Yap v Minister for Immigration

[2014] FCCA 2476

FEDERAL CIRCUIT COURT OF AUSTRALIA

YAP v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2476

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – refusal of a bridging visa – whether the Tribunal misconstrued s.194 of the Migration Act 1958 (Cth) considered – the obligation of notification in that section must be met by the officer who takes a person into immigration detention.

Legislation:

Migration Act 1958 (Cth), ss.5, 189, 194, 195, 196

Migration Regulations 1994

Commonwealth of Australia v Fernando [2012] FCAFC 18

Tan v Minister for Immigration [2007] FCA 1427

Applicant: LEE KIAN YAP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2302 of 2014

Judgment of: Judge Driver

Hearing date: 28 October 2014

Delivered at: Sydney

Delivered on: 14 November 2014

REPRESENTATION

Counsel for the Applicant: Mr J F Gormly

Counsel for the Respondents: Mr J D Smith, SC

Solicitors for the Respondents: DLA Piper

ORDERS

1. A writ of certiorari shall issue removing the record of the Migration Review Tribunal decision made on 10 July 2014 into this Court for the purposes of quashing it.

2. A writ of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2302 of 2014

LEE KIAN YAP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 10 July 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant (Ms Yap) a Bridging E visa.

2. The following statement of background facts is derived from the submissions of the parties.

3. On 7 July 2009 Ms Yap, a Malaysian national, entered Australia on an Electronic Travel Authority visa (Class UD, subclass 976). That visa expired on 7 October 2009, and Ms Yap remained in Australia thereafter as an unlawful non-citizen.

4. Ms Yap claimed that she lived in Shepparton and formed a relationship with a man there.

5. On Sunday 22 June 2014 officers from the Victorian Police in Shepparton located Ms Yap there and took her to the local police station.  The police made inquiries of the Immigration Status Service in Melbourne who confirmed that Ms Yap was an unlawful non-citizen.[1]

   [1] Court Book (CB) 1 and 50

6. Following that confirmation, at 11:37pm on 22 June 2014 Constable Julie Haigh detained Ms Yap under s.189 of the Migration Act 1958 (Cth) (Migration Act).[2]

   [2] CB 2

7. At 12.15pm on the same day Luke Cooper of the Immigration Status Service in Melbourne conducted by telephone a “Compliance Client Interview” with Ms Yap. The interview was conducted in English and without an interpreter.[3]

   [3] CB 1

8. In the course of the interview Ms Yap indicated that she wanted to apply for a visa. The record of the interview does not show that the interviewer advised Ms Yap of any time limits for doing this. The record indicates that Ms Yap had been given a “Very Important Notice” (VIN).[4]

   [4] CB 9

9. At 12:45pm the interview was concluded and on the same day the interviewer assessed that Ms Yap should continue to be detained.

10. At 12:47pm on the same day the Immigration Status Service sent Constable Haigh two documents with instructions that they “be handed to the above-named person as soon as possible”.[5]

    [5] CB 14

11. The documents were titled in English “Request for consular access for people in immigration”[6] and “Very Important Notice – Information about your detention”.[7]

    [6] CB 16

    [7] CB 20

12. The body of the VIN was in simplified Chinese characters with no accompanying English translation.

13. Ms Yap was not asked and did not sign anything on that day.[8]

    [8] CB 24 and 26

14. Ms Yap was taken to Maribyrnong Immigration Detention Centre.

15. At 1:39pm on 23 June 2014 an immigration officer, Lena Markovska, conducted a “Detention Client Interview” with Ms Yap.  The interview was conducted in English with the apparent agreement of Ms Yap.[9]

    [9] CB 27

16. The officer handed Ms Yap two VINs, first one in English and then another in Chinese.  Ms Yap signed a “File copy” being page 7 of the Chinese VIN[10] and a “Client copy” being page 5 of the Chinese VIN.[11]  On neither copy did Ms Yap tick boxes that she had read or had been read the document by an interpreter or that she understood the contents of the notice.  Ms Yap signed an acknowledgement that she had been given and read a “Notice to Persons in Immigration Detention/Visa options”.[12]

    [10] CB 35

    [11] CB 59

    [12] CB 28

17. The first page of the record of the Detention Client Interview sets out questions “Can the client read and write in their own language” and “Are you, as interviewer, satisfied that the client fully comprehends you (with or without an interpreter) and they have the comprehension levels required to meaningfully participate in the interview”.[13]  The record of the interview does not show that these matters were addressed by the interviewer.[14]

