Ali v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 177
•14 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ali v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 177
File number(s): SYG 297 of 2025 Judgment of: JUDGE SKAROS Date of judgment: 14 February 2025 Catchwords: MIGRATION – Injunctive Relief – Urgent applicant - where applicant’s student visa cancelled at Australian border – where Minister sought to remove applicant imminently – where applicant’s proposed grounds of judicial review lack sufficient merit – where applicant can pursue judicial review application offshore – application for injunction dismissed Legislation: Migration Act 1958 ss 116, 119, 120, 121 Cases cited: Australian Broadcasting Corporation v O'Neill [2006] HCA 46
BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108
Minister for Immigration and Border Protection v Srouji [2014] FCA 50
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156
Zhaou v Minister for Immigration [2002] FCA 748
Division: Division 2 General Federal Law Number of paragraphs: 66 Date of hearing: 2 February 2025 Place: Parramatta Solicitor for the Applicant: Stephen John Lawyers Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 297 of 2025 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARBAZ ALI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE SKAROS
DATE OF ORDER:
2 FEBRUARY 2025
THE COURT ORDERS THAT:
1.The application filed on 2 February 2025 for an interlocutory injunction restraining the applicant's removal from Australia be dismissed.
2.The reasons for the decision are reserved and will be published at a later date.
3.That the hearing in respect of the substantive application for judicial review be expedited.
4.The applicant pay the First Respondent's costs of and incidental to the proceedings in the sum of $3000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE SKAROS:
This matter came before me on an urgent basis on Sunday 2 February 2025 in my capacity as duty judge. The substantive application concerns an application for judicial review of a decision of a delegate (the delegate) of the First Respondent (the Minister) to cancel, pursuant to s 116(1)(fa)(ii) of the Migration Act 1958 (the Act), the applicant’s Student (Subclass 500) visa (the visa) at Adelaide International Airport following his arrival in Australia. The applicant sought an urgent interlocutory injunction restraining his removal from Australia, which was scheduled to occur later that evening.
At the hearing on the evening of 2 February 2025, I dismissed the injunction application and ordered that the hearing in respect of the substantive matter be expedited. Noting the urgency of the matter, I reserved my reasons for judgment. These are those reasons.
BACKGROUND
The applicant was granted the visa on 31 August 2022. The applicant first arrived in Australia on 17 September 2022 to study a Bachelor of Information Technology. For a variety of reasons, the applicant changed his course to a Bachelor of Community Services and did not commence studying until 29 May 2023.
At the time of the hearing, the applicant had passed 14 subjects and failed one. The applicant’s last trimester of study finished on 8 December 2024 and his next period of study is due to commence in May 2025.
On 16 December 2024 the applicant departed Australia and travelled to his home country of Pakistan. On 31 January 2025, the applicant arrived at Adelaide International Airport. On arrival at the airport, the applicant’s baggage and mobile phone were searched.
Attachment A to a ‘Notice of Intention to Consider Cancellation’ (NOICC) form that was provided to the applicant by the Australian Border Force stated as follows:
Examination of your mobile device identified several WhatsApp messages between yourself and friends relating to you facilitating assignments to be completed for a fee for other students. You have also received a payment for $310 from Gauri Baushal for completion of an assignment.
During the baggage examination, you made admissions to the baggage officer that you are paying another person to complete assignments. You also admitted that you are forwarding clients to this person to complete assignments on their behalf as well, and they pay you. You then forward the money to the other person.
During a formal interview with an Australian Border Force Officer (ABF) on the 31 January 2025, you stated:
•I have been studying a Bachelor of Community Services at STOTTS College since March 2023.
•I completed one trimester at King's Own Institute but my Father died in Saudi Arabia. I then came back in February 2023 and moved to Perth and changed course to Diploma of Auto Mechanic. I didn't start my course because I didn't like Perth so I moved back to Sydney and enrolled in Bachelor of Community Services.
•I had approval to defer my course from February 2025 to April 2025.
•One of my friends asked me for help for assignments but I said 1 couldn’t help her but I can get my friend to help. My friend then completed her assignments.
•My friend lives in Pakistan. I receive the payment for completed assignments and then send the 1noney to my friend in Pakistan.
•My friend in Pakistan has helped me with my assignments but l don't have to pay because he is my cousin/brother, son of my uncle.
