CONSIDERATION
4 Part 8 of the Act, which consists of ss 474-486, provides for the review by the Court of certain decisions made under the Act. Subsection 476(1) provides that an application may be made for review by the Court of a "judicially-reviewable decision" on one or more of the grounds identified in the subsection. The Act makes no provision for an application to be made to the Court for review of a decision other than a "judicially-reviewable decision". Subsection 475(1) provides as follows:
"Subject to subsection (2), the following decision are judicially-reviewable decisions:
(a) decision of the Immigration Review Tribunal;
(b) decisions of the Refugee Review Tribunal;
(c) other decisions made under this Act, or the regulations, relating to visas."
5 The decision of which review is sought in this matter is a decision made under the Act relating to a visa. However, subs 475(2) provides that a number of categories of decision, including an "MRT-reviewable decision", are not judicially-reviewable decisions.
6 It was contended on behalf of Mr Cujba that the decision made under s 116 of the Act to cancel his visa was an "MRT-reviewable decision" and thus not a decision falling within par 475(1)(c). I note that, if this contention be correct, the time within which Mr Cujba was entitled to apply to the Migration Review Tribunal for review of the decision has long passed (see s 347 of the Act). Presumably counsel for Mr Cujba envisaged an application being made by Mr Cujba to the High Court in its original jurisdiction.
7 Reliance was placed by Mr Cujba on subs 338(3) of the Act which provides:
"A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is an MRT-reviewable decision unless the decision:
(a) is covered by subsection (4); or
(b) is made at a time when the non-citizen was in immigration clearance; or
(c) was made under subsection 134(1), (3A) or (4) or section 501."
8 Mr Cujba contended that the decision of which he seeks review does not fall within any of pars 338(3)(a), (b) or (c) and thus the decision is an "MRT-reviewable decision". The Minister contended that the decision falls within par 338(3)(b) as the decision was made at a time when Mr Cujba was in immigration clearance. It was accepted by both parties that Mr Cujba is a "non-citizen who [was] in the migration zone" within the meaning of the Act at the time of the cancellation of his visa.
9 The issue for determination is thus whether Mr Cujba was in immigration clearance at the time of the decision to cancel his visa.
10 It is not in dispute that Mr Cujba presented his visa upon his arrival at Sydney airport and passed through Immigration and Customs. While trying to find his luggage he was approached by a person who he understood to be a security officer. He was taken, with his cousin with whom he was travelling, to an office within the airport complex where he was spoken to by an officer who he understood to be an Immigration Officer. He was then interviewed, again within the airport complex, separately from his cousin and his visa cancelled.
11 Division 5 of Part 2 of the Act, which is comprised of ss 165-175, is headed "Immigration Clearance". Sections 166, 167 and 172, so far as is here relevant, provide:
"166(1) Subject to subsections 167(3) and (4), this section and sections 168 and 169, a person, whether a citizen or a non-citizen, who enters Australia must, without unreasonable delay:
(a) show a clearance officer:
(i) if the person is a citizen (whether or not the person is also the national of a country other than Australia), the person's Australian passport or prescribed other evidence of the person's identity and Australian citizenship; and
(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; and
(b) give the clearance officer any information required to be given by this Act or the regulations.
(2) …
(3) …
167(1) Subject to this section, a person required to comply with section 166 who enters Australia at a port must comply:
(a) if paragraph (b) or (c) does not apply - at that port; or
(b) if the person is required by an officer to comply at a particular on-port - at that on-port; or
(c) if the person is allowed by an officer to comply at the port or a particular on-port - at either of them.
(2) …
(3) …
(4) …"
"172(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 officer and otherwise than in immigration detention; or
(b) the person:
(i) enters Australia otherwise than at a port; and
(ii) complies with section 166; and
(iii) leaves the prescribed place at which the person complied and so leaves with the permission of a clearance officer and otherwise than in immigration detention; or
(c) the person is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa.
(2) A person is in immigration clearance if the person:
(a) is with an officer for the purposes of section 166; and
(b) has not been 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) either:
(i) has his or her visa cancelled; or
(ii) refuses, or is unable, to:
(A) show a clearance officer evidence required under paragraph 166(1)(a); or
(B) give a clearance officer information required under paragraph 166(1)(b).
(4) A person, other than a person who is refused immigration clearance, bypasses immigration clearance if:
(a) the person:
(i) enters Australia at a port; and
(ii) is required to comply with section 166; and
(iii) leaves that port without complying; or
(b) the person:
(i) enters Australia otherwise than at a port; and
(ii) is required to comply with section 166; and
(iii) does not comply within the prescribed period for doing so."
