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Chiu v Minister for Immigration [2014] FCCA 2596 (20 November 2014)

Last Updated: 21 November 2014

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHIU v MINISTER FOR IMMIGRATION


Catchwords:
MIGRATION – Visa – cancellation – immigration detention – removal from Australia – responsibilities of the detaining officer – Minister not the detaining officer.

ADMINISTRATIVE LAW – Procedural fairness – unreasonableness.

WORDS AND PHRASES – “immigration detention”.


Legislation:
Migration Act 1958, ss.5, 72, 73, 116, 118A, 119, 121, 166, 172, 178, 180, 189, 192, 193, 194, 195, 196, 198, 245F, 252, 253, 254, 256, 258A, 261AA, 474
Migration Regulations 1994, reg.2.43, cls.050.211 and 050.212 of sch.2

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666
Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307
Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747
Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252
Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612


Applicant:
SUNG YUET CHIU

Respondent:
MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number:
SYG 2110 of 2012

Judgment of:
Judge Cameron

Hearing date:
23 May 2013

Date of Last Submission:
23 May 2013

Delivered at:
Sydney

Delivered on:
20 November 2014


REPRESENTATION

Solicitors for the Applicant:
Mr R. Turner of Turner Coulson

Solicitors for the Respondent:
Ms D. Watson of Australian Government Solicitor


ORDERS

(1) The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA
AT SYDNEY

SYG 2110 of 2012

SUNG YUET CHIU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The applicant, Mr Chiu, who is a citizen of China and resides in Hong Kong, arrived at Perth International Airport on a China Southern Airlines flight at 6.54am on Wednesday 5 September 2012 as the holder of a Subclass 976 Electronic Travel Authority (Visitor) visa. After his arrival, but before he was immigration cleared, Mr Chiu was interviewed by an officer of what is now the Department of Immigration and Border Protection (“Department”) and at 11.19am he was issued with a “Notice of intention to consider cancellation” of his visa (“NOICC”). Mr Chiu’s visa was cancelled at 12.16pm pursuant to s.116(1)(g) of the Migration Act 1958 (“Act”) and reg.2.43(1)(k) of the Migration Regulations 1994 (“Regulations”) on the basis that he did not have, at the time of the grant of the visa, or had ceased to have, an intention only to visit Australia temporarily for tourism purposes.
  2. Following the cancellation of his visa Mr Chiu was denied entry to Australia and taken into immigration detention as an unlawful non-citizen. He departed Australia at 10.13pm on 5 September 2012.
  3. Mr Chiu sought judicial review of decisions taken by delegates of the respondent (“Minister”) and officers of his department concerning the cancellation of his visa and his detention. In his amended application, Mr Chiu sought:
    1. a writ of certiorari quashing the decision of the Minister;
    2. a declaration that the Minister apologise to him for all the actions carried out in his name and/or by the officers of his department or his agents;
    1. a declaration that his detention was unlawful;
    1. damages and compensation; and
    2. costs.
  4. The Court’s task is to determine whether the decisions in question were affected by jurisdictional error as that is the only basis upon which the Court has jurisdiction over this dispute: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. For the reasons which follow I find that jurisdictional error has not been proved and so the application will be dismissed.

Relevant legislation

Visa cancellation

  1. Section 116 of the Act grants the Minister the power to cancel visas. It relevantly provides:
...
  1. Regulation 2.43 prescribes the grounds on which the Minister may cancel a visa and, at the time Mr Chiu’s visa was cancelled, relevantly provided:
  2. Sections 118A, 119, and 121 of the Act are concerned with the procedure for the cancellation of visas and relevantly provide:
  3. No period was prescribed for the purposes of s.121(3)(b).

Immigration clearance

  1. Section 166 of the Act concerns the requirement for persons arriving in Australia to present evidence of identity and also, in the case of non-citizens, evidence of a visa.
  2. Section 172 of the Act relevantly provides:
  3. Section 5(1) of the Act provides that a proclaimed airport is a port. It was not suggested that Perth International Airport had not been proclaimed as a port.

Questioning detention

  1. A person may be detained for the purposes of questioning. Section 5(1) of the Act defines “questioning detention” as detention under s.192 of the Act. That section relevantly provides:
  2. The Act treats questioning detention as a form of immigration detention: see ss.258A and 261AA.

Immigration detention

  1. Section 5(1) of the Act defines “immigration detention” relevantly in the following terms:
  2. Section 189(1) of the Act provides that an officer must detain a person who is an unlawful non-citizen.
  3. Sections 194 and 195 provide:
  4. However, s.193 relevantly provides:
  5. Section 196 relevantly provides:
  6. Whilst in immigration detention, an unlawful non-citizen may have access to certain advice and facilities. Section 256 of the Act provides:

Removal

  1. Section 198 relevantly provides:

(ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.

...

