Jiang v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] FedCFamC2G 318

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Jiang v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 318

File number(s):	SYG 576 of 2024
Judgment of:	JUDGE STREET
Date of judgment:	12 April 2024
Catchwords:	MIGRATION – interlocutory injunction – no current course of employment – cancelled - cancelled 6 -7 months earlier – application for interlocutory injunction is dismissed
Legislation:	Migration Act 1958 (Cth) s 116
Cases cited:	Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 839
Division:	Division 2 General Federal Law
Number of paragraphs:	18
Date of hearing:	4 April 2024
Place:	Sydney
Counsel for the Applicant:	Mr B Zipser
Solicitor for the Applicant:	Juris Cor Legal
Solicitor for the Respondent:	Mr T Creedon of Australian Government Solicitor

ORDERS

SYG 576 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CHENGUANG JIANG

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	04 APRIL 2024

THE COURT ORDERS THAT:

1.Leave is granted to the applicant to file in Court his application together with his affidavit, being the most recent application, and directs that they are digitally lodged by 5:00PM on 5 April 2024.

2.The respondent is directed to file the affidavit relied upon by the respondent digitally by 5:00PM on 5 April 2024.

3.The application for an interlocutory injunction is dismissed.

4.The matter is stood over until 9:30AM on 12 April 2024 via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

5.The Court reserves its written reasons.

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 STREET

1. On 4 April 2024, at 8:15 pm, this Court heard an interlocutory injunction application in which the applicant sought to restrain the respondent from having him removed from Australia, pending a determination of these proceedings. The application identified that at 3:16pm on 3 April 2023, a delegate gave the applicant a Notice of Intention to consider cancellation (“NOICC”) of his student visa under section 116(1)(b) of the Migration Act 1958 (Cth). That notice was marked as exhibit A. The Court also received into evidence an affidavit by the solicitor of the applicant, Ms Siyu Zang, as well as a slightly revised application that identified the following grounds.

   Grounds of Application

   (1)Around 3:16 pm on 3 April 2023 the delegate gave the applicant a notice of intention to consider cancelling his student visa under s 116(1)(b) of the Migration Act 1958 (Cth) (NOICC). The NOICC included information that the applicant would be interviewed at 3:38 pm so that he could comment on the NOICC. From about 3:38 pm the applicant participated in an interview. During the interview, or at some other time prior to the time the delegate made a decision around 5:22 pm, the applicant told the delegate that, in order to comment on the NOICC and before the delegate made a decision, the applicant wanted to speak with his education consultant so that he could provide evidence in response to the NOICC. The applicant asked the delegate to not make a decision until the following day so that the applicant could have a reasonable time to speak with his education consultant. If the delegate had given the applicant reasonable time to speak with his education consultant before making a decision:

   (a)The applicant, with the assistance of his education consultant, could have obtained a new certificate of enrolment, or proof of enrolment in a registered course of study, within a short time.

   (b)The applicant would have provided to the delegate more detailed information as to the circumstances in which he came to no longer be enrolled in a course of study, which circumstances would have indicated no personal fault on the applicant’s part.

   However, the delegate either:

   (c)failed to consider the applicant’s request to postpone making a decision until the following day; or

   (d)considered the request but decided not to postpone making a decision until the following day or otherwise for a reasonable period of time to allow the applicant to speak with his education consultant.

   The delegate made a decision around 5:22 pm.

   If the applicant had provided to the delegate the information in (a) and (b) above, in particular a new certificate of enrolment or proof of enrolment in a registered course of study, before the delegate made a decision, this may have affected the delegate’s decision. In the circumstances, the delegate’s failure to consider the applicant’s postponement request or the delegate’s refusal to give the applicant time:

   (e)to speak with his education consultant; and/or

   (f)to speak with his education consultant and provide evidence in response to the NOICC aided by the education consultant,

   was legally unreasonable and procedurally unfair in a manner which involved jurisdictional error.

2. The Court also received into evidence the affidavit of Adrian Patrick Downie. By way of background, the applicant is a citizen of the People’s Republic of China and first arrived in Australia on 21 April 2019 as the holder of a work and holiday class US, subclass 462 visa. On 15 June 2020, the applicant was granted a student class TU subclass 500 visa.

