Mohammed v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 839
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mohammed v Minister for Immigration, Citizenship And Multicultural Affairs [2023] FedCFamC2G 839
File number(s): SYG 1435 of 2023 Judgment of: JUDGE LAING Date of judgment: 13 September 2023 Catchwords: MIGRATION – where an interlocutory injunction was previously granted restraining the applicant’s removal from Australia – whether the injunction should be extended – prima facie case – balance of convenience – orders made extending the injunction until after determination of the substantive application after a hearing listed for the following week Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 140
Migration Act 1958 (Cth) ss 116(1)(fa)(i), 118A-127
Cases cited: AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 192
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870
Minister for Immigration and Border Protection v Srouji [2014] FCA 50
Zhaou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 748
Division: Division 2 General Federal Law Number of paragraphs: 35 Date of hearing: 13 September 2023 Place: Sydney Appearing for the Applicant: Mr K Sultan of Sultan Legal Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent Australian Government Solicitor
Table of Corrections 20 September 2023 In paragraph 3 reference to “9 August 2023” has been corrected to “9 September 2023” ORDERS
SYG 1435 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUKARRAM UDDIN MOHAMMED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE LAING
DATE OF ORDER:
13 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Unless or until further contrary order of the Court, the respondent by himself, or by his delegates, his Department, and its officers, employees or agents be restrained from removing the applicant from Australia before 11:59 pm on the day of determination of his application for judicial review of the decision to cancel his visa dated 9 September 2023.
2.The matter is listed for hearing of the application at 10:00 am on 21 September 2023.
3.The respondent is to provide a copy of the audio of the interview with the Delegate to the applicant by 13 September 2023.
4.The applicant file and serve any evidence and submissions by 4:00 pm on 18 September 2023.
5.The respondent file and serve any evidence and submissions in response by 4:00 pm on 20 September 2023.
6.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).
EX TEMPORE REASONS FOR JUDGMENT
(Revised from transcript)Amended pursuant to rule 17.05(2)(g) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 20 September 2023
JUDGE LAING:
This matter came before Judge Manousaridis as duty judge on 10 September 2023. The applicant sought an urgent interlocutory injunction restraining his removal from Australia. An injunction was granted, with his Honour ordering that the removal of the applicant be restrained until midnight tonight. The matter has been listed before me, in my capacity as duty judge, this afternoon for consideration of continuation of that injunction.
BACKGROUND
The applicant arrived in Australia on the evening of 8 September 2023, on a Student (Class TU) (Subclass 500) visa (student visa) which was granted on 13 December 2022. The student visa had been granted in relation to a package course for a Diploma of Project Management and an Advanced Diploma of Business.
At the airport, after an initial interview had occurred, the applicant was provided with a notice of intention to consider cancelling a visa (NOICC) at 1.30 am on 9 September 2023. A further interview was scheduled to occur 15 minutes after this time. Approximately an hour later, at 2.46 am, a delegate of the Minister (Delegate) 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 this under the relevant [7] of the Delegate’s decision were limited, and were as follows:
The visa holder stated that since February 2022 after his father passed away, he has been disturbed as he was really close with him.
I acknowledged the visa holder’s response.
Whilst the visa holder may have been affected by his father’s passing, there was no evidence that he approached his education provider to inform them of his compassionate situation. Furthermore, this may have prevented the cancellation of his Advanced Diploma of Business COE: D11DDC59.
After considering the evidence and the visa holder’s response to the NOICC, I am satisfied that the visa holder is not a genuine student.
Therefore, I am satisfied that a ground does exist to cancel the visa holder’s visa under s116(l)(fa)(i) of the Migration Act 1958.
Some context is provided by Annexure A to the NOICC, which stated:
You arrived in Australia on 08/09/2023 on a TU500 Student visa which was granted on 13/12/2022. This visa was granted for a package course for a Diploma of Project Management (Confirmation of Enrollment (COE): D11DAA55 and Advanced Diploma of Business COE: D11DDC59 with a ceasing date of 09/02/2025.
When questioned during interview, you stated the following:
-You departed Australia on 19/04/2023 as you were unwell and you were not able to provide evidence of this.
-You notified your college that you were unwell but you are unable to provide evidence of this.
- You have returned to continue your studies.
-You have completed your Diploma of Project Management course online via the college portal but later stated that you ceased your studies in March 2023 and have not submitted any assessments since approximately February/March 2022.
-You currently have outstanding fees for your studies of approximately AUD$4,500.
On 10/08/2023, the department received confirmation from Berkeley Education Pty Ltd Trading as Global Training Academy (Bankstown) that your COE - D11DDC59 with a start date 14/08/2023 has been cancelled due to unsuccessful completion of your Diploma of Project Management course with the college and therefore you cannot commence the Advanced Diploma of Business.
