Rogers, M.K. v The Minister for Immigration, Local Government and Ethnic Affairs

[1993] FCA 759

JUDGMENT No. .... .,.l...l.IIH.l 7sq 93

IN THE FEDERAL COURT OF AUSTRALIA )	No. VG 423 of 1992
and VG 405 of 1993
VICTORIA REGISTRY GENERAL DIVISION

BETWEEN:	MICHELLE KATHLEEN ROGERS and HANN?iE LUCILLE LAPOLLA
Applicants

2 8 OCT 1993	AND :	THE MINISTER FOR
FEDERAL COURT OF	I M M I G R A T I O N ,

AUSTRALIA	LOCATA GOVERNMENT
PRINCIPAL
REDISTRY	A N D E T H N I C
AFFAIRS
Respondent

CORAM:	WILCOX J
PLACE :	MELBOURNE
DATE :	5 OCTOBER 1993

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: The matter for decision today is whether I should make an order, the effect of which would be to allow the . .

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certainly a serious question to be tried as to the validity of ; -.

applicants, Michelle Kathleen Rogers and her daughter, Hannah	\
,
Lucille Lapolla, to be released from detention pending final
. .
determination of the two Applications they have filed	:
I

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challenging a series of decisions purportedly made under the	8 ,
Miaration Act 1958 in respect of their entry into Australia.	I .
I do not think it is necessary to refer to all the facts disclosed in the evidence.	l

It seems to me that there is	, ,
i

the decision to cancel the entry visas held by MS Rogers and	-
her daughter on their arrival at Tullamarine Airport on 20 September last.
The power to cancel a visa is conferred by s.26 of the Act. That section simply says that the Minister may, at any time in his or her absolute discretion, cancel a valid visa. I assume that this power has been delegated to various officers of the Department of Immigration and Ethnic Affairs, including the officer who cancelled the visa, Silvanio
Palmacci	.

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Despite the absolute terms of the section, it- is apparently accepted by the respondent Minister that M r

Palmacci's decision would be bad on the ground of

unreasonableness unless there was a proper factual basis for

the exercise of the power. Counsel for the Minister submits

that Mr Palmacci was justified in cancelling the visas because

he discovered that they were issued on a basis that was	-
inappropriate, having regard to MS Rogers' intentions. The
visas were issued in San Francisco a few days before MS	Rogers' arrival in Australia.
MS Rogers applied in San Francisco for tourist visas, class 670. She gave as a contact point in Australia the name of David Westbrook, with a telephone number. Mr Westbrook was a person who was contemplating employing Robert James Locke, a person with whom MS Rogers had recently formed

a de facto relationship. It may be that Mr Locke had already started employment with Mr Westbrook when the visa applications were made. MS Rogers stated on the applications that she intended to stay in Australia for 14 days. She was granted visas, for herself and her daughter, valid for three months.

When MS Rogers was interviewed by Mr Palmacci, -she told him that she had come to Australia in order to be reunited with her boyfriend. She said that she was not intending to be here for a short-term holiday, but would be applying for a visa to enable her to remain in Australia with . .

M r ~ocke and, possibly, gain employment. - -

The course taken by MS ~ogers, whereby she came to

Australia before an application was lodged by Mr Locke, for himself, MS Rogers and Hannah to be allowed to stay in Australia in conjunction with his employment, was one