3. On 12 March 2022, the applicant applied for a further student class TU subclass 500 visa on the basis of confirmed enrolments in CDE175 and CDE73634.  The confirmation of enrolment, labelled, “CDE175” was issued in relation to an advanced diploma of business with the Federation Technology Institute Proprietary Limited, due to start on 18 April 2022 and due to end on 16 April 2023. The confirmation of enrolment labelled, “CDE73634”, was issued in relation to a Graduate Diploma of Leadership with the Federation Technology Institute Proprietary Limited, due to start on 22 May 2023 and due to end on 19 May 2024. On 23 August 2022, the applicant was granted a further student class TU subclass 500 visa. On 12 July 2023, the applicant’s confirmation of enrolment labelled, “CDE73634”, was cancelled. The Provider Registration and International Student Management System record recorded the reason for cancellation was non-payment of fees.

4. On 3 March 2024, the applicant departed Australia while holding a student visa.  On 3 April 2024, at approximately 9:46 am, the applicant arrived in Australia at Melbourne Airport on China Eastern flight number MU737. At approximately 1:35 pm, on 3 April 2024, the applicant was interviewed by an officer of Australian Border Force. The interview was suspended at 1:50 pm and resumed at 1:52pm and suspended again until approximately 2:17pm. At approximately 3:16pm, the applicant was notified of the intention to consider cancelling his student visa by an Officer of the Australian Border Force, who is a delegate of the Minister.

5. At approximately 3:38pm, the applicant was interviewed by the Officer of the Australian Border Force in respect of the applicant’s response to the notice of intention to consider cancellation of his visa. That interview was concluded at 15:49pm. At 5:22pm, the delegate of the Minister made a decision to cancel the applicant’s student visa pursuant to section 116(1)(b) of the Migration Act 1958 (Cth). The delegate found that the applicant had breached visa condition 8202 and in weighing up the information before the delegate, the delegate was satisfied the grounds for cancellation of the visa outweighed the reasons for not cancelling the visa. At approximately 5:33pm, the applicant was notified of the delegate’s decision to cancel the visa. At approximately 11:38am on 4 April 2024, the applicant’s solicitor identified making an application for judicial review of the decision to cancel his visa.

6. At the hearing before this Court, Mr Zipser appeared for the applicant and Mr Creedon appeared for the respondent. The hearing was conducted via telephone after hearing invitations were sent out by the Court’s associate. The Court first identified the evidence before it. Mr Zipser of counsel advanced that there were two errors upon which he relied as giving rise to a sufficiently arguable case to warrant the grant of an injunction. The first was founded on the applicant’s assertion of a request for more time to contact his education provider so that he could provide a current confirmation of enrolment and the refusal was procedural unfair. The second was that the outcome was, in all the circumstances, legally unreasonable.

7. There is no record of any such request being made by the applicant, but the applicant asserted that it was his recollection that such an application was made orally. 

8. Mr Zipser contended that it was legally unreasonable to refuse the applicant the opportunity of obtaining a current course of enrolment from his education provider as that may possibly have had a material impact in the exercise of the discretion as to cancelling the visa.

9. Mr Zipser also submitted that the decision to cancel the visa was, in all the circumstances, legally unreasonable. In that regard, Mr Zipser referred to the decision record and referred to the applicant’s explanation as to his enrolments being organised by his migration agent and that the applicant had been cooperative, and contended that he did not have any criminal record and had not broken any law, and the consequences identified by the decision-maker if the visa was cancelled. The decision record identified that the delegate was satisfied that the grounds for cancelling the visa outweigh the grounds for not cancelling the visa, and that the delegate had accordingly decided to cancel the visa.

10. In the course of his submissions, Mr Zipser identified that it was a two-step process in relation to the cancellation. First, there was the need to be satisfied that the statutory criteria was met in relation to section 116(1)(b) of the Migration Act 1958 (Cth), and, secondly, the discretionary balancing consideration as to whether the visa should be cancelled. Mr Zipser conceded that the material before the Court established that the power to cancel had been properly enlivened and that there had been statutory compliance with the criteria to establish that the applicant had not complied with a condition of the visa, enlivening the power of cancellation. It was conceded by Mr Zipser that the cancellation of the visa had occurred six to seven months ago.

