Dhaliwal v Minister for Immigration
[2016] FCCA 1669
•1 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DHALIWAL v MINISTER FOR IMMIGRATION | [2016] FCCA 1669 |
| Catchwords: MIGRATION – Cancellation of student visa (subclass 573) – interlocutory injunction. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth) Migration Act 1958 (Cth) s.119 Migration Regulations 1994 (Cth), cl.573.111 of Sch.2 |
| Cases cited: Calava v Minister for Immigration [2015] FCCA 2525 Minister for Immigration and Border Protection v Srouji [2014] FCA 50 Zhaou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 748 |
| Applicant: | HARMONJOT SINGH DHALIWAL |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | MLG 1353 of 2016 |
| Judgment of: | Judge McNab |
| Hearing date: | 1 July 2016 |
| Date of Last Submission: | 1 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 1 July 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lucas |
| Solicitors for the Applicant: | Clothier Anderson & Associates |
| Solicitor for the Respondent: | Mr Brown |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The applicant’s interlocutory application be hereby dismissed.
The applicant’s amended application filed 29 June 2016 be adjourned for final hearing on a date to be advised.
The applicant pay the respondent’s costs in the quantum of $1,500.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1353 of 2016
| HARMONJOT SINGH DHALIWAL |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
EX-TEMPORE
Introduction
This matter came before the court on Monday by an application filed on 24 June 2016.
By that application, the applicant seeks an interlocutory injunction that the Minister and his officers be restrained from removing the applicant from Australia pending the resolution of this application for judicial review of a decision of a delegate to cancel the applicant’s Student (Subclass 573) Visa.
By an amended application filed on 29 June 2016, the applicant sought the same relief but amended the particulars of the grounds.
The first ground of the application is that the delegate did not afford the applicant procedural fairness, that he was denied the opportunity to respond meaningfully to the Notice Of Intention To Consider Cancellation (NOICC) issued pursuant to section 119 of the
Migration Act 1958(Cth) (“the Act”).
Background
On 22 April 2014 the applicant was granted a Student Subclass 573 Visa. By reason of cl.573.111 of Sch.2 of the Migration Regulations 1994 (Cth) (“the Regulations”), an applicant for a Subclass 573 Visa was required to be:
a)enrolled in a principal course of study for the award of a bachelor’s degree or a master’s degree by course work; or
b)the principal course of studies provided by an eligible education provider;
c)that if the applicant proposes to undertake another course of study before and for the purposes of the principal course of study, the applicant is also enrolled in that course; and
d)that course is provided by the eligible education provider or an educational business partner of the eligible education provider.
Pursuant to reg.8022 a holder meets the requirements of this subclass if the holder is enrolled in a registered course.
On 20 June 2016, the applicant arrived in Melbourne from India and was detained at the airport, or held at the airport, for questioning.
A record of interview has been made available by the respondent, and that record of interview was transcribed and is an exhibit to an affidavit of Robin Graham affirmed on 30 June 2016.
That transcription shows that there was an interview between the Department of Immigration officer and the applicant at the Melbourne Airport on 20 June 2016 which commenced at 22:07 hours. That interview was suspended at 22:43 hours. At 23:09 hours an officer advised the applicant that, based on the information, there appeared to be grounds for cancelling the Subclass 573 Visa.
The statement provided to the applicant was recorded and is found at page 22 of the transcription. That notice was provided clearly and the applicant was invited to provide comments at interview and he was advised that that process would begin at 23:24 hours at Melbourne Airport. He was advised that if he chose not to comment, the delegate may make a decision based on the information available to him.
That interview commenced at 23:24 hours and the transcript provides:
OFFICER: Interview recommenced at 2324 hours.
OFFICER: Harmanjot do you have any response?
STUDENT: yes I do my study, I will pay my tuition fees and start my study on Wednesday
OFFICER: Anything else?
STUDENT: That’s all man
OFFICER: Interview suspended at 2324 hours
That interview was suspended at 23:24. Another interview commenced at 23:44 and it was a notification of a decision made on 20 June 2016. It states that:
You were notified of an intention to consider cancelling your Subclass 573 Visa which was granted on 22 April 2014 under section 116 of the Migration Act 1958.
You responded to the notification and your comments have been taken into account in making a decision.
I am satisfied that there are grounds for cancellation under section 116(1)(b) because I am satisfied that you breached condition 2802(a).
After weighing up all the information available to me I was satisfied that the grounds for cancelling your visa outweigh the reasons for not cancelling. Your visa was cancelled on 20 June 2016, that’s today.
In the reasons for that decision, which are annexed to an affidavit sworn by Hanna Jean Carmel Dickinson on 24 June 2016 at annexure HJCD2, the Notice Of Intention to Consider Cancellation (NOICC) and the decision at page 4 of that decision, the grounds of cancellation are set out as follows:
The visa holder arrived at Melbourne Airport as the holder of visa subclass 573 which is endorsed with condition 8202 (details of which can be found on the reverse of page 5 of this form).
