Srouji v Minister for Immigration

[2013] FCCA 1279

FEDERAL CIRCUIT COURT OF AUSTRALIA

SROUJI v MINISTER FOR IMMIGRATION [2013] FCCA 1279

Catchwords:
MIGRATION – Review of decision of a delegate to cancel the applicant’s tourist visa – the delegate erred by not allowing sufficient time for the applicant to respond to a Notice of Intention to Cancel the visa.

Legislation:

Migration Act 1958 (Cth), ss.116, 118A, 119, 120 121, 122, 125, 126, 192

Migration Regulations 1994 (Cth)

Commissioner of ACT Revenue v Alphaone (1994) 49 FCR 576
Kioa v West (1985) 159 CLR 550
SZBYR v Minister for Immigration (2007) 81 ALJR 1190
WABZ v Minister for Immigration (2004) 134 FCR 271; (2004) 204 ALR 687

Zhang Jia Qing v Minister for Immigration (1997) 149 ALR 519
Zhaou v Minister for Immigration [2002] FCA 748

Applicant: WALID SALIM SROUJI

Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

File Number: SYG 1978 of 2013

Judgment of: Judge Driver

Hearing date: 5 September 2013

Delivered at: Sydney

Delivered on: 13 September 2013

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Robert Balzola and Associates

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Court declares that the applicant’s sub class 601 visa was not validly cancelled.

2. A writ of certiorari shall issue removing the record of the visa cancellation decision into the Court to be quashed.

3. A writ of mandamus shall issue commanding the respondent to determine, according to law, whether the applicant is to be immigration cleared.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1978 of 2013

WALID SALIM SROUJI

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. I have before me an application in amended form filed in court on 5 September 2013 to review a decision of a delegate of the Minister, made at Sydney airport on 16 August 2013 to cancel the applicant’s (Mr Srouji’s) sub class 601 visa, pursuant to s.116(1)(g) of the Migration Act 1958 (Cth) (Migration Act), when read with regulation 2.43(1)(ea) of the Migration Regulations 1994 (Cth) (Regulations) (decision). There are four grounds in the amended application:

   1. The delegate failed to comply with s.121(3)(b) of the Migration Act in that the time specified in the invitation to respond to the delegate’s intention to consider cancellation of his visa was not a “reasonable period”.

   2. The delegate erred in failing to take into account corroborative information which she obtained during her telephone conversation with the applicant’s friend Mirbat Al-Ayoubi which commenced at about 7.22pm on 16 August 2013.

   Particulars

   (a)Information as to the applicant’s proposed accommodation in Australia,

   (b) Information about the intended duration of his stay in Australia.

   (c) Information about his intention to see parts of Australia in the company of Ms Al-Ayoubi.

   (d) Information that Ms Al-Ayoubi gave about her intention to travel with the applicant to Malaysia and Turkey.

   3. The delegate acted in breach of section 120(2) of the Migration Act.

   Particulars

   (a) The delegate failed [to] inform the applicant of information that she obtained from Ms Al-Ayoubi that conflicted with that given by the applicant as to any or all of the following;

   (i)     the applicant’s travel intentions upon leaving Australia.

   (ii)    the time that he intended to stay in Australia.

   (iii)   The reasons why he carried copies of his qualification with him.

   4.      The delegate breached the requirements of natural justice.

   Particulars

   (a) Failure to advise the applicant of the purpose of his interview with the delegate (being whether his visa should be cancelled because he was not or no longer had the intention to be a tourist) for more than two hours after the interview commenced.

   (b) Failure to advise the applicant that he may obtain legal assistance until after his visa was cancelled.

2. The matter came before me on an urgent basis on 22 August 2013 in the context of what then appeared to be the impending removal of Mr Srouji from Australia following the cancellation of his visa.  As the Minister’s representatives were not instructed to give any undertaking that Mr Srouji would not be removed pending the Court’s resolution of the matter, I granted an injunction restraining his removal until 7.00pm on 5 September 2013.  That was on the basis that the application was listed for hearing at 10.15am on that day.  The matter was heard on that day over a full day.  I elected to reserve judgment and extended the injunction until judgment was delivered.

