Grigoryan Melikstyan v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 1223
•19 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Grigoryan Melikstyan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 1223
File number(s): BRG 228 of 2023 Judgment of: JUDGE EGAN Date of judgment: 19 December 2023 Catchwords: MIGRATION LAW – whether it is a mandatory requirement for procedural fairness purposes for a person in immigration clearance to be given the opportunity to contact a lawyer – whether the removal from the person of their mobile phone was a denial of procedural fairness in all of the circumstances – where no procedural unfairness demonstrated – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) Cases cited: Minister for Immigration and Border Protection v Srouji 139 ALD 267
Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611 at [130] and [135]
Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 748
Division: Division 2 General Federal Law Number of paragraphs: 23 Date of last submission/s: 8 December 2023 Date of hearing: 4 December 2023 Place: Brisbane Counsel for the Applicant: Mr M Brady KC Solicitor for the Applicant: HTW Legal Group Counsel for the Respondent: Ms C Ernst Solicitor for the Respondent: Australian Government Solicitor ORDERS
BRG 228 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ARKADY GRIGORYAN MELIKSTYAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE EGAN
DATE OF ORDER:
20 DECEMBER 2023
IT IS ORDERED THAT:
1.The Amended Application for Review filed on 7 December 2023 be dismissed.
2.The Applicant pay the Respondent’s costs of an incidental to the Application for Review fixed in the amount of $8371.00.
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 EGAN
INTRODUCTION
The applicant was a citizen both the Republic of Spain and of Armenia.
On 14 July 2020, the applicant was granted a Student (Sub-Class 500) Visa. It was a condition of the grant of the visa, inter alia, that the applicant comply with Visa Condition No. 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (‘the Regulations’). [1]
[1] Court Book (CB) p. 39.
Visa condition 8202 relevantly provided as follows:
8202 (1) The holder must be enrolled in a full-time course of study or training if the holder is:
(a) a Defence student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student
(2) A holder not covered by subclause (1):
(a) must be enrolled in a full-time registered course; and
(b) subject to clause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c) must ensure that neither f the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving the satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)changes their enrolment to a course at the Australian Qualifications Framework level 9.
It was not in dispute that the applicant had been enrolled in an Advanced Diploma of Information Technology course which had 9 April 2023 as its actual course end date.
The applicant left Australia and travelled overseas between 7 March 2023 and 20 May 2023. On Saturday 20 May 2023, whilst returning to Australia on his Student Visa, the applicant arrived at the Brisbane International Airport seeking immigration clearance for his entry into Australia.
At 11.37 am on 20 May 2023, the applicant was taken aside for the purpose of officers of Border Force assessing his eligibility to be immigration cleared. [2] During the course of the interview, the Border Force officer who interviewed the applicant referred to the requirement of Visa Condition 8202(2)(a) to the applicant’s student visa, which condition relevantly required the applicant to be enrolled in a full-time registered course. The relevant exchange concerning that matter during the interview was as follows: [3]
[2] See Annexure TE-1 to the affidavit of Mr EteuatIfiled on 10 August 2023 – Transcript p. 5. 23 – 35.
[3] See Annexure TE-1 – T p. 11.18 – 12.22.
MARTINA: Okay. All right. So basically your intentions, what – if l'm correct, is you weren't intending to continue studying, you were wanting to apply for the postgraduate insert 485 visa 485 visa?
MR GRIGORYAN MELIKSTYAN: Yeah.
MARTINA: To commence working in the courses that you've been studying in Australia?
MR GRIGORYAN MELIKSTYAN: So yeah, because all the courses, like this one, which end ends before June this year, I can apply for postgraduate. I get an extra six months to be here in Australia, so instead of 18 months, two years. That's why my plan is - okay, in those two years, I would like to get the job. Probably, go ahead to the permanent resident visa. So the lawyer told me, basically, I have two options. So - or even I can find a job of my specific advanced diploma of telecommunication. Otherwise, I can buy a business as well. In term of - yeah, there is like a small business visa as well.
MARTINA: Yep.
MR GRIGORYAN MELIKSTYAN: So obviously I'm looking and searching information about all of those. MARTINA: Okay.
MR GRIGORYAN MELIKSTYAN: But for now, the postgraduate visa is something guaranteed, that's why I wanted to go ahead with this. I can study whenever in future. That's why first option the two years it's already guaranteed.
MARTINA: Okay.
MR GRIGORYAN MELIKSTYAN: And I'm working, and I'm paying my taxes, and I'm doing everything in Australia. So I haven't done any wrong since my last three years and half I've been living here.
