Yusuf v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is a Notice of Objection to Competency filed by the respondent on the basis that the Application for an Order of Review and other Relief pursuant to the Migration Act 1958 (Cth) ("the Act") seeks review of decisions that are not judicially-reviewable decisions as defined in the now repealed and substituted s 474 and s 475 of the Act. The Application for an Order of Review relates to "decisions" of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) made on 13 June 2001, by which the applicant was held in questioning detention and his temporary visa, issued pursuant to s 116(1)(a) of the Act, was cancelled. The applicant claims he is aggrieved by the decisions as he wishes to remain in Australia, and the cancellation of his temporary visa renders him liable to deportation. Facts 2 The applicant 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, the applicant was granted a Temporary Residence Sub-Class 422 Visa by the Australian High Commission in Pretoria, valid until 19 May 2002. The applicant'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. 3 Upon arrival in Australia, the applicant was "immigration cleared" at the Brisbane International Airport, with his passports "confirmed bona fide". Thereafter, the applicant was a lawful non-citizen and the holder of a valid visa in the migration zone. Upon clearance, the applicant made arrangements with his contracted employer, NRMC, to commence employment. This contract of employment was finalised on 9 June 2001. On 12 June 2001, the applicant met with a Margaret Thomas, a representative of One Stop, to finalise his travel arrangements to Rockhampton to commence work. 4 On 12 June 2001, the applicant attended the offices of One Stop and had a meeting with Margaret Thomas. The only topic of conversation was the applicant's passports. On 13 June 2001 at 9.36 am, a facsimile from One Stop was received by the Department of Immigration and Multicultural Affairs ("DIMA") purporting to withdraw sponsorship of the applicant. 5 There were subsequently internal conversations between officers of the respondent concerning whether another sponsor might be permitted to be obtained. At 10.15 am the Department received the Immigration Inspector's report from the Brisbane Airport concerning the applicant's passport checks and baggage search which had been completed on 9 June 2001, and the applicant's passports were "confirmed bona fide". 6 At 10.30 am on the same day, the applicant attended an interview with two officers of DIMA concerning the two passports held by the applicant, one of which was referred to as "the damaged passport". That interview ceased at 11.00 am when departmental staff left the room, and at 11.10 am the applicant was held in questioning detention and questioned by an officer of the Department, Sue Ellen Delahunt. At this time, the applicant was advised that his visa may be cancelled and Ms Delahunt decided against exercising her discretion to permit the applicant a reasonable "period of grace" within which to obtain another sponsor. At 12.35 pm, without allowing the applicant time within which to comment on the intention to cancel his visa or to give reasons why his visa should not be cancelled, the visa was cancelled. The applicant sought legal representation, which arrived at approximately 1.30 pm, and at 2.00 pm a bridging visa E was granted to the applicant. 7 The applicant was assisted by pro bono legal representation in the preparation and hearing of this matter before me. 8 On 4 July 2001, the applicant filed an Application for an Order of Review in the Federal Court. The Amended Application for an Order of Review, filed 13 August 2001, seeks review of the following "decisions": "[A is deleted in the amended application] B. 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'). C. The decision of SUE ELLEN DELAHUNT, the delegate of the Respondent on the 13th day of June, 2001 to not specify the time at which the Applicant was to provide comment on the intention to cancel the visa and to give reasons why his visa should not be cancelled, and no time was specified, alternatively, the time specified was both neither prescribed nor reasonable pursuant to Part 2 Division 3 of the Migration Act 1958 ('the Act'). D. Alternatively, the decision of SUE ELLEN DELAHUNT, the delegate of the Respondent on the 13th day of June, 2001 not to exercise the Respondent's discretion to not cancel the Applicant's visa in order to permit him a reasonable 'period of grace' within which to obtain another sponsorship and/or employer pursuant to Part 2 Division 3 of the Migration Act 1958 ('the Act'). E. The decision of SUE ELLEN DELAHUNT, the delegate of the Respondent on the 13th day of June, 2001 to accede to withdrawal of sponsorship or alternatively, that sponsorship could be withdrawn under or pursuant to Part 2 Division 3 of the Migration Act 1958 ('the Act')." 9 The "decision" referred to as "A" in the original application was: "The decision, or alternatively conduct of, SUE ELLEN DELAHUNT, the delegate of the Respondent on the 13th day of June, 2001 to cancel the Applicant's Temporary Visa Subclass 422 pursuant to sub-section 116(1)(a) of the Migration Act 1958 ('the Act') forthwith." This "decision" was crossed out in the Amended Application, no doubt on the basis that s 338 of the Act rendered this an MRT-reviewable decision and thus, by s 475(2), it was not judicially reviewable. 10 The Notice of Objection to Competency, filed by the respondent on 20 August 2001, is based on the assertion that the substantive application seeks review of decisions that are not judicially-reviewable decisions, as defined by the now repealed and substituted s 474 and s 475 of the Act. Law 11 The law at the relevant time was as follows: "5 Interpretation judicially-reviewable decision has the meaning given by section 475. 116 Power to cancel 12 (1) … the Minister may cancel a visa if he or she is satisfied that: (a) any circumstances which permitted the grant of the visa no longer exist; or … (c) another person required to comply with a condition of the visa has not complied with that condition; … 119 Notice of proposed cancellation (1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, 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. … 192 Detention of visa holders whose visas liable to cancellation (1) Subject to subsection (2), if an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under Subdivision C, D or G of Division 3 or section 501 or 501A, the officer may detain the non-citizen. (2) An officer must not detain an immigration cleared non-citizen under subsection (1) unless the officer reasonably suspects that if the non-citizen is not detained, the non-citizen would: (a) attempt to evade the officer and other officers; or (b) otherwise not co-operate with officers in their inquiries about the non-citizen's visa and matters relating to the visa. 338 Decisions reviewable by Migration Review Tribunal (3) 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. 474 Interpretation In this Part: judicially-reviewable decision has the meaning given by section 475. 475 Decisions reviewable by Federal Court (1) Subject to subsection (2), the following decisions are judicially-reviewable decisions: … (c) other decisions made under this Act, or the regulations, relating to visas." (2) The following decisions are not judicially-reviewable decisions: … (c) an MRT-reviewable decision; …" 13 For the applicant to be successful, it must be shown that there was a decision, that it was made under the Act or Regulations, that it related to visas, and that it was not reviewable by the Migration Review Tribunal ("the MRT").