Re Li Fang v Minister of Immigration, Local Government and Ethnic Affairs and Bruce Sant [1992] FCA 14; (1992) 33 FCR 568 (29 January 1992)

FEDERAL COURT OF AUSTRALIA

Re: LI FANG
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS and BRUCE
SANT
No G536 of 1991
FED No. 9
Administrative Law
[1992] FCA 14; (1992) 33 FCR 568

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)

CATCHWORDS

Administrative Law - Immigration - review of decision to cancel applicant's entry visa and refuse entry permit - applicant approved to come to Australia on sponsorship of husband - sponsorship withdrawn before issue of visa - applicant not informed of withdrawal prior to travel to Australia - applicant refused entry at airport - instrument of cancellation of visa, executed in Beijing on morning of applicant's arrival in Australia - whether Minister estopped from cancelling applicant's visa - nature of representation made by issue of visa - whether applicant denied natural justice - content of rules of procedural fairness - whether matter should be remitted for reconsideration - whether "legitimate expectation" substantive head of administrative review or incorporated in natural justice - whether applicant and husband "living separately and apart on a permanent basis" - whether applicant had entered Australia.

Administrative Decisions (Judicial Review) Act 1977: s.16

Migration Act 1958: ss.4(5), 17, 18, 26, 89

Migration Regulations: Reg 2(1), 42(1), 107B

Attorney General NSW v Quin (1990) 170 CLR 1

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193

Rojas v Minister for Immigration and Ethnic Affairs (Woodward J, 10 November 1986, unreported)

HEARING

SYDNEY
29:1:1992

Counsel and Solicitors B.J. Knox instructed by
for Applicant: Noel Brown and Peter Wainberg

Counsel and Solicitors S.J. Gageler instructed by the

for Respondent: Australian Government Solicitor

ORDER

The application be dismissed.

The applicant pay the respondents' costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

The applicant, Ms Li Fang, seeks judicial review of decisions said to have been made on or before 18 or 19 September 1991 whereby the first respondent, the Minister for Immigration, Local Government and Ethnic Affairs, or a delegate, cancelled a visa which had been issued to the applicant, prevented her entering Australia, refused to grant to her an entry permit and took her into custody. The second respondent is a senior officer of the Department of Immigration, Local Government and Ethnic Affairs ("the Department") situated at Sydney (Kingsford Smith) Airport.

2. The applicant, who is presently 33 years of age, is a citizen of the Peoples Republic of China. She is married to Mai Shao Dong ("the husband"), also a citizen of China. Since their marriage in 1982, the applicant and her husband lived together in Canton until the husband came to Australia in 1989. After the events in Tienanmen Square of that year he applied for, and was granted, a Temporary Entry Permit to remain in Australia until 30 June 1994.

3. On or about 5 March 1991 the husband applied for permission for the applicant to come to Australia to join him and was notified on or about 10 April 1991 that this application was approved. He forwarded to the applicant the necessary forms for signature, which arrived, according to the applicant, on 1 May 1991. The applicant completed the forms and sent them to the Australian Embassy in Beijing. She also arranged to have a medical examination. Ultimately a visa was issued by the Australian Embassy in Beijing on 30 August 1991, valid for travel to Australia until 30 June 1994. The visa stated that:

"Subject to migration law this document will
operate as a temporary entry permit for stay
until 30JUN94 on entry to Australia."

4. However, between around the end of April 1991 and the time the visa was granted in August 1991 there was, to put the matter in the best light so far as the applicant's case is concerned, a cooling-off in the relationship between her husband and her. Although on 21 April 1991 the husband wrote expressing his love for the applicant (the English translation is somewhat formal), it is common ground that the last telephone communication between them, until the applicant came to Australia, was on 17 May 1991 when the husband rang the applicant. After that date the applicant was unaware of the husband's address in Australia, he being about to move from his then flat. The husband was not at the airport to greet the applicant on her arrival, although her uncle was.

5. The evidence of the husband, who was called by the respondents, and of the applicant diverge as to this conversation. The husband says that he told the applicant that he wanted a divorce and asked her not to come to Australia. The applicant denies this and says that during this conversation the husband responded in the affirmative when asked whether he still loved and thought of the applicant. Further, the husband says that he wrote a letter to the applicant on 20 May 1991 seeking a divorce; the applicant denies ever receiving such a letter.