3. Mr Srouji relies upon his own affidavit made on 3 September 2013 and the affidavit of his friend Mirvat Al-Ayoubi made on 29 August 2013.  I also received the affidavit of Robert  Balzola (Mr Srouji’s solicitor) made on 4 September 2013 for the purpose of introducing a transcript of the record of interview conducted by the Minister’s delegate (Ms Chang) with Mr Srouji at Sydney airport prior to the cancellation of the visa.  Mr Srouji and Ms Al-Ayoubi were cross-examined on their affidavits.  I found both to be generally plausible witnesses although I consider that Ms Al-Ayoubi’s evidence was influenced by a number of factors including her emotional state on the night Mr Srouji was detained at Sydney airport (which in my view affected her powers of recall) and an understandable desire to give evidence to support Mr Srouji’s application. 

4. The Minister relies upon the affidavit of Karen Chang (the delegate who made the decision) made on 30 August 2013.  Ms Chang was cross-examined on her affidavit.  I found Ms Chang to be a reliable witness.  I also received, without cross-examination, the affidavits of Hervee Dupont Dejean (the Minister’s solicitor) made on 2 September 2013 for the purpose of introducing relevant documents and the affidavit of Dale Jennifer Watson (another solicitor representing the Minister in this matter) made on 22 August 2013 for the purpose of introducing other relevant documents including the Notice of Intention to Consider Cancellation of the visa and the delegate’s notes. 

5. Counsel for the Minister also tendered paragraphs 5 and 7 of an affidavit made by Mr Srouji on 20 August 2013 for the purpose of earlier proceedings in the Federal Court of Australia.  I understand that those proceedings were terminated due to a jurisdictional issue.

6. The following statement of uncontroversial facts relating to this matter is derived from the applicant’s outline of submissions.

7. Mr Srouji, a citizen of the United States, usually resident in Lebanon, was stopped during entry procedures at Sydney airport and taken into questioning to determine whether his visa should be cancelled pursuant to s.116 of the Migration Act. A transcript of the interview is annexed to the affidavit of Robert Balzola. Mr Srouji’s affidavit attests to certain matters pertinent to the context of that interview.

8. During the course of the interview Mr Srouji gave the interviewer, Karen Chang (referred to in the transcript as “Ms Kerrin”) the mobile telephone number of his friend who had come to pick him up at the airport, Mirvat Al-Ayoubi. During the evening Ms Chang telephoned Ms Al-Ayoubi.

9. Ms Chang’s notes of the conversation are located at pages 13-14 of the affidavit of Dale Watson. Ms Al-Ayoubi’s recollection of parts of that conversation is recorded in her affidavit.  Ms Chang has disputed parts of Ms Al-Ayoubi’s recollection in her affidavit.

10. Following his interview Mr Srouji’s visa was cancelled pursuant to s.116(1)(g) of the Migration Act, read with regulation 2.43(2)(ea) of the Regulations and he was denied immigration clearance. He was taken to Villawood Immigration Detention Centre where he remains.

Consideration

Was Mr Srouji given a reasonable time to respond to the Notice of Intention to Cancel his visa?

1. Mr Srouji contends that the delegate breached s.121(3)(b) of the Migration Act. What is a reasonable period for the purposes of that section will depend upon a range of circumstances, including those individual to the visa holder[1].  The question of whether a period is reasonable is an objective one.  In Zhaou at [78] the Federal Court stated:

   Absent s 474 considerations, what is a reasonable period for the purposes of s 121(3)(b) of the Act would fall to be considered in light of all the circumstances of the case as they existed when the time of the interview is fixed. These circumstances may include the nature of the cancellation grounds that the decision-maker is considering, the personal attributes of the visa holder (i.e., age, facility in the English language, physical infirmity or well-being), the presence of an interpreter or lawyer, the visa holder's familiarity with the matters of concern to the decision-maker, the circumstances in which the decision falls to be made, and the availability of matters corroborative of the applicant. Regard would also be taken of the statutory context and purpose of s 121(3)(b) of the Act.

