Sandoval v Minister for Immigration & Multicultural Affairs [2001] FCA 1109 (3 August 2001)

Last Updated: 14 August 2001

FEDERAL COURT OF AUSTRALIA

Sandoval v Minister for Immigration & Multicultural Affairs [2001] FCA 1109

JOSE LUIS SANDOVAL AND PENELOPE RUTH FENNER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V794 of 2001

GRAY J

3 AUGUST 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 794 of 2001

BETWEEN:	JOSE LUIS SANDOVAL FIRST APPLICANT PENELOPE RUTH FENNER SECOND APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	3 AUGUST 2001
WHERE MADE:	MELBOURNE

THE COURT NOTES THAT the applicants by their counsel have given the usual undertaking as to damages.

THE COURT ORDERS THAT:

1. Until 4.15 pm on Tuesday 7 August 2001 or further order the respondent by himself, his servants or agents be restrained from removing the first applicant from Australia.

2. The applicants file and serve any amended application and any affidavit on which

they may seek to rely on the hearing of the application for a further interlocutory injunction by 12.00 noon on Monday 6 August 2001.

3. The application for a further interlocutory injunction be listed for hearing at 10.15 am on Tuesday 7 August 2001.

4. The costs of this evening's application be reserved.

5. Service of this order be effected by telephone to Mr Michael Lim or Ms Lyn McKirdy or such other officer as may be in charge of the administration of the operations of the Department of Immigration and Multicultural Affairs at Melbourne Airport on 1300 655 192.

6. Liberty be reserved to apply on short notice.

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	V 794 of 2001

BETWEEN:	JOSE LUIS SANDOVAL FIRST APPLICANT PENELOPE RUTH FENNER SECOND APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GRAY J
DATE:	3 AUGUST 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 This application has been brought on as a matter of urgency. The applicants presently apply for a short-term injunction to restrain the respondent, the Minister for Immigration and Multicultural Affairs, from sending the first applicant back to Venezuela, where he came from, so the matter can be dealt with more fully next week.

2 The first applicant is a citizen of Venezuela. He arrived in Melbourne this morning. At the time he arrived he held a visa pursuant to the Migration Act 1958 (Cth), described as a tourist TR 676 visa. Following an interview and investigations by an officer of the Department of Immigration and Multicultural Affairs, that officer decided to cancel the visa. The reason recorded in the document filled out by the officer is as follows:

"Non-genuine visitors (sic). Documents provided with visa application + (sic) those found in luggage confirmed attempts were made to mislead Australian embassy to facilitate grant of visa."

3 The consequence of the cancellation of the visa would normally be that the first applicant would be sent back whence he came. Counsel who appeared for the Minister has indicated that it is the intention of officers of the Department of Immigration and Multicultural Affairs, and consequently of the respondent, that the first applicant will be placed on a flight departing at 11.00 am tomorrow. Hence, the urgency of the application.

4 The second applicant is an Australian citizen residing in Melbourne. She and the first applicant have in the past developed an intimate relationship. The second applicant has provided assistance to the first applicant in obtaining the visa. She plainly desires that the first applicant should be permitted to enter the country and to spend time with her.

5 Counsel for the applicants has sought to attempt to persuade me that an injunction ought to be granted on the basis that a serious question to be tried exists as to the correctness of the decision and that the balance of convenience favours the grant of an injunction. At present, the only material that I have before me is an affidavit sworn on behalf of the respondent, which contains very little information in the body of the affidavit but exhibits a number of documents. The only information available to the Court about the application at the present time comes from those documents. Counsel for the applicants informed me that neither he nor those instructing him had been able to obtain instructions directly from the first applicant at the present time. It is also plain that they have had very little opportunity to investigate whether a case can be made for a longer-term interlocutory injunction.

6 In the circumstances, it seems to me to be inappropriate for me to embark on an examination of the question whether a serious question to be tried exists at the present time. It is perhaps sufficient for me to say the following. The issue at the heart of this case seems to me to lie in the question whether silence about a matter makes other material provided misleading in the particular circumstances. Nothing in the material placed before the officer who granted the visa, in the Australian embassy in Santiago in Chile, indicated the nature of the relationship between the two applicants. Rather the material indicated that the second applicant and her husband had invited the first applicant to stay with them in Australia for the purposes of improving his command of English and working on a translation of their book into Spanish. It was only in the course of the interview today that the first applicant conceded that he was in love with the second applicant and that this was the main reason for his desire to come to Australia.

7 It is possible that, given some time, the applicants will be able to establish that a serious question arises as to whether there was any basis on which the officer could be satisfied that the first applicant had misled an officer in the embassy in Santiago. It is also possible that, after proper preparation and full argument, the question whether identifying attempts to mislead, as the officer cancelling the visa today did, amounted to asking himself an incorrect question. In my view, the applicants should be given an opportunity to make that kind of case if they can.

8 The question that then arises is whether it is desirable to grant a short-term injunction which would have the effect of permitting the first applicant to remain in Australia for the purpose of preparing such a case. Counsel for the respondent has suggested to me that the case could still be conducted through legal representatives if the first applicant were to return to Venezuela. In theory that might be true, but there is no doubt that there would be serious difficulties in the way of those acting for the applicants in obtaining instructions from the first applicant if he were to be compelled to depart on a flight at 11.00 am tomorrow.

9 It seems to me, therefore, that I should grant a short-term injunction, in the nature of an injunction preserving the subject matter of the litigation, so that the Court may have a proper opportunity to deal with it. An injunction is necessary because, as I have said, counsel for the Minister indicated that officers of the Department have a firm view that the first applicant should depart tomorrow.

10 A factor which leads me to the view that such an injunction should be granted is that the balance of convenience lies very clearly with the applicants. If the first applicant were to be compelled to depart tomorrow it would necessarily be at his expense. A large part of his airfare to Australia on this occasion has been paid by the second applicant. Financial considerations plainly intrude. Against that could only be set the expense of detaining and keeping the first applicant and perhaps of transporting him to and from Court as necessary. Those expenses need not be borne by the respondent, in the event that the applicants are unsuccessful, because the applicants, through their counsel, have offered to provide the usual undertaking as to damages. In those circumstances, it seems to me that little difficulty is caused to the respondent by granting a short-term injunction but there would be major difficulty caused to the applicants and in particular to the first applicant if such an injunction were not granted.

11 For those reasons I propose to make the short-term order sought.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated: 14 August 2001

Counsel for the Applicants:	Mr J A Gibson
Solicitor for the Applicants:	Rigby Cooke
Counsel for the Respondent:	Mr C Rawson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 August 2001
Date of Judgment:	3 August 2001