6. The cooling of the relationship on the part of the husband was brought about by virtue of his having commenced a de facto relationship with another lady in Australia, also a Chinese citizen. He says that he attended at the Parramatta Office of the Department on 4 June and advised them that his relationship with his wife was over. The advice was in the form of a letter which he delivered on that day and in which he wrote:

"I would like to inform you that I have decided
to terminate my sponsoring for my dependant
(wife) in China to apply for the entry permit
class 437 which was lodged in your office on
12/3/1991 with effective (sic) from today's
date. The main reason is that our marriage
relationship was already broken down because of
our two years' seperation (sic).
I am very much appreciated if you would update
the relevant information and inform the
department concerned as soon as possible."

7. On 28 June 1991, an application was lodged with the Department by or on behalf of the de facto, Huang Wei Yan (Ms Huang) for an entry permit applicable to citizens of the People's Republic of China. That application included a statutory declaration of the husband that he was in a de facto relationship with Ms Huang and that his marriage relationship with the applicant had "become worse and worse". Supporting declarations from others included in this application supported the view that the husband and Ms Huang were in a relationship that was "genuine and ongoing". The husband says he attended at the Bankstown office of the Department to lodge that application. He says that he advised at the time that his relationship with the applicant was over.

8. In August 1991, the husband gave an envelope containing $1,000 in Australian banknotes to the applicant's uncle, Mr Lee. According to the husband's initial evidence, this amount was given to Mr Lee who was planning to go to China so that the applicant could buy clothes with it. One might wonder at the amount, having regard to costs and wages in China. However, later, the husband contradicted this evidence saying that Mr Lee asked him for $2,000 to enable the applicant to purchase the air ticket to Australia, but that as the husband did not have that much money he gave Mr Lee the lesser amount.

9. I have observed both the applicant and the husband in the witness box. The husband's evidence was unsatisfactory and contradictory and I formed the view that he was not in all respects telling the truth. The story of the $1,000 is one example; his assertion that the relationship with his wife had been over at least a year was another. That was somewhat inconsistent with the husband applying for a visa for his wife to join him in Australia as his spouse (dependant) in March 1991.

10. By contrast, the applicant gave her evidence quietly and consistently, so that in the event of inconsistency between the evidence of the husband and that of the applicant I would prefer the evidence of the applicant. It follows, therefore, that, although I do not ultimately think that it affects the outcome of the present application, I accept the evidence of the applicant that although the husband did not telephone her from May 17 1991 until her arrival in Australia, she was unaware of the fact that her husband was living with another woman and unaware of the fact that her husband thought the marriage over.

11. On 12 September 1991, the husband attended at the Bankstown office of the Department in response to a request so to do. There was concern as to why the husband was sponsoring his legal wife and, at the same time, supporting an application of his de facto wife to stay in Australia. It would seem that the letter of 4 June 1991, which had been sent to the Parramatta office, may not have connected with either the file relating to the applicant or that relating to the de facto. Be this as it may, the husband told the officer who interviewed him, through an interpreter, that he had written to his wife in China about cancelling his sponsorship of her and that he would be applying for a divorce in the near future. In fact no application for a divorce has yet been made, although legal advice was, so the husband says, obtained from a solicitor on the matter of divorce. He told the officer that his de facto had had a miscarriage in June (presumably the husband's child) and that she was at the time of the interview five weeks pregnant.

12. In the meantime, the Australian Embassy at Beijing sent the applicant her passport containing the visa to enter Australia. On 13 September, an Immigration Officer faxed the Embassy advising that the husband had been interviewed on 12 September and that the husband wished to withdraw sponsorship of the applicant having regard to the de facto relationship in Australia. The Embassy was requested to cancel the visa by instrument. It would appear that the Embassy then notified Qantas to advise the applicant to contact the Embassy urgently. Sydney airport was also alerted and details put into the Department's computer accessible at airports. No attempt was made otherwise to contact the applicant, it being assumed that it was likely that she was "about to travel".

13. On the following Monday a question arose as to authority to sign the instrument of cancellation and it was not until 18 September 1991 that the visa was formally cancelled by an instrument signed by Ms Melanie Wynne-Jones, an officer authorised to sign such instruments. The instrument noted that the reason for cancellation was: "Sponsor has withdrawn support".

14. The parties agree that Beijing time is two hours behind Australian Eastern Standard time and that accordingly, as ordinary working hours are observed at the Australian Embassy, the cancellation would not have been effected until at the earliest 11.00am Sydney time.