MARTINA: The issue is you currently hold a student visa. You're not enrolled in a course. There's conditions attached. So there's work limits, and you have to be enrolled in a full-time course. The condition is 8202. Based on what you are telling me, and what's in PRISM's databases, you're not enrolled in a course. You don't intend on studying. You're wanting to apply for a more suitable visa, which is totally fine, but it looks like you should have done that before coming back to Australia. Your migration agent would be the person to give you the best advice regarding what to do, what your future lays for you to go on the pathway for permanent residency and citizenship and so forth. But the issue today is, you're here on a student visa, you're not wanting to study, you're wanting to change visas. So - - -
MR GRIGORYAN MELIKSTYAN: If l say I can apply for a study, would it change some way? Because, obviously, yeah, I want to sort out the situation as, obviously with continue
the rules, Australian rules, my intention is not to go back because I made this mistake.
MARTINA: And whether it was a miscommunication between yourself and the migration agent, I'm not sure.
The interview was suspended at 12.04 pm on 20 May 2023 before being resumed at 12.07 pm. The interview was then suspended from 12.14 pm until its resumption at 12.43 pm. Shortly after the resumption of the interview, the applicant was given a Notice of Intention to Consider Cancellation of the visa (‘NOICC’). [4]
[4] CB pp. 44 – 49.
The relevant conversation which took place during the resumed interview between the border force officer and the applicant up until the suspension of the interview at 12.55 pm was as follows: [5]
[5] See Annexure TE – 1 – T pp. 17.8 – 19.22.
“MARTINA: Okay. Interview is re−commencing at 12.43 hours. Okay. So I've discussed this with the supervisor, and this is a notice of intention to consider cancellation under section 116 of the Migration Act 1958. So − − −
MR GRIGORYAN MELIKSTYAN: Cancellation my visa? That the worst scenario
we've been talking about. Oh my God.
MARTINA: So as − I'll quickly run through part a) so this is the first step. So we're giving you a notice that we're intending to possibly consider cancelling your visa. Under your name, male, date of birth, nationality: Spanish and Armenian. You've got a student visa granted on 14th of July 2020. Are you confident in reading this form yourself? Would you like me to go through it with you?
MR GRIGORYAN MELIKSTYAN: I can − yeah, we can do it together.
MARTINA: Yeah. So possible grounds for cancellation, it's come to my intention, as a delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection, that there appear to be a ground for cancellation of your subclass 500 visa, which was grounded on the 14th of July 2020 under section 116 of the Migration Act 1958, relying on a ground at section 116(1)(b), because it appears that you have not complied with condition 8202. So attachment (a) is at the back here, which is the full information. And that visa will continue on, your subject visa condition, A2022A, the holder must be enrolled in a full time registered course. A search of the PRISMS, which is provider registration and international student management system, shows that you do not currently hold a confirmation of enrolment in a registered course. And your last COB, the Advanced Diploma of Information Technology, finished on the 9th of April 2023 as proposed an actual course end date. Previous COB, the Diploma of Business, was cancelled by the provider due to non commencement of studies on the 15th of February 2022. And another previous COB, for the Diploma of Project Management, was cancelled by the provider due to non commencement of studies or the 5th of October 2021. So under section 116 of the Migration Act from 1958 it states: 1) subject to the subsections (2) and (3), the minister may cancel a visa If he or she is satisfied that b) its holder has not complied with the condition of a visa. Attached to your visa's condition, 8202(2), which means a holder not covered by sub−clause 1 a) you must be enrolled in a full−time registered course, b) and b) subject to sub−clause (3) must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. And c) must ensure that neither of the following of the subparagraph applies in respect of a registered course undertaken by the holder. And one is, the education provider has certified the holder for a registered course undertaken by the holder, is not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000, and the relevant standard of the National Code made by the Education Minister undersection 33 of that Act.
Two, is that the education provider has certified the holder for a registered course undertaken by the holder, is not achieving satisfactory course attendance for section of Education Services for Overseas Student Act 2000 and the relevant standard of the National Code made by the Education Minister under section 33 of that Act. Since the grant of your visa, you have previously travelled and stayed in Australia from the 24th of September 2022 to the 7th of March 2023. You have returned on this same visa today on the 20th of May 2023. You have provided no evidence on an enrolment in another registered course of study. Based on the information before me, it appears there may be grounds to consider cancelling your visa, because it appears that you have not complied with the condition of the visa. So you will be given an opportunity to comment. So this is only part a) so this is the beginning of the formal interview, where we're giving you the notice that we're intending, or possibly considering, to cancel your visa. So the Migration Act 1958 gives you the opportunity to comment on the intention to consider cancellation of your visa, and to give reasons why your visa should not be cancelled. So your comments could include why grants for cancellation don't exist, or why your visa should not be cancelled. So you're invited to provide comments at an interview. So the interview just continue here as we are now. If you choose not to comment, the delegate may make his or her decision based on the information available to them already.
