Merriman v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 622
•12 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 622
File number(s): PEG 234 of 2024 Judgment of: JUDGE VASTA Date of judgment: 12 July 2024 Catchwords: MIGRATION - application for injunction to prevent deportation until judicial review is heard – serious question to be tried – balance of convenience – application dismissed Legislation: Migration Act 1958 (Cth) – s 116 (1)(b) Cases cited: Morrison & The Minister for Immigration and Citizenship [2007] FCA 723 Division: Division 2 General Federal Law Number of paragraphs: 65 Date of last submission/s: 12 July 2024 Date of hearing: 12 July 2024 Place: Brisbane Counsel for the Applicant: Mr Crowley (Direct brief) Counsel for the Respondents: Ms Francois Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 234 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MATTHEW JOHN MERRIMAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
MINISTER FOR HOME AFFAIRS
Second Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
12 JULY 2024
THE COURT ORDERS THAT:
1.The application for an injunction filed on 12 July 2024 as amended on 12 July 2024 is refused.
2.The Applicant pay the First Respondent’s costs of an incidental to the application fixed in the sum of $4,189.38
IT IS NOTED THAT:
A.The Court will not provide a written version of the reasons for judgment delivered today, unless an appeal has been lodged or the Court has received a request in writing from either party seeking that written reasons be produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(Ex tempore)
JUDGE VASTA
This is an application for an injunction restraining the Minister for Immigration from deporting the applicant, Matthew Merriman, until it is that his judicial review application can be heard and determined.
The background to the application is this. The applicant is a resident of Wales and a UK citizen. He has come to Australia on a number of occasions before, from 7 June 2012 leading up to 19 August 2018. There seems to have been 16 entries, that is eight arrivals and eight departures, in that six year period.
The applicant came to Australia on 8 April 2024, that being his first visit in nearly six years, on a tourist visa. The tourist visa upon which he came to Australia had, as one of its conditions, condition 8115.
The applicant left Australia on 6 July. It would seem that he travelled to Bali from Perth. On 10 July, he returned from, it would seem, Bali, and arrived in Perth at 3 am. As he went to clear immigration, he was stopped and taken to the Border Force area where he was questioned.
The reason that he was questioned was that the immigration authorities had reason to believe that he had not complied with condition 8115 of the visa upon which he was travelling to Australia.
The applicant was given the notice of intention to consider cancellation. In that notice, it stated that the possible grounds were that the applicant had not complied with a condition which is specified under section 116 (1)(b) the Migration Act 1958 (Cth). It was particularised that it was condition 8115 with which he had failed to comply.
Condition 8115 reads as follows.
The holder must not work in Australia other than by engaging in a business visitor activity.
A business visitor activity is defined in part A as: a general inquiry as to employment; an investigation without actual work being done into employment; being a member of a government delegation; or being in the country as part of a conference or convention. Part B specifies that one cannot do any work in undertaking the activities in Part A, and the person cannot sell any goods whilst doing the activities in Part A.
In the notice of intention to consider cancellation, there were a number of screenshots that were taken from his phone that were given to the applicant. This occurred, as the notice indicates, because baggage examination was conducted at Perth International Airport, which included the examination of the visa-holder's mobile devices by a qualified digital device examination officer, and, as a result, numerous messages were revealed where there was contact between the applicant and another person, and, it would seem, work was discussed.
I do not need to go into detail of what was in each of those annexures, with relevant exceptions to follow.
The applicant was asked about those matters.
With regard to appendix C, the screenshot was of a text (or WhatsApp) exchange. A person called Nathan said (or wrote), "Thx [sic] for meeting up, Matt. I hope we can make things work out. I think it’ll be great working with you. Let me know if I can help out with that battery (although, tomorrow is pretty busy already, sorry). Chat soon." and the applicant replying, "Thanks, mate. Appreciate it. Look forward to working with you too." The applicant said that this was a meeting discussing a future work visa.
Appendix H was a screenshot of another text exchange. In that exchange, the applicant said to a person, "I’ve got to work tomorrow or I’d come can’t [sic] go back Saturday instead can you". The other person replied, "Not a chance Joel [sic] is working again tomorrow but does not start until 11 am. We are heading back first thing. Whereabouts are you?". The applicant said, "At Maurice's in Spearwood." "Ah that's a shame. I have got an 11 hour day."
In appendix I, the person texting the applicant says words, "Oh, that sucks to be you." The applicant says, "And I am working tomorrow now fml." The other person replies, "Omfg!! same job [sic]?" The applicant replies, "Yeh [sic] were not finishing today. " The other person says, "I can’t believe I just like the shop and I didn’t buy a packet of cigarettes with Joel card if Joel lonely new how I smoked my last cigarette " (as per the original).
