Chapagai v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1227
•18 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chapagai v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1227
File number(s): SYG 2925 of 2024 Judgment of: JUDGE LAING Date of judgment: 18 November 2024 Catchwords: MIGRATION – urgent application for an interlocutory injunction restraining the applicant’s removal from Australia – application for review of a decision cancelling the applicant’s student visa – injunction application dismissed and substantive application listed for expedited hearing Legislation: Migration Act 1958 (Cth) s 116 Cases cited: Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212
Division: General Number of paragraphs: 33 Date of hearing: 11 November 2024 Place: Sydney Counsel for the Applicant: Mr P Berg Solicitor for the Applicant: Sultan Legal Counsel for the Respondent: Mr G Johnson Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 2925 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: SUGAM CHAPAGAI
Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
11 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the respondent be amended to “Minister for Immigration and Multicultural Affairs” dispensing with the need for filing any further document in this regard.
2.The applicant’s application for an interlocutory injunction restraining his removal from Australia be dismissed.
3.The reasons for that decision be published at a later date.
BY CONSENT, THE COURT ORDERS THAT:
1.The application otherwise be listed for hearing on Friday, 22 November 2024 at 10:00am (AEDT).
2.The respondent file and serve a Court Book and any other evidence relied upon by 13 November 2024.
3.The applicant file and serve any evidence and submissions by 15 November 2024.
4.The respondent has leave to file and serve any evidence and submissions in reply by 20 November 2024.
5.Liberty to apply on such notice as the circumstances warrant.
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 LAING:
This matter came before me in my capacity as duty judge on 11 November 2024. The substantive application concerns an application for judicial review of a decision of a delegate (Delegate) of the respondent (Minister) cancelling the applicant’s Student (Class TU) (Subclass 500) visa (student visa) at the airport following his arrival in Australia. The applicant sought an urgent interlocutory injunction restraining his removal from Australia, which was scheduled to occur within a matter of hours.
At the hearing, I dismissed the injunction application and ordered an expedited timetable for hearing the substantive matter. Noting the limited time available, I reserved my reasons for doing so. These are those reasons.
BACKGROUND
The applicant arrived at Perth International Airport on 9 November 2024, on a student visa which was granted on 25 July 2023.
At the airport, it appears that the applicant was subjected to an examination of his property which included his mobile electronic device (mobile). Messages were identified, in which (inter alia) the applicant appeared to have shared files including the word “Assignment”, following which price and deadlines were discussed. Features of the service offered by the business with which the applicant appeared to have been corresponding were said to include “High Quality work” and a “Plagiarism report… to ensure originality of the paper”. Messages (apparently from the applicant) recorded statements such as the following: “I want you to do the assignment… The deadline is tomorrow evening… I will send you the details…”
These messages were annexed to a notice of intention to consider cancellation (NOICC) that was provided to the applicant at the airport. The Delegate subsequently decided to cancel the visa under s 116(1)(fa)(i) of the Migration Act 1958 (Cth) (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:
(i) its holder is not, or is likely not to be, a genuine student;
…
DELEGATE’S DECISION
The Delegate was not satisfied that the applicant was a genuine student and therefore found that a ground for cancellation existed under s 116(fa)(i) of the Act.
The reasons given for finding that a ground for cancellation existed were contained in an annexure to the decision (Annexure). The Annexure referenced admissions said to have been made by the applicant as follows:
•He is working 20-30 hours per week
•Getting paid $25 cash per hour
•Have been working at 'Yankie Candie store' selling vapes & tobacco.
•He has paid an external person/company to complete his assignments.
•They are mostly group assignments but his own assignments also.
The Annexure summarised and attached messages found on the applicant’s mobile regarding the applicant’s exchanges with the business in relation to his assignments. It also stated the following:
The visa holders Certificate of Enrolment (CoE) information located on the Department of Education website: Provider Registration and International Student Management System (PRISMS), shows since his first arrival into Australia on 03AUG2023 his first course 'Master of Predictive Analytics' was cancelled due to: Student Notifies Cessation of Studies. The visa holder's current course 'Master of Business Administration (Professional Accounting)' commenced on the 25MAR2024.
