FEDERAL COURT OF AUSTRALIA

Sheejo v Minister for Immigration and Multicultural Affairs [2001] FCA 1708

MIGRATION – application for injunction to restrain respondent from removing applicant from Australia – decision of departmental officer that applicant a non-genuine tourist – whether sufficient basis upon which decision made– inappropriate vehicle for resolution of privative statutory provisions

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 116, 474

Migration Regulations 1994 (Cth) reg 2.43(i), 2.43(j)

Darling Casino Ltd v New South Wales Casino Central Authority (1997) 191 CLR 602 cited

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

JACOB SHEEJO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1535 OF 2001

CONTI J

19 NOVEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

1.         Application be dismissed.

2.         Applicant to pay the Respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     There is before the Court an application for an injunction brought pursuant to s 39B of the Judiciary Act 1903 (Cth) to prevent the respondent or his agents or delegates from removing the applicant from Australia until further order of the Court. In addition the applicant seeks a writ of certiorari directed to the respondent removing into this Court to be quashed the decision of the respondent made at Sydney airport on or about 15 November 2001 which purported to cancel the applicant’s visa. The applicant finally seeks a declaration that there is no evidence of which the respondent could be satisfied that the applicant was not a bona fide visitor to Australia.

2                     The applicant is a citizen of India born on 31 July 1962. He arrived in Australia at approximately 11:00am on 15 November 2001 on a tourist visa. Such visa permitted him to remain in Australia for a period of up to fifteen days. It was common ground between the parties that such visa could not be granted by the High Commission in India unless the applicant was able to present to the same a return air ticket. When the applicant arrived in Australia he had in his possession cash and travellers’ cheques to the value of $US800.00. The applicant’s resources however were not limited to such financial amount, he having access to other funds by further (I assume electronic) means.

3                     The applicant runs a transport business called Nellissery Bus Services in the State of Kerala in South India. Such business is said to comprise some 15 or so buses which travel around the state of Kerala. It would appear from the evidence of the applicant that it is his wife who is presently looking after the business while he is overseas.

4                     When the applicant arrived at Sydney airport, he was interviewed by departmental officials. The circumstances surrounding the cancellation of the applicant’s visa can be found in a document titled “Cancellation of Temporary Visa under s 116 of the Migration Act 1958”. The initial concern outlined by the relevant department officer was that the applicant had travelled to Australia with a tour group, whereof the members admitted to having been formed to bring people into Australia in order to work without the permission of the Australian Government.

5                     The applicant was given the opportunity to explain why such grounds for cancellation of his visa did not exist. In summary, the applicant stated to the departmental officer that those other members of the group were “arranging a tour group to Australia”. The applicant claimed that he “paid nearly three laks (sic)” and that he has a business in India which required his return to his home country.

6                     The departmental officer expressed a dissatisfaction with such abovementioned explanations provided by the applicant. The departmental officer listed further grounds for cancellation, namely:

(i)                  the applicant paid $A12,000.00 for the tour (the real cost of the tour should be less than $4,000.00 for a genuine tourist). There was no credible explanation for paying this amount;

(ii)                the applicant was identified as an organiser of the tour group by other members;

(iii)               the applicant demonstrated a complete lack of knowledge of where the tour group was going to travel within Australia, how long they would be staying at various places and what sights they would be seeing etc; and

(iv)              the other members of the group admitted that such group was formed for the purpose of bringing people to Australia to work.

7                     In light of the above, the departmental officer was not satisfied that the applicant was genuine tourist, and he had a reasonable basis for so doing. The circumstances that the applicant was the leader or organiser of this group of persons, and that he paid the exorbitant sum of $A12,000.00 to come to Australia, provided indications that he had knowledge of the group’s intention, namely, to bring illegal workers into the country. Furthermore, the officer was of the view that there was no reason why such members of the group would have any motivation to mislead the department with respect to identifying the applicant as the organiser of a group having such a intention for coming to Australia.

8                     Mr Karp, who appeared for the applicant, submitted that the application was competent, notwithstanding the recent amendments to the Migration Act 1958 (Cth) (“the Act”) which have been in force since 1 October 2001. One of the significant amendments to the Act as a result of such amendments is the privative clause now placed within s 474. During the course of argument, there was discussion as to whether or not the Federal Court of Australia continues to have jurisdiction to hear applications such as the present case in light of this new section of the Act. Mr Karp sought to argue that this court still possesses jurisdiction to hear such applications. He referred me briefly to R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 and Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602, but because of the urgency of the application, Mr Karp was understandably, and having been briefed to appear on very short notice, unable to present anything considered or cogent in support of such a complex and adventuresome argument. Plainly the present application was not an appropriate vehicle for so doing.

9                     Putting aside the constitutional questions arising out of such amendment to the Act, which will apparently arise for determination before the High Court in the near future, Mr Karp submitted that there were two jurisdictional errors which had been committed by the departmental officer. First, that there was no probative evidence upon which the decision maker at Sydney airport could find that the applicant’s visit was not genuine, and secondly, that the decision of the departmental officer did not satisfy the prescribed grounds as set out in Regulation 2.43(1)(i) and (j) of the Migration Regulations 1994 (Cth).

10                  It is clear, however, from [5] and [6] above that there was a sufficient basis upon which the departmental officer could reasonably be satisfied that the applicant did not have either intention prescribed by the sub-regulation, and that he was not a genuine tourist. There was no foundation upon which it could be reasonably argued that natural justice had been prima facie denied to the applicant.

11                  I therefore dismiss the application and order that the applicant pay the respondent’s costs.

Associate:

Dated:              4 December 2001