15. The applicant's plane arrived in Sydney at about 8.00am. She presented herself to the entry control point, which is usually manned by a customs officer and in accordance with the usual practice he stamped her passport with a stamp containing the words: "VISA USED - NOT VALID FOR TRAVEL TO AUSTRALIA".

16. The applicant then proceeded through to the area where immigration control takes place. In the normal course, if the applicant had been permitted to enter Australia, there would have been then stamped on the visa the name of the port at which entry was permitted and the date. That did not occur. The officer who saw the applicant (Immigration Inspector Ellen Cock) checked on the computer and found the alert that had been placed in it. That alert informed the reader that the applicant's visa had been cancelled but that no contact had been made with the applicant. It said: "IF THIS PERSON ARRIVES 13 -150991 ENTRY TO BE REFUSED".

17. Inspector Cock then endeavoured to obtain an interpreter to explain the position to the applicant. When that had been done she consulted Mr Sant, the second respondent. Mr Sant believed that the applicant's visa had been already cancelled in Beijing. On the balance of probabilities this was not yet so, having regard to the time differential. He concluded that the applicant had landed without a valid entry visa; he considered whether she was eligible for a border visa but formed the view that she was not. He decided that he could not permit the applicant to enter Australia and accordingly arranged for her to be taken into custody pursuant to s.89(2) of the Migration Act (1958) ("the Act").

18. Mr Sant directed Ms Cock to "physically cancel the entry visa contained in the applicant's passport". This was achieved by stamping on the visa in the passport the word "CANCELLED" and the date. Although Mr Sant had delegated authority to cancel the visa, counsel for the respondents conceded that Mr Sant had not purported to exercise that authority. Rather, it was accepted, Mr Sant was concerned only with ensuring there was a physical cancellation. Having regard to this decision the application for review is confined, so far as the decision to cancel is concerned, to the decision of Ms Renee Young in Beijing. The case proceeded on the basis that if the cancellation of the visa was valid, the remaining decisions could not be impugned.

19. For the applicant it was submitted that in these circumstances:

* The respondent Minister was estopped from cancelling
the applicant's visa.
* The applicant had a legitimate expectation that she
would continue to be in a category of persons that was
entitled to enter Australia.
* The applicant was denied natural justice in that she
was not given an opportunity to comment on the grounds
advanced for cancellation of her visa: being either
the "withdrawal of sponsorship" by the husband or the
assertion by the husband that the marriage was over.
* That on the facts of the case the applicant had
entered Australia pursuant to a visa that had not been cancelled.
* That in any event at the relevant time the applicant
was a "spouse" and still entitled to the visa which
was cancelled.

20. Counsel for the applicant submitted further that in the circumstances of the case, the court should exercise the discretion conferred upon it in s.16 of the Administrative Decisions (Judicial Review) Act (1977) (Cth) ("the ADJR Act") and declare that the Minister was bound to admit the applicant to Australia, assuming that I were not to find that she had in fact entered Australia pursuant to a visa that had not been cancelled.

21. Counsel for the applicant referred me to the judgment of Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 ff in support of a submission that the doctrine of estoppel applied to administrative decisions if they were "operational decisions" although not where the decisions were at a "policy level" (see at 216). It was said that in the present case there had been a decision to grant to the applicant a visa at a time when it was known that the husband asserted that the marriage was finished. That decision culminated in the issue of a visa which contained a representation that she would be given entry to Australia. In reliance upon that representation, the applicant had travelled to Australia and had given up the rights she had as a Chinese citizen to work and obtain food. Accordingly, the Minister was estopped at a later point of time from so doing, when no new information being available to him, he came to consider revoking the visa.

22. The present is not an appropriate case to embark upon an examination of the operation of the doctrine of estoppel in administrative decision-making. I am prepared to accept, for present purposes, the distinction drawn by Gummow J to which I have referred and to accept that no question of policy is involved in the making of a decision to cancel a visa already issued. I am also prepared to accept that the applicant suffered a detriment in leaving China to come to Australia and that in so doing she relied upon the fact that she had a visa. In so doing, I note the comments made by Mason C.J. in Attorney-General (NSW) v Quin (1989-90) 170 CLR 1 at 17 which are applicable in my view to the present case that:

"The Executive cannot by representation or
promise disable itself from, or hinder itself
in, performing a statutory duty or exercising a
statutory discretion to be performed or
exercised in the public interest, by binding
itself not to perform the duty or exercise the
discretion in a particular way in advance of the
actual performance of the duty or exercise of
the power ... Accordingly, it has been said that
`a public authority .. cannot be estopped from
doing its public duty'...".