11. The delegate identified that, in his reasons, the applicant contended that he had come to Australia to study, and accepted that the present records show he does not have a current course of enrolment, and in response to the notice of intention to cancel, the applicant stated:

    I know some of my behaviour may not be allowed by Australian law; however, I did spend some money for my study and pay my taxes.

12. The delegate identified that the applicant may have travelled to Australia for the purpose of studying, but that he currently is not enrolled in any course of study. The delegate referred to the holder having been given an opportunity to show his intentions to continue studying however, he was unable to do so. The delegate identified that he did not find the applicant’s reason for travelling to and staying in Australia to be compelling and gave the applicant’s contention of travelling to Australia for the purpose of study little weight towards cancellation.  The delegate also identified the impact on the applicant in relation to having a cat in Australia and paying his girlfriend’s rent, and that he may suffer some emotional hardship. The delegate identified the applicant being offshore already for one month without his cat, and that his primary reason for being in Australia was to study and not to pay his girlfriend’s rent, and that she should be capable of taking care of herself, and, whilst acknowledging that a visa holder may suffer other hardship, gave that consideration some weight against cancellation.

13. Mr Creedon, on behalf of the Minister, maintained that there is no evidence of any request for an adjournment, and that the applicant’s assertions of the possibility of making such a request should not be given any weight. Mr Creedon also submitted that even if there were such a request, it cannot be said that it was legally unreasonable in the circumstances, given the six or seven month time period since the cancellation of the visa, for the delegate to have proceeded with the determination of the notice of intention to cancel, and that the delegate did not have to provide reasons in respect of the refusal of such an adjournment. I accept the respondent’s submissions that the delegate did not have to provide reasons in respect of the apparent refusal to postpone the determination of the notice of intention to cancel, notwithstanding the applicant’s request to contact his service provider to try and obtain a confirmation of enrolment.

14. The obtaining of the confirmation of enrolment would not overcome the existing breach that had been in place for almost six to seven months. In those circumstances, it could not be said that the decision to continue to determine whether the visa application should be cancelled lacks an evident and intelligible justification. Further, the provision of a new confirmation of enrolment in no way overcomes the period the subject of the breach of the condition enlivening the cancellation power under section 116. Whilst the Court accepts the contention by Mr Zipser that if obtained it could have been a further factor that could have been put before the delegate, the Court does not accept that it was a factor that had any realistic possibility of giving rise to any different outcome in the weighing of the factors in the present case. This is because it does not go to any potentially material fact that could make a possible difference to the outcome such as an explanation as to the absence of the course of enrolment over the relevant period since its cancellation. In this case, the obtaining of a new course of enrolment could not be said to be a material fact as it could not possibly affect the outcome.

15. The Court is satisfied that it is not a factor that could possibly have given rise to a different outcome in respect of the cancellation in the circumstances of the present case, where the cancellation had occurred six to seven months earlier and where, on the material before the delegate, it is apparent that the applicant was aware that he was not enrolled, which was apparent from the interview conducted at 1352, in which the applicant had stated:

    Not sure if enrolled.

16. In these circumstances, the Court is not satisfied that there is a sufficiently arguable case of jurisdictional error in respect of the refusal to postpone the determination of the Notice of intention to cancel. The Court finds, in respect of first ground, that there is no prima facie case within the meaning identified by the learned Laing J  in Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 839 at [11] – [12], in respect of the first ground advanced by Mr Zipser.

17. In relation to the second ground, the reasons provided by the delegate to which the Court has referred identifies an obvious and intelligible justification for the adverse decision, and the Court is not satisfied that the applicant has a sufficiently arguable case of legal unreasonableness as to outcome in respect of the second ground advanced by Mr Zipser, the six to seven months knowledge by the applicant of the cancellation of the course of enrolment provides an evident and intelligible justification for the adverse discretionary decision. There is no sufficiently arguable case in respect of the second ground advanced by Mr Zipser.

18. It is for these reasons that the Court dismissed the application for the interlocutory injunctive relief.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       12 April 2024