Li v Minister for Immigration - [2006] FMCA 1823

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LI v MINISTER FOR IMMIGRATION

[2006] FMCA 1823

MIGRATION – Application for injunction to restrain removal of applicant from Australia – serious issue to be tried – balance of convenience favourable to applicant – injunction ordered.

Migration Act 1958, s.476

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

Applicant:

LI LI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

File number:

MLG 1476 of 2006

Judgment of:

Burchardt FM

Hearing date:

24 November 2006

Date of last submission:

24 November 2006

Delivered at:

Melbourne

Delivered on:

24 November 2006

REPRESENTATION

Counsel for the Applicant:

Mr A Krohn

Solicitors for the Applicant:

Hymans Solicitors

Counsel for the Respondent:

Mr. G. Gilbert

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Minister whether personally or by her delegates, officers, servants or agents not take any steps to remove the Applicant from Australia until further order.
The Applicant file and serve any further affidavit material in response upon which she proposes to rely at final hearing on or before

8 December 2006.
The Respondent file and serve any further affidavit material in response upon which she proposes to rely at final hearing on or before 22 December 2006.
The matter be fixed for final hearing in the Federal Magistrates Court at Melbourne on 9 January 2007 at 10.15am with an estimated hearing time of one day.
The costs of this day be reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1476 of 2006

LI LI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

In this matter the Court has before it an application filed on

20 November of this year. The application seeks substantive relief in the form of an order that the Respondent show cause why a remedy should not be granted in exercise of the Court's jurisdiction under s.476 of the Migration Act 1958 in respect of the decision of the Minister to in effect require the Applicant to leave Australia on Sunday.
The grounds supporting that application were twofold: the first is to the effect that the decision was affected by jurisdictional error in that the person who made the decision failed to have regard to a relevant consideration, namely, the Respondent's officer who interviewed the Applicant not taking into account the Applicant's difficulty in communicating in English; the second is that the conduct was affected by jurisdictional error as regards to a failure to accord the Applicant natural justice or procedural fairness, once again essentially arising out of difficulties of communication.
When I sought to characterise the decision sought to be appealed I was somewhat hampered by the fact that the application does not really specify it in terms, but in substance it is the effect of the decision to cancel a visa that has given rise to this proceeding. What is also sought on an interim basis is that interlocutory relief be granted in terms that an order that the Minister, whether personally or by her delegates, officers, servants or agents, not take any steps to remove the Applicant from Australia until further order.
It is foreshadowed in the materials that the Applicant will seek to review the cancellation of her visa. It should be noted that with typical fairness Mr Gilbert of Counsel for the Respondent has made it plain that there is no suggestion that the Court does not have jurisdiction to grant interlocutory relief of the sort claimed.
Accordingly, there is a typical injunction set of considerations that arise: first, whether there is a serious issue to be tried and, secondly, if there is, where the balance of convenience lies. In my opinion, it is now well established that the strength of the case on the serious issue and the balance of convenience can, as it were, interrelate so that a relatively weak case on a serious issue to be tried can, as it were, be buttressed where the balance of convenience is overwhelming and vice versa.
One approaches evidence in these situations with caution, bearing in mind the fact that first of all in this case the matter is urgent, perhaps not all material is on and some of it is on information and belief. It is not the Court's proper position to make final findings, far from it, but the Court can examine the evidence to form very preliminary conclusions.
I also note some remarks made by Merkel J in the case of Gurung v Minister for Immigration & Multicultural Affairs [2000] FCA 1053
(12 July 2000) (“Gurung”). At paragraph 10, his Honour, having set out certain admissions made by the Applicant in that case, observed:
“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.”
What I take from that paragraph relevantly is that in this case there is a substantive dispute as to what information was or was not provided by the Applicant to the officer who made the decision to cancel the visa.

I infer from what his Honour said in that case that had there been such dispute in the matter before him, the matter might have been otherwise.
In paragraph 12 of the same judgment, his Honour continued:
“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.”
He went on in paragraph 13 to say:
“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.”
In fact on the material in that case there was no such issue because the Applicant had made a series of admissions which were fatal to her application.
In this case and I turn to the evidence, the Applicant says she was interviewed for three hours or thereabouts without an interpreter and was only granted an interpreter at the end of the initial interview.

That is deposed in Mr Patterson's affidavit in paragraph 11. It is further deposed on behalf of the Applicant that the form 1111 was signed without her understanding it - that is once again in Mr Patterson's affidavit in paragraph 12 - and that she only understood the purport of it when an interpreter told her about it later.
She further deposes, through Mr Patterson, that she was not offered food and drink until 4.00 pm, as in Mr Patterson's affidavit at paragraph 11. It is common cause that the Applicant arrived in Australia at 10.17 am, from the affidavit of Mr Burton at paragraph 4. She was then interviewed by an officer of the Department. It is not clear from the materials filed thus far when that interview started.

It may possibly have started shortly before 12.14 pm when a Bihasa Indonesian interpreter was apparently obtained, as is clear from exhibit MJB4 to Mr Burton's affidavit.
The Respondent alleges that in any event, the admissions earlier made were repeated in a formal interview between 1.30 pm and 2.16 pm. Exhibit MJB4 suggests that a Mandarin interpreter was present by telephone at that time. The Applicant submits that in any event there may have been a misunderstanding and denies, in exhibit RDD2 to the affidavit of Mr. De Donato that she came to Australia to work.
It is not appropriate to express any final views about the evidence but I do note exhibit MJB5 - unless it is completely misleading - has matters to say about whether or not the Applicant was indeed offered refreshment. Even if the Applicant's evidence is believed, it is far from clear that she will succeed. Her claim in respect to whether there is a serious issue to be tried is not one that can be described in any way as overwhelming, but I bear in mind the comments of Merkel J in Gurung's case.
In my opinion, the case is one in which I am not prepared to reject the application in its entirety at this stage. There is a serious issue to be tried. It has been said that the hurdle is not a high one, and I cannot say that if the Applicant were to be heard and believed that her arguments are devoid of any chance of success. Although, in saying that, I would not wish to suggest to the parties that I am substituting the test for an application to strike a matter out for the test as to whether there is a serious issue to be tried.
Turning to the balance of convenience, the Applicant will face undeniable detriment if she is removed from Australia. The effects on further visa applications have been very fairly conceded by Mr. Gilbert to whom I am indebted for some very helpful submissions, if I may say so. The Applicant is in detention and seems likely to stay there until trial, but there is no question of any security risks, and I note that it appears she has visited Australia before and returned voluntarily following that visit. There is, of course, the issue of the cost of detention but so far as one can assess these things on the materials as they presently stand, it would appear that the Applicant, should she leave in the ultimate will wish to return and is therefore likely ultimately to pay.
For these reasons, therefore, I am disposed to grant the interim relief that the Applicant seeks, but I am also disposed to grant an order for a speedy trial which is something that Mr. Gilbert has already indicated he would seek and which in my view is highly desirable. The dates of not only the Court as presently constituted, but other members of the Court, are such that it is just not possible to have this matter heard before the end of the year. The very first date available is 9 January 2007 which is the date I will set, and that date will require the Court to return from leave and interrupt that leave to hear the matter. But it is desirable that it be heard. After that, if you go into the week beginning on the 15th, you hit the diary that I have already got and you are off for a long time. Indeed, by that stage the visa will have expired.
I regret being so peremptory about dates. Normally I ask counsel how they are placed but if it cannot be either of you it will have to be someone else.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Burchardt FM.

Associate: Brooke Evans

Date: 24 November 2006