Bridging visas

  1. Section 73 of the Act relevantly provides:
If the Minister is satisfied that an eligible noncitizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the noncitizen to remain in, or to travel to, enter and remain in Australia ...
  1. Relevantly, s.72(1)(a) of the Act provides that a person must be immigration cleared in order to be an “eligible noncitizen” for the purposes of s.73.
  2. Clause 050.21 of sch.2 to the Regulations sets out the criteria for the grant of a bridging visa on “departure grounds” and relevantly provides:

Evidence

Sung Chiu

  1. Mr Chiu deposed that he arrived in Australia at about 5.30am on 5 September 2012 and that once he had cleared customs he was stopped by a male officer who took him to the luggage carousel to identify his luggage. He deposed that he remained there for approximately an hour while his luggage was checked and he was questioned. During the search, the officers found commercial documents relating to his companies in China. Mr Chiu deposed that after about thirty minutes, the officer questioned him with the assistance of a telephone interpreter and they had the following conversation:
  2. Mr Chiu said that he had asked the first immigration officer who spoke to him for a lawyer because he turned to his lawyer for any problem he had. He said that he had not asked the officer who conducted his interview to speak to a lawyer because he saw no point in doing so after the first officer had refused his request.
  3. Mr Chiu deposed that at approximately 9am he was interviewed by a female immigration officer, with the assistance of an interpreter, and he told her that he wanted to go home. He deposed that the officer appeared to ignore his request.
  4. Mr Chiu deposed that at approximately 11.30am he was given a NOICC and his visa was cancelled at approximately 12.15pm. At approximately 2pm Mr Chiu was taken to the Perth Immigration Detention Centre (“Perth IDC”). He deposed that on arrival he had the following conversation with a Chinese-speaking officer:
  5. Mr Chiu said that he had not used the telephone in the detention centre to contact or organise a lawyer and that no lawyer had visited him while he was in detention because he had not been allowed to see one. He said he had also been promised that he could leave the detention centre within a very short period of time.
  6. Mr Chiu deposed that he had continued to demand to be allowed to leave immediately. He was eventually taken to the airport at 9.30pm where he caught a Cathay Pacific flight to Hong Kong. Mr Chiu said that he had made his own arrangements to depart Australia because he had been advised that the next China Southern Airlines flight was on Friday and he had not wanted to wait that long. He said that at both the airport and the detention centre he had asked whether he could organise a private jet and had been told that he had to return to Hong Kong with the airline he had arrived with.
  7. Mr Chiu deposed that all the documents given or shown to him had been in English and he had not received any documents written in Chinese.

Kai Kang

  1. Mr Kang deposed that on the morning of 5 September 2012 he received a telephone call from a female officer from the Minister’s department and that they had the following conversation:
  2. Mr Kang deposed that he gave the officer “Cliff’s” telephone number.

Jakov Zaknich

  1. Mr Zaknich was a Customs and Border Protection officer at the Perth International Airport. His duties included examining and processing passengers arriving in and departing from Australia.
  2. Mr Zaknich deposed that on 5 September 2012 he stopped Mr Chiu and accompanied him to the luggage carousel so that he could identify his luggage. He deposed that Mr Chiu was questioned for approximately one hour while his luggage was checked. Mr Zaknich deposed that Mr Chiu was questioned because he was carrying more than $10,000 in cash and had failed to declare it on his incoming passenger card. He deposed that as a result of this, he formed the belief that Mr Chiu had made a false declaration on his passenger card and notified the Australian Federal Police. Mr Zaknich deposed that the officer from the Australian Federal Police who attended decided not to charge Mr Chiu but instead to give him a warning.

Duong Phan

  1. Ms Phan was an immigration inspector at the Perth International Airport. Her duties included interviewing travellers seeking immigration clearance, assessing their bona fides, considering the cancellation of visas in consultation with more senior officers and liaising with “stakeholders” involved in the removal of passengers refused entry to Australia.
  2. Ms Phan deposed that she understood that Mr Chiu had been referred to her because he had been travelling with a Mr Li who had attracted the attention of immigration officers. She deposed that Mr Li told immigration officers that he was Mr Chiu’s personal assistant. Ms Phan deposed that she questioned Mr Chiu with the assistance of a telephone interpreter and that he had said that he was in Australia for a holiday.
  3. Ms Phan deposed that Mr Li offered her some telephone numbers which she later gave to Astair Teshome, a senior immigration inspector. She deposed that after questioning Mr Chiu, she referred him back to customs for formal clearance processes and he was eventually returned to departmental officers for a formal immigration interview.
  4. Ms Phan deposed that she was the only officer who questioned Mr Chiu using a telephone interpreter prior to the formal interview which led to his visa cancellation. Ms Phan deposed that at no stage during their conversation had Mr Chiu requested a lawyer or asked to contact a friend to organise a lawyer. She deposed that she was aware that if a person in Mr Chiu’s position requested a lawyer, she was required to provide immediate access to one.