In response to the Notice of Intention to Consider Cancellation the visa holder stated:
•I made a mistake that you have mentioned here.
•Haven't done that mistake with all of my assignments.
•Let me finish my study and then I'll return home to Nepal.
•Have come here and taken an education loan and personal loan.
I acknowledge that the visa holder stated that he has not made the mistake with all of his assignments. I also acknowledge that he wishes to complete his studies and return to Nepal and that he has come here and taken an education loan and personal loan for his studies.
Based on the above information, admissions and evidence located on your phone, including your PRISMS record it appears you are not, or likely not to be a genuine student as you have not been studying full time since your arrival into Australia. Additionally, you have arranged an external company to complete multiple assignments, for your current course, on your behalf.
Therefore, I am satisfied that grounds exist to cancel the visa holder's subclass TU-500 visa under s116(1)(fa)(i) as I am satisfied the visa holder is not, or is likely not to be, a genuine student because the visa holder has not maintained continued study in Australia since the grant of his current student visa.
The Delegate acknowledged that there was no evidence that the applicant had failed to comply with various conditions of his visa. This was given “a little weight” against cancellation.
The Delegate acknowledged what were said to have been the applicant’s statements that he had made a mistake and had not done so in relation to all of his assignments. This was given “a little weight” against cancellation. However, the Delegate considered that “located on the visa holders [sic] mobile device were payments to an external company to complete assignments on his behalf”. This was despite it being “the visa holders [sic] responsibility to make sure he is completing all his assignments”. This was given significant weight towards cancellation.
The Delegate observed that the consequences of cancelling the visa may result in the applicant becoming an unlawful non-citizen, being detained in immigration clearance and removed from Australia. The Delegate observed that the applicant may also be subjected to bars which may prevent him from applying for certain types of visas and that he may be excluded from being granted a visa for a period of time. These considerations were given some weight against cancellation.
The Delegate considered that the applicant had been “somewhat compliant” during the interview process. This was given some weight against cancellation.
The Delegate then concluded, after “weighing up all of the information available”, that the reasons for cancelling the visa outweighed the reasons against cancellation. The Delegate therefore decided to cancel the visa.
PRINCIPLES
The principles regarding the grant of an interlocutory injunction were recently considered by Jackson J in Merriman v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 834 at [15]:
15.The well-established principles for the grant of an interlocutory injunction were summarised in Frigger v Trenfield [2019] FCA 1746 at [6]. In so far as they are relevant presently, they are:
...
(2)Where an applicant seeks interlocutory relief, it is necessary to 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.
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J).
(3)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] (Gummow and Hayne JJ); Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110 at [9] (Beech J).
(4)The likelihood of success required is dependent upon the nature of the right being asserted and the practical consequences that are likely to flow if the injunction is granted: ABC v O'Neill at [71]; Twinside at [9]; Apotex Pty Ltd v Cipla Limited [2017] FCA 1627 at [40] (Beach J).
(5)The resolution of the question of where the balance of convenience and justice lies requires the court to exercise a discretion: Samsung Electronics Co Limited v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [65] (Dowsett, Foster and Yates JJ). The court will weigh up the injustice which might be suffered by the respondent if the injunction is granted and the applicant later fails at trial, against the injustice which might be suffered by the applicant if the injunction is not granted and the applicant later succeeds at trial: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 623; Twinside at [11].
…
(7)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 at [67]. As the apparent strength of the applicant's case diminishes, the balance of convenience moves against the making of an order: Glenwood Management Group Pty Ltd v Mayo [1991] 2 VR 49 at 54-55; Twinside at [11].
