FEDERAL COURT OF AUSTRALIA Cujba v Minister for Immigration & Multicultural Affairs [2001] FCA 146 MIGRATION – Migration Act 1958 (Cth) – judicially-reviewable decision – applicant had visa cancelled once he had passed through Immigration and Customs but before he had left the airport – whether applicant was still in "immigration clearance" Migration Act 1958 (Cth) ss 5, 166, 167, 172, 338, 474, 475 Customs Act 1901 (Cth) s 15 Customs Administration Act 1985 (Cth) s 14 Han v Minister for Immigration & Multicultural Affairs [2000] FCA 1071 OLEG CUJBA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1190 of 2000 BRANSON J SYDNEY 26 FEBRUARY 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1190 of 2000 BETWEEN: OLEG CUJBA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BRANSON J DATE: 26 FEBRUARY 2001 PLACE: SYDNEY REASONS FOR DECISION INTRODUCTION 1 By an application dated 8 November 2000 Oleg Cujba ("Mr Cujba") sought review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") on 13 October 2000. The decision of which review was sought was a decision made under s 116 of the Migration Act 1958 (Cth) ("the Act") to cancel a visa earlier granted to Mr Cujba. 2 The application as lodged with the New South Wales Registry of the Court does not identify any grounds upon which the application to the Court is made. However, I need not consider this topic any further in these reasons for decision as the Minister, by his counsel, indicated that he did not wish to argue that an application which does not identify any grounds upon which the application is made, within the time fixed by par 478(1)(b) of the Act, is a nullity. On 13 December 2000 the Minister filed a notice of motion which gave notice that he would seek an order pursuant to O 20 r 2(1)(a) of the Federal Court Rules that the proceeding be dismissed as showing no reasonable cause of action. However, the Minister indicated on 23 February 2001 that he did not propose to move pursuant to his notice of motion. 3 The hearing and determination of Mr Cujba's application has been delayed for a regrettably long period of time to assist Mr Cujba in his efforts to obtain legal assistance. When this matter came before the Court on 23 February 2001, Mr Cujba was, for the first time, represented by counsel. Somewhat surprisingly, the first submission made on behalf of Mr Cujba by his counsel was a submission, made without notice either to the Minister or the Court, that the Court does not have the jurisdiction to hear and determine Mr Cujba's application. After hearing counsel for Mr Cujba and the Minister respectively, I ruled on that day that the Court does have jurisdiction to hear and determine the application. I indicated that I would subsequently publish reasons for my ruling. These are my reasons for so ruling. 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. Future Conduct of the Proceeding 20 At the time that I gave the ruling that the Court has jurisdiction in this matter, it was understood by all concerned that I would proceed immediately to hear Mr Cujba's application. However, following my ruling, the Minister indicated that he would not be moving on his notice of motion of 13 December 2000 and Mr Cujba applied for and was given, without objection by the Minister, leave to amend his application so as to include some of the grounds upon which, having received legal advice, he wished to support his application. Ultimately I did not rule on whether further grounds alleging actual bias in the decision maker should be permitted to be added. The Minister then indicated by his counsel that, if the application were to be heard on that day, it would be necessary for the evidence upon which the Minister relied to be given orally. As less than half a day's hearing time remained, it was apparent that there was a significant risk that the hearing would not be able to be completed in the time available. I was not in a position to give the parties further hearing time for a period of more than five weeks. As Mr Cujba is in detention, and there has already been significant delay in bringing this matter on for hearing, with the agreement of the parties, I therefore stood over the hearing of the application to a date to be fixed to allow the application to be heard by another judge during my period of unavailability. The parties by their respective counsel acknowledged that I was not part-heard on the application itself. 21 In the circumstances as they are now known to be, it may have been preferable for me not to have ruled on the jurisdictional point taken by Mr Cujba, but to have left the point to be determined by the judge who will hear and determine the application. However, my ruling was given before it became apparent that the hearing could not conveniently proceed before me and I was not invited by the parties to withdraw it. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Branson. Associate: Dated: 26 February 2001 Counsel for the Applicant: Mr R Killalea Solicitor for the Applicant: Low & Associates Counsel for the Respondent: Mr D Godwin Solicitor for the Respondent: Sparke Helmore Date of Hearing: 23 February 2001 Date of Judgment: 26 February 2001