The delegate subsequently decided to cancel the visa under s 116(1)(fa)(ii) of the Act. That provision provided:
Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
…
(fa) in the case of a student visa:
…
(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa
THE DELEGATE’S DECISION
The delegate’s decision summarises the applicant’s response to the NOICC as follows (without alteration):
The visa holder stated:
- I want to say. I'm a genuine student. I have an updated CoE.
- I completed 5 trimesters continually at Stotts College.
- I took a deferral because my mums condition is no good.
- Helping my friend in assignments, I feel very shameful about that but as a friend I was just helping. I realise my mistake and I will never do this again
- The last trimester i got a High Distinction 82 marks
The delegate was satisfied that there were grounds for cancellation and relied on the letter from the Australian Border Force to the applicant which has been reproduced (in part) above at [6].
The delegate considered the applicant’s reasons why the visa should not be cancelled. They accepted that the applicant’s intention for his stay in Australia was to study but that the applicant had been facilitating completion of assignments for students in Australia for a fee, which was conduct not contemplated by the visa and conduct which was not the purpose for which the visa was granted.
The delegate noted there was no evidence that the applicant had not complied with the conditions of the visa but gave this consideration little weight against cancelling.
As to the hardship which may be caused to the applicant if the visa was cancelled, the delegate accepted that the cancellation would create hardship for the applicant and gave this consideration some weight against the cancellation.
As to the circumstances in which the ground for cancellation arose, the delegate noted the applicant raised no extenuating circumstance which were beyond their control and therefore this consideration was not given any weight, either for or against the cancellation.
The delegate considered the legal consequences of the cancellation for the applicant and gave this some weight against the cancellation. The delegate also acknowledged that the applicant was co-operative with the cancellation process and that a check of departmental records revealed no known adverse information regarding the applicant’s behaviour to the department and the delegate gave this a little weight against cancellation.
After weighing up all the information before them, the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons for not cancelling the visa. The delegate accordingly decided to cancel the applicant’s visa.
APPLICATION BEFORE THE COURT
In support of his application for injunctive relief, the applicant relied on his application for judicial review which raised two grounds. The applicant also relied on his affidavit, sworn on 2 February 2025, (the Applicant’s Affidavit) which set out his personal circumstances, immigration history and events relevant to the ground of cancellation. The Applicant’s affidavit annexed the following documents:
(a)AA1 – Extracts of the visa cancellation decision;
(b)AA2 – A document relating to the transportation of the applicant’s father’s body from Saudi Arabia to Pakistan;
(c)AA3 – Correspondence from the applicant’s education provider regarding his current enrolment prior to deferment;
(d)AA4 – Confirmation of enrolment;
(e)AA5 – Confirmation of enrolment and correspondence from the applicant’s education provider approving the deferment of his studies until May 2025; and
(f)AA6 – Medical reports of his mother, education records and the applicant’s medical prescriptions.
The Minister relied on the affidavit of Keith Maxwell Sypott, AGS Lawyer, affirmed on 2 February 2025, annexing a copy of the Form 1111 (which contained the NOICC, the delegate’s decision record and the notification of the delegate’s decision) and the Client Monitoring Sheet (the Sypott Affidavit). The Minister also relied on written submissions filed shortly before commencement of the hearing.
The hearing was held by videoconference. The applicant was represented by his solicitor, Mr John of Stephen John Lawyers, and the Minister was represented by Ms Scott of the Australian Government Solicitor (AGS).
The Minister did not object to the Court receiving into evidence the Applicant’s Affidavit for the purposes of the interlocutory application, though noted that some of the documents were not before the delegate and they reserved their right to object to its admissibility in the substantive judicial review proceedings.
There was no objection taken by the applicant to the Sypott Affidavit. Accordingly, the Applicant’s Affidavit and the Sypott Affidavit were taken as read and are in evidence.
For the following reasons, the Court dismissed the application for an interlocutory injunction.
LEGAL PRINCIPLES
The principles relevant to the grant of an interlocutory injunction are well established: Australian Broadcasting Corporation v O'Neill [2006] HCA 46 at [19] (ABC v O’Niell). To be granted the interlocutory relief sought, the applicant must demonstrate that:
(a) there is a serious question to be tried as to the applicant's entitlement to relief;
(b) the applicant is likely to suffer injury for which damages will not be an adequate remedy; and
(c) the balance of convenience favours the granting of an interlocutory injunction.
