Darko v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") purportedly made under s 131 of the Migration Act 1958 (Cth) ("the Act") not to revoke the cancellation of a visa that had been granted to the applicant. 2 The applicant obtained a visitor's visa at the Australian High Commission in Pretoria in South Africa on 29 November 2001. This was cancelled on 12 December 2001 by a delegate of the Minister and it appears that the applicant was not informed of the cancellation until her arrival in Australia on 27 April 2002. 3 On 24 April 2002 the applicant left Ghana for a visit to Australia. She arrived in Australia on 27 April and upon arrival she was interviewed by an officer of the Department of Immigration and Multicultural Affairs ("the Department") and notified that her visitor's visa had been cancelled. The applicant was then orally informed by the interviewer of the reason for the cancellation of her visa in these terms: "We have information that this visa was granted fraudulently. That is why your visa was cancelled on 12th of December and if your visa is cancelled then this is no longer valid from 12th of December 2001." 4 The applicant was then handed a written notice dated 27 April 2002 and the interviewer said: "This is the notice that your visa has been cancelled, okay. Now you can give me a reason why your visa should not be cancelled and I will give you 10 minutes to answer the question." 5 The notice reads as follows: "Dear Ms DARKO This is to advise that your visa was cancelled on 12 December 2001 under section 128 of the Migration Act 1958 (the Act) because any circumstances which permitted the grant of the visa no longer exist. The Act gives you the opportunity to comment on the ground for cancellation and to give reasons why your visa should not have been cancelled. If you are able to show that the ground(s) for cancellation does/did not exist, the cancellation of your visa will be revoked. If you cannot show that the ground for cancellation does/did not exist, but there is a reason why your visa should not have been cancelled, the cancellation of your visa may be revoked. You may choose whether to have the cancellation of your visa reconsidered while you are here in Australia or you may choose to depart Australia and have the cancellation of your visa considered by the overseas post. If you wish the cancellation of your visa to be reconsidered while you are in Australia, then you must respond to this Notification within five minutes. If the cancellation of your visa is revoked, then you will be immigration cleared and permitted to remain in Australia. If the cancellation of your visa is not revoked, then you will be refused immigration clearance and removed from Australia. If you wish the cancellation of your visa to be reconsidered while you are outside Australia, you must leave Australia as soon as possible. If you do so, you have 28 days in which to respond to this Notification. You should direct your response to the Australian mission in Pretoria by 25 May 2002. Please advise the immigration officer what you want to do. If you do not respond to this Notification within the prescribed period, the revocation of the cancellation of your visa will not be considered. As you are an unlawful non-citizen, you will be refused immigration clearance and removed from Australia." (Emphasis added) 6 The interviewer then left and said she would return in ten minutes. After the ten minutes expired the interviewer returned and asked the applicant to provide a reason why the visa should be reinstated. There was then some discussion which occupied a number of pages of transcript, after which the interview ceased for some time. Upon resumption of the discussion the interviewer stated: "Okay. So therefore the decision is, I have decided that this visa, the cancellation will not be revoked. This visa is still cancelled and I cannot give you any other visa which means that you do not have a visa to enter Australia. So therefore you are being refused entry to Australia which means you will have to leave Australia as soon as your airline can arrange it. Okay." 7 The applicant had previously asked if she could have a solicitor and was informed: "At the moment this will be assessed here okay, without a solicitor … What we are doing here is I explain to you you have two options. You go back overseas and apply for review there and you can seek solicitor assistance or you can have the cancellation reviewed now and then we will assess it, whether you have your visa reinstated or not okay. Whatever the result of that decision, it's up to you whether you want it reviewed, all right. But not now, not right now." 8 On the same day the applicant sought an injunction to restrain the Minister from removing her from Australia and such an order was made by a Judge of this Court. The matter was subsequently listed for hearing. On 29 April 2002, the applicant filed a writ invoking the jurisdiction of the Court to review the decision of the delegate not to revoke the cancellation under s 39B of the Judiciary Act 1903 (Cth). The matter was listed for hearing on 30 May 2002. 9 The dispute before me is within a short compass. There are essentially two main questions. The first question is whether the Minister had power to make a decision not to revoke the cancellation under s 131 of the Act. The second question is whether in circumstances where the requirements of s 129 had not been satisfied, the provisions of the protective clause embodied in s 474 of the Act operate to prevent judicial review of the decision made by the Minister's delegate. 10 Similar questions were recently considered by Mansfield J, of this Court, in the case of Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167. The question raised is whether I should follow the reasoning in that case.