If your visa is cancelled, you may be refused immigration clearance. So this means, If your visa is cancelled, you may be refused immigration clearance. You may also be detained and removed from Australia as an unlawful non−citizen under section 189 of the Migration Act 1958. The visas of any dependents may also be cancelled, but I believe you are the only holder of your visa.
MR GRIGORYAN MELIKSTYAN: Yes.
MARTINA: If your visa is cancelled, you may be subject to exclusion period. You – if you are subject to an exclusion period, as a result of the visa cancellation, you may be prevented from being granted various types of visas for a period of up to three years. You may also be prevented from making a valid application for certain classes of visas while in Australia. If a decision is made not to cancel your visa, you will be immigration cleared and allowed to enter Australia. Okay? We're not considering cancelling under regulation 2.432. So that does not relate. So what I'm going to do, I'm going to sign.
MR GRIGORYAN MELIKSTYAN: Is there any way I can contact the immigration lawyer? Because I don't know exactly what to do, to be honest. I'm completely confused right now, what to do.
MARTINA: So because you've got a student visa, you're not enrolled in any course, you've not made any application for a visa since you've left. So you are not enrolled in a course, which is part of your conditions to have this visa as a student. So you should have − you'll have to − your migration officer or agent should have maybe got the visa application applied for in advance. Perhaps.
MR GRIGORYAN MELIKSTYAN: And the comments, why I − why they should not cancel my visa?
MARTINA: We will do that. That's the next step. So I have to give you time, as a reasonable person − it's a lot to take on. So we normally give 10 − 15 minutes for you to calmly think about what you want to say and to speak for yourself in your case.
MR GRIGORYAN MELIKSTYAN: There's no other way to contact anyone who can help me with this?
MARTINA: Do you need a translator? Are you more wanting − you are wanting your
migration agent?
MR GRIGORYAN MELIKSTYAN: Yeah, that would be a migration agent.
MARTINA: Okay. All right.
MR GRIGORYAN MELIKSTYAN: But, like, I want to say − I want to explore absolutely all possibilities in order to avoid this mistake. I don't know what to do.
MARTINA: Okay. So I do need this signed. So I'm signing this at 12.52 hours, that I
have given you this notice, and I'm signing both copies. Okay. So I'll need you to sign that you've received − so this is the grounds. And this is the form. Because it's copied. So one is for our records, and one is for you to keep. Okay, so the time is 12.53. I'm just writing beside your name. Okay, we've not used an interpreter. Okay, I will talk to my supervisor. Okay, so that is for you. You've got your copy. Okay, so interview is 20 suspended at 12 − actually, my apologies. This is 12.54. I'll come back through at 12 – at 13.10. I'll come back in to hear your statement claims. So I'll go speak to the supervisor. So 12.55 interview is being suspended.
The relevant conversation which took place between when the interview resumed at 1.12 pm and until suspension at 1.19 pm was relevantly as follows: [6]
[6] See Annexure TE – 1 – T pp. 19.25 – 21.3.
MARTINA: So interview is recommencing at 13.12 hours. Okay. And as I stated, I would come in to hear − for you to state the reasons why your visa should not be cancelled, or where grounds don't exist for cancellation of your student visa.
MR GRIGORYAN MELIKSTYAN: First of all, Martina and supervisor team, I really do apologise for this mistake. That's a really serious mistake. All I need is time to get sorted. Please don't cancel my visa. I'm expecting a baby in August. I cannot leave my partner here in Australia alone. I do all my best. I promise you wouldn't − you will not regret of letting me be here in Australia. I will sort this out. I promise. For the – from now I will do all the procedure of my best with the best consulting. Please, I'm begging not to my visa. I need time to enrol in the new course. That would be the same level to compliment my actual course as well, and my knowledge. And so, yeah, I'll do my best. I − but please don't cancel my visa. I need to be here for the − for August. I need to be with my and my future son.
MARTINA: Okay.