Astair Teshome

  1. Annexed to Mr Chiu’s solicitor’s affidavit affirmed on 29 November 2012 was an immigration inspector’s report signed on 10 October 2012 by Ms Teshome. In the report, Ms Teshome stated that Dejun Li, Mr Chiu’s assistant, provided details for Mr Chiu’s Australian contacts, Mr Cliff Zhen and Mr Kang. She stated that she contacted Mr Zhen who told her that he owned the property which Mr Chiu had listed as his address in Australia. Ms Teshome also contacted Mr Kang who stated that Mr Chiu was in Australia to pursue an interest in commercial real estate, specifically a farm near York.
  2. Ms Teshome stated that her interview with Mr Chiu started at 8.48am. She stated that she advised Mr Chiu of his entitlement to contact consular staff but he declined to exercise that right. She stated that Mr Chiu provided the following information during the interview:
    1. he and his wife had bought a house in Perth and travelled regularly to Australia to visit. The house had been purchased in Mr Zhen’s name because under Australian law he and his wife could not purchase it in their names;
    2. he was in Australia for a holiday. The house next to his house was being sold and he wanted to purchase it, again in Mr Zhen’s name;
    1. Mr Li was travelling with him as his assistant and also on holiday. Business persons in China always travelled with assistants even when on holiday. Including Mr Li, he would have four assistants with him during his visit to take care of everything for him. The trip was a reward for his staff;
    1. he and his assistants would visit “shearing farms” and he was interested in purchasing a rural property near York but, as a foreigner, he might not be eligible to purchase it;
    2. his wife had asked him to buy a property for her in Australia and he was investing to please her. However, he would not invest in Australia because of his treatment by immigration; and
    3. he would cancel all his activities and only carry out tourist activities. He would allow the Department to monitor him and would send pictures of his tourist activities.
  3. Ms Teshome stated that at 11.19am she handed Mr Chiu a NOICC and told him that he had ten minutes to respond to it. The notice stated that the Department was considering cancelling Mr Chiu’s visa because he had claimed consistently that he was in Australia for a holiday before admitting that the primary purpose of his travel was to explore investment opportunities in Australia, something which had been substantiated by his Australian business contacts. In response to the notice Mr Chiu apologised for applying for the wrong visa and said that if he was allowed to enter Australia he would only take part in tourist activities and would not breach his visa conditions.
  4. Ms Teshome stated that at 12.16pm she handed Mr Chiu written notification of the decision to cancel his visa. She stated that she advised Mr Chiu that he had been refused immigration clearance, that he was being detained as an unlawful non-citizen, would be removed from Australia as soon as reasonably practicable and would be subject to an exclusion period. Ms Teshome stated that Mr Chiu was collected for transportation to Perth IDC by Serco at 2pm.

Sharron McKenzie

  1. Ms McKenzie was employed by the Minister’s department as the duty manager at Perth International Airport. She deposed that her duties included managing the immigration functions carried out by customs officers, including the screening of incoming and outgoing passengers and the referral of matters to immigration officers for further investigation, managing and supervising the immigration process and making decisions on visa cancellations and border visa grants.
  2. Ms McKenzie deposed that Mr Chiu arrived at Perth International Airport on a China Southern Airlines flight at 6.54am and was referred to an immigration officer for interview at 8.45am. At 12.16pm a decision was made to cancel Mr Chiu’s visa. Ms McKenzie deposed that Mr Chiu was then transferred to the Perth IDC and China Southern Airlines notified of its obligation to arrange a departure flight for him.
  3. Ms McKenzie deposed that when a person is refused entry into Australia, a notice is served on the airline which brought the person to Australia notifying it of its obligation to arrange for the person to leave Australia. She also said that it was normal practice to advise a person denied immigration clearance that they were required to leave the country on the airline which brought them to Australia.
  4. Ms McKenzie deposed that in September 2012 China Southern Airlines had flights departing Perth for Hong Kong on Wednesdays, Fridays and Sundays at 9.55am. Based on his arrival on Wednesday, 5 September 2012, and the time it took for immigration procedures, the next available China Southern Airlines flight for Mr Chiu would have been on Friday, 7 September 2012. Ms McKenzie deposed that Mr Chiu made his own arrangements and departed Perth at 10.13pm on 5 September 2012 on a Cathay Pacific flight.

Jackie He

  1. Ms He deposed that she was a Serco client service officer and that as she spoke Cantonese, was asked to assist with Mr Chiu’s induction process when he arrived at the Perth IDC. Ms He deposed that during the induction process, Renae Lineham, a Serco welfare officer, covered each topic in the induction form, including the fact that Mr Chiu could access a telephone, and that she, Ms He, interpreted this to Mr Chiu in Cantonese. She deposed that Mr Chiu appeared to understand her and did not say that he had difficulty understanding the process or what was occurring. She deposed that she had had no difficulty understanding Mr Chiu.
  2. Ms He deposed that during the induction she told Mr Chiu that a person was usually returned to their home country on the airline which had brought them to Australia and that Mr Chiu had then said to her:
  3. Ms He deposed that Mr Chiu had asked to go home “now” and had done so in the context of wanting to organise a charter aeroplane to take him home. She deposed that she translated Mr Chiu’s request to Ms Lineham who went and conferred with Julia Pendleton, the Detentions Operations Manager. Ms He deposed that when Ms Lineham returned with Ms Pendleton she translated a conversation between Ms Pendleton and Mr Chiu during which the former told the latter that he could make arrangements for a private aeroplane if he wished to do so.
  4. Ms He deposed that she did not remember Mr Chiu asking to contact a migration agent or lawyer. She deposed that she did not make decisions about visitors and would not have told Mr Chiu that he could not receive visitors that day. Ms He deposed that if Mr Chiu had asked to contact a lawyer, migration agent or anyone else, she would have directed him to the telephone located in the area where the induction was conducted.

