CALAVA v Minister for Immigration

[2015] FCCA 2525

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALAVA v MINISTER FOR IMMIGRATION [2015] FCCA 2525

Catchwords:
MIGRATION – Application for interlocutory injunction in aid of application for constitutional writs to quash the decision of delegate of Minister for Immigration and Border Protection to cancel student visa – whether there is a serious question to be tried that applicant was not given a proper opportunity to respond to notice of intention to consider cancellation of visa – whether there is a serious question to be tried that the delegate’s decision to cancel applicant’s visa was unreasonable – whether balance of convenience favours the granting of interlocutory injunction – interlocutory injunction refused.

Legislation:

Migration Act 1958 (Cth), ss.116, 116(1)(fa)(i), 118A, 119(1), 119(2), 121(1),

121(3), 476
Federal Circuit Court of Australia Act1999 (Cth), s.15

Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148
Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 748

Applicant: DAVIDE CALAVA

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2537 of 2015

Judgment of: Judge Manousaridis

Hearing date: 15 September 2015

Delivered at: Sydney

Delivered on: 16 September 2015

REPRESENTATION

Solicitors for the Applicant: Mr F Nikjoo of AC Law Group

Solicitors for the Respondent: Mr A Markus of Australian Government Solicitor

ORDERS

1. The application for an interlocutory injunction heard on 15 September 2015 is dismissed.

2. The applicant pay the respondent’s costs of the application.

3. The matter stand over for directions on a date to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2537 of 2015

DAVIDE CALAVA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an interlocutory injunction to restrain the respondent (Minister) from removing the applicant from Australia.

Background

1. The applicant is an Italian citizen. On 20 August 2014 he was granted a Student Temporary (Class TU) (Subclass 572) visa (visa). Sometime after he was granted the visa the applicant departed Australia. On 12 September 2015 the applicant returned to Sydney Airport where he was questioned by a delegate of the Minister.

2. The applicant informed the delegate he obtained the visa to study business and marketing; on 13 October 2014 he commenced studying a Diploma of Business but, after attending classes for one month, the applicant decided he no longer wished to pursue that course; on 11 June 2015 he transferred education providers and changed his course of study to a Certificate IV in Accounting; and he attended the new education provider to enrol in the course, but did not return. The applicant was unable to provide to the delegate the name and address of his new education provider, and was unable to say when the new course was due to commence, although he said he believed it may have already commenced. The delegate informed the applicant that the new course of study had commenced on 13 July 2015. The applicant admitted he has not attended any classes. The applicant agreed he “has not been a genuine student but he is a genuine person that would like to improve how to be a student”.

3. At 11:57 am on 12 September 2015 the delegate handed to the applicant a notice of intention to consider cancellation of the visa (Notice). In a section headed “Possible grounds for cancellation”, the Notice contained the substance of the answers the applicant earlier gave to the delegate’s questions. The Notice stated that “based on the information above”, there appeared to be grounds for cancelling the applicant’s visa under s.116(1)(fa)(i) the Migration Act 1958 (Cth) (Act). That paragraph provides that, subject to matters not relevant, the Minister may cancel a visa if he or she is satisfied, in the case of a student visa, that the holder is not, or is likely not to be, a genuine student.

4. In a section headed “Opportunity to comment”, the Notice informed the applicant he has an opportunity to “comment on the intention to consider cancellation of your visa and to give reasons why your visa should not be cancelled”. The Notice indicated that the applicant’s comments could include why the grounds for cancellation do not exist and why the applicant’s visa should not be cancelled. The Notice stated that the applicant was invited to provide his comments at an interview to be held on 12 September 2015 beginning at 12.10 pm at Sydney Airport.