The applicant said, with regard to those two appendices/screenshots, that those were messages between he and his housemate, and he was making excuses to her so that he did not have to give her money.
Appendix A is another screenshot where the applicant wrote to someone and said, "I couldn't get them until I had money." The other person said, "I told you ages ago." The applicant said, "Bunnings sell them” “And open at 6.30”. “I'll grab some and be there for 7." The other person said, "Ok." The applicant then wrote, "The Swanbourne job yeh [sic]." And the other person said, "I can't let you get away with coming and going as you please and they can't. This is exactly what I don't want. Sickies first few week etc, disappearing during the day. I won't have it as it disrupts my team." The applicant said:
"Don't worry about it, mate I'll find something else just pay me the balance and I'll drop your tools back tomorrow . I was genuinely sick today as you could see and I went to get a hire car and to the bank the only other time I left this clearly isn’t going to work is it."
(as per the original)
With respect to this screenshot, the applicant said that he was “talking to a guy who I was doing business activities with and [sic] looking at getting a work visa”. He told the delegate that he worked remotely on his laptop for his company, sometimes doing 12 hour days. The applicant did not comment on the remaining screenshots.
The delegate, in looking at those messages, in her decision, said:
I acknowledge the visa holder has stated that he was undertaking meetings and business visitor activities whilst onshore and the messages do not necessarily relate to previous work, however, I am satisfied that the substantial evidence in the form of messages on his mobile device confirm that the visa holder undertook work whilst on his last visit to Australia.
The visa holder's subclass 651 visa has condition 8115 attached, which states that the visa holder must not work in Australia other than by engaging in a business and visitor activity. Based on the evidence located, I am satisfied that the visa holder has not complied with visa condition 8115 on his previous visit to Australia.
Therefore, I am satisfied that a ground exists to cancel the visa holder's visa under section 116 of the Migration Act 1958, relying on a ground at s 116(1)(b) because I am satisfied the visa holder has not complied with visa condition 8115.
Having come to that conclusion, the delegate was obliged, then, to consider for what reasons should the visa not be cancelled. The applicant had spoken to the delegate and had said these things:
I have a girl here, Bonnie, we were in the process of getting a partner visa. If I can't come in then it will probably be the end of the relationship. I am upset for her and her family, she has 2 kids, aged 4 and 8.
I have known her for 10 years. I believe I provided a benefit for Australia - I have a degree in electronic engineering. I don't need to work - I have enough money to keep me going. I don't have a criminal record. I have previously paid tax in Australia. I'll just spend my money elsewhere. I have been here before and never did anything illegal or breached any condition.
(as per the original)
The reasons, then, have a section where the delegate must assess those reasons. The delegate has written:
The visa holder stated he was in the process of obtaining a partner visa with a girl named “Bonnie” whom the visa holder stated he had known for 10 years. I acknowledge that visa cancellation may cause hardship for the visa holder and Bonnie as well as her children. Therefore I give these considerations some weight against cancellation.
I also acknowledge that the visa holder stated that he doesn't need to work and that he has enough money to support himself. However, I am satisfied after considering the evidence that the visa holder has undertaken work whilst onshore on his previous visit to Australia. Therefore, I give this consideration some weight towards cancellation.
The delegate then looked at the extent of compliance with visa conditions and wrote:
This is the visa holder's second arrival on this current subclass 651 visa. Evidence was located during a baggage examination, during which the visa holder's mobile devices were assessed by a qualified digital device examination officer, revealing evidence of previous work whilst onshore. Therefore, I give these considerations significant weight towards cancellation.
The delegate then looked at the degree of hardship which may be caused to the visa holder, their family members and others if the visa is cancelled, noting, where applicable, the best interests of a child in Australia under 18 years must be considered in accordance with Australia's obligations under the Convention on the Rights of the Child.
The delegate has written:
The visa holder stated in response to the NOICC that he was in the process of obtaining a partner visa with a girl named “Bonnie” whom the visa holder stated he has known for 10 years. I have considered that the visa cancellation may create hardship for the visa holder and Bonnie as well as her children. I also acknowledge that there may be other hardships that the visa holder has not raised. Therefore, I give these considerations some weight against cancelling.
The delegate looked at the circumstances in which the ground for cancellation arose and whether there were any extenuating circumstances beyond the visa holder's control that led to this ground existing. The delegate wrote that there was no information about any such circumstances, and she was then unable to apply any weight towards or against visa cancellation.