    [13] CB 27

    [14] CB 27

18. On 26 June 2014 Ms Yap’s migration agent lodged an application for a Bridging visa E – subclass 050.[15]

    [15] CB 36

19. On 27 June 2014 a delegate of the Minister refused to grant the bridging visa on the basis that Ms Yap was out of time to make an application for a substantive visa. Ms Yap was understood to be then outside the time limits set out in s.195 to apply for such a visa and therefore unable to meet the requirements of subclause 050.212(3) in Schedule 2 to the Migration Regulations 1994.[16]

    [16] CB 50

20. On 1 July 2014 Ms Yap applied to the Tribunal for review of the delegate’s decision.

21. The application was supported by submissions from Ms Yap’s migration agent dated 7 July 2014[17] and 9 July 2014[18] which called into question whether the immigration officer at Maribyrnong had complied with s.194 having regard to Ms Yap’s need for an interpreter, her illiteracy in both English and Chinese, her lack of understanding of the contents of the VINs, the s.195 time limitations and the documents she signed in the Detention Client Interview.

    [17] CB 86-88

    [18] Cb 94-97

Tribunal decision

1. The Tribunal acknowledged that Ms Yap had been located and detained pursuant to s.189 on 22 June 2014.[19]

   [19] at [8]

2. The Tribunal gave no consideration to nor made any finding on whether the detaining officer, Constable Julie Haigh, had complied with s.194.[20]

   [20] Ms Yap contends that at [14] the Tribunal gives an incorrect account of the submission of the applicant’s representative, mistakenly narrating that the representative said that the applicant was given a VIN when she was detained on 22 June 2014. In fact the representative said the applicant was given a VIN in English on arrival at Maribyrnong IDC and told her English was “good enough”.

3. Instead the Tribunal directed its inquiry to whether various immigration officers in Maribyrnong had made Ms Yap “aware” of the s.195 time limitations.

4. The Tribunal relied on Ms Yap’s own evidence at the hearing that “she was advised after she was detained, on 23 June 2014, that she had two working days to apply for a substantive visa”.[21]  The Tribunal found that: [22]

   if the Department officers informed the applicant she could apply for a visa within 2 days (which was her evidence), she would also have been informed of the option of seeking the 5 day extension. The Tribunal does not accept that Departmental officers would have omitted telling the applicant this, given that it is part of the standard procedure for detainees.

   [21] at [31]

   [22] at [32]

5. The Tribunal made no finding that Ms Yap could read the Chinese VIN or that she was “made aware” of the s.195 time limitations from simply being given either the English or the Chinese VIN to read.

6. The Tribunal made no finding rejecting Ms Yap’s evidence that she did not understand the five day extension provided by s.195, rather the Tribunal found that s.194 does not require that “a detainee fully understands the process. The provisions only require that a detainee is “made aware”.[23]

   [23] at [33]

7. The Tribunal was satisfied on the basis of Ms Yap’s own evidence that she was “made aware” of the two working day requirement in s.195 and was also satisfied that Ms Yap had been “informed that she may apply for a substantive visa at her detention centre client interview on 23 June 2014 and of the applicable timeframes, as required by s.194”.[24]

   [24] CB 106 [34]

8. There are two issues raised in this case: first, whether the Tribunal had addressed the correct question, namely, whether the police officer who had first detained Ms Yap had complied with s.194 and, secondly, whether the relevant officer had ensured that Ms Yap was made aware of the provisions of ss.195 and 196

The judicial review application

1. These proceedings began with a show cause application filed on 15 August 2014.  Ms Yap now relies upon an amended application filed in court by leave on 28 October 2014.  The grounds in the amended application are:

   1. The Tribunal misconstrued and misapplied s.194 Migration Act 1958 (the Act) and as a result failed to take into account a relevant consideration and took into account irrelevant considerations in determining whether s.194 had been complied with.

