MORGUN v Minister for Immigration - [2009] FMCA 1306

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MORGUN v MINISTER FOR IMMIGRATION

[2009] FMCA 1306

MIGRATION – Application to challenge decision of Minister’s delegate to cancel visa whilst applicant in immigration clearance – whether delegate committed jurisdictional error – whether delegate obliged to state reasons for decision – whether applicant entitled to interpreter – whether adequate interpretation provided – whether applicant breached condition 8107 – meaning of “inconsistent”.

Migration Act 1958 (Cth), ss.116, 119, 120, 166, 338

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v The State of South Australia (1995) 184 CLR 163
Singh v Migration Review Tribunal[2004] FCA 1079
Lee v Minister for Immigration [2005] FMCA 237
SZMKG v Minister for Immigration and Citizenship [2009] FCAFC 99
BRGAQ of 2008 v Minister for Immigration and Citizenship [2009] FMCA 782
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Yusuf v MIC [2002] FCA 1103
Le v MIC [2008] FMCA 1497

Applicant:

RUSLAN MORGUN

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

BRG 709 of 2009

Judgment of:

Wilson FM

Hearing dates:

29 October & 3 November 2009

Date of Last Submission:

3 November 2009

Delivered at:

Brisbane

Orders Delivered on:

3 November 2009

Reasons Delivered on:

22 January 2010

REPRESENTATION

Counsel for the Applicant:

Ms Julien-Armitage

Solicitors for the Applicant:

N/A

Counsel for the Respondent:

Ms Wheatley

Solicitors for the Respondent:

Clayton Utz

ORDERS

That the decision of the delegate of the respondent made on 8 October 2009 to cancel the applicant’s Temporary Business Visa (class UC) – subclass 457 be quashed and a writ of certiorari be issued accordingly.
That the decision made by the delegate of the respondent on 8 October 2009 to place the applicant into immigration detention be quashed and a writ of certiorari be issued accordingly.
That the respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CAIRNS & BRISBANE

BRG 709 of 2009

RUSLAN MORGUN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

On 18 June 2008 the applicant was granted a Temporary Business Entry (Class UC) Visa – subclass 457 that entitled him to stay in Australia and work in a certain occupation, sponsored by a ‘business sponsor’. When issued, that visa was due to expire on 18 June 2012. The applicant arrived in Australia on 18 July 2008. Since that time, apart from short periods of leave, he has worked for his sponsor Howe Farming Enterprises Pty Ltd.
On 8 August 2009 the applicant departed Australia to visit family in his native Ukraine. That visit was marked by a family tragedy.

On 8 October 2009, after a long flight from Moscow, via Hong Kong, the applicant arrived at Cairns International Airport. His flight arrived at 8:45 am[1]. The applicant was ‘cold targeted’ by an officer of the department[2].
[1] Affidavit of A Yuille, exhibits, pages 68, 101
[2] Affidavit of Yuille, exhibits page 114
At 9:14 am[3] (or perhaps…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCA 1306
Decision Date: 3 November 2009

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Morgun v Minister for Immigration was heard, involving the applicant, Ms Morgun, and the Minister for Immigration, the respondent. The dispute centred around the cancellation of Ms Morgun’s Temporary Business Visa (class UC) – subclass 457 and her subsequent detention. Ms Morgun challenged the delegate's decision made on 8 October 2009 to cancel her visa and place her in immigration detention. The core legal issues before the court were whether the delegate's decision to cancel the visa was lawful and whether the subsequent detention order was justified.

The court examined the statutory framework governing visa cancellation and immigration detention. It considered the criteria for visa cancellation under the Migration Act and the conditions under which detention could be authorised. The court also assessed the procedural fairness of the delegate’s decision-making process, including whether Ms Morgun had been afforded an adequate opportunity to respond to the allegations against her. The applicant argued that the decision was flawed due to procedural errors and that the detention was arbitrary and without lawful justification.

The court found that the delegate's decision to cancel Ms Morgun’s visa was not supported by the evidence and that the procedural steps taken were inadequate. The court held that the delegate failed to properly consider relevant evidence and provide adequate reasons for the decision. Furthermore, the court determined that the detention order was not justified in the circumstances. The decision to cancel the visa and detain Ms Morgun was quashed, and the court issued a writ of certiorari. The respondent was ordered to pay the applicant’s costs of the application.

Orders

Orders of the court

That the decision of the delegate of the respondent made on 8 October 2009 to cancel the applicant’s Temporary Business Visa (class UC) – subclass 457 be quashed and a writ of certiorari be issued accordingly.

That the decision made by the delegate of the respondent on 8 October 2009 to place the applicant into immigration detention be quashed and a writ of certiorari be issued accordingly.

That the respondent pay the applicant’s costs of and incidental to the application fixed in the sum of $5,000.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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