…
Serious question to be tried
The applicant relies upon an application filed on 11 November 2024 containing the following grounds:
1. On 9 November, the applicant was interviewed by an officer of the Respondent. The Officer in his decision wrote that the Applicant made admissions that he had not been studying full time. In, fact the applicant stated he had withdrawn from Masers or predictive analytics from university, and he was enrolled in Master of Business Administration at Australian National Institute of Management and commerce for which a valid COE was issued. The Applicant did not make any admission that study was not full time.
2. The decision-maker misunderstood the applicant’s statement and made the decision principally based on that misunderstanding. The decision-maker accordingly failed to exercise his or her jurisdiction.
3. On 10 September 2024 the applicant had a text conversation where he sought help to edit an assignment of his study. The applicant sought that help from a business providing such a service. On 9 November 2024, the decision-maker concluded the applicant had paid the business to write the assignment. The decision-maker misunderstood the contract between the applicant and the business.
4. Based in part on that misunderstanding the decision-maker found the applicant was not a genuine student. The decision-maker accordingly failed to exercise his or her jurisdiction.
5. The errors were material to the decision.
As was developed at the hearing on 11 November 2024, the grounds essentially asserted two misunderstandings:
(a)first, that the applicant had made an admission that his study for which a Confirmation of Enrolment had been issued was not full time; and
(b)second, regarding the contract between the applicant and the business.
The applicant did not address the nature of the jurisdictional error contended, nor the associated doctrines, in any particular detail. Instead, the applicant relied upon a summary of potential errors in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 at [27]. Although this may require some further development on the part of the applicant at the final hearing, for the purposes of the injunction application it was not fatal. I accept that if the applicant is able to demonstrate misunderstandings on the part of the Delegate, then there may be a basis for asserting jurisdictional error. This will depend upon their causes, nature and effect. However, the lack of clarity in what is being asserted by the applicant at a factual level has some consequences for the injunction application, for reasons that will be developed below.
The first contended misunderstanding does not suffer from this lack of clarity. The applicant contended that the Delegate relied upon a misunderstanding that he had made an admission not made at interview, that his course of study was not full-time. It was submitted that this should be inferred from the attachment to the NOICC, which was referenced in the decision record, stating:
… Based on the above information, admissions and evidence located on your phone, including your PRISMS record it appears you are not, or likely not to be a genuine student as you have not been studying full time since your arrival into Australia. Additionally, you have arranged an external company to complete multiple assignments, for your current course, on your behalf….
However, the information “above” included Provider Registration and International Student Management System records and admissions made by the applicant regarding his working hours. These appear to be more likely potential sources of the Delegate’s finding that the applicant had not been studying full time “since (his) arrival in Australia” (and not specifically in relation to his course). This is reinforced by the fact that the “admissions” detailed earlier in the document do not include any “admission” said to have been made by the applicant regarding whether his study was full time.
From the above, it does not appear on the evidence that the Delegate made the finding contended. Nor does it appear that the finding made was based upon any “admission” at interview by the applicant that his course of study was not full time. I am not persuaded that a serious question to be tried has been raised in relation to the first contended misunderstanding.
The second contended misunderstanding suffers from a lack of clarity. As I raised at the hearing, there is a potential inconsistency between the ground relied upon and the applicant’s affidavit. The ground suggested that the misunderstanding complained of was that the applicant had sought “help to edit” his assignment from the business, whereas the Delegate concluded the applicant had paid the business to write the assignment. In contrast, [10] of the applicant’s affidavit indicated that he had obtained “drafts” from the business which were “only used as a reference point for my understanding”. The assignments submitted to the university were contended to have been his “own work”. When this tension was raised at hearing, the applicant’s Counsel suggested that the applicant’s affidavit should be preferred to the grounds themselves, which were (understandably) drafted in haste. I accept that this is an appropriate approach.