5. At 12.12 pm the delegate began to interview the applicant again. The applicant said that “he found it tough to study after not being at school for five years”, and that he would like to obtain a diploma to “improve his skills”. The applicant also said he had “trouble at the beginning with his drug possession conviction” and that “the classes and program following this conviction made him feel depressed and it was hard to study”. The applicant also said that he has been in a relationship with “an Australian citizen girl for more than one year” and that he plans to have a family with that girl. He said he wanted to migrate to Australia. The applicant said he has many extended family members in Australia, he is a good worker, and he has good social skills.

6. At 1:36 pm on 12 September 2015 the delegate notified the applicant of his decision to cancel the applicant’s visa. The delegate concluded that the applicant’s history of not attending class and not making any effort to attend a new course from a new education provider gave the delegate reasons to believe the applicant ceased to be a genuine student and that, therefore, the delegate was satisfied grounds existed to cancel the visa under s.116(1)(fa)(i) of the Act. The delegate gave no weight to the applicant’s having stated on his incoming passenger card that he was seeking to enter Australia for education because the delegate found the applicant is not a genuine student. The delegate gave no weight to the extent to which the applicant had complied with his visa because the applicant failed sufficiently to attend classes and engage as a student in the course in which he has enrolled. The delegate accepted the applicant would suffer some hardship if his visa were cancelled, and the delegate placed some weight on that factor. The delegate also considered the circumstances under which the cancellation for the visa arose including the applicant’s claim he had trouble going to class due to depression. The delegate gave this factor no weight after considering the information provided by the applicant and the applicant’s criminal history which involved convictions for possession of cocaine and shoplifting.

Ground on which injunction is sought

1. The Court has power under s.15 of the Federal Circuit Court of Australia Act1999 (Cth) to grant, among other things, “interlocutory orders”. That includes the power courts of equity have traditionally exercised to grant injunctions to preserve the status quo pending the determination of a claim for a legal remedy.

2. The principles which guide the exercise of that power are well established: a court will grant an interlocutory injunction if it is satisfied that:[1]

   a)there “is a serious question to be tried or that the [applicant] has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the [applicant] will be held entitled to relief”;

   b)the applicant “will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted”; and

   c)the “balance of convenience favours the granting of an injunction”.

   [1] Castlemaine Tooheys Ltd v South Australia [1986] HCA 58; (1986) 161 CLR 148 at 153 (Mason ACJ).

Serious question to be tried?

1. There is no issue in the circumstances of this application that the Court has jurisdiction under s.476 of the Act to entertain an application for constitutional writs directed to the Minister in relation to the delegate’s decision to cancel the applicant’s visa. Given that such writs lie only where there has been a jurisdictional error, the question I must consider is whether there is a serious question to be tried or there is a prima facie case that the delegate made a jurisdictional error in cancelling the applicant’s visa.

2. The starting point is the ground stated in the application:

   The decision-maker erred in denying the applicant procedur[al] fairness or made a legally unreasonable decision.

   Particulars

   ·    At the interview the applicant has told the decision maker that he “feel depressed and it was hard to study” At [5] Part B Record of decision to cancel visa Form 1111

   The applicant has been denied an opportunity to provide evidence in supporting that the asserted failure of his course requirements may be a result of medical conditions and/or exceptional circumstances beyond his control

3. Mr Nikjoo, who appeared the applicant, submitted that the applicant was not given an opportunity properly to make submissions that “the classes and program following this conviction made [the applicant] feel depressed and it was hard to study”. Mr Markus, on behalf of the Minister, on the other hand, submitted that the procedure for cancelling visas under s.116 of the Act is set out in Subdivision E of Division 3 of Part 2 of the Act; that under s.118A of the Act the procedures set out in Subdivision E is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the cancellation of visas under s.116; and no serious question arises that the delegate did not comply with the requirements of Subdivision E. Mr Markus further submitted there is no arguable case that the delegate acted unreasonably.

