Yusuf v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for an order of review relating to the decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the respondent") on 13 June 2001 to cancel the applicant's temporary visa issued pursuant to s 116(1)(a) of the Migration Act 1958 (Cth) ("the Act"). It is apparent that the primary complaint of the applicant, Dr Yusuf, concerns the cancellation of his visa, being a Temporary Residence Subclass 422 Visa, granted on 19 April 2001 by the Australian High Commission in Pretoria, South Africa. That decision, which is the first of the decisions referred to in the original application, was crossed out in the amended application, no doubt on the basis that s 338 of the Act rendered the decision to cancel Dr Yusuf's temporary visa an "MRT-reviewable decision" and thus, by the then s 475(2), not a decision which is judicially reviewable. 2 A number of other claimed decisions are set out in the amended application. In reasons for judgment which I gave on 12 June 2002 ([2002] FCA 737), all but one of those "decisions" were held to be not judicially reviewable decisions. I refer to the reasons which I gave for those conclusions. The decision which survived the respondent's notice of objection to competency is described in the amended application as follows: "The decision of SUE ELLEN DELAHUNT, the delegate of the Respondent on the 13th day of June, 2001 to initially place and hold the Applicant in questioning detention under or pursuant to section 192 of the Migration Act 1958 ('the Act')." It is that decision which is the subject of the present application. 3 For present purposes I find the following facts. Dr Yusuf was born in Nigeria on 9 December 1960 and was educated to the level of Bachelor of Medicine, Bachelor of Surgery in the English language. He arrived in Australia on 9 June 2001 after responding to an advertisement in the South African Medical Journal and obtaining sponsorship by One Stop Medical Services Pty Ltd ("One Stop"), which sponsorship, under Visa Sub-Class 422 - medical practitioner, was approved by the respondent on 15 March 2001. On 19 April 2001, Dr Yusuf was granted a Temporary Residence Sub-Class 422 Visa by the Australian High Commission in Pretoria, valid until 19 May 2002. Dr Yusuf's employment at the North Rockhampton Medical Centre ("NRMC") was arranged on 7 June 2001, with a Contract of Appointment signed by the Principal of NRMC. 4 Upon arrival in Australia, Dr Yusuf was "immigration cleared" at the Brisbane International Airport, with his passports "confirmed bona fide". Thereafter, Dr Yusuf was a lawful non-citizen and the holder of a valid visa in the migration zone. Following immigration clearance, Dr Yusuf made arrangements with his contracted employer, NRMC, to commence employment. This contract of employment was finalised on 9 June 2001. On 12 June 2001, Dr Yusuf met with Margaret Thomas, a representative of One Stop, to finalise his travel arrangements to Rockhampton to commence work. 5 The evidence of Dr Yusuf's dealings with One Stop on 12 and 13 June 2001 was not the subject of challenge or contradiction by affidavit or other evidence from Margaret Thomas or Theresa, the receptionist of One Stop. I therefore proceed on the basis of the acceptance of Dr Yusuf's account which appears from pars 122 onwards of his affidavit. Dr Yusuf attended the offices of One Stop at about 11 am on 12 June 2001. There were detailed discussions concerning his passports and his arrival in Australia without any funds. I am satisfied that at about 3.30 pm on 12 June 2001, Ms Thomas came into the reception area where Dr Yusuf was and apologised for keeping him waiting. When Dr Yusuf said he hoped it was not too late for him to go to Rockhampton on that day, Ms Thomas said that he would not be going to Rockhampton yet, because there were some things Dr Yusuf had to clarify first. I am satisfied with the correctness of Dr Yusuf's statement: "She told me that I would be going to the Immigration Department tomorrow. She asked me for all my documents such as certificates of qualification as she wanted to courier them to the Department of Immigration. I told her that I did not have any more documents other than those already provided to her." (Emphasis added) 6 Dr Yusuf was then taken to accommodation at Toowong by Theresa, the receptionist of One Stop, and was told by her that she would collect him the next day at 9 am. According to Dr Yusuf's account, which I accept for the reasons earlier stated, at about 9 am on 13 June 2001, Dr Yusuf received a phone call from the housekeeper at the hotel telling him that Ms Thomas would be arriving late. Dr Yusuf then phoned Andrew Brown, a solicitor, and informed him, amongst other things, that if he had a problem at the Department of Immigration and Multicultural Affairs ("DIMA") he would call him. At about 10 am Ms Thomas came to the hotel room and took Dr Yusuf to the city in her car. Dr Yusuf recounts that they stopped outside the DIMA building. Ms Thomas said that he should go to the 15th floor and see Suellen Delahunt. Ms Thomas said that when Dr Yusuf was finished he should call her and she would come and pick him up to attend to other matters before Dr Yusuf commenced work in Rockhampton. 