MR GRIGORYAN MELIKSTYAN: I promise that will not repeat again. I will do all my best. Absolutely − I going to be consulted by the best lawyer from now because this mistake cannot be tolerated in future. That's my future, actually. Thank you. So I'm begging not to cancel my visa, please. In this week, if you're going to give me some days, I will I sort this out with the help − with the lawyer. So I'm going to give you the evidence of enrolling for new course. That would be for sure. So I can be in Australia legally. Thank you so much. And please consider it.
MARTINA: Yeah. The issue that I have is, you hold a student visa, you don't have aconfirmation of enrolment, and you have stated that you − your intention is not to study. You are wanting to go on to the postgraduate visa, but you and the migration agent have not commenced that quickly enough, or haven't got everything prepared for that. There's no visa application being submitted yet for that. And there's been a good length of time that you've been away, and you've completed your studies. And yet you've remained on this student visa, when that is not your intention − you're wanting to progress in getting a more suitable visa for you to commence your, you know − to take forward your company and soforth, not to continue studying per se. So that is the whole problem that we have here today, is you hold a student visa, and you don't intend to continue studying. You're wanting to continue on to get the postgraduate visa, which the migration agent and yourself should have got. Either gave you the misinformation or miscommunication between both you and your agent. I cannot speak on their behalf, because only what I've got presented to me today in front of me, unfortunately. And I am mindful, as well, that you do have a partner who is currently pregnant, which I understand would − can have an effect on that. But you still have options to go offshore. And to possibly − if that − if I choose − if we make the decision to cancel your visa, that you still have options for yourself and your family, or whether we take this forward to whether you are allowed to be immigration cleared. But the main concern is, just so you understand the reason why you are here in this room, for a formal interview, is because you are not abiding to the conditions of your visa. That − − −
MR GRIGORYAN MELIKSTYAN: I just need time, if that's possible, to apply. Because I will. I will find a course which will be complement to my − for my future work.
MARTINA: Yep.
MR GRIGORYAN MELIKSTYAN: And apply for that and get the COE.
MARTINA: Yeah.
MR GRIGORYAN MELIKSTYAN: I know the COB is pretty quick to get it.
MARTINA: Yeah.
MR GRIGORYAN MELIKSTYAN: So I will do my best. Just give me, I don't know,
less than a week even. I will move and do everything. Done.
MARTINA: Yeah.
MR GRIGORYAN MELIKSTYAN: By that time. And I will present all the evidence.
MARTINA: Yeah.
MR GRIGORYAN MELIKSTYAN: Yeah. I want tofix this situation as well as
possible.
MARTINA: Yeah.
MR GRIGORYAN MELIKSTYAN: Avoiding the cancellation of the visa, which means a lot for me. That's − please consider.
MARTINA: Yeah. Okay. So the time is 13.19 hours. Interview is suspended.
After the interview resumed at 2.58 pm until the recording was concluded at 3.10 pm, the relevant conversation was as follows: [7]
[7] See Annexure TE – 1 – T pp. 21.5 – 24.30.
MARTINA: Okay. Interview is recommencing at 14.58 hours. In the room, officer − Australian Border Force Officer McDonald has entered as well. So through everything that's being presented, and through looking through everything, what you have stated and what you have provided, the decision has been made whether to cancel your visa. This is the actual decision record. And notifying you the decision to cancel your visa. So Grigoriyan Melikstyan Arkady, on the 20th of May 2023, were notified of an intention to consider cancelling your subclass 500 visa, which was granted on the 14th of July 2020 under section 116 of the Migration Act 1958. You responded to the notice of intention to consider cancelling the visa, and your comments have been taken into account in making this decision. I am satisfied that there are grounds for visa cancellation under section 116(1)(b) because I am satisfied that you have not complied with condition 8202. So 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. And this is a copy of the department decision record is attached. So your visa has been cancelled on the 20th of May 2023. As your Visa's been cancelled, you may be refused immigration clearance. You may also be detained and removed from Australia as an unlawful non−citizen under section 189 of the Migration Act 1958.
MR McDONALD: Okay. Have you done everything you want to do there?
MARTINA: I'm just going to sign the − − −
MR McDONALD: Sign the paperwork. Yeah.
MARTINA: − − − form.
MR McDONALD: That's fine.
MARTINA: I am signing this. The time is 15.00.
MR GRIGORYAN MELIKSTYAN: Can you please repeat that? Is that cancelled?
MARTINA: Yes. So you need to sign there on both forms.
MR GRIGORYAN MELIKSTYAN: What will happen?
MARTINA: We will go through the − he will explain everything.
MR McDONALD: Yeah. I'll go through it.
