Shandil v Minister for Immigration and Multicultural Affairs

[1999] FCA 1510

FEDERAL COURT OF AUSTRALIA

Shandil v Minister for Immigration & Multicultural Affairs [1999] FCA 1510

SAVITA DEVI CHAND SHANDIL v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1251 OF 1999

JUDGE:  SACKVILLE J
PLACE:  SYDNEY

DATE:  1 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1251 OF 1999

BETWEEN:	SAVITA DEVI CHAND SHANDIL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	SACKVILLE J
DATE OF ORDER:	1 NOVEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application for an interim injunction be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1251 OF 1999

BETWEEN:	SAVITA DEVI CHAND SHANDIL Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	SACKVILLE J
DATE:	1 NOVEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an ex parte application for an injunction to restrain the removal of the applicant from Australia.  The application has been brought on before me this morning at about 10.30am.  It is said that the aircraft on which the applicant is to be removed is to leave Australia at 11.40am. 

2. I should say at the outset that I do not propose to grant an injunction to restrain the removal of the applicant.  I shall state my reasons briefly.

3. Before doing so, however, I wish to emphasise that in matters of this kind the Court should be given the maximum feasible opportunity to consider the issues at stake.  The evidence indicates that the applicant's solicitor was contacted at about 10.15pm yesterday evening.  At that stage, the applicant was apparently in detention at Sydney airport, having arrived from Fiji at about 3.00pm yesterday.

4. While these cases place very considerable pressures upon legal practitioners, it is less than satisfactory that the issue should be presented to the Court some fifty minutes or so before the aircraft is said to be ready for departure.  Certainly I have been available since early this morning as the Duty Judge.  The matter could have been brought to my attention for hearing, even without completion of all of the documentation, well before 10.30am.

5. Be that as it may, the applicant faces two difficulties.  The first relates to the ground of review.  I have been told by Mr Young of counsel that the applicant wishes to challenge the cancellation of a visa that was apparently granted to her in Fiji for permanent residence in Australia.  That visa is a Spouse (Provisional) (Class 309) visa, apparently granted on the basis of her marriage to an Australian citizen.  The evidence indicates that that marriage took place in Fiji on 2 July 1999.  The applicant says that the cancellation of the visa was justified by the Minister’s delegate on the basis that the marriage was simply one of convenience.  The applicant apparently denies that the marriage was a sham.

6. I asked Mr Young what ground is relied upon under the Migration Act 1958 (Cth) to challenge the decision to cancel the visa. Mr Young, and I mean no criticism by this, was unable to identify the basis of the challenge beyond stating that the applicant disputes the factual basis for the decision. It is, of course, necessary before any injunction be granted that there be a serious issue to be tried as to the relief sought by the applicant. In the absence of any clear basis for a challenge to the decision to cancel the visa, I am unable to conclude that there is a serious issue to be tried.

7. The second difficulty faced by the applicant is that there is nothing to indicate that she will be unable to challenge the decision to cancel her visa if she were to be returned to Fiji.  It is true, on the basis of the evidence before me, that she will be inconvenienced by being returned to Fiji.  Indeed, having regard to the ceremonial wedding that took place, there is a possibility that she may experience some embarrassment before her family and friends by reason of her removal from Australia to Fiji.

8. Nonetheless, there is nothing to suggest that the applicant will be unable to pursue any challenge she wishes to make to the cancellation of the visa if she is returned to Fiji.  Moreover, there is no evidence to suggest that the applicant will be at risk of harm in Fiji.  The case is different from one that involves a claimant for refugee status who genuinely fears harm if returned to his or her country of origin.

9. In assessing the balance of convenience it would, of course, have been necessary to take into account the interests not only of the Minister, but also passengers on the aircraft and indeed the carrier.  It is to be remembered that the flight might well have been delayed by reason of the lateness of the application and, therefore, of any order.  In the event, on the evidence, there does not seem to be irreparable prejudice to the applicant given that she will be free to pursue her claim, if she has one, to challenge the validity of the decision to cancel her visa.  Should that challenge succeed, doubtless she will be able to take up permanent residence in this country.

10. For these reasons, I am not prepared to grant the injunction that is being sought.  The application is therefore dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             1 November 1999

Counsel for the Applicant:	Mr J Young
Solicitor for the Applicant:	M S Nair & Co
Counsel for the Respondent:	None
Date of Hearing:	1 November 1999
Date of Judgment:	1 November 1999