The applicant must show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial: ABC v O'Neill at [65]
The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience. The apparent strength of the parties' substantive cases will often be an important consideration to be weighed in the balance: Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156 at [67].
CONSIDERATION
In considering whether there is a serious question to be tried, the Court has had regard to grounds advanced by the applicant in the judicial review application. They are:
1. The delegate denied the applicant procedural fairness and / or breached the section 425 of the Act
Particular
(a) The applicant arrived in Australia at 5:30 pm on 31 January 2025. He was given notice of intention to cancel his visa at 23:40 pm. His visa was cancelled an hour later at 00:55 am. The applicant was not given opportunity to seek legal advice or respond to the allegations based on the chat found in applicant's phone.
(b) The applicant was denied procedural fairness
2. The decision of the delegate is unreasonable/illogical and based on the information available to the delegate it was not reasonable to cancel the visa.
Particular
(a) The applicant provided the information about the deferment of his studies which has been warranted by the college given applicant's health condition and his ongoing untreated trauma. The delegate has the information of the college as well as the information of the circumstances of the applicant's father's death, but delegate ignored all that information and relied his decision solely on the what's app chat where applicant is found to have assisted another student to obtain assignment.
(b) The delegate did not give any consideration to the whole of the circumstances of the applicant and the misconduct is of the nature that no reasonable person would come to the conclusion that delegate reached ignoring all the other information.
(c) Thus delegate made judicial error.
(in the original)
Ground one
By ground one, the applicant contends that he had been denied procedural fairness.
In respect of the reference to s 425 of the Act, the Court accepts the Minister’s submission that this provision (which has been repealed) relates to procedural obligations of the Administrative Appeals Tribunal (as it then was) and has no application to the present circumstances.
As to the events leading up the cancellation of the applicant’s visa and the applicant’s complaint that he was denied the opportunity to obtain legal assistance or respond to the allegations, it is first convenient to set out the relevant legislative scheme under which the applicant’s visa was cancelled.
Section 116(1)(fa)(ii) provides for a student visa to be cancelled if its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.
Sections 118A – 127 set out the procedural fairness obligations of the delegate if they are considering exercising the power to cancel the visa under s 116 of the Act; including giving a notice of proposed cancellation which sets out the ground of cancellation and particulars of information that would be the reasons or part of the reason for cancelling the visa: ss 119 and 120. The visa holder must be invited to comment on the information and the response may be given in writing, at an interview or by telephone: s 121(1). Relevantly, if the response is by way of interview, the interview is to occur at a specified time, being within the prescribed period or, if there is no prescribed period, ‘within a reasonable period’: s 121(3)(b).
The applicant was given the NOICC at 11:21 pm on 31 January 2025. The interview at which he was invited to respond to the NOICC commenced approximately 20 minutes later (at 11:42 pm). The applicant’s visa was cancelled at 12:36 am on 1 February 2025.
The Minister contended that the applicant did not request a lawyer and in any event the delegate was not required to inform the applicant that he could obtain legal assistance or facilitate that assistance. In support of that contention, the Minister relied on the Minister for Immigration and Border Protection v Srouji [2014] FCA 50 (Srouji) at [29] where the Federal Court stated:
In terms of the indication that Mr Srouji gave after his visa cancellation that he would like the assistance of a lawyer and his consulate, neither circumstance supports the conclusion that Mr Srouji was denied procedural fairness by not being offered access to a lawyer or his consulate before the visa was cancelled. Again, nothing in the statutory scheme supports the notion that procedural fairness required this to be done. Indeed, s 118A of the Act makes plain that there was no such statutory obligation. If procedural fairness is otherwise implied in respect of the interview preceding the issue of the notice then the issue of the content of the obligation has to be considered. The content cannot be determined absent consideration of the statutory context. Consistent with the statutory scheme as described above, I am unable to accept that the officer was bound to put Mr Srouji on notice that he could, if he wished, try to contact a lawyer or his consulate. Contrary to the conclusion of the primary judge at [24] Mr Srouji had no right to obtain advice and assistance. Nor did he have a right to be informed of an opportunity to do so. The question is whether the decision to cancel Mr Srouji’s visa was conditioned on the officer having put Mr Srouji on notice of an opportunity to obtain advice and assistance from a lawyer or his consulate. Expressed in this way, it should become clear that the answer to the question must be in the negative. Conditioning the power to cancel a visa of a person in immigration clearance on being told of, and thus in fact given, such an opportunity would be inconsistent with the statutory scheme.