MARTINA: That can be your copy. Yes.
MR McDONALD: Hello, sir. My name is officer McDonald from the Australian Border Force. I need to go through some of the official paperwork and processes that we need to do. If you have any questions at the end, please feel free to ask those questions. And so, can you confirm with me that you understand that your visa has now been cancelled? And if you can just speak so that the − − −
MR GRIGORYAN MELIKSTYAN: Yes.
MR McDONALD: Okay. As a consequence of the visa cancellation, you'll be removed from Australia at the earliest practicable time as an unlawful non−citizen. You'll be subject to public interest criteria 4013, which may incur a three−year exclusion period from Australia, and special return criteria 5002, which may incur a one−year exclusion period for the grant of another visa. The decision to cancel your visa is not Merits Reviewable under the Migration Act 1958. And as I said before, my name is officer McDonald from the Australian Border Force. I reasonably suspect that you are an unlawful non−citizen, which is a person who does not hold a visa and is not an Australian citizen. I am now detaining you under section 189 of the Migration Act 1958, at the time of 3.03 pm.
MARTINA: 15.03 hours.
MR McDONALD: 15.03 hours today. Okay. Do you understand what has been read to you sofar? That your visa has been cancelled and that you are now in immigration detention?
MR GRIGORYAN MELIKSTYAN: What does it mean, exactly, detention?
MR McDONALD: Yeah. What that means is that you can't leave the airport here. So
you'll be under the control of the Australian Border Force, and you'll be transferred over to − we have some private sector contractors who will take over yourMR McDONALD: Detention. And our standards, as far as dealing with your case, is we always seek to have you removed back to your back to your own country within 72 hours. But often it is quicker than that. In most cases, while you are in immigration detention, you'll be held in a motel room and be guarded. So you can't leave that room, and you'll be provided with food and water and drinks, opportunity for medical care, if you need it. All of those things. And then when the flight has been arranged, our contractors will take you back to the airport and arrange for you to be boarded on at that flight to go back home. Do you understand that process?
MR GRIGORYAN MELIKSTYAN: Is there any way to review this process? MR McDONALD: There's nothing that can be reviewed through us here. The next thing I need to you − to advise you of is, do you want to contact a representative from your country, consulate or embassy, in Australia?
MR GRIGORYAN MELIKSTYAN: I need to contact at least my lawyer, to see what can I do. I don't know what to do, to be honest.
MR McDONALD: Okay. So you've said that you've wanted to − you want to contact another person and that's your lawyer? Yeah?
MR GRIGORYAN MELIKSTYAN: Yeah, I wanted to contact is the Brisbane immigration lawyer.
MR McDONALD: Right. Okay.
MR GRIGORYAN MELIKSTYAN: The same person I've been in contact.
MR McDONALD: You've been dealing with. Okay. That's fine. We can arrange with that. Do we have the gentleman's phone available to him?
MARTINA: Yeah.
MR McDONALD: That's available to him now? That that can be returned to him?
That's good. Now, regarding contacting a representative of your country's embassy or consulate, do you want to do that? You can change your mind at any time. You understand what I'm saying there? Like, if you wanted to contact your county's embassy to tell them that you have been detained?
MR GRIGORYAN MELIKSTYAN: Yeah, but I don't know to who to contact or −
MR McDONALD: We can provide a phone number if you want to do that. But you don't have to do that. It's up to you.
MR GRIGORYAN MELIKSTYAN: So my visa gets cancelled for three years? I cannot apply for any visa for Australia?
MR McDONALD: The − you can apply for a waiver. You can make a special application to have those blocks removed. And that is decided at quite a high level in the department. So it's not us that decide that. So you have those options. But at the moment, as I said, you have no visa, and you are in immigration detention.
MR GRIGORYAN MELIKSTYAN: Can I go with my partner then − − −
MR McDONALD: Did you want to contact your embassy now or?
MR GRIGORYAN MELIKSTYAN: How much time I have to contact anyone? I don't know. At least to call − to go to my partner and let her know.
MR McDONALD: Yep. That's fine − − −
MARTINA: You will − − −
MR GRIGORYAN MELIKSTYAN: Can I see her? Is that possible to see her?
MR McDONALD: Sometimes − − −
MR GRIGORYAN MELIKSTYAN: Outside definitely.
MR McDONALD: Sometimes that can be arranged. It all depends on what our supervisors and what our contractors will allow. Sometimes. But I can't promise anything there. Okay.
MARTINA: So regarding the embassy − at this point in time, do you want to contact anyone from your embassy? Whether it's a Spanish embassy?