See Attachment - B.
On 08/09/2023 at 10:26:21PM, a new Advanced Diploma of Business COE - EB1DD896 at Berkeley Education Pty Ltd, Trading Name - Global Training Academy was generated without your knowledge. See Attachment - C
You were informed of this new COE created on 08/09/2023, which you were not aware of and you acknowledged that you are not eligible to commence this course without the successful completion of the Diploma of Project Management course - COE: D11DAA55.
Based on the above information, it appears that you are not a genuine student, and as such grounds appears to exist to consider cancelling your visa under s116(1)(fa)(i) of the Migration Act 1958 which states:
(fa) in the case of a student visa:
(i) its holder is not, or is likely to be [sic], a genuine student.
The Delegate observed that the applicant’s Advanced Diploma of Business (COE:D11DDC59) had been cancelled by his education provider (Provider) due to unsuccessful completion of his prerequisite Diploma of Project Management course (COE: D11DAA55). This was given significant weight in favour of cancellation. The Delegate observed that the applicant admitted during interview that he ceased his studies in March 2023 and had not submitted any assignments since February or March 2022. This also was given weight towards cancellation.
The Delegate acknowledged the applicant’s explanation that he had been disturbed by his father’s passing since February 2022. However, the Delegate considered that “there was no evidence that he approached his education provider to inform them of his compassionate situation”, which may have prevented cancellation of his Advanced Diploma of Business (COE:D11DDC59).
The Delegate accepted that the applicant may have been disturbed after his father’s passing, since February 2022, and that this may have interrupted his studies. However, the Delegate considered that the applicant “had the opportunity to approach his education provider to inform of his compassionate reason for not studying”. This was given some weight towards cancellation.
The Delegate accepted that the applicant had been cooperative during the interview. The Delegate accepted that the cancellation may give rise to some hardship(s) and that the legal consequences may include being unlawful, detention and removal from Australia, as well as an inability to apply for or be granted some visas. These matters were given some weight against cancellation.
However, having regard to these matters overall, the Delegate decided to cancel the applicant’s visa.
Principles
The Court has the power under s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) to grant interlocutory orders. This includes with it a power of equity traditionally exercised to grant injunctions to preserve the status quo, pending determination of a claim for a legal remedy: see AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 192 at [8].
The principles applicable to whether or not to grant an interlocutory injunction were summarised by Thawley J in CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870:
11.The issue before Mortimer J was whether or not to grant an interlocutory injunction. The principles applicable to such relief may be briefly stated. There are two main inquiries. The first is whether the applicant has a prima facie case in the sense of “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”; this does not mean the applicant must establish that they are more probable than not to succeed at trial: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ) and [19] (Gleeson CJ and Crennan J). As Katzmann J observed in SZTZM v Minister for Immigration and Border Protection [2017] FCA 534 at [39]:
What will be sufficient will depend on “the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order he seeks”: Beecham Group Limited v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622.
12.The second main inquiry is whether the inconvenience or injury the applicant would be likely to suffer if an injunction were refused outweighs the injury the respondent would suffer if the injunction were granted: O’Neill at [65], citing Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618.
13.Consideration of the two main inquiries cannot be conducted completely independently of each other, because “an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even” and “[a] more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is a marked balance of convenience in favour of it”: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 19; (1985) 5 FCR 464 at 472 per Woodward J (Smithers and Sweeney JJ agreeing at 467 and 469 respectively); see also ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363 at [28] (Charlesworth J).
Is there a prima facie case?
The applicant relies upon an application filed on 10 September 2023 containing the following grounds:
Ground 1: Denial of procedural fairness
9.It was unreasonable that he was given fifteen 15 minutes to respond to the NOICC. The Applicant boarded Malaysian flight from Hyderabad on 08 September 2023 at 12:30 am Indian standard time and landed in Australia on 8 September 2022 at 8:30 pm Australian standard time. After almost 15 hours of travel time the Applicant was detained by the immigration officer at or about 9:00 pm and had been investigated throughout this time. In circumstances where he was exhausted and had no access to a lawyer or legal advice, no opportunity to contact anyone, no phone and no understanding of the legal requirements that he was facing, 15 minutes had been too short a time.
Ground 2: Cancellation unreasonable
10.The decision to cancel the visa was unreasonable because there was no rationally probative evidence that:
a. The Applicant was not a genuine student.
In circumstances where the Applicant firstly provided compelling medical reasons for his extended stay in India, secondly. acknowledgement that he had informed the college about his absence and thirdly when a concurrent COE dated 08 September 2023 was showing up on the Prism record. There was no substantial evidence to conclude that the Applicant was not a genuine student and for her to exercise the powers conferred under section s116 (1) (fa)(i).