12 Section 5 of the Act defines a "port" so as to include a "proclaimed airport". The same section defines a "proclaimed airport" to include "an airport appointed under section 15 of the Customs Act 1901". On 29 April 1998, Brian John Gallagher, acting pursuant to a delegation under s 14 of the Customs Administration Act 1985 (Cth) and by power of appointment in s 15 of the Customs Act 1901 (Cth) appointed Sydney Airport as an airport and fixed the limits of the airport by reference to certain plans. Sydney Airport is thus a "port" within the meaning of the Act.
13 Mr Cujba argued that subs 172(2) is a comprehensive definition of the circumstances in which a person is in immigration clearance for the purposes of the Act. The Minister argued that Mr Cujba was in immigration clearance at the time of the decision to cancel his visa either because he was not then a person who was "immigration cleared" pursuant to subs 172(1) or because he fell within the terms of subs 172(2) at the time of his interview.
14 Subsection 172 is not an easy section to construe. It is to be construed in its context within the Act, and in particular in the context of Div 5 of Pt 2 of the Act. Counsel were not able to refer me to any authorities directly relevant to its construction. Although Sackville J gave consideration to s 172 of the Act in Han v Minister for Immigration & Multicultural Affairs [2000] FCA 1071, he was not called on to consider the issues here raised.
15 It seems to me that the construction of the section for which Mr Cujba contended could lead to anomalies. On that construction a person could enter Australia at a port, comply with s 166 of the Act, not be refused immigration clearance and yet be neither immigration cleared nor in immigration clearance (eg because he or she, while not with an officer for the purposes of s 166, had not left the port of his or her entry) and not have bypassed immigration clearance. I doubt that the legislature intended such a result (ie that a person might have no status recognised by the Act in respect of immigration clearance).
16 The preferable construction of Div 5 of Pt 2 of the Act, in my view, is that a person enters immigration clearance, at the latest, when he or she commences to comply with s 166 of the Act. This will ordinarily be when he or she is first with a clearance officer for the purpose of showing the clearance officer the evidence, and giving the clearance officer the information, required by subs 166(1). Subsection 172(1) is plainly intended to provide exhaustively for the circumstances in which a person is to be regarded as immigration cleared. The words "… if, and only if …" make this clear. However, subs 172(2), by contrast, contains no equivalent words. For the reasons given above, I do not accept that the subsection is intended to deal exhaustively with the circumstances in which a person is in immigration clearance. In my view, a person who enters immigration clearance will ordinarily remain in immigration clearance until immigration cleared or until refused immigration clearance. No submissions were addressed to the Court touching on the situation of persons who bypasses immigration clearance (see subs 172(4)). These reasons, therefore, say nothing with respect to the position of such a person so far as immigration clearance is concerned.
17 The terms of subs 172(2) are consistent with what, in my view, Div 5 of Pt 2 of the Act read as a whole in any event makes clear, namely that a person is in immigration clearance when he or she is first with a clearance officer for the purposes of s 166 of the Act. However, I consider that the primary purpose of subs 172(2) is to make it clear that a person remains in immigration clearance for the whole of the time that he or she is with an officer for the purposes of s 166 (ie for the purpose of showing the officer the evidence, and giving the officer the information, required by subs 166(1)). This purpose extends, in my view, to ensuring that a person remains in immigration clearance where, although the person has neither been immigration cleared nor refused immigration clearance, he or she leaves the port or other place of arrival with a clearance officer. A person might be taken from a port or other place of arrival in such circumstances where compliance with s 166 is not immediately possible, or might more conveniently take place away from the port or other place of arrival.
18 It is clear that Mr Cujba had not, at the time of the decision to cancel his visa, satisfied the requirements of subs 172(1) for immigration clearance. He did not satisfy par 172(1)(a) as he had not left Sydney Airport. He could not satisfy par 172(1)(b) as he did not enter Australia "otherwise than at a port". He had not satisfied par 172(1)(c) as he had not been refused immigration clearance or bypassed immigration clearance or been granted a substantive visa. As he had entered immigration clearance but not achieved the status of being immigration cleared, he remained, in my view, in immigration clearance.
19 I conclude that the decision to cancel Mr Cujba's visa was made at a time when Mr Cujba was in immigration clearance. For this reason the decision is not an MRT-reviewable decision. It is a judicially-reviewable decision within the meaning of the Act. The Court has jurisdiction to review the decision on an application being made to the Court under s 476(1) of the Act.