The delegate had to consider the visa holders behaviour in relation to the department now and on any previous occasion, and the delegate wrote:
Departmental records indicate that this is the visa holder's second trip to Australia on his current subclass 651 visa. A check of departmental records has revealed no known adverse information. As for today, the visa holder has generally been cooperative during interactions with the Australian Border Force. I give this a little weight against cancellation.
The delegate then had to look at any other relevant reasons, and the delegate wrote:
I have also considered the legal consequences of the decision to cancel the visa holder's visas and note that if the visa is cancelled the visa holder may:
-become an unlawful non-citizen
-be detained in immigration detention
-be removed from Australia
-be subject to bars which prevent the visa holder from applying for certain visas whilst in Australia
-be excluded from being granted a visa for a period of time in the future.
The delegate wrote:
Therefore, I give this consideration some weight against cancelling.
However, in the final decision, the delegate wrote that:
After weighing up all of the information available to me, I am satisfied that the grounds for cancelling the visa outweigh the reasons for not cancelling. I have therefore decided to cancel the visa.
The applicant has filed an application for judicial review and has already amended that application. The amended grounds of the application are these:
1.The decision of the delegate of the first respondent, alternatively the second respondent (collectively, Delegate) was vitiated by a constructive failure to exercise jurisdiction in failing to give bona fide consideration to the best interests of the applicant's partner's children, or a denial of procedural fairness.
What the applicant argues with regard to this ground is that on what was told to the delegate, there was a relationship, of such a nature, that the applicant was a person of special standing in the lives of the children. Therefore, it was incumbent upon the delegate to treat the best interests of the children as a primary consideration in deciding whether or not to cancel the visa.
The applicant argues that the fact that the delegate simply took into account the hardship and gave the hardship a small amount of weight towards not cancelling the visa was not, and could not be said, to be a situation where the best interests of the children were given primary consideration. Therefore, the applicant submits, the decision is infected with jurisdictional error.
The second ground is that:
2.The decision of the Delegate was vitiated by a constructive failure to exercise jurisdiction by reason of a misconstruction or misapplication of Condition 8115, by reference to which the exercise of power under s 116(1)(b) was directed, or a denial of procedural fairness.
The applicant argues that, in looking at condition 8115, what it was that he was doing was not work that connoted in any way a master-servant relationship, and therefore it did not breach the prohibitions in condition 8115.
The applicant argues that the delegate had to look at both, whether there was work for a particular person as distinguished by supplying services to a particular person. The applicant argues that the delegate was obliged to put those aspects to the applicant for his comment.
The principles regarding injunctions are well-known and have been discussed in many authorities.
When considering whether to exercise the discretion to grant an interlocutory injunction, the Court must consider, firstly, whether there is a serious question to be tried. That requires an applicant to show that there is sufficient likelihood that he will succeed at the final hearing to justify what is the preservation of the status quo.
Secondly, the Court has to consider whether the inconvenience, or injury, that the applicant would suffer if the injunction is refused, outweighs, or is outweighed by, the inconvenience or injury that the Minister would suffer if the injunction is granted.
Both Counsel referred me to Morrison & The Minister for Immigration and Citizenship [2007] FCA 723, where French J, as His Honour then was, said at paragraph 22:
In order to grant interlocutory relief to restrain his removal pending a substantive application, I would have to have regard both to the possibility that he has some case to argue in relation to the decision to cancel his visa, and secondly, that the balance of convenience lies in favour of an interim order. These two requirements are interdependent. Of course, the stronger the case that there is an arguable error on the part of the Minister, the less the balance of convenience need lie in favour of the applicant in order to justify the grant of relief.
The question as to whether there is a serious question to be tried relates to both grounds 1 and ground 2.
In this case, one needs to have some regard to what it is that causes a Court to have to consider the best interests of a child as being primary. This is usually where the person, or the applicant, is in loco parentis of children or has some special relationship with children. In such a case, it is whether a decision-maker can discern that the absence of the applicant in the children's life may be something that causes great hardship, and that hardship is usually able to be identified. If those aspects are satisfied, the interests of the children must be considered as primary considerations as to whether the visa ought be cancelled.
In this matter, the applicant argues that he has such a position in the lives of the two unnamed children of the person, Bonnie, that meant that it behoved the delegate to give more than the consideration that the delegate did give to what hardship these children would suffer if the applicant's visa were cancelled. The evidence, that was before the delegate is that the applicant has only been part of the children's life for, at the most, the time in which he has been in Australia, that is, from 8 April to 6 July.