Provider Registration and International Student Management System (PRISMS) show that he does not have any current enrollment (sic) in any course and shows he has a series of cancelled enrollments (sic) due to non-payment of fees or non-attendance.
At interview, the visa holder confirmed that he has only completed one course (ELICOS) and that he has only partly attended school since the beginning of 2015. He stated that he was unable to attend school but was unable to provide ant plausible reason why. The visa holder has been unable to provide any evidence that he is enrolled in a registered course of study in mitigation of the evidence of non-enrolment located in PRISMS.
The decision-maker found that the PRISMS report shows that he does not have any current enrolment in any course and shows that he has a series of cancelled enrolments due to the non-payment of fees or non-attendance. And, in conclusion, he said:
Based on the above information, I am satisfied that there is a ground for cancelling his subclass 573 student visa. The ground is that he has breached condition 8202(2)(a) of his visa because he is not enrolled in a registered course of study.
The decision-maker then went on to consider the matters which are set out at [8] to [11] of the record of decision. Under paragraph 8, where the decision-maker had to provide a summary of the reasons the visa holder gave as to why the visa should not be cancelled, the visa holder stated that he will pay all his tuition fees and start school on Wednesday, 22 June 2016.
And in response to that reason the decision-maker commented:
The visa holder does not have a current confirmation of enrolment (sic) with any education provider, which is a direct breach of condition 8202.
I therefore give minimal weight to this factor.
The decision record sets out the other considerations which were given at pages 1, 5 & 6 of the NOICC, and he gave minimal weight to those matters. I have read them and had regard to them.
Ground 1
The first ground for the application was that the delegate did not afford the applicant procedural fairness. He was denied the opportunity to respond meaningfully to the NOICC issued to him pursuant to s.119 of the Act.
It is alleged under particular 1.1 that the delegate’s decision was affected by apprehended bias and that he was thereby denied the opportunity to respond meaningfully to NOICC. At particular 1.3 the applicant states:
The applicant did not properly understand the content of the NOICC, nor could he meaningfully partake in the interview. Departmental policy states that the purpose of issuing a NOICC is to “provide the visa holder with an opportunity to respond to the grounds for cancelling the visa”. The applicant was denied any meaningful opportunity to respond to the NOICC. The delegate failed to comply with s.120(1) of the Act which requires that the delegate must give relevant information to the visa holder.
The argument was put to me by Mr Brown that the conduct in the interview, preparatory to the interview following the provision of the notice, was irrelevant and not subject to a requirement that the applicant be accorded procedural fairness. In support of that proposition he referred me to a decision of Minister for Immigration and Border Protection v Srouji [2014] FCA 50 (“Srouji”).
In that decision his Honour Jagot J., held at [28]:
In the present case, the beginning of the process requiring
Mr Srouji to be accorded procedural fairness was the notice given under s 121. Even if this be wrong, I would conclude that the giving of the notice under s 121 and the opportunity Mr Srouji had to respond cured any initial denial of procedural fairness. The relevant decision was not a decision to suspect that there might be circumstances indicating Mr Srouji’s visa should be cancelled. The relevant decision was the decision to cancel his visa, which Mr Srouji was given both notice of and an opportunity to respond before the visa was cancelled. In any event, I do not accept that Mr Srouji was not given adequate notice of the purpose of the interview. “Immigration clearance” might be a term of art, as the primary judge said, but when the interview preceding the giving of the notice is considered as a whole it is apparent that Mr Srouji was put on notice that the issue was whether he would be cleared to enter Australia despite having a visa.
The argument in Srouji was that the relevant interview was the interview which followed the provision of the notice and that there was no basis for any suggestion that there was a denial of procedural fairness at that interview. I accept the force of that argument; however, it does not foreclose a submission or argument that a person’s ability to respond in the interview following the provision of the notice might be conditioned by the way he or she was treated in any interview prior. For instance, if a person was harassed or badgered to the point that they felt cowered or that any response was utterly pointless, then, that may reasonably, or sensibly impact on the way they gave answers in a subsequent interview. I understand that was part of the submission put on behalf of the applicant in this proceeding.
Having heard the recording of the interview and read the transcript,
I am not of the view that the applicant was by the process of that interview or the way that it was conducted denied the opportunity to place before the delegate information which may have assisted his position. The applicant was given the opportunity to explain absences from the course and it is not in issue that at the time of the interview the applicant was not in fact enrolled in a course that would satisfy the requirements of condition 8202.
The argument is that the discretion has miscarried because the decision-maker has not taken into account other matters, or has effectively denied the applicant the opportunity to put those other matters to him because of the way that the initial interview was conducted.
I do not accept that to be the case and it is clear from the interview that the applicant did become upset. At one stage he was upset and the interview paused for some time, but having read the record of interview and heard the interview, many of the answers that he gave were implausible or did not satisfactorily explain why he was not currently enrolled in a course or why he had not been enrolled in a course or why courses had been cancelled.