7 It is significant that, on 13 June 2001 at 9.36 am, a facsimile from One Stop was received by DIMA purporting to withdraw sponsorship of Dr Yusuf. That facsimile is in the following terms: "Dear Bettine Due to our concerns regarding Dr Yusuf's suitability to practice in Australia, One Stop Medical Services hereby withdraw our sponsorship of his visa subclass 422 - Medical Practitioner. Kind regards Margaret Thomas One Stop Medical Services" 8 What happened next is the subject of conflicting evidence. The account of Dr Yusuf appears from pars 157 to 170 of his affidavit. Dr Yusuf says that he was taken to an interview room at approximately 10.30 am on 13 June 2001. In the room were Suellen Delahunt, a woman from DIMA whose name Dr Yusuf does not know, and Dr Yusuf. He then swears at [158]-[159]: "Suellen Delahunt stated that the reason why I was there was in order that she could ask me some questions. They asked me why I had two passports and what happened to the pages which were stuck together. I explained to them that the pages were spoiled by hair chemical that my wife had spilt on the passport. I explained to Suellen that I had given my passport to my wife whilst I was in South Africa so that she could do some banking transactions for me. My wife put my passport and her passport in her bag. She also had a bottle of hair chemical in her bag also. The hair chemical spilt on my passport and damaged the pages. This had caused a disagreement between my wife and I as I was very angry about it. Suellen said that she did not believe me. She said that I had tampered with the passport. I denied this …" Later in Dr Yusuf's account he says, at [161]-[170]: "At approximately 11.00 am, Suellen and the other woman left the room and had discussion outside the room. Approximately 10 minutes later, Suellen re-entered the room by herself and the tone of her voice had changed. She was quite aggressive. She asked me how I thought she would believe that I was a doctor. This was more of a rhetorical question which I did not answer. She then advised me that she had to cancel my visa as the grounds upon which it was granted had ceased to exist. That my employer had withdrawn sponsorship and therefore there was no need to further explain the damaged passport. She then started filling out some forms in front of me. This was the Form 1099 being the attachment to the Amended Application filed herein. She completed the whole of the Form 1099 in my presence. Suellen did not inform me that I had a right of opportunity to comment on the intention to cancel my visa and to provide reasons why your visa should not be cancelled. She simply asked me some questions which I endeavoured to answer. After Suellen Delahunt had commenced filling in the Form 1099, she then informed me that I would be held in detention at Arthur Gorrie Detention Centre and then will be removed from the Australia. Now produced and shown to me and marked 'OOY12' is a copy of the form Suellen Delahunt gave me regarding detention. I asked Suellen if I could use the telephone to call Margaret Thomas and Andrew Brown. She allowed me to. I called One Stop Medical Services and spoke to Margaret Thomas. I asked how she could treat me like this, how could she just withdraw the sponsorship. How could she deceive me and make me believe that DIMA wanted to clarify some things. Margaret Thomas made allegations about me on the telephone. She alleged that she could not employ me. My friends had given me money and I used it to go and drink and wasted it on taxis. I tried to tell her that I went out to try to find a lawyer and to speak to someone about my situation. She alleges that I made too many phone calls from the hotel. I tried to explain to her that I was speaking to my wife as I was so shocked with the way I was being treated in Australia. I then telephoned Andrew Brown who said he would come up and see me. I asked Suellen for permission to go to the toilet. She said I could but that somebody had to go with me. A man from DIMA accompanied me to the toilet. When I got back to the interview room I made another call in desperation to Andrew Brown who said he was on his way. Andrew Brown and Paula Scheiwe then came into the interview room. Andrew Brown spoke to me about my predicament and agreed to act for me. Suellen Delahunt and Andrew Brown left the room and had discussions outside the room. They then returned to the room. Suellen Delahunt granted me a bridging Visa E. Now produced and shown to me and marked 'OOY13' is a copy of the Form 1008. I then left DIMA and went with Mr Brown and Paula Scheiwe to their office." 9 On the other hand, there are four versions from Suellen Delahunt as to what occurred on 13 June 2001 at the office of the Department. The typed notes of interview which Ms Delahunt prepared record in the penultimate paragraph: "I advised Mr Yusuf that as One stop Medical Services no longer wished to continue the sponsorship then the visa that he was granted 422 should be cancelled as he no longer could work for his sponsor as a doctor. I stated that I was not confident to have him seek out other work as a Medical practitioner as I believed he was not being truthful in answering my questions and One Stop Medical Services did [not] believe he was suitable to practise as a doctor in Australia so I accepted their assessment." 