23. These comments of their own are, in my view, sufficient to dispose of the present submissions. But even if they be put to one side, the submissions could not succeed.

24. The first problem is to determine the nature of the representation said to have been made. The granting of a visa could only constitute a representation that the holder is entitled to the advantages which the law confers upon persons who hold visas of that time, but subject to the provisions of the Act permitting cancellation of the visa, and the provisions of the Act which require an entry permit to be issued before the holder of a visa may enter Australia. The mere issue of a visa cannot in the legislative scheme carry with it a representation that the visa will not be cancelled, nor that an entry permit will be issued to that holder. That this is necessarily so can be seen by considering the case where events after the grant of a visa supervene before the visa is presented at the point of entry with the consequence that the holder would no longer be entitled to the visa or to the grant of an entry permit.

25. For the applicant it was submitted, however, that the issue of the visa amounted to a representation that, provided no new facts arose between issue and presentation, the holder of the visa would be granted an entry permit and permitted to enter Australia, and that the visa would not be cancelled. But this cannot be correct either. To accept this submission would be to accept that a visa granted in error could not be revoked (cf Comptroller-General of Customs and Anor v Kawasaki Motors Pty Limited (full court of the Federal Court of Australia, unreported, 4 November 1991, per Beaumont J at 12-13, per Hill and Heerey JJ at 6-7).

26. The basis on which the visa was granted is not known. One possibility is that the decision-maker granting the visa was unaware of the true facts as to the husband's views of the marriage. It may well be the case that the letters of the husband and the application of his de facto spouse, with supporting declarations, were in fact not considered by the person granting the visa; or if they were, their significance was not appreciated. The result on this hypothesis would be a decision vitiated by mistake that the visa should be issued. If this were the case, a decision-maker could rectify the position by cancelling the visa. This indeed is what seems ultimately to have happened. It cannot be said that the issue of a visa carries with it a representation that it will not be cancelled if a mistake is made in its original issue.

27. At times the submissions for the applicant appeared to verge upon saying that the fact that a decision-maker had reached a conclusion on material before him (or which ought to have been before him) that the applicant was, within the meaning of the expression in reg.42(1) of the Migration Regulations the "spouse" of the husband, created some sort of issue estoppel that could not be corrected, absent new facts coming to the notice of the decision-maker. In a case such as the present no such issue estoppel can arise: cf Midland Metals Overseas Limited v Comptroller-General of Customs (1991) 30 FCR 87 at 96 ff.
Natural Justice - Legitimate Expectation

28. Of more apparent substance is the argument that the applicant was denied natural justice, or, as it is often called, procedural fairness, at the time the visa was cancelled, because she was not given the opportunity to be heard as to the matter found adverse to her, being either that her husband had withdrawn his sponsorship, or more relevantly, that her marriage relationship with her husband was finished.

29. It is not in dispute that no opportunity was afforded to the applicant to give her side of the story. Indeed, the Embassy did not seek to do so, having taken the view, perhaps correctly, that there was little chance of reaching the applicant before she left China. The question for decision is whether this failure operated to vitiate the decision.

30. It was not, nor could it be, in dispute that the principles of natural justice are applicable to a decision to revoke or cancel a visa. But so to say is but to raise the question of the content of those principles in a case such as the present.

31. It has often been said, eg in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 per Mason J, that the application and content of the doctrine of natural justice depend to a large extent on the construction of the particular statute; it also depends upon the circumstances of the case, which as Mason J in Kioa (at 584-5) observed will include, inter alia:

"...the nature of the inquiry, the subject-
matter, and the rules under which the decision-maker is acting...".
His Honour then continued:
"In this respect the expression `procedural
fairness' more aptly conveys the notion of a
flexible obligation to adopt fair procedures
which are appropriate and adapted to the
circumstances of the particular case. The
statutory power must be exercised fairly, i.e.,
in accordance with procedures that are fair to
the individual considered in the light of the
statutory requirements, the interests of the
individual and the interests and purposes,
whether public or private, which the statute
seeks to advance or protect or permits to be
taken into account as legitimate considerations..."