He was given an opportunity to explain his position and put his position that perhaps the record of enrolments and cancellations was not correct. I approach this matter on the basis that the Court has the power to grant an interlocutory injunction under the powers of this court under s.15 of the Federal Circuit Court of Australia Act 1999 (Cth). The principles which guide the exercise of that power are well-established. A court will grant an interlocutory injunction if it is satisfied that:
a)there is 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 end of the trial or the action the applicant will be entitled to relief;
b)the applicant will suffer irreparable injury for which damages will not be an adequate remedy unless the injunction is granted; and
c)the balance of convenience favours the granting of an injunction
In respect of the first ground of the application I am not satisfied that there is a prima facie case such as would satisfy the sub-condition, which I have just referred to. In particular, I do not accept that the applicant was denied the opportunity to respond to the notice and I do not accept that the applicant failed to understand the content of the notice.
A further ground was that there was a failure to provide a reasonable period of time in which to respond to the notice, and in particular there was a failure to comply with s.121(3)(b) of the Act.
I was referred to a decision of this court of Calava v Minister for Immigration [2015] FCCA 2525, which referred at [15] of that decision to another decision of Zhaou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 748. That was a decision of Kenny J where she considered what is a reasonable period for the purposes of s.121(3)(b) of the Act as follows:
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.
In relation to this matter the applicant was given ten minutes to consider the content of the notice before being asked about it. Having regard to the reasonably narrow scope of the matters that were being considered, that is, the nature of the cancellation grounds, in my view, the applicant had sufficient time and I do not think there is a prima facie basis for contending that there was a failure to comply with that provision of the Act by reason of the length of time.
Having heard the recording of the interview, it is apparent that the applicant’s language skills were sufficient for him to understand the questions that were being put to him and to consider his response, and in my view there is no prima facie basis for a claim that that provision leave has been breached.
Ground 2
The second ground was that there was a misconstruing of the evidence in such a serious and determinative way that the decision was affected by jurisdictional error. In my view, there is no serious question to be tried in relation to that. There was no suggestion that the applicant was enrolled in a course which complied with the provisions of the regulation and the PRISMS records indicate that the course that the applicant contended that he was to enrol in or pay fees in respect of was not a course that complied with the regulation; that being an advanced diploma of hospitality. In that regard, I refer to exhibit HJCD4 to the affidavit of Ms Dickenson affirmed on 29 June 2016.
Ground 3
The third ground of the amended application was that the respondent failed to have regard to relevant considerations being made by the applicant as to why the delegate should exercise a discretion not to cancel the visa. I do not accept that those grounds were relevant considerations, in particular the ground at 3.3 that the delegate was on notice that the applicant had been in an accident that prevented his work and study. There was no evidence or material put before the delegate which would allow him to form the view that the failure to attend study was because of an illness or injury.
Ground 4
The fourth ground was that the delegate impermissibly indicated that the presence of any extenuating factors would be outweighed by the very fact of the breach. It is unclear whether that is pressed, or how it is put, but it is not apparent from the material the basis of how that is put.
A further ground is that the applicant told the delegate that he had not been able to study for a period of four to five months. The delegate incorrectly recorded that the applicant confirmed he had “only partly attended school from the beginning of 2015”. Having heard the interview that would have seemed to be a reasonably accurate summary of the information that had been provided by the applicant. There is a suggestion that the discretion miscarried because the delegate failed to consider the applicant’s claim and that he had contacted and spoken with his course provider. I do not accept that it was not considered.
Ground 3.7 provides that the delegate failed to make simple inquiries with the education provider that could have easily confirmed the applicant’s claims in accordance with his obligations and departmental policy. At the time of his response to the notice and prior to that, no sufficient information was provided by the applicant in order for the delegate to comply with that alleged requirement. The applicant did not suggest that he was enrolled in a course in compliance with his obligations under the regulation, and the answers that were provided by the applicant were so vague that it was not possible for the delegate to make further inquiries.
In response to ground 3.8, I am of the opinion that as the delegate had regard to the fact that the applicant was not enrolled in a course and had not been enrolled in a course since at least 20 April 2016, there is no serious question to be tried in relation to that ground.
It is put generally at ground 3.9 that the delegate failed to have regard to the applicant’s past behaviour in relation to department. No particulars are stated in support of that, and I am of the view that there is no serious question in regard to that ground. There is a general proposition that the decision of the delegate to cancel the applicant’s visa was legally unreasonable. In my view, there is no serious question to be tried in relation to that. The delegate had before it evidence that the applicant was not enrolled in a course in compliance with the conditions of his visa. And in those circumstances the decision was not legally unreasonable.
Ground 4.1 claims that the delegate appears to have refused to take into account claims advanced by the applicant and to have unreasonably asked the applicant to show evidence of funds for the enrolment on the spot with the cancellation process manner, having regard to the timing, lack of interpreter and the applicant’s age and background. Having heard the interview, I think that is a misconstruction of what the delegate appears to have done and there is no serious question to be tried arising from that ground.
Conclusion
In those circumstances, the applicant’s amended application should be dismissed.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 6 July 2016
0
3
4