10 The second version is recorded in the Form 1099 document, which is headed "Cancellation of a temporary visa under section 116 of the Migration Act 1958". Under Item 10, the "Possible grounds for cancellation" are described in the following terms: "It has come to the Department's attention that there may be grounds for cancellation of your visa under section 116 of the Migration Act 1958 for the following reasons: The circumstances which permitted the grant of the visa no longer exist. The employer is withdrawing sponsorship." 11 The verification that notice had been received is dated 11.10 am on 13 June 2001, and under Item 11, "Opportunity to comment", the following appears: "The Migration Act 1958 gives you the opportunity to comment on the intention to cancel your visa and to give reasons why your visa should not be cancelled. You are asked to state why you think the ground(s) for cancellation does or does not exist, and why you think your visa should not be cancelled. The factors that will be considered are on the reverse of this page. An explanation of the effect of cancellation is also on the reverse. Provide your comments at interview. Interview will be held on 13/06/01 beginning at am/pm at the following location DIMA, Brisbane, 313 Adelaide St Brisbane, 15th Floor You will need to provide your comments within 10 minutes of the start of the interview." 12 The Act prescribes processes for the cancellation of visas. The scheme of Part 2, Division 3, Subdivision E, "Procedure for cancelling visas under Subdivision D in or outside Australia", was the relevant prescription of the processes for the cancellation of the visa. Dr Yusuf's visa was cancelled under s 116 which appears in Subdivision D of Part 2, Division 3. Under Subdivision E, if the Minister is considering cancelling a visa: "… the Minister must notify the holder that there appear to be grounds for cancelling it and: (a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and (b) invite the holder to show within a specified time that: (i) those grounds do not exist; or (ii) there is a reason why it should not be cancelled." 13 Section 121 requires the Minister to specify whether the response to the invitation is to be given: "(a) in writing; or (b) at an interview …; or (c) by telephone." 14 In each case, the Minister is required to give a prescribed period or a reasonable time within which to respond: s 121(2), (3). Regulation 2.44 of the Migration Regulations 1994 (Cth) ("the Regulations") deals with the time in which a holder must give comments, other than at interview, and prescribes five days as the time for responding to the notice. Under s 124, the decision by the Minister is not to be made until after the holder has responded or the time for responding to the notice passes. 15 In the light of these provisions, it is in my opinion ludicrous to contend that ten minutes prior notice for a response is either fair or reasonable. It is particularly so here, in what was essentially a "set-up", where the decision to cancel had been made prior to the interview, and the procedures that followed were, in my opinion, nothing but a charade to give a veneer of respectability to an egregious departure from fair process. 16 Under s 121(3) if the invitation is to respond at interview, the interview is to take place: "(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period." 17 The effect of this legislative scheme is to permit the holder of a valid visa whose visa might be cancelled adequate time to show that those grounds do not exist or to provide some other reason as to why the visa should not be cancelled. 18 The third version by Ms Delahunt concerning the circumstances leading to the cancellation of Dr Yusuf's visa appears in her affidavit sworn on 21 August 2002. It is appropriate to set out this version at length: "… 3. On 13 June 2001, I was informed by Bettine Hewson, of the Business Centre in DIMIA Brisbane, that: (a) a man who I later determined was the Applicant ('Mr Yusuf') had come to see her because his sponsor, One Stop Medical Services Pty Ltd ('One Stop'), had withdrawn its sponsorship of him; and (b) Mr Yusuf had a subclass 422 Medical Practitioner Visa ('the Visa'). 4. I then had a conversation with Bettine Hewson ('BH') about Mr Yusuf, in words to the following effect: SD: 'Why are they withdrawing his sponsorship?' BH: 'They have grave concerns as to whether he is who he says he is and whether he is a doctor or not. They want us to find out if he is a doctor?' SD: 'If we can do that will they still employ him?' BH: 'No they are also concerned about his behaviour and his ability to carry out the work of a doctor. Apparently, he made advances to one of their employees and he was drunk when he got off the plane.' 5. I then had a conversation with Mr Yusuf, in which I put to him the information which I had been provided by Bettine Hewson. 