Julia Pendleton

  1. Ms Pendleton was the Service Delivery Team Manager/Detention Operations Manager at the Perth IDC. She deposed that her role included ensuring that Serco complied with its contract with the Commonwealth to deliver welfare and security services to persons in immigration detention and to oversee the operation of transfers and removals of such person into and from the Perth IDC.
  2. Ms Pendleton deposed that at approximately 12.30pm on 5 September 2012 she was advised by Perth Airport staff that Mr Chiu and Mr Li had had their visas cancelled and were being transported to the Perth IDC. She deposed that they arrived at approximately 2.20pm.
  3. Ms Pendleton deposed that on Mr Chiu’s arrival, Ms Lineham conducted an induction during which Ms He, who is fluent in Cantonese, assisted Mr Chiu.
  4. Ms Pendleton deposed that Ms Lineham came to her and told her that Mr Chiu had said that he was a rich man and wanted to hire a private aeroplane to take him home. She deposed that she then went to speak to Mr Chiu, with the assistance of Ms He, and he confirmed that he wanted to make his own arrangements to leave Australia by private aeroplane. Ms Pendleton deposed that she told him that he could do so if he wished and that he could have access to a telephone and email in order to make his arrangements. She deposed that Mr Chiu did not proceed to make such arrangements.
  5. During his detention, Mr Chiu received two visitors at 4pm, Mr Deng Xi Neng and Mr Kai Kang. He was discharged from Perth IDC at 7.50pm.

Interview transcript

  1. Mr Chiu also relied on a transcript of his interview with Ms Teshome which was annexed to the affidavit of Sue Archer affirmed on 29 November 2012. Amongst other things, that transcript recorded that telephone interpreter services were used during the interview. The transcript also recorded the following:

Ms Teshome advised Mr Chiu that it was a legal requirement that he be given time to consider the NOICC.

Allegations

  1. Ground one of the amended application alleged:
  2. Ground two of the amended application alleged:

Based on a finding that the “primary purpose of your travel was to explore investment opportunities in Australia.”

(ii) The evidence given to the decision maker was that the Applicant “was interested in buying a farm” at some time in the future.
(iii) At no point did he say that the farm would be an investment.
(iv) He specifically stated that he was no longer considering purchasing the farm. Affidavit of Sue Archer p.8 1.40
(v) The conclusion drawn is not supported by the evidence before the Respondent.
b. The Applicant was denied the opportunity to depart Australia when his visa was cancelled
c. The Applicant’s detention was unlawful
d. The Respondent failed to advise the Applicant that he could apply for a visa under para 050.212(2) on “departure grounds”
e. The Respondent only gave the Applicant 10 minutes to respond. In the circumstances of this case, he had no lawyer, no phone and no opportunity to contact anyone for advice, this time was too short.
59. Ground three of the amended application alleged:
3. The Respondent failed to carry out his statutory duty.

“Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, ... afford him or her all reasonable facilities for ... obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.”

(ii) The Applicant requested that he obtain legal assistance
(iii) The Respondent denied this request

Submissions

Applicant

  1. Mr Chiu submitted that he was seeking orders that the decision to cancel his visa be set aside. Although he could not point to an underlying right to an apology, he sought an apology from the Minister. He did not press his claim for damages.

Detention

  1. Mr Chiu submitted that immigration detention is defined by s.5(1) of the Act as, relevantly, being in the company of and restrained by an officer and that restrained means not being allowed to leave. Mr Chiu submitted that he was in detention from the time he was first approached by an immigration officer at the airport and that consequently all the responsibilities attaching to immigration detention began at that time. In particular, he submitted that although Ms Teshome had asked him if he required consular assistance, she had not asked him if he required legal assistance or wanted to contact a lawyer. He submitted that he had needed legal advice during the process leading to the cancellation of his visa but had been denied it.

Denial of procedural fairness

  1. Mr Chiu accepted that s.118A of the Act provides that subdiv.E of div.3 of pt.2 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with in that subdivision but submitted that anything falling outside those matters is not covered by s.118A.
  2. Mr Chiu submitted that Ms Teshome’s termination of her conversation with Mr Kang denied him the opportunity to put all the available evidence before her as the relevant decision-maker.
  3. Mr Chiu also submitted that he did not speak, read or understand English and had been denied procedural fairness because all the notices given to him were in English and their contents or relevance were not explained to him in a language that he could understand. He submitted that Ms Teshome had explained to him the grounds in the NOICC but had failed to tell him about the legislative provisions mentioned in that notice and the sort of things that might have been taken into account in deciding whether to cancel his visa. Mr Chiu submitted that as a matter of procedural fairness, he was entitled to be told about all the relevant parts of the notice. He submitted that as the reasons for cancelling his visa were governed by s.116 of the Act and reg.2.43 of the Regulations, he had needed to be aware of those provisions in order to respond properly to the notice of cancellation.
  4. Mr Chiu also submitted that he had been denied natural justice in that he was denied access to a lawyer, particularly during the process which led to the cancellation of his visa.
  5. Mr Chiu submitted that it was unreasonable that he was given only ten minutes to respond to the NOICC. He submitted that in circumstances where he had not had access to a lawyer or legal advice, no opportunity to contact anyone, no phone and no understanding of the legal requirements that he was facing, ten minutes had been too short a time.

