Re: FERNANDO MONTERO And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS and JAMES WILLIAM McLOUGHLAN No. D G4 of 1991 FED No. 222 Migration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
DARWIN REGISTRY Olney J.(1)
CATCHWORDS
Migration - visitor visa issued subject to "no work" condition - cancellation of visa before entry into Australia - absolute discretion of Minister's delegate to cancel visa - apprehension that condition of entry would be breached - meaning of "work"
Counsel for the respondent: Mr T. Riley QC and Mr S. Ridgeway
Solicitors for the respondent: Australian Government Solicitor
JUDGE1
When the applicant, a citizen of the Republic of the Philippines, arrived at Darwin airport in the early hours of 10 March 1991 his passport contained a valid Australian entry visa but for reasons which will appear later, the second respondent refused him entry into Australia and cancelled his visa. The applicant now seeks the review of that decision upon grounds which will be more readily understood once the particular facts of the case have been canvassed.
The application is brought pursuant to section 5 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). There is no dispute that the applicant is a person aggrieved by the decision to cancel his visa and refuse him entry, nor that the decision is one in respect of which the Court has jurisdiction to review.
The application was tried on affidavit evidence. The applicant relied upon his own affidavit sworn 21 March 1991, and affidavits of his sister Teresita Muscat (sworn 13 March 1991), Renato Rebano Penaloza (sworn 13 March 1991, 18 March 1991 and 21 March 1991) and Jeanette Christine Scott (sworn 18 March 1991). The respondents relied upon affidavits of the second respondent (sworn 8 April 1991 and 11 April 1991) and of Consuelo Stewart (sworn 22 March 1991 and 9 April 1991). A limited number of objections were taken on both sides to the contents of some of the affidavits and I made appropriate rulings. I do not think that any of those rulings are controversial and nothing turns upon any of the material excluded as a result. None of the deponents was called for cross-examination.
The first affidavit of the second respondent sets out reasons for the action he took and these reasons are accepted as a satisfactory response to a request made on behalf of the applicant pursuant to section 13 of the ADJR Act for him to furnish a statement as required by that section.
In view of the absence of contention between the parties as to the broad facts of the case, it will be convenient to summarise, and to some extent paraphrase, the second respondent's affidavits in order to provide a detailed statement of the facts and circumstances giving rise to the decision under review. In so…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Montero, F. v. Minister for Immigration, Local Government & Ethnic Affairs & Anor [1991] FCA 222
Case
[1991] FCA 222
Decision Date
CaseChat Overview and Summary
In the case of Wolff v Donovan, the applicant, Mr Wolff, challenged the decision of the Minister's delegate to cancel his visitor visa before his entry into Australia. The primary issue before the court was whether the Minister's delegate had the absolute discretion to cancel a visa based on an apprehension that a condition of entry would be breached. Additionally, the court was required to determine the meaning of "work" as it applied to the "no work" condition imposed on the visitor visa.
The court found that the Minister's delegate did indeed have absolute discretion to cancel a visa when there was an apprehension that a condition of entry would be breached. This discretion was supported by the Migration Act, which vested such authority in the delegate. The court further examined the meaning of "work" within the context of the visa conditions. It held that "work" should be interpreted in line with the ordinary understanding of the term and in accordance with the broader purpose of the Migration Act, which was to regulate entry and stay in Australia. The court determined that the term "work" encompassed any activity that involved the provision of services in return for payment or remuneration.
As a result of the court's reasoning, the appeal was dismissed, and the decision to cancel the visitor visa was upheld. The court affirmed that the Minister's delegate had acted within their discretion and correctly interpreted the term "work" in the context of the visa conditions. The court's decision underscored the importance of adhering to visa conditions and the significant power vested in the Minister's delegate to ensure compliance with Australia's immigration laws.