The delegate’s procedural fairness obligation when considering whether to cancel the applicant’s visa under s 116 was limited to those prescribed ss 118A – 127. Having regard to those provisions and the comments of Jagot J in Srouji, the Court accepts that the delegate was not under any obligation to inform the applicant that he could obtain legal assistance or arrange for the applicant to obtain legal assistance.
The Court has next considered whether the 20 minutes provided for the applicant to respond to the NOICC was a reasonable period. As cited in Srouji, in Zhaou v Minister for Immigration [2002] FCA 748 at [78] Kenny J stated:
Absent s 474 considerations, what is a reasonable period for the purposes of s 121(3)(b) of the Act would fall to be considered in light of all the circumstances of the case as they existed when the time of the interview is fixed. These circumstances may include the nature of the cancellation grounds that the decision-maker is considering, the personal attributes of the visa holder (i.e., age, facility in the English language, physical infirmity or well-being), the presence of an interpreter or lawyer, the visa holder's familiarity with the matters of concern to the decision-maker, the circumstances in which the decision falls to be made, and the availability of matters corroborative of the applicant. Regard would also be taken of the statutory context and purpose of s121(3)(b) of the Act.
The Minister sought to rely on Srouji wherein Jagot J reasoned at [24] that the statutory scheme does not contemplate that a person may remain in immigration clearance for a lengthy period. Her Honour said that while it was “necessary to consider Mr Srouji’s tiredness, ill health, the late hour, and how long he had already been questioned these factors had to be weighed in the overall statutory context”. Her Honour concluded:
The period of 20 minutes to respond was not unreasonable given that Mr Sirouji had dealt with the interview, had asked for and had been offered rest breaks, was not in any apparent physical distress and, of course, was in immigration clearance at the airport under a statutory regime having the manifest intention that no-one should remain in immigration clearance, their immigration status undetermined, for any lengthy period.
The Minister also sought to rely on information in the Client Monitoring Sheet (Sypott Affidavit at pages 27-28) which indicated that the applicant had been offered regular bathroom breaks and access to water. No medical condition or health issues were recorded.
The Client Monitoring Sheet also indicated that an interview with the applicant (prior to the issuing of the NOICC) had commenced at 8.27pm on 31 January 2025 and the decision to cancel the applicant’s visa was made just over four hours later at 12:36 am on 1 February 2025.
While the applicant may have experienced some exhaustion following the flight from Pakistan, there is nothing on the evidence before the Court which suggests he did not understand why he was being interviewed or did not have the capacity to participate in the process. He had been in the interview room since 8.27pm and had been offered regular breaks and water. Having regard to these matters and balancing them with the statutory context, noting he had been in immigration clearance for some time, the Court does not consider the period of 20 minutes given to the applicant to respond to the NOICC was unreasonable.
The Court is not satisfied on the evidence before it that the delegate failed to comply with their procedural fairness obligations.
Ground one does not disclose a serious question to be tried.
Ground two
By ground two, the applicant contends that, based on the available evidence, the delegate’s decision was so unreasonable or illogical that no reasonable decision-maker could have made it. The applicant takes issue with the delegate’s exercise of the discretion to cancel his visa, submitting that the delegate had ignored information relating to the deferral of his studies, his health condition and the death of his father. It was submitted that the delegate’s decision focused solely on the adverse information found on the applicant’s phone without regard to the whole of the circumstances.
In further developing this ground at the hearing, it was submitted that the delegate had failed to consider that the applicant’s study progress was satisfactory and that he was a genuine student. It was submitted that the delegate had erred in finding there were no circumstances beyond the applicant’s control, as the death of the applicant’s father, his mother’s illness and his mental health condition were beyond his control. It was submitted that the delegate had failed to give proper, genuine or realistic consideration to the applicant’s circumstances.
The Minister submitted that the threshold for unreasonableness/illogicality was high. The Minister relied upon KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108 (KDSP) at [193] where O’Callahan and Steward JJ stated, in relation to an allegation of ‘unreasonable delay’ on the part of the Minister, that it required ‘perversity, capriciousness, intentional oversight or neglect’. The Court notes, however, that the issue in KDSP related to whether there had been an ‘unreasonable delay’ by the Minister in exercising the power under s 501A(2). The present case alleges unreasonableness in a different context. It is nevertheless accepted that the threshold for establishing legal unreasonableness or illogicality is a high one and is not one to be made lightly: BKTS v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 729 at [45]-[46] (Perry J).
