Morgun v Minister for Immigration (No.2) - [2009] FMCA 1309

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MORGUN v MINISTER FOR IMMIGRATION (No.2)

[2009] FMCA 1309

MIGRATION – Cancellation of Visa – intention to deport applicant from Australia – application for urgent injunctive relief.

Migration Act 1958, s.116

Craig v The State of South Australia (1995) 184 CLR 163

Applicant:

RUSLAN MORGUN

Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

File Number:

BRG 709 of 2009

Judgment of:

Wilson FM

Hearing date:

9 October 2009

Date of Last Submission:

9 October 2009

Delivered at:

Brisbane

Delivered on:

9 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Lanza

Solicitors for the Applicant:

Frank Lanza

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

Clayton Utz

ORDERS

That an injunction issue restraining the respondent from deporting the applicant, Ruslan Morgun, from the Commonwealth of Australia, until further order.
That the applicant has leave to file an application in the form transmitted by facsimile to the Court, such application to be filed and served by no later than 4.00pm 9 October 2009 together with any affidavit evidence upon which he intends to rely.
That the parties have liberty to apply upon the giving of 24 hours notice, in writing, to the Court and the other party.
That costs of today be reserved.
That this matter be adjourned to not before 2.30pm 29 October 2009 in the Federal Magistrates Court of Australia at Cairns.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 709 of 2009

RUSLAN MORGUN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

This matter comes before the court in circumstances of extreme urgency. The applicant was, until 8 October 2009, at about 2.24 pm, the holder of a clause 457 visa under the Migration Act 1958. The applicant is a Ukrainian citizen who has until recently been working for an enterprise at Walkamin on the Atherton Tablelands. The applicant departed Australia for a visit to his country of origin and returned, as I have said, yesterday.
The applicant was then detained in immigration clearance. He was interviewed by the Minister’s delegate, and apparently as a result of statements made during that interview, the Minister’s delegate decided to cancel the applicant’s visa. The effect of that decision was that the applicant was held in immigration clearance at Cairns airport overnight, and was to be deported from Australia today on a flight leaving quite shortly.
After hearing argument in the matter, I indicated that the court would grant an injunction restraining the Minister from deporting the applicant, and the solicitor who has appeared at very short notice today on behalf of the Minister has communicated that fact to the department, and the court has been assured that the applicant will not, in fact, be deported pending further order.
The first question which arises is the court’s jurisdiction to grant the injunction sought, particularly in light of the restrictive review provisions in the Act. After counsel for the applicant explained the relevant statutory provisions, I am satisfied that this court does have jurisdiction to grant injunctive relief. And after the matter was stood down and further instructions were taken, the solicitor for the Minister has accepted that the court has jurisdiction to grant injunctive relief.
I then turn to whether an interlocutory or an interim injunction should be granted. The tests for doing so are well-settled. The court must be satisfied that there is a serious question to be tried which warrants the grant of injunctive relief, and, secondly, that the balance of convenience favours the grant of an injunction. In this case, the balance of convenience is all one way, and plainly favours the grant of injunctive relief. Because of the way in which the Migration Act is now structured, in order to demonstrate that there is a serious question to be tried the applicant must, in my view, demonstrate that, firstly, there has been a decision made under the Migration Act; secondly, that there is an arguable case that the decision-maker has committed jurisdictional error, and thirdly, that the decision is otherwise amenable to review.
In this case, a copy of the decision has been put before the court. It purports to have been made under s.116(1)(b) of the Act, and, therefore, the first matter to which I have referred is satisfied. The concept of jurisdictional error was explained in Craig v The State of South Australia (1995) 184CLR163:
"If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
see also Plaintiff S157 of 2002.
Because this matter has come before the court in the circumstances that I have mentioned, it is possibly only to give a very brief consideration of the types of jurisdictional error which may be arguable on behalf of the applicant. No material has yet been filed and the applicant’s counsel has told me a number of matters from the bar table, which will presumably find their way into affidavit material in due course.
The applicant, as I have said, is a national of Ukraine. There may be a question as to his capacity to proficiently understand and speak English. The interview that was conducted with him at the Cairns airport initially was conducted without the assistance of an interpreter, I am told. The applicant’s counsel says that the applicant said that he did not understand the questions that were being asked of him, and asked to speak to his migration agent, but that such permission was denied. It is said that an interpreter was eventually provided to the applicant, but such services were provided by telephone.
The response of the applicant, which is set out in the decision at section 7, is very brief. There is nothing in that section which gives rise to inconsistency with the applicant’s clause 457 visa. The clause does, however, say that the applicant told the interviewing officer, “It all happened really suddenly and I don’t know what to say.” This lends some support to the statements made by the applicant’s counsel. In section 9, there is reference to the applicant making statements that he has performed activities which are inconsistent with the activity in relation to which the visa was granted. But as I have said, that is not set out in part 7.
The applicant may be able to argue that procedural fairness was not afforded to him in the circumstances in which the interview was conducted, and as a result of which the decision was made. In my view, on the very limited material presently available, and from what I have been told, I consider that that constitutes a serious question to be tried. Secondly, the decision was made on the basis that the applicant has performed work inconsistent with that for which his visa was granted. The exact evidence on which the decision-maker relied is not clearly spelt out in the documents which have been completed. The information available to the Minister’s delegate is not set out.
In the Notice of Intention to Consider Cancellation, in the last paragraph, it is stated:
Based on all the information available and the responses you provided at interview, I am satisfied that you have breached condition 8107, as you were working in an occupation that is inconsistent with the occupation in relation to which the visa was granted.
Once the information available to the Minister’s delegate, beyond that contained in the applicant’s responses, is open to scrutiny further grounds of review may be available to the applicant. As matters presently stand, the applicant has produced a statutory declaration by Mr Dennis Howe, a director of Howe Farming Enterprises Proprietary Limited, who has sworn that the applicant is in fact employed as an agricultural technical officer by that company. Although the Minister’s delegate or his representative contacted Mr Howe at 4.33 yesterday afternoon, it is obvious from the contents of Mr Howe’s declaration that he was not asked to provide any information to the Minister’s delegate.
In those circumstances, I consider that there is a serious question to be tried as to whether the Minister’s delegate erred in determining a jurisdictional fact in this case, namely the type of work or occupation performed by the applicant. In my view, the applicant has established, at least for the purposes of the grant of an interim injunction, that there is a serious question to be tried, and I will make an order restraining the Minister from deporting the applicant from Australia until further order.
This injunction has the effect that the applicant will not be forced to leave Australia today. However, his visa has been cancelled, and he must remain in detention until either he is granted a bridging visa by the Department, or until the matter is further before the court.
The applicant should be given the opportunity of applying for a bridging visa. I propose to adjourn the matter to not before 2.30 pm on 29 October next, which should give time, not only for that process to take its course, but also for the parties to be in a better position to argue whether the injunction should continue until the final hearing of the applicant for judicial review. If, as a result of events that transpire in the next two weeks, further urgent relief is required, I will give both parties liberty to apply on the giving of not less than 24 hours written notice to the other and contact can be made through my associate in Brisbane.
The application today was made orally, but copies of documents were provided by counsel for the applicant to the court and, as I understand, to the Minister’s representative. I will give the applicant leave to file an application in the form transmitted to the court, such application to be filed and served by 4 pm today together with any supporting affidavit upon which the applicant intends to rely for today’s application.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate: Lynnette Chin

Date: 25 January 2010