Louis Wiryaismaja & Anor v Minister for Immigration & Multicultural Affairs [1998] FCA 1039 (4 August 1998)

Last Updated: 3 September 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 793 of 1998

BETWEEN:	LOUIS WIRYAISMAJA First Applicant STANLEY SUHENDRA Second Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	4 AUGUST 1998
PLACE:	SYDNEY

THE COURT ORDERS THAT:

The Minister be restrained from removing the applicants from Australia prior to 6 August 1998.

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	NG 793 of 1998

BETWEEN:	LOUIS WIRYAISMAJA First Applicant STANLEY SUHENDRA Second Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	4 AUGUST 1998
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

HIS HONOUR: I have before me an application under section 476 of the Migration Act 1958 (Cth) ("the Act") seeking relief in relation to a decision made by a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to revoke temporary visas issued to Louis Wiryaismaja and Stanley Suhendra ("the Applicants"). It is common ground that the decision falls within section 475(1)(c) of the Act.

The Applicants are residents and nationals of Indonesia and arrived in Australia early yesterday morning with the benefit of sub-class 676 tourist short-stay visas. They were interviewed by Departmental officers on their arrival and during the course of yesterday the visas were cancelled pursuant to section 116(1)(g) of the Act which provides as follows:

The Minister may cancel a visa if he or she is satisfied that a prescribed ground for cancelling a visa applies to the holder.

Regulation 2.43.1(j) provides as follows:

In the case of the holder of a sub-class 676 tourist short-stay visa, a ground for cancellation is that the Minister is satisfied that the visa holder did not have or has ceased to have an intention only to visit or remain in Australia as a visitor temporarily for the purpose of visiting an Australian citizen or permanent resident who is a parent, spouse, child, brother or sister of the visa holder or for another purpose other than a purpose related to business.

The evidence before me at this stage indicates that the decision to revoke the visas was based on answers given in interview by the Applicants and on observations made by relevant officers. The first applicant brought with him his tools of trade as a watchmaker and watch repairer. In answer to questions, he said that he had been asked by family members to repair their watches. The second applicant is the first applicant's son. He brought with him other materials relating to his qualifications which induced the Departmental officers to conclude that he also had an intention to work.

Both Applicants have filed affidavits in which they accept that they were asked whether they intended to work and that they said that they did but would only do so if permission was granted. I made an order ex parte early this morning purporting to stay the decision to revoke the visas. That order was made on short notice in circumstances where there was a proposal that the Applicants be removed from Australia shortly after 9 o'clock this morning. The order which I made was not appropriate and I propose to revoke that order. The question now is whether I should grant an interlocutory injunction restraining the Minister from removing the Applicants from Australia pending the final determination of the proceedings.

The grounds relied upon by the Applicants are those specified in paragraphs (a), (e) and (g) of section 476(1) of the Act. In relation to paragraph (g) the contention is that section 476(4)(a) applies because the decision could have been made only if it was established that the Applicants had an intention to work in Australia. I consider, on the material before me, that there was clearly evidence which would have justified that matter being established to the satisfaction of the officers acting reasonably. Accordingly, I do not consider that there is any arguable ground based on section 476(1)(g).

The formulation of the ground under section 476(1)(e) appears to be no more than a reformulation of the ground in paragraph (g). I am not satisfied that there is any reasonable argument that there has been a decision involving an error of law such as is described in paragraph (e).

In relation to ground (a), it is contended that procedures required by section 119 of the Act were not observed. Section 119 relevantly provides as follows:

(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and

(b) invite the holder to show within a specified time that:

(i) those grounds do not exist; or

(ii) there is a reason why it should not be cancelled.

The evidence is not in a satisfactory state at present. At the time when I was asked earlier today to grant orders ex parte, no reliance was placed on a failure to comply with section 119 and it may be that reliance upon section 476(1)(a) is something which has developed during the course of the day.

Be that as it may, the Minister was not informed until late this afternoon, during the course of argument, that the ground sought was non-observance of section 119. Because of those circumstances neither the affidavits of the Applicants nor the evidence tendered on behalf of the Minister is directed to that question. The evidence presently before me comprises affidavits by each of the Applicants and migration inspectors' reports in relation to interviews of each of the Applicants. The affidavits are capable of being construed as evidencing all of the discussion which the Applicants understood in the course of the interviews.

I would not be satisfied that there was a serious question to be tried on the basis of the affidavits alone. However, the reports specifically advert to section 116 of the Act and purport to summarise the interviews which occurred, although they by no means purport to be a transcription of what was said. No mention is made of the specific language of section 119 although one might expect that, if a migration officer was mindful of the requirements of section 119, a report such as this would include a summary of the steps taken in order to observe the requirements of section 119.

In those circumstances, while I am not yet satisfied that there is a serious question to be tried as to non-observance of section 119, I consider that it would be appropriate to give both the Applicants and the Minister an additional opportunity to put on evidence relevant to the determination of that question on an interlocutory basis. I do not have before me at the moment any satisfactory evidence as to the balance of convenience so far as the Minister is concerned and I intend no criticism of anybody in making that observation. It is the fact, of course, that the Applicants are in Australia only as visitors. There is no suggestion that the revocation of their tourist visas is in any way detrimental to them or that their return to Indonesia would be detrimental, other than having been deprived of the opportunity of spending a month as visitors in this country. Accordingly, the balance of convenience may well be in favour of the Minister if he were able to show that significant expense would be incurred by reason of making an order.

There is some suggestion that the Applicants would be returned to Indonesia by the carrier who brought them to Australia, namely Thai Airlines. It has been suggested that the next flight which would be appropriate may be next Friday. That would be a reason why, if I could not decide the matter on a final basis before then, it would not be appropriate to grant any further interlocutory relief.

In the circumstances, I propose to adjourn the hearing of the application for interlocutory relief until 3 pm tomorrow afternoon. I direct the Applicants to file and serve no later than 11.30 am tomorrow any further affidavits on which they wish to rely in support of the ground set out in section 476(1)(a). I will not direct the Minister to file any affidavits within a particular time. However, I would expect that every effort would be made, if any affidavits are intended to be relied upon, to have them available as soon as practicable thereafter and before 3 pm.

I note the usual undertaking as to damages given by the Applicants through their counsel. Accordingly, I order that the Minister be restrained from removing the Applicants from Australia prior to 6 August 1998.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 4 August 1998

Counsel for the Applicant:	M.L. Anstee
Solicitor for the Applicant:	M.S. Nair & Co
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 August 1998
Date of Judgment:	4 August 1998