The Minister argues that the delegate did not base their decision entirely on the misconduct and that the decision record shows that the delegate had regard to the matters raised by the applicant in response to factors that had to be considered by the delegate. The Minister objected to the evidence provided by the applicant in his affidavit which was not before the delegate at the time of the decision. It was submitted that the documentation in annexures AA2 – AA6 was not before the delegate, would be inadmissible in any judicial review application and could not provide a basis for an argument of unreasonableness or illogicality. In response, the applicant contended that, other than his father’s death, all other matters were raised with the delegate and the applicant informed the delegate that he could provide proof.
Legal unreasonableness or illogicality of an administrative decision (or an illogical finding of fact or reasoning along the way to making the decision) may establish jurisdictional error, as may a failure to give proper, genuine or realistic consideration to a significant matter. However, a decision (or finding) will not involve jurisdictional error if a reasonable decision-maker could reach that decision or finding on the same material: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [130]–[132] and [135] per Crennan and Bell JJ and at [78] per Heydon J.
In evaluating whether the Tribunal’s decision was legally unreasonable, the Court is required to have regard to the terms, scope and policy of the statutory source of the power: Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [9].
The delegate’s decision and their consideration of the matters raised by the applicant was relatively brief, however, this must be considered in the context of the applicant being in immigration clearance (at the airport) and the limited time in which the delegate had to decide whether or not the visa should be cancelled: Srouji at [21].
The applicant’s complaint, as advanced, was not directed at the ground upon which his visa was cancelled, but at the manner in which the delegate exercised their discretion to cancel his visa. In his response to the NOICC, the applicant appears to have admitted to making ‘a mistake’ in facilitating the completion of assignments for a friend and gives an undertaking not to engage in such contact in future. The applicant was given an opportunity to provide reasons for why his visa should not be cancelled which were recorded by the delegate.
In exercising their discretion to cancel the visa, the delegate appears to have had regard, albeit briefly, to the matters raised by the applicant in response to the NOICC: Sypott Affidavit at page 15. The Court notes that it does not have a transcript of the interview before it and has accordingly relied on the delegate’s record of what the applicant said in response to the NOICC and the evidence considered by the delegate when deciding whether to cancel the visa: Sypott Affidavit at pages 15, 16 and 18.
In relation to the complaint that the delegate failed to consider the death of his father, the evidence before the Court does not indicate that the applicant had informed the delegate of his father’s passing. The document filed by the applicant (AA2) with his affidavit, which indicates that his father passed away in January 2023, was not before the delegate when the decision was made and there is no record of the applicant having raised this in his responses. As to the applicant’s deferral of his studies, his mental health condition, his satisfactory academic progress, his claim to be a genuine student and his contrition for the conduct engaged in, the Court is satisfied that the delegate had taken these matters into account when considering whether the visa should be cancelled.
As to the allegation that the delegate failed to consider (or not give genuine and proper consideration) to factors which were beyond the applicant’s control, including his mother’s illness and his mental health condition, the Court is not satisfied on the evidence before it that this is made out. The context in which the delegate was required to consider factors that were beyond the applicant’s control related to consideration of the ‘circumstances in which the ground for cancellation arose, including whether there were extenuating circumstances beyond the visa holders’ control that led to the ground existing’. It is unclear how the applicant’s mental health condition or his mother’s ill health (accepting they were factors beyond his control) would have contributed to him facilitating the completion of assignments for other students.
The delegate considered the evidence before them (as recorded at page 15 of Sypott Affidavit) when weighing up the circumstances relevant to whether should be cancelled. The delegate gave weight either for or against cancellation of the visa when weighing up the different circumstances. The delegate accepted that the applicant had complied with his student visa conditions, that cancellation of his visa would cause hardship and that he had been co-operative in his dealings with the Department. Some or a little weight was given to these considerations against cancelling the visa. The delegate, however, gave significant weight to the purpose for which the applicant’s stay in Australia as the holder of a student visa and considered that the applicant’s conduct (of facilitating the completion of assignments for students in Australia) was inconsistent with that purpose. The delegate ultimately decided to cancel the applicant’s visa.