Cancellation unreasonable

  1. Referring to Minister for Immigration & Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 and Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307, Mr Chiu submitted that administrative decision-makers must base their decisions on rationally probative evidence and not on guesswork or conjecture. He submitted that throughout the process of his visa cancellation he had disavowed being in Australia to make investments. In support of this submission, he referred to his initial statements to Ms Teshome that he was only considering looking at a property and his later statements that, irrespective of his prior intentions, after his treatment in immigration he no longer had an intention to buy anything. He submitted that in saying to Ms Teshome that he would no longer look at properties while in Australia he had not been admitting that he had been wrong but rather, having failed to convince Ms Teshome that his intended activities were not wrong, was simply saying he would not do them.
  2. Mr Chiu submitted that he had not admitted that the primary purpose of his travel was to explore business opportunities and that there was no evidence that this had been substantiated by his Australian contacts. He submitted that he had consistently said in his interview that the primary purpose of his visit was tourism and that even if he did look at some real estate he would not enter into any commercial arrangements. He argued that he had provided compelling reasons why his visa should not have been cancelled.
  3. Mr Chiu submitted that no reasonable person could have reached the conclusion Ms Teshome reached on the evidence that had been before her. He submitted that there had been no evidence that the properties discussed were intended to generate income. Mr Chiu submitted that the properties would have been for his personal use. He submitted that Ms Teshome had not had any evidence, or any reasonably probative evidence, that he was in Australia to invest. Mr Chiu submitted that Ms Teshome’s decision that his and Mr Kang’s evidence related to investments amounted to speculation and perhaps even guess-work. Mr Chiu submitted that a holiday house for personal use was a lifestyle decision rather than an investment. He submitted that exploring opportunities for lifestyle accommodation did not amount to exploring investment opportunities.

Continued detention

  1. Mr Chiu submitted that he had asked to leave Australia at 9.30am but was not permitted to leave until about 9.30pm. He submitted that as he had been making acceptable arrangements to depart Australia he could have applied for, and been granted, a bridging visa E pursuant to reg.050.212(2) of sch.2 to the Regulations. He submitted that the Minister had failed to advise him that he could apply for a visa or obtain legal advice in relation to his continuing detention and could make an application for a visa.
  2. Mr Chiu also submitted that the Minister had failed to remove him from Australia as soon as was reasonably practicable.

Minister

Detention

  1. The Minister submitted that until Mr Chiu’s visa was cancelled, he had been in the process of being immigration cleared and could therefore not have been detained under s.189. He submitted that any constraints placed on Mr Chiu’s ability to leave the airport were dictated by the fact that he had not yet been immigration cleared. He submitted that the word “restrain” meant more than just going through normal immigration clearance procedures at the airport. The Minister submitted that s.172 of the Act indicated that the Act drew a distinction between going through immigration clearance procedures and being in immigration detention. In this connection, the Minister also referred to s.193 and submitted that it recognised the dichotomy between a person who is in the process of being immigration cleared and a person who is detained after having immigration clearance refused.
  2. The Minister submitted that s.256 of the Act did not apply until a person was in immigration detention and that in any event there was ample material from which the Court could infer that Mr Chiu had not made a request to any relevant immigration officer to see a lawyer. It was submitted that both Mr Zaknich and Ms He had said that Mr Chiu had not made a request to speak to a lawyer. The Minister submitted that it could be inferred that if Mr Chiu had made a request to see a lawyer, he would have made it during the formal interview process but it was clear from the transcript of that interview that Mr Chiu had not made such a request. The Minister further submitted that it could be inferred that Mr Chiu had not requested a lawyer because, although he received visitors at the detention centre, he had not been visited by a lawyer.

Denial of procedural fairness

  1. The Minister submitted that Ms Teshome put to Mr Chiu Mr Kang’s evidence that he was in Australia to purchase a rural property outside the town of York. He submitted that the critical information which Ms Teshome had obtained was therefore put to Mr Chiu so he could deal with it and that he had had an opportunity to further explain what his intentions were.
  2. The Minister referred to the effect of s.118A of the Act and submitted that Ms Teshome had correctly notified Mr Chiu of the grounds for the possible cancellation of his visa and invited him to show that those grounds did not exist or provide reasons why his visa should not be cancelled. The Minister submitted that there was no prescribed way in which Ms Teshome should have complied with s.119 of the Act. Specifically, he submitted that there was no requirement that Mr Chiu be notified in writing of the intention to consider cancellation of his visa, including by a written document in his language. The Minister submitted that the NOICC was not a prescribed form and that, in any event, Ms Teshome had read out the relevant parts of the notice and made it clear to Mr Chiu the reasons why she considered there were grounds for cancelling his visa and this had been interpreted to Mr Chiu by an interpreter he had indicated he understood.
  3. The Minister submitted that the ten minutes which were afforded to Mr Chiu to respond to the NOICC had been reasonable and appropriate in the circumstances. In this connection, the Minister submitted that Mr Chiu had indicated that he wished to provide comments immediately but was advised by Ms Teshome that he should wait the allocated time. The Minister submitted that the transcript of the interview disclosed that Mr Chiu was aware of what was occurring, understood the questions put to him, was able to answer them and understood the process and the interpreter. He submitted that there was nothing in the evidence to suggest that the period provided to Mr Chiu was in any way unreasonable.

