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[2001] FCA 1839
Federal Court of Australia
2001-12-20
Merkel J
Original judgment source is linked above.
REASONS FOR JUDGMENT Background 1 The applicant is a citizen of the United States. He arrived at Melbourne Airport on 21 November 2001 holding an "Electronic Travel Authority (Visitor)" visa issued under sub-class 976 of sch 2 of the Migration Regulations 1994 (Cth) ("the Regulations"). A holder of the visa is entitled to travel to, and enter, Australia on multiple occasions within twelve months from the grant of the visa and to remain in Australia on each occasion for a period not exceeding three months. Relevantly for present purposes, a primary criterion for the holding of the visa was that the applicant state "an intention only to visit Australia temporarily for tourism purposes". 2 An officer of the Department of Immigration and Multicultural Affairs ("the delegate") interviewed the applicant at the airport. The delegate formed the view that there may be a ground for the cancellation of the visa under s 116 of the Migration Act 1958 (Cth) ("the Act"). She stated the ground as follows: "You have an intention to reside permanently in Australia. You are carrying documents to support your intention to reside permanently in Australia." 3 The delegate afforded the applicant an opportunity to comment on the ground in the course of an interview with her. The delegate also interviewed Ms Jennifer Hart, an Australian citizen and the applicant's partner, who was waiting at the airport to meet the applicant. 4 Early in the afternoon of 21 November, the delegate decided to cancel the applicant's visa under s 116(1)(g) of the Act and reg 2.43(1)(k) of the Regulations. Section 116(1)(g) of the Act, relevantly, provides that the Minister may cancel a visa if he or she is satisfied that: "a prescribed ground for cancelling a visa applies to the holder." 5 Regulation 2.43(1)(k) of the Regulations prescribes as a ground for cancellation, in the case of the holder of sub-class 976 visa: "…that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit Australia temporarily for tourism purposes;" 6 The record of the delegate's decision to cancel the visa ("the cancellation decision") states that the reason given by the applicant why the ground of cancellation does not exist was that he is a genuine visitor who intends to depart Australia after a stay of approximately one month. The applicant is also recorded as saying that he is unsure "when or if" he will reside in Australia. 7 The record also stated that the evidence and reasons why grounds for cancellation exist are as follows: "The visa holder is carrying evidence to support an intention to reside permanently in Australia. These include: - shipment receipt of personal effect from USA to Australia - letter dated October 2001 to friend Ann stating moving to Australia 19.11.01 to lodge permanent residence application. I place greater weight on the evidence than on his assertions that he intends a short temporary stay." 8 In setting out any "other reasons" given by the visa holder as to why the visa should not be cancelled the record stated "he is a genuine visitor". 9 The delegate's assessment of the relevant factors was: "The visa holder is a non-genuine visitor." 10 Finally, the record of the cancellation decision states that in weighing up the grounds for cancellation, evidence available and other factors the reasons for the decision are: "- shipment receipt of personal effects from USA to Australia;
all the circumstances it is appropriate that costs follow the event but that the applicant ought to only pay only one half of the Minister's costs, excluding the costs of senior counsel.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel.
Associate: Dated: 20 December 2001 Counsel for the Applicant: Mr P R D Gray
Solicitor for the Applicant: Erskine Rodan & Associates
Counsel for the Respondent: Mr A C Cavanough QC with Mr S G E McLeish
Solicitor for the Respondent: Australian Government Solicitor
Date of Hearing: 3 and 6 December 2001
Walton
Philip Ruddock, The Minister for Immigration & Multicultural Affairs
(1945) 70 CLR 598
(1924) 34 CLR 482
(1998) 194 CLR 355
(1947) 75 CLR 361
(1949) 77 CLR 387
(1983) 153 CLR 415
(1997) 191 CLR 602
(1995) 184 CLR 163
(1951) 82 CLR 208
(1999) 197 CLR 510
(2000) 176 ALR 219
(1979) 24 ALR 307
(1988) 85 ALR 29
(1991) 29 FCR 442
(1932) 47 CLR 121
(1990) 171 CLR 1
(1991) 171 CLR 232
(2001) 183 ALR 531
(2000) 103 FCR 539
(1994) 50 FCR 189
(1989) 21 FCR 472
(1996) 137 ALR 103
(1995) 55 FCR 221
(1984) 6 FCR 587
(1993) 45 FCR 540