NTOKOS v Minister for Immigration

[2020] FCCA 178

FEDERAL CIRCUIT COURT OF AUSTRALIA

NTOKOS v MINISTER FOR IMMIGRATION [2020] FCCA 178

Catchwords:
MIGRATION – Urgent application – where the applicant seeks an injunction from being removed from the Commonwealth of Australia – whether the balance of convenience favours granting the injunction – whether there are serious issues to be tried – injunction granted.

Legislation:

Migration Act 1958 (Cth), ss.101; 116(1)(d)

Applicant: ALEXANDROS NTOKOS

Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: MLG 241 of 2020

Judgment of: Judge Mercuri

Hearing date: 24 January 2020

Date of Last Submission: 24 January 2020

Delivered at: Melbourne

Delivered on: 24 January 2020

REPRESENTATION

Counsel for the applicant: Mr Moloney

Solicitors for the applicant: Clothier Anderson & Associates

Advocate for the respondent: Mr Brown

Solicitors for the respondent: Australian Government Solicitor

ORDERS

1. The Minister, by himself or by his Department, officers, delegates or agents, is restrained from taking any action or making any decision in respect of removing the applicant from the Commonwealth of Australia pending the final determination of the substantive application in these proceedings.

2. The matter be adjourned for hearing on 11 February 2020 at 10:00am.

3. The directions hearing listed on 29 January 2020 be vacated.

4. The respondent prepare, file and serve a transcript of the delegate interview of 20 and 21 January 2020 and any other relevant documents by Thursday 30 January 2020 at 12:00pm.

5. The applicant file and serve an amended application and written submissions by Tuesday 4 February 2020.

6. The respondent file and serve written submissions by Friday 7 February 2020.

7. Costs be reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 241 of 2020

ALEXANDROS NTOKOS

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from the Transcript)

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is an application for an injunction preventing the Minister of Immigration (“the Minister”) from removing the applicant from Australia until the substantive application filed by the applicant can be heard and determined by this court.

2. The application was brought on at short notice.

3. It is common ground that:

   a)the applicant arrived in Australia on the evening of 20 January 2020;

   b)on 17 January 2020 he had applied for and was granted a subclass 601 visa;

   c)on arrival in Australia, the applicant was interviewed by officers from the Australian Border Force, which continued into the early hours of 21 January 2020; and

   d)during that interview, the applicant was given notice of an intention to cancel his subclass 601 visa, and ultimately his visa was, in fact, cancelled. 

4. On 22 January 2020, the applicant filed an application for judicial review of the decision to cancel his subclass 601 visa.  The application identified one ground of review, which I do not propose to set out in full now.

5. In addition to seeking an order quashing the cancellation of the applicant’s visa, the applicant also seeks an injunction preventing his removal from Australia.

6. This matter was listed on an urgent basis today, in circumstances where arrangements have been made for the applicant to be removed from Australia later today.  The applicant seeks an injunction and it is submitted on his behalf that there are serious issues to be tried, and that the balance of convenience favours the granting of the injunction.

7. For the respondent, it is argued that there are no serious issues to be tried, and that the balance of convenience does not warrant the granting of an injunction.  Before turning to address these issues, it is appropriate to set out some of the factual matters in this case.

Background

1. The applicant is a Greek citizen and travelled to Australia on his Greek passport.  It is common ground that he obtained his Greek citizenship late last year.  It is also common ground that prior to obtaining his Greek citizenship, the applicant held Albanian citizenship.

2. It is also not in dispute that the applicant did not correctly answer questions on his visa application relating to whether he used any other names at any time, and whether he held any other citizenships in addition to his Greek citizenship.

3. It is also common ground that on 14 January 2020 the applicant applied for a subclass 651 visa, which was ultimately refused.

4. It appears that the applicant was not notified of the refusal of the subclass 651 visa prior to the circumstances which led to this application being made.

5. It also appears that when his departure date was looming and he had not yet heard the outcome of his subclass 651 visa application, he sought advice and applied online for a subclass 601 visa, which was then approved on that same day.

6. The applicant’s failure to comply with section 101 of the MigrationAct 1958 (Cth) (“the Act”) triggered section 116(1)(d), giving the Minister the discretion to cancel the applicant’s visa.

7. The Minister exercised that discretion to cancel the applicant’s visa.

The applicant’s position

1. It was submitted by the applicant that in considering whether to exercise the discretion to cancel the applicant’s visa, the Minister’s delegate:

   a)acted unreasonably;

   b)failed to afford the applicant procedural fairness; or

   c)failed to take into account relevant considerations.

2. In arguing that there is a serious issue to be tried, counsel for the applicant submitted that:

   a)the applicant was only given some 10 minutes to respond to the notice of intention to cancel his visa, and that the failure to afford the applicant more time to respond was, in itself, unreasonable;

   b)the applicant was not provided with information about the refusal of the subclass 651 visa;

   c)the applicant was not given a copy of the questions in the application for the subclass 651 visa, which was relied upon to justify the decision to cancel his visa;

   d)had the applicant been provided with these documents and this information, he may have been able to make submissions as to why he had misunderstood the question and therefore provided an incorrect answer; and

   e)the delegate did not provide the applicant with information relating to the cancellation of a visa in 2011, and again, had this been provided, the applicant might have been in a position to provide further information.