32. As his Honour pointed out, even in the case of the making of a deportation order, with the consequences which such an order entails, it would be going too far to say that the deportee should be given notice in all cases of the intention to make such an order or the grounds upon which it is proposed that such an order would be made. Thus his Honour distinguished two cases: the one where the person to be deported is a prohibited immigrant (an example of a case where the person fulfilled a certain set of requirements) and the other where the reasons for making the order are reasons personal to the deportee, ie relating to his conduct, health, or associations.

33. In the same case Brennan J pointed out (at 612-3) that the principles of natural justice had a "flexible quality", varying with the circumstances of the case. As Gibbs C.J. put it in National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR 297 at 312:

"The authorities show that natural justice does
not require the inflexible application of a
fixed body of rules; it requires fairness in all
the circumstances, which include the nature of
the jurisdiction or power exercised and the
statutory provisions governing its exercise."

34. If the circumstances in which the power is to be exercised are such that the power must be exercised peremptorily, the content of the rules of natural justice may recede, as Brennan J observes in Kioa (supra at 615) into "nothingness" to avoid frustrating the purpose for which the power was conferred. The present, like the case considered, albeit in the course of interlocutory proceedings, by Woodward J in Rojas v Minister for Immigration and Ethnic Affairs (unreported, 10 November 1986) was, in the submission of the respondents, such a case.

35. For the respondents it was submitted that in considering the circumstances in which the power of revocation of the visa was exercised, regard had to be had not only to the exigencies of the situation but also to the nature of the information which had come to the notice of the respondents from the husband. In the sense used by Mason J in Kioa, the marital status of the applicant was not, it was said, a matter "personal" to her.

36. When one considers the statutory framework it is obvious that cancellation of a visa will normally occur while the person involved is out of the country. It will often, perhaps even normally, be the case that the holder of the visa would be unable to attend a hearing before the decision-maker. Indeed, as the facts of the present case illustrate, the holder of the visa may reside in a country where communication is not as rapid as it may be in Australia and it may be difficult, if not impossible, to contact the holder of the visa before he or she departs for Australia. It is, of course, true that it may be possible to defer the decision until the holder of the visa actually comes to Australia and deal with the matter at the airport, but that in itself may be difficult and the risk may be run that the holder of the visa is missed in the course of the computer check and is admitted to Australia by mistake. Further, under s.26 of the Act, the Minister is granted an absolute discretion to cancel a valid visa. This, as Woodward J noted in Rojas, is a matter which may need to be given "appropriate weight".

37. Of rather greater significance, however, is the nature of the information which was taken into account by the decision-maker in the present circumstances in determining to cancel the visa. The visa in question was what reg.107B of the Migration Regulations refers to as a "PRC (temporary) visa". That regulation sets out the criteria applicable to such a visa. There are two criteria which are presently relevant. First, the applicant for the visa must be the "spouse" of a person who holds a PRC (temporary) entry permit or visa; second, that person must have lodged with the application an approved nomination in relation to the applicant. In the present circumstances, the husband had purported to revoke or withdraw that nomination. The Act and Regulations are silent as to the effect of such a withdrawal, but it is clear that that would be a relevant matter for a decision-maker to take into account in deciding to revoke a visa. Further, that is a matter in every way remote from and certainly not personal to the applicant. Whether it happened is obviously a matter of fact.

38. Additionally, the expression "spouse" is a defined expression. Regulation 2(1) defines "spouse" as meaning:

"(a) a person who has entered into a marriage
recognised as valid for the purposes of
the Act, where:
(i) the marriage has not been ended by
divorce or the death of one of the parties; and
(ii) the parties are not living separately
and apart on a permanent basis;..."

39. The applicant and her husband were not, of course, physically living together, they were separated as a result of the exigencies of the Chinese political situation. However, that separation, at least when it began was not "permanent", (an expression used in the present context in the sense of "indefinitely continuing": cf Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1 at 4 per Franki J, at 11 per Northrop J, and at 16 per Fisher J) in that it would seem there was the intention that they would resume cohabitation in the future. The intention relevant must of necessity be the intention of both husband and wife. If the parties to a valid marriage live separately, the question whether that separation is permanent depends upon their mutual intention. It will not be to the point that the wife hopes or even intends that the separation will be but temporary, if the husband has a different intention, the separation then will indeed be permanent.