Cancellation unreasonable

  1. The Minister submitted that Mr Chiu’s submission that there was no probative evidence to support the decision to cancel his visa ignored his evidence during his interview that he was thinking about buying a property in Perth and Mr Kang’s evidence that Mr Chiu intended to buy a farm. The Minister referred to Mr Chiu’s evidence during his arrival interview that he had looked at information about a farm and that he thought it was a good buy. It was submitted that it was only when it became evident to Mr Chiu that there was a problem with his intentions that he stated that he would not consider buying the farm.
  2. The Minister submitted that, in those circumstances, there was sufficient evidence before Ms Teshome for her to be satisfied that grounds existed for the cancellation of Mr Chiu’s visa on the basis that he was not in Australia only for tourism. He submitted that it was open to Ms Teshome to form the view that Mr Chiu’s intention when he arrived in Australia was to look at some commercial property.

Continued detention

  1. The Minister submitted that the flight which had brought Mr Chiu to Australia departed at 9.55am, before his visa was cancelled at 12.16pm. It was submitted that Mr Chiu could not assert that it would have been possible for him to board the 9.55am flight given that he only made his statement that he wanted to go home at 9.30am. The Minister also submitted that the duty to remove a person arose when they were in immigration detention and that at the time Mr Chiu said that he wanted to go home, he was not in immigration detention. The Minister submitted that Mr Chiu did not become an unlawful non-citizen until 12.16pm by which time the China Southern aeroplane on which he had arrived had departed. He submitted that there was no evidence that there had been any other available flight on which Mr Chiu could have been removed. The Minister submitted that Mr Chiu led no evidence to demonstrate that he was removed from Australia other than as soon as reasonably practicable.
  2. The Minister submitted that the responsibility under s.256 to provide visa application forms or provide reasonable facilities for obtaining legal advice or taking legal proceedings in relation to a person’s immigration detention was borne by the person responsible for the detention. It was submitted that the Minister was not the person who had been responsible for Mr Chiu’s immigration detention. He submitted that, under s.189, the person or persons responsible for Mr Chiu’s detention were the officer who initiated the detention and others who might have detained Mr Chiu on behalf of that officer. The Minister further argued that, even if Mr Chiu had asked to see a lawyer, any failure to grant that request did not render his detention unlawful, the appropriate relief being an order requiring the detaining officer to provide facilities required by s.256.
  3. The Minister submitted that there was no duty to advise Mr Chiu that he could apply for a bridging visa as he could not be granted one. In this connection, the Minister referred to ss.72(1)(a) and 73 of the Act and submitted that a person had to be an eligible non-citizen in order to be granted a bridging visa and a person who had not been immigration cleared was not an eligible non-citizen. He further submitted that a duty to provide application forms only arose if a request for them was made, and in this case, Mr Chiu had not made such a request.

Consideration

Ground 1 – Denial of procedural fairness

Particular (a)

