Gurung v Minister for Immigration and Multicultural Affairs

[2000] FCA 1053

FEDERAL COURT OF AUSTRALIA

Gurung v Minister for Immigration & Multicultural Affairs [2000] FCA 1053

Migration Act 1958 (Cth) s 116(1)(g)
Migration Regulations 1994 (Cth) s 2.43(1)(k)

GURUNG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V506 of 2000

JUDGE:         MERKEL J
PLACE:         MELBOURNE
DATE:           12 JULY 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V506 OF 2000

BETWEEN:	SARAS ATI GURUNG APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MERKEL J
DATE:	12 JULY 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant has applied for an urgent injunction to restrain her removal from Australia this evening. An application for an order to review has been prepared on the basis that it will be filed in the court. The applicant seeks to review the decision made today by a delegate of the respondent Minister to cancel the Subclass 976 Electronic Travel Authority (Visitor) which was held by the applicant under s 116(1)(g) Migration Act 1958 (Cth).

2. In the course of the day the Visa was cancelled by a delegate of the Minister.  The cancellation was said to authorised by regulation 2.43(1)(k) of the Migration Regulations 1994 (Cth) which permits cancellation of the particular visa in the event that the Minister or the Minister's delegate is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit Australia temporarily for tourism purposes.

3. The ground of review sought to be argued was that the decision cancelling the Visa involved an error of law, being an incorrect interpretation of the applicable law.  Particulars set out in support of that ground are that the decision-maker erred in law in concluding that the combination of the fact that the applicant was married to an Australian permanent resident, was arriving in Australia, and had stated that she had not arrived on a spouse visa because it took too long to apply for one overseas, were circumstances that were sufficient to satisfy the respondent that the applicant at that time had “ceased to have an intention only to visit Australia temporarily for tourism purposes within regulation 2.43(1)(k)”.

4. The question before me at this stage is whether there is a serious issue to be tried and, if so, whether the balance of convenience favours the grant of an injunction to restrain the applicant's removal.  I turn to the question of whether there is a serious issue to be tried.

5. The evidence put before me is a copy of departmental form 1111 Cancellation of a Temporary Visa under section 116 of the Migration Act 1958. That form, which appears to have been completed by the delegate, sets out the information upon which the delegate's decision was made. It includes the following information:

   “Has resigned from employment - Letter found in luggage.  Married Hem Temang 26/2/76 in Nepal 15/4/2000 - arranged marriage.  Has come to Australia to apply for residence.  Did not apply in Nepal - Hong Kong because of processing time of 06 months.”

6. Then underneath in a separate section:

   “Has not come to A/a with criminal intentions.  Wants to be with husband ASAP.  Had been advised it would take up to one year to process a residence application.  This time is too long to be away from husband.”

7. Then under a further section:

   “Subject has stated clear intention is to come to Australia to remain with husband.  Has resigned from job in Hong Kong.  Has arrived with all personal and professional documents.  Luggage is consistent with a person intending to remain in Australia.  Subject has made inquiries with DIMA in Nepal and was advised application would take 12 months to process - subject stated this was too long”.

8. The delegate's assessment of the information provided by the applicant was as follows:

   “Has resigned from job in Hong Kong.  Has expressed her intention to apply to remain in Australia with her husband.  Married in April 2000 - marriage was arranged by parents and known husband only one month prior to marriage.”

9. Then finally, in recording the decision the delegate wrote:

   “Has come to Australia on a visitor visa to circumvent immigration requirements of a migration application lodged offshore.  Not a genuine visitor.  In breach of visitor policy.”

10. Importantly for present purposes, counsel for the applicant has indicated that on his instructions the statements in the form fairly reflect the substance of the information provided by the applicant.  Thus, this is not a case where an adjournment is sought or required in order to put forward a different version of events than those relied upon by the Minister in opposing the application for injunctive relief.  The question for me is whether there is a serious issue to be tried as to whether the decision of the delegate involved an error of law, or indeed any other reviewable error, which would entitle the applicant to proceed with her endeavour to review the decision.

11. In the present case I am satisfied that the decision made was one that was plainly open on the information before the delegate.  There is simply no basis for contending that there was an error of law in the delegate's approach, in the interpretation of the applicable law, or any other reviewable error.  Indeed, having regard to the statements made by the applicant to the delegate, it is difficult to see what decision could have been arrived at other than the decision made, namely, that the applicant had not, or had ceased to have, an intention only to visit temporarily for tourism purposes.

12. In those circumstances it does seem to me that there is simply no basis for saying that there is a serious or arguable issue to be tried which would warrant the grant of an injunction.  I should indicate that had I been of the view that there was a serious or arguable issue, I would have been satisfied that the balance of convenience would require that the matter be heard and determined as a matter of some expedition, as obviously the removal of the applicant from Australia would render her application and the relief she seeks nugatory.

13. Accordingly, I have approached the question of whether or not there is a serious issue to be tried with some caution, and would be reluctant to hold against an applicant in the present circumstances were I of the view that there was some basis for a serious issue to be argued.  However, I am quite satisfied on the material on which I have been asked to act that

    there is no proper basis for concluding that there is any serious or arguable issue.  In those circumstances it must follow that the application for an interlocutory injunction must fail.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.

Associate:

Dated:             12 July 2000

Counsel for the Applicant:	Mr TV Hurley
Solicitor for the Applicant:	Armstrong Ross
Counsel for the Respondent:	Mr C Rawson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 July 2000
Date of Judgment:	12 July 2000