidavit from himself, which stated that he had listened to a recording of an interview which was conducted at the airport, in which:
a.the Applicant stated that he intended to remain in Australia to establish a business here and in New Zealand.
b.he further stated that, subject to his wife being granted a visa, he would settle in Australia and conduct the business from here.
c.he stated that he had not been in Australia for the last 4 years and that he had arrived in Australia with his mother when he was 12 years old, the Officer accepted these details.
Plainly, evidence in this form was inadmissible to prove the contents of the interview, even if anything said in the interview was relevant to the issues in this case. The applicant’s solicitor, therefore, sought an adjournment so as to be able to prepare a transcript of the sound recording which he had listened to.
I was informed that the sound recording had been produced by the solicitors for the respondent in answer to a notice to produce served on them on 14 August 2008, which had been produced to the applicant’s address for service on 19 August 2008. The applicant’s desire to rely upon the contents of the recording was only revealed to the respondent’s solicitor by the service of a draft of the solicitor’s affidavit yesterday.
The application for an adjournment was opposed by the respondent’s solicitor on several grounds. First, it was submitted that a significant failure to file and serve the evidence intended to be relied on in accordance with the Court’s timetable had not been adequately explained or excused. I had made directions at the first court date on 27 May 2008, directing the applicant to file and serve any additional affidavits on or before 17 June 2008. The respondent was directed to file any affidavits relied upon before 8 July 2008. I was not asked, and did not direct, the respondent to give any discovery, whether by way of a ‘court book’ or otherwise.
In the event, the applicant did not file any additional evidence before today, and appeared to rely only upon a solicitor’s affidavit which merely attached the delegate’s decision concerning the refusal of the subclass 808 visa. The respondent’s affidavit which attached the evidence to which I have referred above, being the documents concerning the grant of the subclass 773 visa, was filed on 11 August 2008. Although this was late, no objection to it was taken by the applicant today, and indeed I was invited to receive those documents by the applicant’s solicitor.
The applicant’s solicitor submitted that he had been caught by surprise at the contents of the application for the border visa, in particular the elements which show that the application was based upon eligibility for a tourist visa. However, there is no evidence from the applicant himself as to what happened at Brisbane airport, and how he came to sign the application for the subclass 773 visa. There is no evidence from the applicant denying that the visa form he signed properly represented his intentions when applying for that visa. He presents no evidence explaining how he or his solicitor understood the reference to “REG 773.213(1)(g)” in the annotation in his passport.
An issue as to what occurred at Brisbane airport was foreshadowed in the original application filed in this Court and, before that time, in correspondence with the delegate in relation to the subclass 808 application. In that correspondence in April 2008 it had been asserted that: “In Mr. Weir’s case, as noted by the officer who granted the Border Visa, he is eligible for a Confirmatory sub‑class 808 visa”, without any evidence of this assertion being presented to the Department nor subsequently to the Court. The delegate expressly rejected the assertion, saying in his letter dated 14 April 2008: “I have spoken to the DIAC officer who granted the applicant’s subclass 773 visa, and confirmed that there was no discussion regarding subclass 808 visa”.
A dispute about this factual issue must, therefore, have been apparent to the applicant prior to commencing the present proceeding in the Court. Moreover, one of the grounds which was presented in the application to the Court, was that the officer at Brisbane airport who granted the subclass 773 visa, “relied upon a fact which did not exist”, because “as noted on the Applicant’s subclass 773 visa, the Applicant was apparently able to, and did, lodge an application for a subclass 808 visa”. As I have indicated, no supporting evidence for this assertion was filed by the applicant, and it is contrary to the appearance of the visa in the applicant’s passport.
I, therefore, have difficulty understanding how it can now be asserted that the applicant was not aware of a need to present all available evidence to establish a version of events at Brisbane airport which he wished to rely on, including the evidence which was sought to be presented by way of a transcript of an interview.
In the above circumstances, I do not consider that the failure to follow the Court’s timetable has been adequately explained. Observance of the Court’s directed timetables is of considerable importance to the proper management of migration matters in this Court, since matters are listed for hearing at a first court date in the expectation that parties will properly prepare their cases for a hearing which will almost certainly proceed. I consider that the absence of adequate explanations for the delay in investigating and presenting evidence of the interview is a significant factor pointing against the grant of an adjournment.
As a second reason for opposing an adjournment, the Minister’s solicitor submitted that there is a timeliness aspect to the applicant’s permitted temporary residence in Australia, which the Court should take into account in the context of the adjournment application. It is correct that the applicant appears to have been on clear notice that he was granted only a 30 day permission, with no prospect of further visas without departing Australia and going back to New Zealand or elsewhere before returning. However, I accept that the applicant has probably received legal advice which explains why he believed that he should stay in Australia and litigate the validity of the two decisions. I would, therefore, not give this aspect substantial weight in declining to adjourn the hearing.
The third reason for refusing an adjournment, which the Minister’s solicitor relied upon, was that there was no real prospect that the adjournment would be productive of any evidence which might permit the applicant to succeed in the application, in the face of the contents of the border visa application signed by the applicant, and the absence of sworn evidence from him which disputed its contents.
There is uncertainty as to any particular statements by the applicant in the course of the recorded interview which are sought to be relied upon. It seems that no transcript has yet been made, and it was not possible for the applicant’s solicitor to identify to me precisely what the piece of evidence is which he sought presented as determinative of the essential issue in the case. As the Minister’s solicitor pointed out, regardless of what the applicant said when initially interviewed at the airport, an inference would remain from the contents of his visa application that he subsequently presented his intentions in relation to seeking permission to enter Australia in terms which were shown in the border visa application.
When pressed, the applicant’s solicitor maintained that there was no intention to present evidence from the applicant himself concerning the circumstances of the interview and how he completed the application for a border visa. In the absence of direct evidence to undermine the clear inferences from the applicant’s execution of the visa application, I cannot see any real prospect that the foreshadowed evidence could cause the Court to find that it was not open to the delegate to impose a condition 8503 on the border visa.
In this situation, combining with the inadequate explanation for the delay in investigating and presenting the further evidence, I declined the adjournment application, and proceeded with the hearing.
In view of my conclusions as to the merits of the substantive application which I have explained above, I must dismiss the application.
I certify that the preceding thirty‑eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 12 September 2008
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