Vipermaneerode, W. v The Minister for Immigration and Ethnic Affairs
[1993] FCA 482
•8 Jul 1993
JUDGMENT No. ........ ........ . -..... G a y 1 Q 3
IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION ) No. VG 227 of 1993 B E T W E E N :
WASANA VIPERMANEERODE
Applicant
- and -
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
Coram: Olney J Place: Melbourne Date: 8 July 1993
MINUTE OF ORDERS
THE COURT ORDERS THAT:
1. Until determination of the application or until further order, the respondent be restrained from giving effect to the deportation order made on 30 June 1993;
short notice; 2. The applicant attend on Megan Cooper at the Department of Immigration and Ethnic Affairs today after 2.00pm with a view to entering into an undertaking in relation to her continued release from custody;
3. In the event that the parties are unable to reach an acceptable undertaking, there be liberty to apply on
AND DIRECTS THAT:
4. (a) The applicant file any further affidavit material by 13 July 1993; (b) The respondent file any further affidavit material by 16 July 1993; (c) Any notices requiring the attendance of witnesses for cross-examination be given on or before 19 July 1993; (d) The application be listed for hearing on 21 July 1993 (estimated time of hearing - 2 days); 5. Costs of this application be reserved.
NOTE: Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY )
GENERAL DIVISION
)
No. VG 227 of 1993
B E T W E E N :
WASANA VIPERMANEERODE
Applicant
- and -
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
Coram: Olney J
Place : Melbourne Date: 8 July 1993
EX TEMPORE JUDGMENT
The applicant was granted an entry permit, known as a student dependent entry permit, which was valid at 26 May 1993. It was conditional, inter alia, upon the applicant not working
more than 20 hours per week. Pursuant to the Immigration Regulations such a condition is deemed to be a terminating condition, the breach of which renders the entry permit liable
to immediate cancellation.On 26 May 1993, in the early evening, the applicant was found to be working as a cook at the Thai Oriental Cafe at 432 Bridge Road in Richmond. She was interviewed by an officer of the Department of Immigration and Ethnic Affairs, one Megan Cooper, who formed the view on the material supplied to her that the applicant had breached the terminating condition referred to. MS Cooper thereupon determined that the applicant had failed to comply with the terminating condition and in her capacity as a delegate of the Minister, gave notice of her determination to the applicant.
Subject to anything that may be said in a moment concerning the actual form of the notice, and assuming that the form of notice was not deficient, the effect of giving notice of the determination was that the entry permit ceased to have effect and the applicant became an illegal entrant. This being so, pursuant to other powers contained within the Act the applicant was taken into custody. She was subsequently released, again in accordance with provisions in the Act. On 1 June 1993 she was again interviewed by MS Cooper, this time in the presence of her husband and an interpreter. A deportation order was made on 30 June 1993.
interview on 1 June 1993, upon the submission of further It is said that MS Cooper had indicated following the material she would reconsider her decision, and in a letter of 4 June 1993 she indicated that she had given attention to new material that had been supplied but that she saw no basis to change the original decision which clearly she based upon the information that she had obtained on 26 May 1993.
The applicant's complaint is that the procedure adopted on 26 May 1993 was flawed in that it is said that she was denied natural justice and that the procedure adopted was unreasonable and other grounds are raised in the application, all of which really amount to a complaint by the applicant that she did not understand what was going on because the interviews on 26 May 1993 were conducted in English, which is not her first language, and she was not afforded the opportunity of having an interpreter to assist her.
The critical part of MS Cooper's initial conversation with the applicant was a response that MS Cooper says she was given to a question as to what hours the applicant worked at the restaurant. From the material presented it seems to me that at no stagd did the applicant specifically say that she worked 25 or any particular number of hours, but rather she said she worked from 12 noon to 5pm five days a week. It is common cause that the applicant did not indicate that within that span of hours she took an hour off between 3pm and 4pm, and
what she was told (as to which there is no dispute) to understanding and interpretation, it was open to Cooper on therefore it would seem that even given the difficulties of conclude that a period of 25 hours was worked. After the initial interview, a second interview took place in a room on the premises but not in the general business area of the restaurant. At that interview MS Cooper completed a standard form of "Questionnaire of students who are suspected of breaching the conditions of their entry permits in that they are working in excess of 20 hours per week."
The questionnaire contains some 18 standard questions, most but not all of which were relevant to the particular inquiry being conducted. MS Cooper wrote what she says were the applicant's answers to each question. The following questions and answers are relevant.
Question 7: How many hours per week do you work for thrs company?
Answer:
From 12-5pm Mon - Friday for last two years.
This appears to be basically the same answer as (according to MS Cooper) had been given orally prior to the completion of the questionnaire. I understand that the applicant disputes that those words, or words to that effect, were said.
Question 15: Were there any conditions on your visa?
Answer :
I can work 24 hours per week.
Question 16:
Were you aware that as a student in Australia you are not allowed to work in excess of 20 hours per week while your course is in session?
Answer:
No, I thought I could work 24 hours per week.