   [1] Zhaou v Minister for Immigration [2002] FCA 748 at 78; Zhang Jia Qing v Minister for Immigration (1997) 149 ALR 519 at 530

2. The uncontested evidence is that Mr Srouji had disembarked in Sydney after a long plane journey from Lebanon via Cairo and Singapore.  He had had little sleep over three days.  In Cairo he had to be evacuated due to civil disturbances.  He suffers from high blood pressure and high cholesterol and had apparently suffered a mild heart attack shortly prior to coming to Australia.  All of this was known to the delegate.

3. Mr Srouji was only given 20 minutes to respond to the Notice of Intention to Cancel his visa after an interview which had begun some two and a half hours earlier (with several interruptions and adjournments and following an earlier bag search)[2].  He initially was given to understand that the interview related to the question of whether he would be immigration cleared.  Mr Srouji made clear to the delegate that he held a valid visa and obviously felt he was entitled to enter Australia.  It was only when Mr Srouji was given the Notice of Intention to Cancel his visa that he understood that the visa might be taken from him.  Although he had been willing to participate in the interview and was anxious to get it over with quickly initially, I am concerned that his capacity to deal adequately with the Notice of Intention to Cancel was affected by his tiredness, the late hour and his state of health. 

   [2] According to the transcript and the delegate’s notes, the interview commenced at 6.17pm and the Notice of Intention to cancel the visa was served at 8.46pm. I received no submissions on the operation of ss.125 and 126 of the Migration Act.

4. Further, Ms Al-Ayoubi had been waiting at the airport to collect Mr Srouji.  She was distressed when he did not appear.  It is common ground that the delegate spoke to Ms Al-Ayoubi in order to seek information which would either corroborate or discredit what Mr Srouji had said to the delegate at the interview.  To the extent that Ms Al-Ayoubi’s evidence conflicts with that of the delegate, I prefer that of the delegate for the reasons explained above.  However, even on the account of the delegate, Ms Al-Ayoubi’s information tended to corroborate the proposition that Mr Srouji was a genuine tourist.  The delegate gave evidence that she did not take into account Ms Al-Ayoubi’s information.  Whether that was because it was not of assistance in supporting the cancellation decision, or because she did not want to have to disclose it to Mr Srouji, or (as stated) because the delegate had difficulty in confirming Ms Al-Ayoubi’s identity[3] is not clear. 

   [3] she had offered her driver’s licence to confirm her identity but that had been declined

5. Counsel for Mr Srouji contends that the information provided by Ms Al-Ayoubi did form part of the decision to cancel the visa.  That is strongly contested by counsel for the Minister.  The delegate, under cross-examination, stated that she did not take it into account although she had sought out the information as relevant information.  In my view, because the information proffered by Ms Al-Ayoubi was supportive of Mr Srouji as a genuine tourist, and because it was not taken into account, and because Ms Al-Ayoubi was waiting at the airport in order to be spoken to again (but no one came back to her to further assist, even though she had been told to wait), the period of time to respond was inadequate.  Sufficient time needed to be given to at least locate Ms Al-Ayoubi so that her information could be clearly understood and taken into account.

6. For these reasons, I find that s.121(3)(b) of the Migration Act was breached and Mr Srouji should receive the relief sought in the amended application.

Other matters

1. It is not strictly necessary to consider the other grounds in the amended application.  For completeness, I will consider them briefly.  Mr Srouji contends that the delegate erred by failing to take into account corroborative information.  The argument on the issue was caught up in the contest over the differing accounts of the delegate and Ms Al-Ayoubi about what they said to each other.  As stated above, I prefer the evidence of Ms Chang.  Because I prefer her account, it is unlikely that this ground could succeed in the terms that it was advanced, but, on the basis of the delegate’s evidence, there was still corroborative material which ought to have been taken into account and which was not taken into account.  If more time had been given for Mr Srouji to respond to the Notice of Intention to Cancel and if Ms Al-Ayoubi had been asked to clarify her information, then a properly informed decision could have been made.

