FEDERAL COURT OF AUSTRALIA

Challoner v Minister for Immigration & Multicultural Affairs (No 1)

[2000] FCA 1600

BARRY WILLIAM CHALLONER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 138 OF 2000

DRUMMOND J

3 NOVEMBER 2000

BRISBANE

THE COURT ORDERS THAT:

1.                  The Minister, his servants and agents be restrained from giving effect to the cancellation of Mr Challoner’s electronic travel authority until further order.

2.                  Costs be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an urgent application for an interlocutory injunction to restrain the removal from Australia of Mr Challoner.  The matter came before me at 2.40 this afternoon and I am told that Mr Challoner is due to depart Australia on an aeroplane leaving at 3.30 this afternoon.  The facts as outlined to me are as follows.  Mr Challoner arrived a couple of years ago in Australia on a sub-class 457 visa which required him to be a sponsored employee.  Under that visa, he worked for a mining exploration company called Pontil Pty Limited, apparently Mr Challoner being a highly skilled driller. 

2                     His 457 visa expired and he departed Australia, but then obtained, while overseas, an electronic travel authority (“ETA”), multiple entry, which authorised him to return to Australia.  The ETA was, however, subject to a condition that he was not permitted to do any work while in Australia being work which could be done by an Australian.  Under that authority he intended to resume working for Pontil as a driller.  He has left Australia and returned, apparently on a number of occasions, always to the employ of Pontil.

3                     On his return to Australia earlier this week, the Department informed him that it was cancelling his ETA for breach of the work condition.  However, back on 30 September 2000, as appears to be evidenced by exhibit 1, the Department, on application by Pontil, approved its pre-qualified business sponsorship application.

4                     I am told, and there does appear to be confirmation for it in exhibit 1, that this approval, in effect, constitutes an acknowledgment by the Department that there are a number of positions, including the one in which Mr Challoner has worked and had intended on his recent return to resume working in, for Pontil that cannot be done by Australian residents.  It is said that the cancellation earlier this week of Mr Challoner’s ETA for breach of the work condition against the Department’s earlier approval of Pontil’s pre-qualified business sponsorship application has the consequence that the Department’s decision to cancel the ETA is one not authorised by the Migration Act 1958 (Cth).

5                     It is said that the approval decision of the Department establishes that the Department is satisfied that the particular employment in which Mr Challoner has been and is to be employed by Pontil is employment not able to be done by any Australian.  On the face of those facts, there does appear to me to be an arguable case for review of the Department’s ETA cancellation decision under s 476(1)(c) the Migration Act 1958 (Cth).

6                     I will make an order restraining the Minister, his servants and agents from giving effect to the cancellation of Mr Challoner’s ETA until further order.

7                     I will order that costs be reserved.

Associate:

Dated:              7 November 2000