3. Section 120(1) of the Act relevantly provides:

   In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

   (a)

   would be the reason, or a part of the reason, for cancelling

   
   

   a visa; and

   (b)is specifically about the holder or another person and is not
   just about a class of persons of which the holder or other person is a member; and

   (c) was not given by the holder; and

(d)was not disclosed to the holder in the notification under

section 119.

1. Subsection (2) requires that:

   The Minister must:

   (a)     give particulars of the relevant information to the holder;

   (b)ensure that, as far as reasonably practicable, the holder

   
   

   understands why it is relevant to the cancellation; and

   (c) invite the holder to comment on it.

2. Subsection (3) then provides:

   The particulars in invitation are to be given in a way that the Minister considers appropriate in the circumstances.

3. It was said that the delegate failed to comply with the obligations under section 120.

4. The applicant’s solicitor filed an affidavit in these proceedings which attested to the fact that she had been provided with an audio of the interviews with the applicant on 20 and 21 January 2020.

5. That affidavit deposes that the delegate did not discuss the outcome of his application for an eVisitor subclass 651 visa made on 14 January 2020, nor the questions that appeared in the application form for that visa with the applicant. 

6. It also states that the interview with the delegate in which the applicant was asked to respond occurred after midnight, and lasted for only 10 minutes.

The Minister’s position

1. In response, Mr Brown, the solicitor for the Minister filed an affidavit annexing the Department’s documents relating to the cancellation of the applicant’s visa. 

2. He also annexed a USB stick, which he indicated contained a copy of the audio recording of the interview with the applicant relating to the cancellation of his visa. Without being critical of either of the parties in this case, and given the speed with which the matter has come to court, no transcript has been provided of that audio recording.

3. It was submitted on behalf of the Minister that the parties have a different view as to what occurred on 20 and 21 January 2020, and what the court ought to read into the documents which have been filed in these proceedings. It was further submitted that the audio makes it clear that the delegate did put to the applicant that the name he used when he was an Albanian citizen was different to that which he used when he became a Greek citizen.

4. Also attached to Mr Brown’s affidavit is a copy of the applicant’s application for an eVisitor visa filed on 14 January 2020.  The court was referred to page 37 of the affidavit which was submitted to provide greater clarity about the questions relating to whether the applicant had been known by any other name.

5. It remains in dispute as to whether the applicant was directed to these questions.

6. To determine this issue, the court was invited to listen to the audio which was over one hour’s duration. 

7. In the circumstances, given the urgency of this application, it was not possible for the court to independently listen to this audio recording. In any event, I am not satisfied that that would have finally dealt with the issues before the court on this occasion.

Serious issue to be tried

1. Having considered the submissions which have been made by each of the parties, I am satisfied that there is a serious issue to be tried in this case.

2. On one view, it could be said that the issue in this case is relatively straightforward in circumstances where the applicant accepts that he did not provide the correct information about his name and citizenship status in his application for a subclass 601 visa.

3. However, at Item 7 in Part B of Form 1111, under the heading ‘details of the evidence and findings about why the delegate is satisfied GROUNDS for cancellation DO EXIST’, it refers to the fact that the applicant had similarly not correctly answered the questions about his name and citizenship in his subclass 651 visa application.[1]

   [1] Annexure JDB-1 at page 27 of the affidavit of John David Brown affirmed 24 January 2020 (tendered in court).

4. In answering questions of procedural fairness and the reasonableness of the delegate’s exercise of the discretion, it is relevant:

   a)whether this matter was raised in the course of the applicant’s interview;

   b)how it was raised; and

   c)whether the applicant was provided with an adequate opportunity to respond.

5. Additionally, compliance with section 120 is an issue in this matter, particularly with regard to the manner in which the applicant’s failure to declare his previous names in his subclass 651 visa application was dealt with.

6. These are all matters which need to be properly argued at a hearing.

7. I am therefore satisfied that there are serious issues to be tried.

Balance of convenience

1. As to the balance of convenience, it was conceded by the Minister’s representative that there are adverse consequences for the applicant if his application for an injunction is not granted, including being subjected to various re-entry bars.

2. The applicant also submitted that if he were removed from Australia:

   a)he would not be able to press his substantive application;

   b)he would forfeit the expenses he had incurred in traveling to Australia; and

   c)there would be personal consequences to him, as his family may form a view that he had done something wrong.

3. However, the Minister submitted that the following facts ought to be considered in determining the balance of convenience:

   a)if the applicant was not removed today, the cost of removal will no longer be borne by the airline that brought him to Australia;

   b)there will be additional costs of detention pending the final determination of this matter; and

   c)if the applicant is removed from Australia, it is possible for the applicant to continue to press his application from Greece through his solicitors.

4. I have given consideration to all of these factors and, on balance, I am satisfied that the balance of convenience favours the granting of the injunction sought.

5. Whilst I accept that there are consequences that flow from this for the Minister and the Commonwealth, the consequences to the applicant of his removal would be more significant.

6. Finally, it was submitted that in considering the balance of convenience, it is important that the court also have regard to the fact that the requirement in section 101 of the Act is fundamental to the proper administration of the migration system. It requires that people provide accurate identifying information to enable the Minister to properly assess whether or not to grant a visa.

7. I accept that proposition.  I also accept that it is a valid and important consideration in the substantive application.  However, that factor does not, in my view, tip the balance of convenience in favour of resisting the application for an injunction. 

8. The failure to provide correct information under section 101 triggers a discretion. That discretion must nevertheless be exercised according to law.

9. Therefore, in those circumstances, I grant the injunction sought by the applicant.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Associate: 

Date:       4 February 2020