Minister for Immigration and Border Protection v Srouji [2014] FCA 50 | Case summary

BACKGROUND TO THE APPEAL 1 On 16 August 2013, the respondent, Walid Salim Srouji (Mr Srouji) arrived at Sydney airport on a flight from Lebanon via Cairo and Singapore. He held a Subclass 601 (Electronic Travel Authority) visa permitting him to enter Australia temporarily for tourism purposes. A friend, Mirvat Al-Ayoubi (Ms Al-Ayoubi), was waiting to collect him at the airport. An airport inspector employed by the Department of Immigration and Border Protection interviewed Mr Srouji while he was in what is known as "immigration clearance". The officer, acting as a delegate of the appellant (the Minister), gave Mr Srouji a notice under s 119 of the Migration Act 1958 (Cth) (the Act) that there appeared to be grounds for cancelling his visa and invited him to comment in purported compliance with s 121 of that Act. After Mr Srouji responded, the delegate cancelled his visa relying on s 116(1)(g) of the Act. Section 116(1)(g) enables the Minister to cancel a visa if satisfied that a prescribed ground applies to the holder. Regulation 2.43(1)(ea) of the Migration Regulations 1994 (Cth) (the Regulations) prescribes the following ground: in the case of a Subclass 601 (Electronic Travel Authority) visa -- that, despite the grant of the visa, the Minister is satisfied that the visa holder: (i) did not have, at the time of the grant of the visa, an intention only to stay in, or visit, Australia temporarily for the tourism or business purposes for which the visa was granted; or (ii) has ceased to have that intention. 2 Although Mr Srouji held a return ticket which he could have used to depart from Australia he was instead taken into immigration detention. He decided to lodge an application for review of the decision to cancel his visa. His review application came before the Federal Circuit Court of Australia on 5 September 2013. On 13 September 2013 the primary judge decided that the decision to cancel the visa was invalid and made three orders as follows: (1) The Court declares that the applicant's sub class 601 visa was not validly cancelled. (2) A writ of certiorari shall issue removing the record of the visa cancellation decision into the Court to be quashed. (3) A writ of mandamus shall issue commanding the respondent to determine, according to law, whether the applicant is to be immigration cleared. 3 The parties agreed that order (3) was practically impossible as a result of the operation of the provisions relating to "immigration clearance" in the Act. They notified the Federal Circuit Court to this effect but did not seek to have order (3) vacated by consent. They agree that, whatever else might occur as a result of this appeal, order (3) should be set aside. Mr Srouji, for his part, applied for a Visitor (Class FA) visa while he was in Australia (and remained in immigration detention). He was granted a bridging visa pending the determination of his visitor visa and, as I understand it, was released from detention on the basis of his bridging visa. Before the Minister decided whether or not to grant him a visitor visa, but after the date on which his original visa would have expired, Mr Srouji decided to leave Australia. He left on 3 February 2014, presumably having had the holiday which, according to Mr Srouji, he had always intended to have. 4 While that might be thought to have been the end of the matter, unfortunately it is not. The Minister, for his part, decided to appeal against the decision of the Federal Circuit Court. Although Mr Srouji had left the country, the Minister considered the appeal should be maintained. Leaving aside the merits of the appeal, the Minister also had been ordered to pay Mr Srouji's costs in the sum of $11,232. In addition, if the visa was validly cancelled then other provisions of the Act would be engaged. In particular, Mr Srouji would be affected by a "risk factor" as referred to in cl 4013 of Sch 4 to the Regulations. On that basis, Mr Srouji would not be able to obtain another visa to enter Australia within three years from the cancellation unless the Minister was satisfied of the existence of certain "compelling circumstances" or "compassionate or compelling circumstances" as referred to in cl 4013(b) of Sch 4 to the Regulations. As a result of these circumstances I do not accept the submissions for Mr Srouji that the appeal lacks utility or is of such limited utility that the Minister should not be permitted to prosecute the appeal as a discretionary matter. There is a matter which is justiciable, the resolution of which has consequences for Mr Srouji and the Minister, and the Minister is thus entitled to have his appeal heard and determined in accordance with law.

Minister for Immigration and Border Protection v Srouji

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