   Particulars

   a. The Tribunal misconstrued and misapplied s.194 as if compliance with that section could be achieved by a person other than the officer who detained the applicant under s.189;

   b. The officer who detained the applicant under s.189 of the Act on 22 June 2014 and who was therefore the officer the subject of the obligations in s.194 was Constable Julie Haigh of the Victorian Police;

   c. The Tribunal failed to take into account the relevant consideration of whether Constable Haigh as the detaining officer had complied with s.194;

   d. The Tribunal took into account considerations irrelevant to the determination of whether s.194 had been complied with, these irrelevant considerations being whether any officers other than the detaining officer had ensured the applicant was made aware of the provisions of s.195;

   e. The Tribunal’s misconstruction and misapplication of s.194 resulted in the erroneous finding that the period for lodging a Partner visa under s.195 had passed such that subclause 050.212(3)(b) Migration Regulations was not met so that the applicant was not entitled to the Bridging visa she had applied for.

   IN THE ALTERNATIVE

   2. The Tribunal asked itself the wrong question and applied the wrong test in considering whether the officer who detained the [applicant] under s.189 of the Migration Act 1958 (the Act) had complied with s.194 of the Act.

   Particulars

   a. The detaining officer was required under s.194 to ensure as soon as practicable after detaining a person under s.189 that the person was made aware of the provisions of s.195 and s.196;

   b. Section 195(1)(b) provided for conditions which would allow a detained person an additional 5 days additional to the 2 day period provided by s.195(1)(a) to apply for a visa after being taken in detention;

   c. In relation to the applicant’s claims that she was not “made aware” of the s.195(1)(b) conditions because she … did not understand what was being said to her in English and was illiterate in English or Chinese the Tribunal found that the applicant had nevertheless been “informed” or “told” or “advised” of the a.195(1)(b) conditions as if merely imparting the information or providing a written notice containing the information to the applicant without ensuring she understood the information was a sufficient discharge of the detaining officer’s obligations under s.194;

   d. As a result of this misapplication and misconstruction of s.194 the Tribunal found the applicant was out of time to apply for a Partner visa and therefore did not satisfy the criteria in cl 050.212(3)(b) and so was not entitled to the Bridging Visa she had applied for.

2. I have before me as evidence the court book filed on 25 September 2014.  The court book contains two submissions made on behalf of Ms Yap to the Tribunal commencing at pages 86 and 94 of the court book, which I received on a limited basis as evidence of what submissions had been made.  I declined to receive an affidavit by Ms Yap made on 16 October 2014 but marked it for identification.[25]

   [25] MFI A1

3. Ms Yap and the Minister made both written and oral submissions.

Consideration

Ground 1 – did the Tribunal misconstrue or misapply s.194 of the Migration Act?

1. The Tribunal’s decision proceeded upon the basis that s.194 of the Migration Act had been complied with. That section provides:

   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.

2. Ms Yap contends that the obligation in s.194 is a personal obligation upon the particular officer who detains the person. She contends that it is not an obligation which can be discharged by any other officer. It is common ground that the obligation must be discharged as soon as is reasonably practicable after detention or the time limitations on the rights in s.195 to apply for a visa do not apply.[26] Section 195 of the Migration Act is in the following terms:

   [26] see Tan v Minister for Immigration [2007] FCA 1427 at [23], [25]-[27]

   (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 words “officer” and “detain” are defined terms in s.5 of the Migration Act as follows:

   “officer” means:

   (a)  an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or

   (b) a person who is an officer for the purposes of the Customs Act 1901 , other than such an officer specified by the Minister in writing for the purposes of this paragraph; or

   (c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979 , other than such a person specified by the Minister in writing for the purposes of this paragraph; or

   (d)  a member of the Australian Federal Police or of the police force of a State or an internal Territory; or

   (e)  a member of the police force of an external Territory; or

   (f)   a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or

   (g)  any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.

   “detain” means:

   (a)  take into immigration detention; or

   (b)  keep, or cause to be kept, in immigration detention;

   and includes taking such action and using such force as are reasonably necessary to do so.

   Note: This definition extends to persons covered by residence determinations (see section 197AC). (emphasis added)

4. There is no doubt that Constable Haigh was at the relevant time an “officer” for the purposes of the definition. The Minister contends, however, that the officer who interviewed Ms Yap while she was held in immigration detention and who purported to comply with s.194 was also an “officer” for the purposes of that section. While the Minister concedes that the officer meeting the obligation in s.194 must be an officer who detains a person, the Minister contends that “detention” for the purposes of the section means not only to take into immigration detention, but also to keep or cause to be kept in immigration detention. Thus, in the Minister’s submission, the officer complying with s.194 need not be the first one who detains a person.