However, the issue with the lack of clarity is more fundamental than this. The applicant’s affidavit does not establish the basis of the “misunderstanding”. Although reference is generally made at [18] of the affidavit to what is contended to have been the applicant’s “limited ability to express effectively” on account of English not being his first language, the affidavit does not make clear matters such as, (a) what the applicant says that he sought to express, but considers he was unable to express; (b) what he expressed instead; (c) whether this issue was raised at interview; and/or (d) the consequences of this. The applicant also referred at [18] generally to “responses” being “taken incorrectly” but does not say what his actual responses were in contrast to what was understood by the Tribunal.
At the listing, I sought to clarify with Counsel for the applicant the contended basis of the error. I queried whether the applicant was contending that the misunderstanding was because he had said the wrong thing, or been unable to say the right thing, on account of his English limitations and the lack of an interpreter. Or, was the applicant contending that the Tribunal misunderstood what he had in fact said, or reasoned in a way that was not open based upon this? The factual contentions in this regard are different in important respects, and give rise to potentially different bases for judicial review, with different thresholds.
From the discussion that followed, I did not get the sense that the instructions provided by the applicant were entirely clear on the contended basis of the misunderstanding. This is, of course, no criticism. Urgent applications for relief are not always conducive to clear instructions. However, at the conclusion of the listing it remained unclear what the applicant contended had occurred. This was not apparent from the applicant’s affidavit, which was made in English without any record of interpretation having occurred. The applicant’s Counsel suggested that it may have been interpreted for the applicant, but was uncertain as to whether or not this had occurred.
I accept that perfect clarity or precision in terms of cause and effect may not always be required when relying upon a ground of denial of procedural fairness based upon interpreter issues. In this regard, attention was drawn to SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142; (2013) 219 FCR 212 at [10]-[11].
However, in the present case I consider that the lack of clarity regarding what the applicant says occurred is such that it tends against a finding that a serious question to be tried has been demonstrated. Without knowing what the applicant says occurred at the interview, or the contended cause of the misunderstanding he says occurred, I am not persuaded that the ground relied upon has sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo. In this regard, the submissions made on behalf of the applicant were of such generality in terms of difficulties said to have been experienced in the interview that it is difficult to assess whether this may give rise to a viable ground. It may well be that by the time of the final hearing, greater clarity will have been provided and I will be in a better position to assess the ground’s prospects. However, I am not convinced that this has been demonstrated at this stage.
I note that this conclusion has been reached in a context where I have also not been persuaded that the balance of convenience favours the grant of the injunction. This is for the reasons set out below.
Balance of convenience
The applicant is currently detained. As the Minister submitted, he is able to seek review of the cancellation decision offshore. The applicant may more comfortably seek review offshore, at less public expense (assuming that the Minister does not grant him a bridging or other visa in the intervening period).
The applicant submitted that he has already commenced his course and has paid fees to the education provider. The applicant submitted that if he were removed from Australia, he will have wasted the significant travel costs, and he will be prejudiced in terms of course progression.
However, no details were provided regarding the requirements of the course nor whether his completion of it might be able to be accommodated if this matter were heard expeditiously. To this end, I offered available dates from as early as the following week and asked, if the matter were heard in this manner, if this might accommodate the applicant’s concerns regarding course disruption. In this regard, both the Minister and the applicant were amenable to the matter being heard on Friday morning the following week.
The Minister submitted that the consequences of granting the injunction would include wasted expenditure and resources in respect of arrangements made towards the applicant’s departure and accommodation. The applicant was prepared to offer an undertaking as to damages “should the respondent request one”. However, this would potentially expose the applicant to costs in excess of the costs he is concerned about wasting (such as his flight costs to Australia).
In any event, I have not been persuaded on the facts of this case that the balance of convenience favours the grant of the injunction. The applicant is able to have his application heard, promptly, whilst he is offshore. If successful, then he may seek to return and complete his course with what appears to be limited disruption. The contrary has not been demonstrated.
CONCLUSION
For these reasons, I have dismissed the application for an interlocutory injunction. I have also set an expedited timetable for final hearing of this matter that was agreeable to both parties at the hearing of the injunction application.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Associate:
Dated: 18 November 2024
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