Question 17:
Are you aware that by workrng in excess of 20 hours per week while your course is in sessron you are in breach of the cond~trons of your entry permrt and therefore your entry permit could be cancelled?
Answer :
NO.
The fact is that the applicant was not engaged in any course at the time but was a "secondary person" for the purposes of the relevant regulations and her entitlement to work was not related to the currency or otherwise of a course.
Question 18: Are there any reasons why your entry permit should not be cancelled?
Answer:
I have to work to wait for my husband to finish school and to support ourselves. I didn't know I was only allowed 20 hours work per week.
The applicant signed the questionnaire which she dated 26 May 1993. Following the applicant's signature, MS Cooper has written:
Assessment
A/n (sic) admitted worklng 24 hours per week. She claims she was not aware that she could only work 20 hours. Perm~t terminated as in breach of terminating condition. Decision
discussed with Mr Llakopoulos.
I think the question of whether or not there is a serious
question to be tried turns upon whether or not the interview and the completion of the questionnaire was conducted in a manner which was procedurally fair and which enabled the applicant to fully and fairly state her position.
I have referred, first of all, to the question of the absence
of an interpreter. There is conflicting evidence as to whether or not the applicant requested an interpreter. There is no doubt no interpreter was available to her. There is some evidence that suggests that some time ago she was
enrolled in a course in respect of which it was a condition of
enrolment that she had sufficient understanding of English to
be able to pursue that course. I am not able to make any qualitative assessment as to what degree of English was required for that course and I do not think that issue is relevant in the present circumstances. The question of whether or not an interpreter was sought by the applicant is one that I cannot determine on the affidavit evidence there being a conflict between the applicant and MS Cooper on that question. However, there is evidence upon which it could be said that the applicant was obviously in an upset condition when interviewed, and one would expect this to be the case given the circumstances in which the interview was carried out. It seems that by the time the written questionnaire was completed, the applicant had been made aware that she was suspected of breaching a condition of her entry permit and that she was possibly liable to be arrested and deported.
There is conflicting evidence as to the extent to which the applicant understood what was being said to her at the time. The applicant asserts that she did not have a clear understanding of what was being said, whereas MS Cooper's statement is quite to the contrary. It does not appear that there was any third person present at the time the questionnaire was completed. The Court is therefore faced with conflicting testimony as to the applicant's emotional state and her degree of understanding.
subsequent to the interview of 26 May 1993, which throws any I cannot find anything in the material that was produced light upon the real issue, namely, the question of whether the interview was conducted fairly and in a manner appropriate to the circumstances. Whether or not an interpreter was asked for, one would have thought that, in the ordinary process of the administration of this legislation, breach of which has the most dire consequences, it was reasonably foreseeable that difficulty in communication may be experienced, particularly in circumstances where all of a sudden an interviewee is likely to be placed under considerable stress. It is not for the Court to dictate how the department carries out its functions, and it is appreciated they are difficult enough, but our law does give to all residents of Australia, whether they be citizens or not, certain fundamental entitlements and one of those is that in matters of this type there be a degree of fairness to ensure that rights are not unreasonably trampled upon.
Having said that, I have formed the view that there is a serious question to be tried as to the fairness of the interview conducted on 26 May 1993. In those circumstances it
| - is unnecessary for me to look to the other question that arises here, namely what is said to be the informality of the notice given by Ms Cooper. It may well be that the notice was informal, but I do not have to give any consideration to that issue at this time, having formed the view that there is a serious question to be tried. | The balance of convenience lies very heavily in favour of the | applicant remaining in Australia pending the final | ||
| determination of her application for review. It is said that she is prepared to undertake to abide by what are commonly called "bail" conditions, as to which I will hear counsel. There does not appear to be any suggestion that she is likely to abscond, and in the circumstances the balance lies heavily in favour of her remaining in order to instruct her advisers and to be present at the time that the application for substantive relief is heard and determined. | ||||
| In those circumstances it is appropriate that I should make an order restraining the respondent from giving effect to the deportation order made on 30 June 1993. I also think it is appropriate that an order should be made to expedite the hearing. | ||||
| I make the following orders: | ||||
|
continued release from custody; 3. In the event that the parties are unable to reach an acceptable undertaking, there be liberty to apply on short notice;
4. I direct as follows: The applicant file any further affidavit material by 13 July 1993; the respondent file any further affidavit material by 16 July 1993; any notices requiring attendance of witnesses for cross- examination be given on or before 19 July 1993; and that the application be listed for hearing on 21 July,
estimated duration of two days;
5. The costs of this application are reserved.
I certify that this and the
preceding 9 pages is a true copy of the Ex Tempore Judgment of the Honourable Mr Justice Olney
Associate : K,*slpWr
Mr G. Moloney (instructed by Law Partners) appeared for the applicant.
Mr T. Hurley (instructed by the Australian Government
Solicitor) appeared for the respondent.
Date of Hearing: 8 July 1993 Place: Melbourne Date of Judgment: 8 July 1993
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