MR GRIGORYAN MELIKSTYAN: That's the only one. The Spanish embassy.
MARTINA: Yeah. So it's either a yes/no question.
MR GRIGORYAN MELIKSTYAN: Yes. Sony. Yes.
MARTINA: So you do want to contact them?
MR McDONALD: Okay.
MR GRIGORYAN MELIKSTYAN: Whatever's help me.
MR McDONALD: We'll get hold of a phone number and contact emails. Okay. That's fine. And there's some forms that I will provide about that. I can do that when I get the phone number for the embassy. So that's fine. So that was − − −
MR GRIGORYAN MELIKSTYAN: Is there any way you've reconsider it, at least?
MARTINA: The decision's being made.
MR GRIGORYAN MELIKSTYAN: The decision's been made.
MR McDONALD: You need to give me − put a time there for the guests on that one?
MARTINA: Yep. 15.05.
10 MR McDONALD: 15.05.
MARTINA: Yes.
MR McDONALD: Okay.
MARTINA: I should say 15.08. My apologies.
MR McDONALD: 08. And for the migration agent, we'll say that was about 15.05.
MARTINA: Yes. Correct. Okay.
MR GRIGORYAN MELIKSTYAN: (indistinct)
MR McDONALD: We will then explain regarding Serco, the security that will come. And they'll go through your belongings and the process to take you to the hotel room.
MR GRIGORYAN MELIKSTYAN: That would be the − like, now you have given the next steps.
MARTINA: Yes.
MR McDONALD: That that process may take an hour or so, depending on where they are at the moment. So we − nothing more for the interview now, I take it?
MARTINA: No. So interview is ceasing at − − −
MR GRIGORYAN MELIKSTYAN: Is the hotel in − − −
MARTINA: 15.10.
MR GRIGORYAN MELIKSTYAN: − − − Brisbane?
MARTINA: Yes.
MARTINA: Interview ceasing at 15.10 hours.
The written decision to cancel the applicant’s student visa, and the written notification of the decision, were each provided to the applicant at the end of the interview process. [8] The applicant was then taken into immigration detention and housed at a hotel in Brisbane before his return overseas.
[8] CB pp. 50 - 60
On 22 May 2023, whilst the applicant was in immigration detention, the applicant’s lawyers filed an Originating Application for Review of the decision of the delegate of the Minister to cancel the applicant’s Student Visa.
Grounds of Review
At the hearing before the Court, the applicant’s written submissions erroneously indicated that the applicant relied upon Ground 3 of the Application for Review filed on 22 May 2023. [9] However, in email correspondence sent to Chambers on 8 December 2023, it was made clear that the Amended Application for Review filed by leave on 4 December 2023 was relied upon, and that the grounds of review therein relied upon were a more fulsome exposition of the Ground 3 earlier relied upon.
[9] See [45] of applicant’s submissions filed on 20 September 2023.
At [51] of the applicant’s submissions, it was submitted that the statutory scheme under the Migration Act 1958 (Cth) (‘the Act’) contemplated that a person in the position of the applicant may confer with a lawyer even if they were in detention. Reliance was placed upon the provisions of s. 192(7) of the Act in that regard. It was further submitted that a mere 15-16 minutes was not a reasonable period of time within which the applicant was able to consider his response to his having been given the notice of intention to cancel the visa, or otherwise to allow for him to consult with a lawyer. It was submitted that the provision of a reasonable period was a mandatory requirement under the natural justice rules of the Act, and that the failure to provide a reasonable period of time constituted jurisdictional error on the part of the delegate. It was further submitted that the failure to allow the applicant to consult a lawyer before responding to the NOICC also constituted procedural unfairness.
In analogous circumstances to the current matter, Jagot J (as Her Honour then was) in Minister for Immigration and Border Protection v Srouji 139 ALD 267 was there dealing with an applicant who had been given a NOICC whilst in immigration clearance. Her Honour found that being given a period of twenty minutes to respond as required by s. 121(3)(b) of the Act was reasonable.