4. The competing submissions require me to identify the relevant provisions of Subdivision E. I begin with s.119(1) of the Act which, subject to an exception which is not relevant, provides that if the Minister is considering cancelling a visa under s.116 of the Act, the Minister must notify the visa holder that that there appears to be grounds for cancelling the visa, and give particulars of those grounds and of the information because of which the grounds appear to exist, and to invite the holder to show within a specified time that those grounds do not exist or there is reason why the visa should not be cancelled. Under s.119(2) of the Act, the visa holder is to be notified in the prescribed way or, if there is no prescribed way, in a manner that the Minister considers to be appropriate. The manner in which the visa holder is to be notified does not appear to have been prescribed.

5. Next, s.121(1) of the Act requires that the invitation that is given under s.119 is to specify whether the response to the invitation may be given in writing, or at an interview between the holder and an officer, or by telephone. Under s.121(3) of the Act, if the invitation is to respond to an interview, the interview is to take place at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place, and at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period. No place or period has been prescribed.

6. The question of what constitutes reasonable period was considered in Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs where Kenny J said:[2]

   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 s 121(3)(b) of the Act.

   [2] [2002] FCA 748 at [78]

7. There is no question that the Notice complied with s.119 of the Act. There is also no question that the Notice invited the applicant to respond to the matters raised in the Notice at an interview, that the Notice specified the time and place of the interview, and the Notice specified a period within which the interview would take place. Two questions, however, arise. The first is whether there is a serious question to be tried that the period the delegate gave the applicant to respond to the Notice – thirteen minutes, being the period from 11.57 am until 12.10 pm – was a reasonable period to respond to the invitation contained in the Notice. The second is, assuming the period was reasonable, whether there is a serious question to be tried that the delegate’s decision to cancel the visa was unreasonable.

8. As to the first question, there is nothing in the material before me to suggest the period was unreasonable. The matters to which the Notice invited the applicant to respond were discrete and confined and were within the knowledge of the applicant. The applicant did not indicate to the delegate that he needed further time to respond to the invitation contained in the Notice, or that he could respond properly to one or more of the matters stated in the Notice only by obtaining information that was not available to him at the airport. In particular, the applicant did not indicate to the delegate there was information to which he could gain access, if given more time, that related to his claim that he had felt depressed and it was hard to study. For these reasons, therefore, I am of the opinion that the applicant has not raised a serious question to be tried that the time he was given to respond to the invitation contained in the Notice was unreasonable.

9. As to the second question, I am not satisfied there is a serious question to be tried that the delegate’s decision was so unreasonable that no reasonable decision-maker in the delegate’s position would have made it. The applicant accepted he was not a genuine student. Although the applicant claimed he had felt depressed and it was hard to study, it is beyond argument that it was reasonably open to the delegate not to regard that claim as a claim that the applicant suffered from what an appropriately qualified medical practitioner would consider to be depression. As I have already noted, the applicant did not indicate to the delegate there was additional information that was available to him that was relevant to his claim that he was depressed. Further, the applicant’s claimed depression was not the only information the applicant gave that was relevant to the circumstances that led to his not complying with the visa condition that he remain a genuine student. The delegate also relied on the applicant’s stating he did not like his first teacher and his first course.

Balance of convenience

1. If, contrary to my conclusions, the applicant has raised a serious question to be tried that the delegate has made a jurisdictional error, where does the balance of convenience lie? If an injunction is not granted, the applicant will be returned to Italy. The applicant, however, will still be able to pursue his claim that the delegate’s cancellation of the applicant’s visa was made as a result of jurisdictional error. If, on the other hand, an injunction is granted, but the applicant will not succeed at the final hearing, there is a high probability that the applicant will remain in detention until such time as his application is determined.

2. In my opinion, the balance of convenience favours my not granting an injunction. By not granting an injunction, the applicant’s liberty will be preserved, and the applicant will continue to maintain his application in relation to the delegate’s cancellation of the applicant’s visa.

Conclusion

1. The applicant has not made out a case for the granting of an interlocutory injunction. I propose, therefore, to dismiss the application with costs. I also propose to stand the matter over for directions on a date to be fixed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  16 September 2015