Orro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 101

FEDERAL CIRCUIT COURT OF AUSTRALIA

Orro v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 101

File number(s):	SYG 104 of 2021
Judgment of:	JUDGE STREET
Date of judgment:	18 February 2021
Catchwords:	MIGRATION – interlocutory application for interlocutory injunction to prevent removal from Australia – whether applicant had not been given notice of the grounds of cancellation – whether failure to comply with s 107 of the Migration Act 1958 (Cth) – whether the decision to cancel was legally unreasonable – whether applicant was denied procedural fairness – no prima facie case for the grant of injunctive relief – interlocutory application dismissed
Legislation:	Migration Act 1958 (Cth), ss 107, 119
Number of paragraphs:	12
Date of hearing:	16 January 2021
Place:	Sydney
Counsel for the Applicant:	Mr G Rebetzke
Solicitor for the Applicant:	Armstrong Legal
Solicitor for the Respondent:	Ms B Rayment Sparke Helmore

ORDERS

SYG 104 of 2021

BETWEEN:

INGVAR ORRO

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	16 JANUARY 2021

THE COURT ORDERS THAT:

1.Leave granted to file the documents relied upon by the Applicant in Court.

2.The Interlocutory Application seeking an injunction is dismissed.

3.The reasons for decision is reserved and will be published on a date to be fixed.

THE COURT NOTES THAT:

1.There is no Injunction in place restraining the removal of the applicant.

2.Any application for costs sought in relation to the Interlocutory Application will be dealt with on another occasion.

REASONS FOR JUDGMENT

JUDGE STREET:

1. The applicant applied for an interlocutory injunction to prevent his removal from Australia prior to passing immigration clearance. The applicant is a citizen of Tunisia and had travelled from New Zealand to which he was booked to be returned on the afternoon of Saturday 16 January 2021. The interparty hearing was held by telephone conference call, about 2 hours before that booked departure. The urgent hearing was arranged by the NSW Duty Registrar with the initial assistance from the Queensland Duty Registrar.

2. The applicant was represented by counsel and leave was granted for the filing in Court of an affidavit by the applicant’s solicitor, an application and written submissions. A document that identified the timing of the decision-making process was tendered by the respondent and marked as Exhibit 1.

3. The interlocutory principles for the grant of an injunction were not in dispute.

4. The applicant submitted that, notwithstanding the composite form for the decision-making process under s 119 of the Migration Act 1958 (Cth) (“the Act”), there was excess of jurisdiction because the applicant had not been given notice of the grounds of cancellation. That submission was inconsistent with the identification of the giving of such notice in the composite form. That submission was also inconsistent with the exhibit tendered by the respondent. The submission of an alleged non-compliance with the notice requirement was not supported by the evidence and no prima facie case to support the interlocutory relief is made out on that ground.

5. The applicant submitted that there was a failure to comply with s 107 of the Act by reason of the absence of a written notice under that provision. The Court accepts the respondent’s submission that, as the applicant had not cleared immigration, s 107 of the Act had no application. No prima facie case to support the relief is made out on this ground.

6. The applicant submitted that the decision to cancel was legally unreasonable. The applicant had given a false answer as to his criminal record. In these circumstances, the cancellation had an evident and intelligible justification. No arguable case of jurisdictional error is made out on this ground.

7. The applicant submitted that there had been a denial of procedural fairness because he had not had an interpreter. There was no evidence that the applicant did not understand English. The Court does not accept that the applicant was unable to meaningfully participate in the opportunity to be heard and the record of the decision-making supports this being the case. No arguable case of jurisdictional error is made out on this ground.

8. The applicant submitted that he has been denied procedural fairness because he had requested access to a solicitor for legal advice prior to responding to the notice given of intention to cancel his visa. The applicant had no legal right to insist upon obtaining such advice prior to the administrative decision-making in circumstances where he had not cleared immigration and where, on the material before the Court, he was given a meaningful opportunity to be heard. It was the applicant who provided the false information as to his criminal record in response to a simple and clear question as to his criminal record. No prima facie case is made out on this ground.

9. The applicant submitted that he may face persecution upon return to his country of citizenship. The applicant had raised no such claim whilst in New Zealand. The applicant was booked to be returned to New Zealand which, being a country that this a party to the 1951 Refugee Convention, can deliberate upon any such claim if advanced upon return to New Zealand. The applicant had not lodged any formal application for refugee status, had ample opportunity to do so in New Zealand and would still have that opportunity upon return to New Zealand. It was not the position that the applicant was exposed to being returned to his country of citizenship and no claim to fear persecution was raised in respect of the return of the applicant to New Zealand. No prima facie case is made out on this ground.  Nor does this ground give rise to any legal unreasonableness in the decision to cancel the applicant’s visa.

10. Having considered the applicant’s written and oral submissions, the Court was not persuaded that there was a prima facie case for the grant of injunctive relief and it was on this basis that the interlocutory application was dismissed.

11. The Court initially approached the application on the basis that the balance of convenience would lie in favour of the applicant if a prima facie case was made out. The respondent argued that, as the applicant had not cleared immigration and would be returning to New Zealand where the applicant could pursue a protection visa application, the balance of convenience weighed against the grant of the injunction even if a prima facie case was made out. There is considerable force in the respondent’s submission and, on balance, even if a prima facie case had been made out, the Court would have in this case refused the interlocutory relief as the balance of convenience in all the circumstances weighed against the grant of interim relief.

12. It is for these reasons that the Court made the interlocutory orders at the end of the telephone hearing and reserved the publication of its written reasons until today.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       18 February 2021