40. In the present case the husband and the applicant were not merely living separately, but, having regard to the intention of the husband as communicated to the Department, the separation was intended by him to be permanent, an intention which he repeated in his evidence before me. Thus, as at the time the visa was revoked there were two matters of fact external to the applicant; the revocation by the husband of his "nomination" and the change by the husband of his intention to cohabit on a permanent basis.

41. In all these circumstances, I am of the view that the principles of natural justice did not require that the applicant be given an opportunity to appear before or present to the decision-maker her views; in other words she had no right to be heard, and the failure to afford her an opportunity did not deny to her procedural fairness.

42. The applicant's case on procedural fairness was also put in another way. It was argued that procedural fairness demanded that before the decision was made the applicant should have been given a chance to contact the husband, perhaps even by telephone to discuss their future plans, an opportunity, so to say to persuade him to change his mind. This argument attracted me on a prima facie basis in the interlocutory proceedings. The man in the street would probably find it unfair that such an opportunity was not afforded to her, albeit that it may ultimately be found to be unsuccessful.

43. There is no direct authority on this point, and presumably it would seldom arise. While it is possible to argue that procedural fairness may require that a person in the applicant's position should, where practical, be afforded such an opportunity, I do not think that the problem really arises in the present case. The stated ground of decision was not that the applicant had ceased to be a "spouse". That was not a matter directly considered by the decision-maker in Beijing, who did not, in any rate, have all the facts before her. Her concern was the objective one that the husband had sought to withdraw his nomination of the applicant. I do not think that in these circumstances there could be any obligation to afford the applicant the opportunity to discuss the possibility of reconciliation and thereby to seek to make the husband change his mind.

44. Should I be wrong on either of these matters so that there was an obligation to afford the applicant the opportunity either to discuss the permanency of their separation, or the possibility of reconciliation I would, in any event, in the exercise of discretion under s.16 of the ADJR Act, not set aside the decision and remit the matter to the decision-maker for reconsideration because that would be a matter of complete futility. The husband has adamantly maintained before me that the marriage is, as far as he is concerned, at an end, and that he proposes to live permanently with his de facto wife. As far as he is concerned, their separation is permanent. In the time since September, the applicant has been living with her uncle and not with her husband. She has seen him on two occasions and attempted reconciliation to no avail. In these circumstances, no decision could be arrived at other than that the visa should now be revoked.

45. Legitimate expectation raises no separate matter. The phrase "legitimate expectation" is often used in the cases dealing with natural justice. In Quin (supra at 20), Mason C.J. noted that the concept of "legitimate expectation", although it had been criticised, had been accepted as a "foundation" for attracting a duty of procedural fairness. His Honour cast doubt in that case upon a submission that legitimate expectations are themselves entitled to substantive protection. His Honour said (at 23):

"However, the view that legitimate expectations
may attract substantive, as distinct from
procedural, protection encounters the objection
that it will entail curial interference with
administrative decisions on the merits by
precluding the decision-maker from ultimately
making the decision which he or she considers
most appropriate in the circumstances. It is
possible perhaps that there may be some cases in
which substantive protection can be afforded and
ordered by the court, without detriment to the
public interest intended to be served by the
exercise of the relevant statutory or
prerogative power..."

46. Brennan J in the same case (at 35), put the matter more forcefully:

"The question can be put quite starkly: when an
administrative power is conferred by the
legislature on the executive and its lawful
exercise is apt to disappoint the expectations
of an individual, what is the jurisdiction of
the courts to protect that individual's
legitimate expectations against adverse
exercises of the power? I have no doubt that
the answer is: none."

47. The remaining member of the majority in that case, Dawson J, made it clear in his judgment that "legitimate expectation" was a factor to be taken into account in determining whether there was an obligation to accord procedural fairness. His Honour did not suggest that it was to be considered as a separate matter.

48. In my view the authorities do not recognise in Australia, at least, legitimate expectation as a head of substantive administrative review, as against an element to be taken into account in determining whether an obligation to afford natural justice exists in the circumstances of a case. As I have held that in the present circumstances there was no such obligation, this argument must accordingly be rejected.
Had the respondent entered Australia on a valid visa?

49. This submission proceeded on the basis that upon the applicant disembarking at the airport and having received a stamp from an immigration officer, she had entered Australia, so that it was no longer possible for the visa to be cancelled, some time later in the morning in Beijing.