In the present matter, the Court finds that the applicant having been given approximately 17 minutes was likewise objectively reasonable. Further, the submissions of the applicant must be viewed in the light of the findings of Jagot J at [21] – [29], which were as follows:
“[21]Second, the statute does not contemplate a person remaining “in immigration clearance” for any lengthy period of time. Indications to this effect are numerous. A person must present evidence of their entitlement to enter Australia without unreasonable delay: s 166(1). The person must present this evidence at the port at which they arrived: s 166(2). A person is “in immigration clearance” only for so long as the person is with an officer or at an authorised system for the purpose of s 166, being the presentation of the evidence: s 172(2). If taken into questioning detention there is a 4-hour time limit, albeit subject to the exclusions in s 192(7). Section 192(7), however, relates to all forms of questioning detention, not just questioning detention when a person is attempting to enter Australia at a port: s 192(1). Accordingly, the exclusions from the 4-hour time limit in s 192(7), when dealing with a person in questioning detention while “in immigration clearance”, must be understood as applying in a context where the person in question is with an officer at the port of arrival for the purpose of presenting the evidence required by s 166. Everything has to take place while the person is “in immigration clearance”, which may only take place at the port of arrival, unless the person is directed to another port.
[22]The primary judge correctly identified that the question whether Mr Srouji was given a reasonable time to respond at an interview as required by s 121(3)(b) was an objective one: at [1] . The primary judge also referred appropriately to the relevant decision of Zhaou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 748 at [78] in which Kenny J said:
[78] 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(2014) 139 ALD 267 at 274 may include the nature of the cancellation grounds that the decision-maker is considering, the personal attributes of the visa holder (ie, 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.
[23] At [12]–[14] the primary judge reasoned as follows:
[12] The uncontested evidence is that Mr Srouji had disembarked in Sydney after a long plane journey from Lebanon via Cairo and Singapore. He had had little sleep over 3 days. In Cairo he had to be evacuated due to civil disturbances. He suffers from high blood pressure and high cholesterol and had apparently suffered a mild heart attack shortly prior to coming to Australia. All of this was known to the delegate.
[13] Mr Srouji was only given 20 minutes to respond to the Notice of Intention to Cancel his visa after an interview which had begun some two and a half hours earlier (with several interruptions and adjournments and following an earlier bag search). He initially was given to understand that the interview related to the question of whether he would be immigration cleared. Mr Srouji made clear to the delegate that he held a valid visa and obviously felt he was entitled to enter Australia. It was only when Mr Srouji was given the Notice of Intention to Cancel his visa that he understood that the visa might be taken from him. Although he had been willing to participate in the interview and was anxious to get it over with quickly initially, I am concerned that his capacity to deal adequately with the Notice of Intention to Cancel was affected by his tiredness, the late hour and his state of health.
[14] Further, Ms Al-Ayoubi had been waiting at the airport to collect Mr Srouji. She was distressed when he did not appear. It is common ground that the delegate spoke to Ms Al-Ayoubi in order to seek information which would either corroborate or discredit what Mr Srouji had said to the delegate at the interview. To the extent that Ms Al-Ayoubi’s evidence conflicts with that of the delegate, I prefer that of the delegate for the reasons explained above. However, even on the account of the delegate, Ms Al-Ayoubi’s information tended to corroborate the proposition that Mr Srouji was a genuine tourist. The delegate gave evidence that she did not take into account Ms Al-Ayoubi’s information. Whether that was because it was not of assistance in supporting the cancellation decision, or because she did not want to have to disclose it to Mr Srouji, or (as stated) because the delegate had difficulty in confirming Ms Al-Ayoubi’s identity is not clear.
[15] Counsel for Mr Srouji contends that the information provided by Ms Al-Ayoubi did form part of the decision to cancel the visa. That is strongly contested by counsel for the Minister. The delegate, under cross-examination, stated that she did not take it into account although she had sought out the information as relevant information. In my view, because the information proffered by Ms Al-Ayoubi was supportive of Mr Srouji as a genuine tourist, and because it was not taken into account, and because Ms Al-Ayoubi was waiting at the airport in order to be spoken to again (but no one came back to her to further assist, even though she had been told to wait), the period of time to respond was inadequate. Sufficient time needed to be given to at least locate Ms Al-Ayoubi so that her information could be clearly understood and taken into account.
[16]For these reasons, I find that s 121(3)(b) of the Migration Act was breached and Mr Srouji should receive the relief sought in the amended application.
[24]I am unable to accept these reasons or the conclusion reached. The reasons do not give any weight to the statutory scheme or the numerous provisions within it indicating that it is not contemplated that a person may remain in immigration clearance for a lengthy period. While it was necessary to consider Mr Srouji’s tiredness, ill health, the late hour, and how long he had already been questioned(2014) 139 ALD 267 at 275 these factors had to be weighed in the overall statutory context. Further, it is not to the point that the evidence of Ms Al-Ayoubi may have corroborated Mr Srouji’s contentions. The issue is whether the period of time Mr Srouji was given to respond to the invitation to comment on the notice of proposed cancellation was a reasonable period. 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.