2. Mr Srouji asserts that s.120(2) of the Migration Act was breached because the delegate did not disclose Ms Al-Ayoubi’s information to Mr Srouji. I reject that ground because, even on the delegate’s account, Ms Al-Ayoubi’s information was not adverse information. Even if it could be regarded as adverse information, because it was not entirely consistent with the answers provided by Mr Srouji to the questions put to him at the interview, then the inconsistencies would not be “information” for the purposes of the section[4].  Further, I accept the evidence of the delegate that the information from Ms Al-Ayoubi did not form part of the reasons for the decision to cancel the visa.

   [4] SZBYR v Minister for Immigration (2007) 81 ALJR 1190

3. Mr Srouji also alleges a breach of procedural fairness.  This relates to the interview and whether Mr Srouji was told sufficiently clearly what the interview was about and whether he should have been told earlier that he could seek advice and assistance.

4. I accept the submission of counsel for Mr Srouji that the interview should be considered in two parts. The first part is transcribed at T 1-33. That appears to have been authorised by s.192(3) of the Migration Act. The second part involved the formal cancellation of the visa pursuant to the procedure in ss.119-122 of the Migration Act. That is subject to restrictions on rights to procedural fairness in s.118A. The first part of the interview was not so restricted.

5. Section 192(1) only operates when an officer knows or reasonably suspects that a non‑citizen holds a visa that may be cancelled.  A basic requirement of procedural fairness is that a person be informed of the issues[5].

   [5] see Kioa v West (1985) 159 CLR 550, 587 per Mason J; Commissioner of ACT Revenue v Alphaone (1994) 49 FCR 576, 590-1

6. I accept the submission that procedural fairness comprises a duty to act fairly, and in the present circumstances, requires that the person who is questioned pursuant to s.192(3) is told the reason for the questioning so that he is able to respond in a way that addresses the issue. Those requirements were not met in this case by the statement at transcript page 1[6]:

   So are you willing to participate in an interview with immigration officer to determine your eligibility for immigration clearance today

   because, first, “immigration clearance” is a term of art, secondly, the applicant did not know what it meant[7], and thirdly denial of “immigration clearance” was a result of the cancellation of a visa, and not the immediate issue.

   [6] cf T 3-4

   [7] T 4

7. Finally, Mr Srouji was not told of his right to a lawyer until after his visa had been cancelled. In the circumstances of this case, where his exclusion from the country was at stake, procedural fairness arguably required him to be informed of this right[8].

   [8] cf WABZ v Minister for Immigration (2004) 134 FCR 271; (2004) 204 ALR 687

8. It is clear from the transcript that, once he was told of the opportunity to seek assistance, Mr Srouji indicated very clearly that he wanted assistance from the United States consulate as well as from a legal advisor.  There is little doubt that if he had been told of that opportunity before the visa was cancelled, he would have sought to take advantage of it.  The delegate gave evidence that it is the policy of the Minister’s Department not to inform detained persons of their right to receive advice and assistance, although if they demand it, they are given that opportunity.  I do not accept that the policy is necessarily procedurally unfair.  However, there are circumstances where its application may be unfair.  Those include circumstances where the information available to the decision maker is not clear cut, where technical issues may be involved, and where the individual detained is suffering from some form of disability.  It is apparent from the transcript in this matter that Mr Srouji’s problem was largely that he was unable to get the delegate to understand that his plans for his stay in Australia were in a state of flux.  His inability to communicate his situation clearly may well have been affected by his tiredness, the lateness of the hour and his state of health.  Because the case was not clear cut and because of the circumstances of Mr Srouji, in my view, he should have been informed before the visa was cancelled of his right to obtain advice and assistance.  I will make the orders sought in the amended application in modified form.

9. I will hear the parties as to costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  13 September 2013