recommended to Mr Locke by Mr Westbrook. M r Westbrook made-

this recommendation after a conversation with an officer of

the Department, M r Phillip Moorby, at the Department's	Dandenong office. There may have been a misunderstanding
between Mr Moorby and Mr Westbrook. Mr Moorby said in an affidavit that he would not have encouraged the notion that MS Rogers should come to Australia before an application was made. Mr Westbrook attributed to Mr Moorby words to the effect that this course could be taken. I do not know what is the true position in regard to that conversation; but it seems that Mr Westbrook took from the conversation an impression that the course actually taken would be appropriate. He so informed M r Locke, who in turn advised MS Rogers to apply for a tourist visa and come to Australia. He told her that, as soon as she arrived, he would put in the appropriate application to allow them all to stay here. This is what she did.
I think that there is a serious question to be tried as to whether the true circumstances were contrary to the basis upon which the visas were issued. They were tourist visas entitling MS Rogers and Hannah to travel around -. ~ustralia as they wished. That included the right for. them td be with Mr Locke if MS Rogers so desired. The visas included a restriction on employment. MS ~ogers understood this. Her statement to Mr Palmacci about possibly gaining employment was dependent upon appropriate permission having first been granted.
Apart from the question whether there was a Francisco office of the Department and the true facts, the disconformity between the information given to the San
course that was taken was out of proportion to the necessities of the situation. As Mr Palmacci was aware, this was not a case where a person came to Australia without having made inquiries, or without having had inquiries made, as to the procedure that ought to be adopted. MS Rogers and Hannah were not people likely to disappear from sight, with whom there would be difficulty in making contact. This was a young woman travelling with a three year old child who had arrived from America and been met by her de facto husband. -While she was being held at the airport, the de facto husband, Mr Locke, explained the situation to Mr Palmacci and gave him Mr Westbrook's name. Mr Palmacci spoke to Mr Westbrook on the telephone and was informed of his conversations with Mr Moorby. M r Palmacci then spoke to Mr Moorby and recefved confirmation that Mr Westbrook had indeed visited the office of the Department in order to obtain advice. Under these circumstances, it should have been clear to Mr Palmacci that this was not a case of somebody attempting to mislead the . .
~e~artment. I see no necessity whatever for Mr Palmacci- to-
have taken the course he did, in cancelling the visas. ~t
surely would have been sufficient for him to emphasise to MS
Rogers the limitations which applied to the visas, both as to
the time during which she could remain in Australia, and the
prohibition on employment. If the Department had wished to
check up on MS Rogers from time to time, that would have been -
easy. They knew Mr Westbrook's address and telephone number.
I accept, of course that s.26 of the Miaration Act authorises the cancellation of visas in appropriate cases and that s.89 of the Act empowers officers to take consequential action at the point of arrival, including the detention of people in cases where this is necessary to ensure their return to the country from which they came. But this is a power that

should be exercised only in extreme cases, where this is necessary in order to protect the migration system from people who attempt to circumvent it with tricks and lies. This was not such a case. I think it most unfortunate that this young woman and her child have been detained for two weeks, for no purpose whatsoever so far as the protection of Australia's migration procedures are concerned. As I have said there is

certainly a serious question- to be tried. I think 'the

applicants have a very strong case.

The question arises as to the appropriate order. Counsel for the respondent helpfully suggests that, i'f	-.
contrary to his submissions I accept that there is a.	seribus

issue to be tried, the appropriate course would be to suspend -

the decision to cancel the entry visas. If I take this

course, automatically and without the necessity for any

further order, MS Rogers and ~annah will be free to leave

their place of detention. MS Rogers will, of course, continue

to be bound by the terms of the entq. visa issued to her in	-
San Francisco.

I propose to take that course. I order that, until

the hearing of the matter or further order, the decision made on behalf of the respondent, the Minister for Immigration and Ethnic Affairs, on 20 September 1993 to cancel the entry visas of Michelle Kathleen Rogers and Hannah Lucille Lapolla be suspended. I order that the costs of the application be applicantsr costs in the principal proceeding. I stand over

the matter to the directions list on 13 October 1993.

I certify that this and the preceding six (6) pages
are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate:

Dated:	5 October 1993
Counsel for the Applicants:	T V Hurley

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solicitors for the Applicants :	Rigby Cooke -	-
Counsel for the Respondent:	K H Bell
Solicitors for the Respondent:	~ustralian Government Solicitor
Date of hearing:	5 October 1993