Han v Minister for Immigration & Multicultural Affairs [2000] FCA 1071

FEDERAL COURT OF AUSTRALIA

Han v Minister for Immigration & Multicultural Affairs [2000] FCA 1071

IMMIGRATION – objection to competency - application for review of decision to cancel visa – whether decision was made when applicant was in immigration clearance - whether "MRT-reviewable decision". Migration Act 1958 (Cth), ss 32, 103, 116, 166(1), 172(1), 338(3), 347(1), 475(2), 476(1). Migration Regulations 1994 (Cth), reg 4.10; Sch 2, cl 444. ALLY PING HAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 420 of 2000 SACKVILLE J 4 AUGUST 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 420 OF 2000

BETWEEN: ALLY PING HAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 4 AUGUST 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The objection to competency be upheld. 2. The proceedings be dismissed. 3. There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 420 OF 2000

BETWEEN: ALLY PING HAN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 4 AUGUST 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE PROCEEDINGS 1 The applicant seeks an order of review of a decision made by a delegate of the respondent ("the Minister") to cancel her Special Category (Temporary) (Class TY) subclass 444 visa ("subclass 444 visa"). The decision to cancel the applicant's subclass 444 visa was made just after midnight on 28 April 2000, at Sydney Airport. The delegate purported to cancel the visa pursuant to ss 103 and 116(1)(d) of the Migration Act 1958 (Cth) ("Migration Act"). The reason given by the delegate for cancelling the visa was that the applicant was travelling on a fraudulently issued New Zealand passport. 2 The applicant relies on a number of grounds specified in s 476(1) of the Migration Act, including the ground that the decision was not authorised by the Migration Act or the Migration Regulations (see s 476(1)(c)). The Minister has filed a notice of objection to competency, contending that this Court has no jurisdiction to grant relief of the kind sought by the applicant. 3 The Minister concedes that the delegate erred in concluding that s 116(1)(d) of the Migration Act authorised the cancellation of the applicant's visa. This concession is based on the language of s 116(1)(d), which reads as follows: "(1) …the Minister may cancel a visa if he or she is satisfied that … (d) if its holder has not entered Australia or has so entered but has not been immigration cleared – it would be liable to be cancelled under Subdivison C (incorrect information given by holder) if its holder had so entered and been immigration cleared". Section 103 of the Migration Act, which is within Subdivision C, provides that a non-citizen must not give an officer a "bogus document". 4 It is common ground that the applicant arrived in Australia on 16 May 1999 and that her visa was not cancelled until she attempted to leave Australia on a flight scheduled to depart Sydney Airport late on 27 April 2000. The Minister says that the applicant was plainly "immigration cleared" on 16 May 1999, the date she arrived in Australia. She had therefore been immigration cleared long before the purported cancellation of her visa. Whatever other powers might have been available to the delegate, s 116(1)(d) of the Migration Act did not authorise her to cancel the applicant's visa. 5 The Minister's concession is not as helpful to the applicant as might appear at first glance. The Minister contends that the very fact that the applicant was not in immigration clearance at the time the visa cancellation decision was made deprives the Court of jurisdiction to grant any relief to the applicant. Thus, despite the concession concerning the delegate's misapprehension of her powers, the Minister's position is that the Court has no jurisdiction to review the cancellation decision and that the objection to competency must be upheld.