Borg v Minister for Immigration & Multicultural Affairs [1999] FCA 588

FEDERAL COURT OF AUSTRALIA

BORG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS [1999] FCA 588 MIGRATION - the applicant's written submissions in the Immigration Review Tribunal claimed that immigration officers unlawfully detained her – whether the Tribunal's failure to deal with this issue amounted to a failure to provide written reasons under s 368 of the Act - whether this claim was 'a substantial issue' in the case

Migration Act (1958) ss 116, 189, 192, 368(1), 476(1) Hughes v Minister for Immigration and Multicultural Affairs (Lee J, 17 September 1998, unreported) cited Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 applied Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 cited KRITIYA BORG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO N 12 OF 1999

MATHEWS J

12 May 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 12/99 OF 1999

BETWEEN: KRITIYA BORG

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MATHEWS J

DATE OF ORDER: 12 MAY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N OF 1999

BETWEEN: KRITIYA BORG

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: MATHEWS J

DATE: 12 MAY 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

BACKGROUND 1 This is an application for judicial review of a decision of the Immigration Review Tribunal (the Tribunal) made on 30 December 1998 which in turn affirmed an earlier decision of an immigration officer to cancel the applicant's visa. 2 The factual background is as follows. On 20 January 1998 the applicant, a Thai national, arrived in Australia on a subclass 676 (short stay) visitor visa, with initial permission to stay for three months. On 9 September 1998 she applied for and was granted a subclass 686 (long stay) visa which permitted her to remain in the country until 20 December 1998. 3 On 12 October 1998 the applicant's visa was cancelled by an immigration officer under s 116 of the Migration Act 1958 (the Act). The next day, 13 October 1998, the applicant applied to the Tribunal for review of the cancellation decision. The Tribunal hearing took place three days later, on 16 October. At that hearing the events of 12 October were ventilated in some detail. A total of eight witnesses gave evidence, including the applicant and her fiance, Mr Borg. 4 Briefly, the evidence before the Tribunal was as follows. A little before mid‑day on Monday 12 October 1998 a number of immigration officers entered the premises of the Total Relaxation Centre at Croydon, a suburb of Sydney. This Centre is indisputably a brothel. A friend of the applicant's, known as Bobby, was working there at the time. When the immigration officers arrived at the Centre the applicant was sitting in the reception area. According to her evidence before the Tribunal she was dressed in a swimming costume and was waiting for her fiance to arrive and take her to the beach. She sometimes used the Total Relaxation Centre as a meeting place where her fiance collected her, as it was conveniently located and her friend Bobby used to drive her there. She denied that she had ever worked at the Centre, or anywhere else, in breach of her visa conditions. She described the immigration officers, after their arrival, as behaving in a high‑handed and arrogant manner. They forcibly detained her in the reception area, she said, and confiscated her mobile telephone. The applicant's evidence on this matter is central to the issue raised on this appeal and I shall be discussing it later. 5 The applicant's use of English was limited and the immigration officers arranged for their conversation with her to be conducted through a Thai interpreter, using a mobile telephone. The officer spoke in English to the interpreter. The telephone was then passed to the applicant who also spoke to the interpreter. The interpreter then translated the applicant's responses to the officer. It was the applicant's evidence that, during this conversation, she consistently denied having worked at the Centre. 6 It seems that there were five immigration officers who attended at the Total Relaxation Centre that day. Four of them gave evidence before the Tribunal. Without going into details of their evidence, they described the applicant, when they arrived, as sitting in the reception area dressed in "lingerie" or underwear. They asked her for her passport which she said was in a locker. She went to the locker where she retrieved some clothing as well as her passport. She then put on jeans and a top over the clothes she was wearing and handed her passport to the officers. The officer who interviewed the applicant, through the interpreter, was a Mr Gupta. According to his evidence, the applicant admitted that she was working at the Centre. She worked there on Mondays, she said, and this was her second working day. This version of the conversation was supported by the "team leader" Mr Sanju, and also by the interpreter who translated the conversation between Mr Gupta and the applicant. 7 Mr Gupta then told the applicant that he considered that there were possible grounds for the cancellation of her visa as she was working in breach of a condition of the visa. He asked her to comment on this and gave her 10 minutes to do so, inviting her to address discretionary issues such as the reason why she was working, her present circumstances, any hardship she might face if the visa was cancelled, etcetera. At the expiration of that period the applicant was told that her visa had been cancelled. She was then required to accompany the immigration officers and was placed in immigration detention. 8 The applicant's version, namely that she was not working at the Centre, was generally supported by the receptionist at the Centre and by the applicant's friend, Bobby, who had driven the applicant there that day. The applicant's fiance (now husband) Mr Borg also gave evidence that he was planning to meet the applicant at the Centre and take her to the beach. 9 On the same day as the Tribunal hearing, namely on 16 October 1998, the applicant applied for a bridging visa in order to obtain release from immigration detention. On 20 October 1998 the respondent refused this application. The applicant immediately applied to the Tribunal for review of that decision. On 26 October 1998 the Tribunal took further evidence from the applicant and Mr Borg and set aside the respondent's decision to refuse a bridging visa. She was then released from detention. Two days later, on 28 October 1998 the applicant and Mr Borg were married. 10 It was not until 30 December 1998 that the Tribunal gave its decision in the present case in which it affirmed the respondent's decision to cancel the applicant's visa. The Tribunal preferred the evidence of the immigration officers to that of the applicant and her witnesses and found, as a matter of fact, that the applicant was working at the Total Relaxation Centre in breach of a condition of her visa. It then considered a number of discretionary matters and concluded that any hardship which the applicant might suffer was outweighed by the seriousness of the breach which had occurred. Accordingly the Tribunal affirmed the cancellation of the applicant's visa.