6. After I put the allegations to Mr Yusuf I then had an exchange with him to the following effect: SD: 'How do you explain these accusations? Don't you think this behaviour is inappropriate?' Mr Yusuf: 'I was very tired when I got off the plane.' SD: 'But it is not acceptable behaviour is it?' Mr Yusuf: 'That woman is lying I don't know why she is doing that.' SD: 'What about your passport the date in it appears to have been rubbed out and it appears that a date has been written in to it. Did you change the date on it?' Mr Yusuf: 'I wrote in the date because my wife spilt hair oil over it.' SD: 'But it looks like it has been rubbed out and it looks like a page from another passport was cut out and pasted over these impressions.' Mr Yusuf: 'Well hair oil was spilt on it the Nigerian officials pasted a piece of paper on to the page.' 7. At that time, I did not believe Mr Yusuf's explanation as to what had happened to the passport. 8. I did not think it was relevant to pursue the matter of Mr Yusuf's passport any further as I thought that if One Stop had withdrawn its sponsorship then Mr Yusuf could no longer satisfy the circumstances on which the Visa had been granted. The Visa was granted on the basis that Mr Yusuf would be sponsored by One Stop. 9. I then informed Mr Yusuf that I may have to cancel the Visa on the basis that the circumstances which permitted the grant of it no longer existed. 10. I handed Part A - Notice of Intention to Cancel Visa ('PART A') of Form 1099 ('the Form') to Mr Yusuf. 11. I filled out PART A and asked him to sign it. 12. At sometime between informing Mr Yusuf that I may cancel the Visa and him signing PART A, I asked Mr Yusuf if he wanted to seek legal representation. 13. Mr Yusuf informed me that he did want representation and he called a lawyer. 14. I then asked Mr Yusuf whether he would like to wait for his lawyer to arrive before we commenced the interview and completing the remainder of the Form. Mr Yusuf said in words to the effect of: 'Let's go ahead'." 19 Ms Delahunt deposed to conversations during the interview and then said: "17. I recall that the answers Mr Yusuf gave to my questions were convoluted and contradictory to other information he had given. 18. After listening to Mr Yusuf's answers to my questions I explained to him that I had decided to cancel the Visa." 20 It is appropriate to make some findings concerning this account. I am quite satisfied that a decision was made prior to any interview to cancel Dr Yusuf's visa and to not allow him an opportunity to obtain a further sponsor or employer in substitution for One Stop. I note there is no reference at all to the denial by Dr Yusuf of the allegations of inappropriate behaviour in Ms Delahunt's typed record of interview, but which denials appear in the affidavit of Ms Delahunt at par 6. I am quite satisfied, particularly having regard to what appears in par 8 of Ms Delahunt's affidavit, and notwithstanding the inconsistent claim which appears in par 9 of that affidavit, that Ms Delahunt had decided prior to the preparation of any part of the Form 1099 to cancel the visa of Dr Yusuf. 21 The fourth version of Ms Delahunt's account was canvassed in oral evidence, including cross-examination, before the Court on 22 August 2002. That cross-examination included the concession by Ms Delahunt that prior to the interview she was advised by the "Business Section" that giving Dr Yusuf time to find another employer or sponsor "was not an option". That matter does not appear in any of the earlier accounts by Ms Delahunt. There was in truth no attempt to investigate the assessment by One Stop as to Dr Yusuf's suitability for employment or the reservations it may have expressed concerning his medical qualifications. In my reasons of 12 June 2002, I expressed the view at [36] that: "… there seems to have been an extraordinary rush to cancel the applicant's visa." 22 In the circumstances then obtaining, One Stop purported to withdraw its sponsorship at 9.36 am on 13 June 2001, and Dr Yusuf was not only taken to the offices of the Department by One Stop subsequent to that time, but his visa was cancelled at 12.35 pm on the same day. I simply do not accept the evidence of Ms Delahunt that Dr Yusuf was asked if he wanted legal representation prior to the completion of Form 1099. Ms Delahunt claims that one Bettine Hewson was present with her when that occurred, but Bettine Hewson gave no evidence in the proceedings, nor was her absence explained. Ms Delahunt said in her oral evidence: "… We asked him if he wanted legal representation - that's a procedure that happens with everybody. As I said, I cancel people's visas every day, so it's a rote thing that I go through with them." And later it was put to her: "And your recollection of the particular case is not good?---Beg pardon? And your recollection of the particular case is not good in any particular case, because you go through many in a day?---The recollection of different events on different cases would be better than some other events. It depends." 23 It is extraordinary that Ms Delahunt, in her oral evidence, said that she had neither read nor been shown Dr Yusuf's affidavit. She said that she was unaware that Dr Yusuf had been brought to the Department's premises by a representative of One Stop. She was asked: "… you knew when you started to interview him …that he was not going to be allowed to find another job or get another sponsor?---Yes." 24 In what I regard as a very important answer, Ms Delahunt was then asked: "So there was no question but that his visa was going to be cancelled?