The weight given to the different circumstances were a matter for the delegate. There was no unreasonableness or illogicality on the part of the delegate as to weight they assigned to each circumstance. The delegate’s consideration of the evidence, in the context of the applicant being in immigration clearance, does not disclose a failure to properly engage with that evidence. Nor can it be said that the delegate’s ultimate decision to cancel the visa was so unreasonable that no other reasonable person could have so decided.
Ground two does not disclose a serious question to be tried.
None of the grounds advanced by the applicant disclose a serious question to be tried. That is not to say that the applicant would be unable to succeed in the judicial review application. The grounds advanced in the application were understandably formulated under significant time pressure, and the applicant may, given the opportunity to provide an amended application and/or better particulars and further supporting evidence, be in a better position to argue that the delegate’s decision was affected by jurisdictional error. For the present proceedings, however, the evidence as it stands does not disclose a serious question to be tried.
Balance of convenience
The applicant contended that, having completed over two years towards his degree, damages would be insufficient to compensate him for the shame and embarrassment that would be caused (to him and his family) if he could not complete his studies. It was submitted that the Minister would not suffer any inconvenience if the injunction was granted and that the applicant could apply for a bridging E visa to enable him to be in the community.
The Minister contended that the applicant does not hold a visa and that it was in the public interest (and the proper administration of the Act), that the applicant be removed as soon as reasonably practicable, as required by s 198 of the Act.
It was further contended that the applicant would still be able to pursue the judicial review application whilst he is offshore. If the applicant is successful in those proceedings, he could still return to Australia prior to the commencement of his course. It was submitted that the course of study commences on 26 May 2025 and that the Minister would not oppose an expedited final hearing to enable the court to hear and determine the matter prior to commencement of the applicant’s studies.
It was contended that the Court granting the injunction would not restore the applicant’s visa and that even if the injunction is granted the applicant would remain in immigration detention until the substantive proceedings were determined.
In response to the loss that the applicant said he would suffer, the Minister contended that this would arise from the cancellation of his visa and not from his removal. As to any financial loss relating to the cost of removal, it was submitted that it would be the responsibility of the airline who transported the applicant to cover the cost of his return: s 213.
The Court accepts that even if an injunction is granted, the applicant is likely to remain in immigration detention until the completion of the judicial review proceedings. This is because the applicant will not be eligible for a Bridging E visa: See item 1305(3)(ba) of Schedule 1 to the Migration Regulations 1994 which requires an applicant to be an “eligible non-citizen” within the meaning of s 72 of the Act to make a valid application for a Bridging E visa. Section 72 of the Act provides that an eligible non-citizen is a non-citizen who has been immigration cleared; or is in a prescribed class of persons or the Minister has determined to be an eligible non-citizens. The applicant has not been immigration cleared and none of the other categories of persons apply to him. Without the intervention of the Minister, the applicant would not be eligible for a visa to remain in the community to await the outcome of his judicial review application.
This applicant’s stay in detention would be a restriction on his freedom, which would not be the case if he is removed to his home country of Pakistan. The Court accepts that the applicant would be able to pursue his application for judicial review whilst offshore. Further, the applicant’s course does not commence until 26 May 2025 (a period of over three months) and the Court has made an order that the hearing of the judicial review application be expedited. If the applicant is successful in the judicial review proceedings (i.e. it is established that the delegate’s decision to cancel the applicant’s student visa was affected by jurisdictional error), then the delegate’s decision will be quashed, the applicant’s student visa will be reinstated, and he will be able to return to Australia to resume his studies.
The applicant’s inability to complete his studies would not be alleviated by the granting of the injunction as this was the consequence of his student visa being cancelled.
As to the Minister’s reliance on s 213 to submit that costs of removal would be the responsibly of the airline that transported the applicant, the Court doubts that s 213 would operate in this way given the applicant was the holder of a substantive visa when he boarded the plane from Pakistan. It is likely that s 210 would apply and the applicant would be liable for the costs of his removal. If the applicant is successful in his judicial review proceedings and can return to Australia, he will also have to incur the cost of his return ticket.
Balancing all the above matters, and having made orders to expedite the hearing in respect of the judicial review application, the Court concludes that the balance of convenience favours the Minister.
CONCLUSION
For these reasons, the Court has dismissed the application for an interlocutory injunction. Orders have been made to expedite the hearing in respect of the judicial review application and a costs order in favour of the Minister has been made.
I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Skaros. Associate:
Dated: 14 February 2025
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