50. The argument founds upon two false premises. The first is that by the affixation of the stamp on the visa there was an approval to enter Australia. The evidence showed that in practice the stamping on the visa did not have that consequence, and indeed that it was not a stamp in fact placed on the visa by an officer of the Department at all. The approval to enter was signified only if the stamp was accompanied by a further stamp showing the port of entry and the date. The applicant then relied upon the provisions of ss.17 and 18 of the Act. Section 17 relevantly provides that the holder of an entry visa may enter Australia after disembarkation at a proclaimed airport. Section 18 then provides:

"Where the holder of an entry visa within the meaning of section
17 enters Australia pursuant to that section, the visa has
effect, immediately after the holder's entry, for all purposes as
if it were an entry permit granted subject to any conditions, and
to any limitation as to the time the holder is authorised to
remain in Australia, that are specified in the visa."

51. The submission was that the applicant was the holder of a valid visa, she had disembarked, and accordingly was to be treated as the holder of a valid entry visa. Accordingly, she had entered Australia, the visa had had its desired effect, and the subsequent cancellation could accordingly itself have no effect.

52. However, the applicant did not enter Australia, as that expression is used in the Act; indeed, on the authorities, she has even to this day not entered Australia.

53. The starting point for analysis of this submission is s.4(5) of the Act. That sub-section provides:

"For the purposes of the Act, a person shall be
deemed to enter Australia -
(a)...
(b) in the case of a person arriving in
Australia by an aircraft - when he
or she disembarks from the aircraft
in Australia or, if he or she so
disembarks at a proclaimed airport,
when he or she leaves the airport,...".

54. It is common ground that Sydney Kingsford Smith Airport is a "proclaimed airport" and that the applicant had not, before being taken into custody, left the airport.

55. Where a person who disembarks at an airport but, before leaving that airport is taken into custody, the provisions of s.89 of the Act have operation. Sub-sections (3) and (8) of that section then have operation. Those sub-sections provide:

"(3) Where a person ... who travels by aircraft
from a place outside Australia to a proclaimed
airport has sought and been refused an entry
permit at that airport... the person may, if an
authorised officer so directs, be taken into
custody at that first-mentioned airport by an
officer and kept in such custody, either at that
first-mentioned airport or elsewhere, as an
authorized officer directs until such time as
the person is removed from Australia or the
person is granted an entry permit.
....
(8) A person who is taken into or held in
custody under this section:
(a) is taken not to enter Australia unless
he or she is granted an entry permit,...".

56. There is no dispute that the applicant sought and was refused an entry permit at the airport. Nor is there doubt that she was taken into custody there by an authorized officer. In these circumstances she did not, prior to the revocation of the visa, or at any time pending my ordering the applicant's release from custody, enter Australia. Finally, it should be noted that the mere release of the applicant from custody does not have the consequence that she is treated then as having entered Australia: Singthong v Minister for Immigration and Ethnic Affairs (1988) 18 FCR 486 at 495. Although the legislation has been since amended, I do not think that the amendment affects the present point, and it was not submitted that it did.

57. It follows that the applicant has never entered Australia.
Whether the applicant at the relevant time was the spouse of the husband

58. As I have already discussed the applicant was not at the time the visa was revoked the "spouse" of the husband, and to the extent that the relevant decision maker considered that matter, and so concluded, no error arose.

59. However, as I have already sought to explain, the decision-maker in Beijing was concerned with another matter, namely that the husband had withdrawn his sponsorship, and did not direct her attention, so far as the evidence shows, to the question whether the applicant was still a "spouse". Since the visa was validly cancelled on this basis the question does not seem to me to arise, other than in the context of whether the second respondent failed to provide to the applicant an entry permit on this basis. In fact, the second respondent equally appears not to have considered the question of whether the applicant was a "spouse", being more concerned with the fact that the visa had been cancelled. To the extent that a relevant person did consider whether the applicant was a "spouse", no error was made in concluding that the applicant was not, for the reasons which I have already discussed. Again, however, even if I were wrong on this matter I would not remit the matter to the decision-maker for reconsideration, because on the view that I take of the matter, it is clear that no decision could in the light of the facts before me be made other than that the state of separation between husband and wife was one of permanence.

60. It follows that the application must be dismissed and that the applicant should bear the costs of it. I will hear the parties as to consequential orders.