[25]I also disagree with the other reasons the primary judge gave for determining that the cancellation of Mr Srouji’s visa was invalid.
[26]To the extent that the position of Ms Al-Ayoubi is concerned, I can see nothing in the legislative scheme which would require the minister’s delegate to take into consideration such information as Ms Al-Ayoubi could have given. No doubt, if it had been reasonably practical to do so, the merits of the decision might have been improved if the officer had taken further steps to clarify the information Ms Al-Ayoubi gave, but there is no basis in the statute for concluding that there was any mandatory legal obligation for the officer to do so. The merits of the decision to cancel the visa are not a matter for this court.
[27]Otherwise, I do not accept that Mr Srouji was denied procedural fairness in all of the circumstances either because he was not told sufficiently clearly what the interview was about at the beginning of the interview or because he was not told that he could seek advice and assistance at that time. Again, the statutory provisions and the context are critical. The primary judge considered that Mr Srouji was in questioning detention from the outset of the interview. Although it is not material to the outcome, I disagree. The officer could not subject Mr Srouji to questioning detention other than in accordance with s 192(3) of the Act. Section 192(3) only permits an officer to detain a person if they reasonably suspect the person will attempt to evade the officer or other officers or otherwise not cooperate with the officer. It is apparent that Mr Srouji was willing to cooperate with the officer. There is no suggestion of any kind that he would otherwise have tried to evade the interview or not cooperate. Accordingly, the officer had no power to place him in questioning detention and did not do so.
[28]In terms of the interview preceding the giving of the notice, it is not apparent to me why procedural fairness required Mr Srouji to be told that he was being interviewed in order to determine whether to issue to him a notice inviting him to comment on reasons for the proposed cancellation of his visa. This is to impose an obligation to give notice of a potential notice. The case is analogous to Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations (2010) 195 FCR 318 ; (2011) 279 ALR 468 ; [2011] FCAFC 88 in which held that the issuing of a show cause notice was “the beginning of the process which engages the appellant’s entitlement to be accorded procedural fairness”. 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,(2014) 139 ALD 267 at 276which 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.
[29]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.”
Findings of a similar effect were made in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 748 per Kenny J where a period of ten minutes was found to be reasonable at [92] of Her Honour’s reasons, where it was said:
“[92]Counsel for the applicant focussed on the fact that the applicant was not left alone for a ten-minute period to consider his response at the interview to be held under s119. After giving the s119(1) notice, Mr Tobin told the applicant that "we'll be holding a formal interview ... in 10 minutes' time, which is 11.40". At the time it was made (about 11.30am), the statement was true, since the interview was to be held at 11.40am. As it turned out, however, part of the period between the giving of the s119(1) notice and the commencement of the interview was spent in Mr Tobin explaining to the applicant the effect of the notice. When the interview began "a few minutes after 11.40am", the applicant had been on his own between over 4 and up to 7 minutes. This does not, however, show that there has been any error of law. There is nothing in the Act or elsewhere in the law that would require that a visa holder be left alone for a period before an interview pursuant to s119(1), although as a matter of fairness, it may well be appropriate to afford him or her an undisturbed opportunity to consider the position. In this case, the applicant had a little more than ten minutes from the giving of the notice to consider his position, both with the assistance of Mr Tobin and by himself. The fact that the applicant was not alone for the entire ten minutes does not provide any basis for finding an error of law.”
The Court finds that in circumstances where the applicant arrived at the airport on a Saturday, in circumstances where he had breached a condition of the grant to him of a student visa, and further in circumstances where he was given a reasonable period of time in which to consider his position after having been given the NOICC, no procedural unfairness occurred.
The complaint concerning the fact of removal of the applicant’s phone could only be relevant if it was a mandatory requirement that the applicant be given an opportunity to contact a lawyer. As found by Jagot J at [29] of Her Honour’s reasons in Srouji, there was no mandatory requirement that the applicant have an opportunity to contact and receive advice from a lawyer after a NOICC had been provided to him. Hence, the removal from the applicant of his mobile phone, and the denial of the applicant’s request to contact a lawyer, was of no moment, and did not constitute a denial of procedural fairness.
The applicant has failed to establish jurisdictional error on the part of the delegate.
Further it cannot be said that no other rational or logical decision maker could not have made the same decision as the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611 at [130] and [135]:
“130. In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”…
“135. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the "practice of homosexuality" in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.”
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 20 December 2023
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