He had not been to Australia for six years before then. The eight-year-old would have been aged two at the time the applicant last left Australia, and the four-year-old would not have been born. This means that introduction of the applicant into the children's lives, in a physical sense, had only happened in the three months beforehand.
The evidence also shows that the applicant, in his explanations of appendix H and appendix I to the delegate, said that he had a housemate who was a female. The applicant said to the delegate, words to the effect, that he had to be very careful what it was that he said to the housemate about the existence of Bonnie and vice versa, and that this was the context in which appendix H and appendix I were written.
This means that he was not living with the person, Bonnie, and was not living, obviously, with the two children.
In appendix E, we have this exchange. A person who later identifies themselves as Nathan, on Friday, 10 May writes to the applicant:
Hi Matt. Hal gave me your number. Do you work in security or are looking for work? Thx [sic]. Nathan.
The applicant replied:
Hey mate. Yeh [sic] looking for work.
The person, Nathan, replied:
Hi again. We have jobs up north in the Kimberley also, which are usually 8+ days away at a time. That of interest? Work includes cabling, security, CCTV, Wi-Fi set-ups (usually Unifi), etc Thx [sic].
The applicant replied:
Suits me, mate. I've no family here so suits me perfectly.
The applicant himself, in his response to the delegate, says only this:
I have a girl here, Bonnie, we were in the process of getting a partner visa. If I can't come in then it will probably be the end of the relationship. I am upset for her and her family, she has 2 kids aged 4 and 8. I've known her for 10 years.
(as per the original)
It is also instructive that it was the delegate who asked questions about the children. It was not the applicant who volunteered the information as to how many children, or their ages to start with.
All of that gets to a point where it makes it very difficult for the applicant to seriously contend that the delegate committed a jurisdictional error by failing to consider the best interests of these two children as a primary consideration.
On the evidence, the applicant was happy to tell people that he could go away without any problems, because he had no family here. He was not living with these children, and he had only been in their lives for these three months.
It seems to me that it will be very difficult for the applicant to succeed on ground 1. That is not to say that he will not, but it is not a matter where there is a strong or undeniable and identifiable jurisdictional error.
As to ground 2, having looked again at condition 8115, it seems to me that part B is quite specific as to persons not being able to do work or to sell items.
If one looks at the text messages, it would seem fairly clear that this condition has not been complied with; that is, looking at the text messages as a whole, even taking into account what the applicant has said about appendix A, appendix C, appendix H and appendix I, whilst it may not be impossible, it seems to me very unlikely that one could in any way interpret condition 8115 in such a way that would mean that the approach by the delegate to what the applicant has done would be infected with jurisdictional error.
That leads me to conclude that there is no serious question to be tried.
But that is not the end of the matter. Even if there were a serious question to be tried, I would still need to determine if the balance of convenience lies with the Court restraining the Minister from removing the applicant.
The applicant has not cleared immigration. He does not have a right to be in the country. That is what this application for judicial review is all about. If it is that the Court restrains the Minister from removing the applicant, that does not guarantee that he is released. He is in immigration detention.
Whilst immigration detention can be served in places such as hotels, in different circumstances, there is no guarantee that that is what would happen. There is also no guarantee that the detention would remain it in Perth or at Yongah Hill. It may be that the applicant is transferred to Villawood. One does not know.
So, what is the benefit to the applicant of not being removed from the country? It may be that the person, Bonnie, could visit him or the children could visit him, but that is something that is not known. He is not given the same freedoms as if he were not in detention.
As the applicant himself said to the delegate, he did not want to bother with all of these matters and that he was quite happy to get back on a plane to Bali or London or wherever. It is trite to say that he can still prosecute this judicial review application from overseas. The Court has conducted many judicial review applications where persons are prosecuting the matter from overseas.
The fact that this application is being heard by me in South East Queensland whilst most others are in Perth, quite some distance away, is testament to the fact that there are no boundaries upon persons wishing to prosecute these applications. If the applicant is removed back to Bali or to London or wherever, he can prosecute this application without any restrictions on his freedom.
He can stay in touch via video messaging, and he may be able, even if the person, Bonnie, and her children cannot travel to the UK, to still meet in a country such as Bali. The applicant has said to the delegate that he has plenty of money and that that is not an issue for him.
The Minister is obliged to remove persons, who do not have a valid visa, from the country. It seems to me that the Court has to be very cognisant of that statutory obligation that the Minister has when looking at where the balance of convenience lies.
Given what I have said, I am not persuaded that the Court should exercise its discretion to give an interlocutory injunction restraining the Minister from removing the applicant.
I therefore dismiss the application.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Associate:
Dated: 12 July 2024
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