  1. In the first particular of the first allegation in the amended application Mr Chiu alleged that he had been denied procedural fairness because he was denied access to a lawyer while in detention. To consider this allegation it is necessary first to determine when Mr Chiu was placed in immigration detention because the obligation under s.256, upon request, to provide facilities so a detainee may access a lawyer, does not arise until that point.
  2. The inference to be drawn from Mr Chiu’s evidence is that he made a request to Mr Zaknich that he be able to make a telephone call so that a lawyer could be retained and that Mr Zaknich refused his request. Mr Zaknich said nothing about this in his affidavit and so I find that Mr Chiu did make that request. However, Mr Zaknich deposed that he was “an Australian Public Servant employed in the Australian Customs and Border Protection Service”, not an officer of the Minister’s department. It might be presumed, but was not proved, that he was an “officer” for the purposes of the Act: see the definition of “officer” in s.5(1) of the Act. In such circumstances, there is no basis to find that Mr Chiu’s request engaged s.256. Consequently, Mr Chiu has not proved that any failure to provide him with the facilities to access a legal practitioner amounted to a denial of his statutory rights. It should also be noted that Mr Chiu deposed that he did not, while at the airport, repeat his request for legal advice, something which is borne out in relation to his interview with Ms Teshome by the transcript of that interview.
  3. In deference to the parties’ arguments concerning when Mr Chiu came into immigration detention, some observations should be made on that question. Mr Chiu submitted that his immigration detention commenced at some unidentified point after he came to the attention of immigration officers. The Minister submitted that Mr Chiu was not taken into immigration detention until his visa was cancelled and that until that time he had simply been in immigration clearance pending a determination on whether he would be cleared.
  4. The burden of the Minister’s submission was that Mr Chiu’s immigration detention was undertaken pursuant to s.189 of the Act and depended on him being an unlawful non-citizen upon the cancellation of his visa. However, the fact that a person is in immigration clearance and holds a visa which has not been cancelled does not necessarily mean that the person is not in immigration detention.
  5. Detention will be immigration detention if it meets the relevant definition in s.5(1) of the Act and s.189 is not the only basis for it. Sections 178, 180, 245F, 252, 253 and 254 of the Act give examples of circumstances which can lead to immigration detention and, as noted earlier, the Act itself treats questioning detention as immigration detention.
  6. Section 5(1) defines immigration detention by reference to the detained person being in the company of, and “restrained by”, an officer of the Minister’s department. Notwithstanding the Minister’s submissions, the fact that Mr Chiu was not free to leave, which was the practical reality while he was being questioned by Mr Zaknich and Ms Teshome, indicates that he was restrained during those periods of questioning even if only implicitly. Indeed, Mr Zaknich (on the assumption that he was an officer for the purposes of the Act) and Ms Teshome’s right to question Mr Chiu, which was provided by s.192(3) of the Act, only existed if he was in questioning detention. The conclusion must therefore be that Mr Chiu was in questioning detention during that questioning and that such detention, which necessarily involved restraint on Mr Chiu’s freedom of movement, met the definition of immigration detention found in s.5(1) of the Act.
  7. That being so, and assuming that Mr Zaknich was an “officer”, a right to seek facilities in order to access legal advice arose under s.256 of the Act arose at the commencement of Mr Zaknich’s questioning of Mr Chiu. However, any rights which Mr Chiu had to be provided with the facilities by which he could seek legal advice while he was in immigration detention were, according to the terms of s.256, ones which were only enforceable against the officer detaining him, or those detaining him on that officer’s behalf: Brehoi v Attorney-General of the Commonwealth of Australia [2000] FCA 1747 at [45]. Those persons are not parties to this proceeding.
  8. Even so, Mr Chiu’s allegation was not of a breach of s.256 but of a denial of procedural fairness. As the parties recognised, certain of Mr Chiu’s procedural fairness rights were codified in subdiv.E of div.3 of pt.2 of the Act but a right to seek or obtain legal advice is not found amongst those provisions. Mr Chiu submitted correctly that those provisions do not exclude some potential operation of the common law rule of natural justice: Saeed v Minister for Immigration & Citizenship [2010] HCA 23; (2010) 241 CLR 252 at 262-267 [24]- [42] but, having made that point, he did not identify how common law procedural fairness required the Minister to let him have access to a lawyer. In the absence of a right to legal advice, any denial of access to it was not a denial of procedural fairness.
  9. Consequently, the first particular of the first allegation of the amended application does not disclose error on the Minister’s part.

Particular (b)

  1. The second particular of the allegation that Mr Chiu was denied procedural fairness concerned what he characterised as a premature termination of the telephone conversation between Mr Kang and, presumably, Ms Teshome. Whilst Mr Kang may not have said to Ms Teshome everything he might have wanted to say, that did not amount to a breach of Mr Chiu’s procedural fairness rights under the Act or at common law.
  2. Mr Chiu’s right pursuant to s.119 of the Act was to receive the reasons for the possible cancellation of his visa, which were set out in the NOICC, and to be given a reasonable time to respond to them. Ms Teshome discharged that obligation. At common law, he was entitled to be told of the material elements of what Mr Kang had said. Ms Teshome discharged that obligation too. As a consequence, this particular does not disclose error on the Minister’s part.

Particular (c)

  1. The third particular of the first ground of the amended application alleged that Mr Chiu had not been given a copy of the relevant forms in a condition, presumably a language, he could understand. However, as the Regulations did not prescribe the manner in which information was to be supplied pursuant to s.119(2) of the Act, it could be given in a way which the Minister considered appropriate. In this case, during their interview, through an interpreter Ms Teshome explained to Mr Chiu the NOICC and his right to make comments on it. This is recorded at pages 22 and 23 of the transcript. That procedure satisfied the requirements of s.119(2). This particular does not disclose error on the Minister’s part.

Ground 2 – The decision was unreasonable

Particular (a)

  1. The first particular of the second allegation asserted that Ms Teshome’s decision to cancel Mr Chiu’s visa was incorrect and legally erroneous because the evidence supported a different decision. Significantly, Mr Chiu did not go so far as to say that there was no evidence that he had come to Australia for purposes other than tourism. There was such evidence. Consequently, even if a different decision-maker might have made a different decision on the same facts, it was open to Ms Teshome to conclude, as she did, that grounds existed for the cancellation of Mr Chiu’s visa. Therefore, her decision was not erroneous as alleged in particular (a).

Particular (b)

  1. The second particular of the second ground implied that Mr Chiu had been entitled to leave Australia earlier than he did.
  2. It is correct that once in detention pursuant to s.189 of the Act, s.198(2) required that Mr Chiu be removed “as soon as reasonably practicable”. However, Mr Chiu did not adduce any evidence which demonstrated that any officer of the Minister’s department could have, practically, caused him to leave Australia earlier than he did. In particular, although there was evidence to the effect that Mr Chiu had contemplated chartering an aeroplane to return him to Hong Kong, no evidence was adduced to suggest that any arrangement of that sort could have been put in place and that he could have left Australia earlier than he did.
  3. Moreover, the duty imposed by s.198(2) was on an officer and not the Minister.
  4. In the circumstances, the unreasonableness alleged in particular (b) is not made out.