---In the - no, because it says you may cancel the visa or you may not cancel the visa." Notwithstanding the precise terms of the response, it is to me plain beyond argument that Ms Delahunt was going to cancel Dr Yusuf's visa, and that that decision had been made prior to the commencement of any questioning of him. 25 It was put to Ms Delahunt, and accepted by her, that if Dr Yusuf "did not want to co-operate with the interview process", then Ms Delahunt "would have detained him under section 192." However, Ms Delahunt contends that: "At no time was he detained under section 192 of the Migration Act. He was detained after his visa was cancelled, under section 189 of the Migration Act as a formality to indicate the seriousness that he no longer had a visa and needed to apply for some visa or whatever he wanted to do at that time." 26 Pursuant to s 192, if an officer reasonably suspects that a non-citizen visa holder's visa may be cancelled, the officer may detain the person in certain circumstances and is permitted to question the non-citizen about the visa and matters relevant to the visa: s 192(1), (2) and (3). The non-citizen must be released from questioning detention within four hours after being detained: s 192(5). 27 The submission on behalf of Dr Yusuf is that he was in fact in questioning detention because: (a) the time that he was given to respond, according to the formal document (Form 1099), fixes the time for response at ten minutes from the start of the interview; (b) Form 1099 does not comply with s 121(3) of the Act insofar as it does not formally specify the time at which the interview was to take place; (c) the time given to respond was not a reasonable time as required to be given to a person who is not in questioning detention ; (d) there is no suggestion in any of the material that, prior to being taken by One Stop to see Ms Delahunt, Dr Yusuf was going there pursuant to an appointment under ss 119-121; and (e) Dr Yusuf was told by Ms Delahunt that he was there to answer questions concerning his visa. 28 There is no doubt that if Dr Yusuf was in detention pursuant to s 192, the requirements for the exercise of that power of detention were not complied with. 29 Regrettably, however, I have come to the view that Dr Yusuf was not in questioning detention, and therefore the validity of any such detention is irrelevant. Dr Yusuf was taken to DIMA by Ms Thomas of One Stop after she had advised DIMA that One Stop's sponsorship had been withdrawn. No communication about this event was conveyed to Dr Yusuf by Ms Thomas. She transported him to the Department, as if in a tumbrel, to his pre-ordained execution. The dealings with Dr Yusuf by One Stop lacked candour and were deceitful, and the offhand conduct on the part of officers of the respondent in relation to the process of the cancellation of Dr Yusuf's visa was unfair and indefensible. The whole interview process was a farce and a charade, but any remedy in relation to that aspect of the matter lay in the exercise of a challenge to the cancellation of his visa before the Migration Review Tribunal. The sad fact is that Dr Yusuf did not avail himself of that avenue of challenge. There is nothing that the Federal Court can do in respect of that aspect of the matter. 30 For the above reasons, the application in respect of the sole decision that survived the objection to competency by the respondent is not made out, and the application for an order of review of that decision must be dismissed. 31 Notwithstanding that conclusion, in the factual circumstances set out above, it is my provisional view that, in the exercise of the discretion as to costs, the primary rule that a successful party is entitled to its costs should not be followed. I propose to order that there will be no order as to costs in respect of this application, but before making that order or any other order about costs, I invite written submissions on the question of costs to be filed within seven days. 32 It is apparent from what I have said above that, in my view, Dr Yusuf has been treated very shabbily. I sought information from the legal representatives of the respondent whether, in the circumstances of the present case, the respondent had a power similar to that contained in s 417 of the Act, so that something might be done to ameliorate or rectify the profound unfairness in the case. I have been informed that no such power exists in the Act or in the Regulations. Such powers are given in s 351 in respect of Migration Review Tribunal decisions, s 391 in respect of the decisions of the Administrative Appeals Tribunal reviewing Migration Review Tribunal decisions; s 454 in respect of decisions of the Administrative Appeals Tribunal reviewing Refugee Review Tribunal decisions; and s 495B in respect of computer-based decisions. 33 In those cases, where the respondent substitutes a more favourable decision under any of those sections, he must comply with certain requirements as outlined in the relevant sections in respect of laying certain information before each House of the Parliament. I have been informed that it is not possible for the respondent to substitute a more favourable decision in this case. The matter, however, is one which should be brought to the attention of the Minister for Immigration and Multicultural and Indigenous Affairs for his personal consideration.