5. There appears to be no authority directly on point on this question.  Counsel for the Minister referred me to the decision of Rares J in Tan v Minister for Immigration[27] where his Honour appeared to proceed on the basis that s.194 had been complied with at some time subsequent to the applicant in that case being first taken into immigration detention. However, counsel for the Minister also properly drew my attention to the obiter dictum of the Full Federal Court in Commonwealth of Australia v Fernando[28] at [72] where the Court said:

   This construction is reinforced by s 194(1), although, by force of s 193(1)(a)(iv), it did not apply in a case, such as Mr Fernando’s, where the Minister personally had cancelled a person’s visa. Section 194(1) required the officer who detained a person under s 189 to make the detainee aware of his or her right to apply for a visa under s 195(1). It would defeat the purpose of s 195(1) if “detains”, as used in s 194(1) extended to the second sense of the definition, namely to keep or cause to be kept in immigration detention. This is because the Parliament intended that the detainee be made aware of his or her right to apply for a visa only once, namely, as soon as reasonably practicable after he or she was taken into immigration detention. On the other hand, s 189(1) also required other officers to keep the person detained, or cause him or her to be kept in immigration detention when they had one of the requisite states of mind. It follows that an officer with the necessary state of mind could detain a person by causing him or her to be kept in immigration detention because the first officer caused another officer to take the person into immigration detention and then keep the detainee there.

   [27] [2007] FCA 1427

   [28] [2012] FCAFC 18

6. Those observations accord with my own reading of Division 7 of the Migration Act. There are several references to officers in that division and the scheme of the division involves particular officers taking certain action in specific circumstances. While the Minister’s interpretation of the reference to “an officer” and “the officer” in s.194 is plainly arguable, in my view, the better view is that the reference to “detains” is a reference to the first meaning of the term as defined in s.5, namely to take into immigration detention. It follows that it fell to Constable Haigh to comply with s.194. The Tribunal left unexplored whether she had done so on the assumption that compliance with the section could be met by another officer. The Tribunal thus misunderstood or misapplied the section and fell into jurisdictional error. For that reason, Ms Yap should receive the relief she seeks.

Ground 2 – did the Tribunal ask itself the wrong question or apply the wrong test?

1. It is not strictly necessary to deal with this Ground, but for completeness, I do so.  I agree with the Minister that Ms Yap has not established jurisdictional error by the Tribunal in respect of this ground.

2. The gist of this ground is the contention that the Tribunal understood the expression “made aware” in s.194 as not requiring any comprehension of the matters in ss.195 or 196. That contention does not survive a plain reading of the Tribunal’s reasons. The Tribunal rejected Ms Yap’s submission that she had to fully understand the process, the documents she signed and what to do next in order to lodge a visa application.[29] It noted that s.194 only required that Ms Yap be “made aware” of the option to apply for a visa within two working days. It then found that Ms Yap had been “made aware” of that requirement. The fact that the Tribunal used the very words of the section suggests that it was conscious of them and applied them to the evidence before it.

   [29] CB 106 [33]

1. That reasoning must also apply to the following paragraph in which the Tribunal found that Ms Yap had been informed of the applicable timeframes.[30]

   [30] CB 106 [34]

2. As already noted, the Tribunal’s finding was based on Ms Yap’s own evidence that she recalled “being told that she had two days to apply for a substantive visa”. Contrary to the suggestion in Ms Yap’s submissions, that evidence makes it clear that Ms Yap actually understood what she was being told, at very least, to the extent that she was aware of the relevant timeframes.

3. Even if that evidence were not available, the obligation of s.194 to make a person aware of the relevant information does not carry with it an obligation to ensure that the person understands that information. No doubt the officer responsible would need to take steps in order to satisfy himself or herself that the detainee was capable of understanding it but, in my view, that would be sufficient.

4. For completeness, I should add that it does not appear to me that the time limited right to apply for a visa conferred by s.195 is limited to a substantive visa. The reference in s.195(1) to a visa is unqualified. That would include a bridging visa. It would follow that if Ms Yap had applied for her bridging visa within the limitation period prescribed by s.195, she would have met the requirement of the section, and she would not have been prevented by that section from subsequently applying for a substantive visa. I raised that issue with counsel during argument but it did not form part of Ms Yap’s case, and my observations are obiter.

Conclusion

1. Ms Yap has established that the Tribunal fell into jurisdictional error in respect to Ground 1.  The Tribunal decision should be quashed and the case remitted to the Tribunal for redetermination.

2. I will hear the parties as to costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  14 November 2014