Particular (c)

  1. The third particular of the second ground of the amended application alleged that Mr Chiu’s detention had been unlawful. Mr Chiu’s written submissions stated that he had been detained under s.189. No arguments were addressed to the issue of questioning detention and no reference was made to detention pursuant to s.192(1). Consequently, this particular appears to have been addressed solely to Mr Chiu’s detention pursuant to s.189 of the Act. The lawfulness of that period of Mr Chiu’s immigration detention depended on him being an unlawful non-citizen. That in turn depended on whether the cancellation of his visa was lawful: Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612. For the reasons given above at [94], I am satisfied that it was. Consequently, his detention was not only lawful but required by s.189 of the Act.
  2. However, if I am incorrect and Mr Chiu intended to refer to detention pursuant to s.192(1) as well as to detention pursuant to s.189, I am satisfied that the discovery of business documents in his luggage and officers’ awareness that he was travelling with an employee provided sufficient grounds for officers to have had a reasonable suspicion that his visa might be cancelled. In those circumstances questioning detention was authorised, not unlawful.

Particular (d)

  1. The fourth particular of the second ground impliedly alleged that the Minister had been obliged to inform Mr Chiu that he was entitled to apply for a bridging visa. Neither s.194, by virtue of s.193, nor s.256 imposed such an obligation on the Minister. Moreover, cl.050.21 of sch.2 to the Regulations, upon which Mr Chiu relied in making this claim, has no operation in his circumstances because the combined effect of ss.72(1)(a) and 73 is that a person may not be granted a bridging visa unless he or she has been immigration cleared. As Mr Chiu had been refused immigration clearance, he could not be granted a bridging visa.

Particular (e)

  1. In the fifth particular of the second ground Mr Chiu alleged that the time he had been given to respond to the NOICC had been unreasonably short given that “he had no lawyer, no phone and no opportunity to contact anyone for advice”.
  2. I accept that Mr Chiu was given ten minutes to respond to the NOICC. This was not a particularly generous length of time but the issue in question was a very simple one, namely whether Mr Chiu had had any business-related purpose for his trip to Australia.
  3. Mr Chiu, who has the burden of proof, has not demonstrated why the period he was given was not reasonable in the circumstances. In particular, he has not shown how he would have employed additional time to any material effect. Indeed at the time of the interview Mr Chiu appears to have acknowledged, presumably in the context of him having already discussed the purposes for his visit at some length with Ms Teshome, that further time was unnecessary in that when he was invited to respond to the NOICC, he said that wished to do so immediately and did not need to take the ten minutes which Ms Teshome offered him.
  4. In circumstances where Mr Chiu was a senior, successful and presumably intelligent businessman who had discussed the relevant issues with Ms Teshome over a period of time before being given the NOICC, I am not persuaded that the ten minutes he was given to formulate a response to the simple issue raised by the NOICC was unreasonably short.

Ground 3 – The Minister failed to carry out his statutory duty

Particular (a)

  1. The first particular of the third allegation in the amended application concerned the Minister’s alleged duty to remove from Australia as soon as reasonably practicable a person in detention who requests in writing that he or she be removed. The particular alleged that the Minister had not advised Mr Chiu, presumably as a person who had made an oral request to leave Australia, that requests for removal under s.198(1) of the Act had to be made in writing and, because such a request had not been made, had not removed him from Australia as soon as reasonably practicable.
  2. Mr Chiu did not point to any duty imposed on the Minister which required him to provide the advice which it was alleged should have been given. As it has not been demonstrated that there was such a duty, I do not find that any breach of duty of that sort has been made out. In such circumstances, no duty under s.198(1) arose.
  3. In any event, there was a separate duty under s.198(2), imposed on “an officer”, not the Minister, to remove Mr Chiu as soon as reasonable practicable. That duty was not dependent on a request for removal. In this connection, for the reasons given above at [96], the evidence does not support a conclusion that Mr Chiu could have left Australia any earlier than in fact he left. That is to say, he did leave as soon as reasonably practicable. But in any event, the duty imposed by s.198 was one borne by “an officer”, not by the Minister.

Particular (b)

  1. The second particular of the third allegation appeared to refer to the period during which Mr Chiu was in detention at Perth IDC. As to whether he asked for access to a legal practitioner when he was in the detention centre, I am not persuaded that he was denied such access as he claimed and I suspect that there has been some misunderstanding. In this connection I accept that Mr Chiu received two visitors while at Perth IDC and note that he was able to organise a prompt return flight to Hong Kong on Cathay Pacific. Those facts suggest that he was not denied external communication and therefore had the facilities by which he could have made contact with a legal practitioner, if he had wished to, as Ms He indicated in her evidence.
  2. In any event, as observed earlier, any failure on the part of those detaining Mr Chiu to allow him facilities so that he could seek legal advice was not a failure by the Minister.

Conclusion

  1. Jurisdictional error on the part of the Minister has not been demonstrated.
  2. Consequently, the application will be dismissed.

I certify that the preceding one hundred and twelve (112) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate:

Date: 20 November 2014

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