11.The decision-makers must base their decisions on rationally probative evidence and not on guesswork or conjecture. The fact that an updated COE dated 8 September 2023 was available on the prism record. There was no evidence to conclude that the applicant was not studying and was not a genuine student.
Ground 3: illogical/ irrational / unreasonable approach to one or more of the section 116 preconditions: (3) the exercise of discretion
12.The Delegate of the Minister did not consider relevant information when assessing whether there are exceptional reasons in applicant’s case. The fact that the applicant was not well and was getting medical treatment in India. Henceforth establishing the fact that circumstances in which the ground for cancellation arose were beyond the applicant’s control. No reasonable person could have reached the conclusion Ms Jenny reached on the evidence that had been before her.
Ground 1
Ground 1 contended that the applicant was denied procedural fairness in circumstances where the NOICC was provided to him 15 minutes before interview after a lengthy international flight. In circumstances where the applicant is contended to have been exhausted and to have had no opportunity to contact anyone, no phone available to him, no legal advice and no understanding of the legal requirements, 15 minutes was submitted to have been insufficient time.
At the hearing this afternoon, it was submitted for the applicant that the questions asked during the Delegate’s interview were asked in a misleading and leading manner, which had compromised his ability to respond in circumstances where he was exhausted and on medication. The applicant acknowledged that the evidence before the Court was presently insufficient to demonstrate these matters. The applicant sought the opportunity to place further evidence before the Court.
The Delegate’s procedural fairness obligations were limited under ss 118A to 127 of the Act. Section 119(1)(a) required the grounds of cancellation and certain other particulars to be provided to the applicant. Section 119(1)(b) required that the applicant be invited to respond within a specified time. Section 121(3)(b) required that, if the invitation was to provide a response at interview, the interview occur “at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period “. Other provisions of the Act provided important statutory context to this obligation, which will be required to be considered in determining the grounds raised in the application: see Minister for Immigration and Border Protection v Srouji [2014] FCA 50 at [22]-[24] per Jagot J.
In Zhaou v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 748, it was stated at [78] per Kenny J:
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 may include the nature of the cancellation grounds that the decision-maker is considering, the personal attributes of the visa holder (i.e., age, facility in the English language, physical infirmity or well-being), the presence of an interpreter or lawyer, the visa holder's familiarity with the matters of concern to the decision-maker, the circumstances in which the decision falls to be made, and the availability of matters corroborative of the applicant. Regard would also be taken of the statutory context and purpose of s 121(3)(b) of the Act.
The Minister submitted that the evidence presently before the Court regarding the applicant’s health issues is limited and that there is no evidence that he raised objections to the manner in which the interview was conducted, or sought additional time.
There is force to these submissions. However, as will be apparent from the foregoing, determination of whether the Delegate complied with their procedural fairness obligations will be context specific, and depend upon fulsome consideration of the circumstances of this case and the applicable statutory context. Whether or not the ground is able to succeed is likely to depend upon further evidence, including regarding what was said during the interview.
For present purposes, I am persuaded that this ground raises a prima facie case. Whether or not it ought ultimately to succeed is not required to be determined at this interlocutory stage.
Grounds 2 and 3
Ground 2 contended that there was no rationally probative evidence that the applicant was not a genuine student. This, so expressed, would not raise a prima facie case. The evidence before the Delegate appears to have been to the effect that the applicant’s Confirmation of Enrolment in an Advanced Diploma of Business had been cancelled due to the applicant’s non-completion of his prerequisite course. The Delegate’s decision records that the applicant had admitted to ceasing his studies in March 2023 and to not having submitted any assignments since February or March 2022. This was evidence that was logically capable of supporting a finding that the applicant was not, or was likely not to be, a genuine student.
However, the ground also refers to the applicant having “provided compelling medical reasons for his extended stay in India” in 2023, having informed the college about his absence and to a Confirmation of Enrolment dated 8 September 2023.
By ground 3, the applicant contended that the decision was unreasonable for reasons including that the Minister did not consider relevant information when assessing the applicant’s matter, including regarding the applicant’s medical treatment.
The grounds, at this stage, are not particularly well developed. This is unsurprising, given the urgent manner in which this matter has come before the Court. However, they are sufficient to give rise to a concern that I have regarding the manner in which the Delegate approached their reasoning process in this matter.
As set out earlier, the Delegate in this matter referred in Attachment A to the NOICC to the applicant’s contention that he had departed Australia because he was unwell in April 2023. The Delegate also referred to the applicant’s statement that he had notified his college that he was unwell. In relation to both of these matters, the Delegate observed that the applicant had been unable to provide evidence. Given the very limited timing involved (i.e., within the context of questioning at the airport) it is unclear whether the applicant had been expected to have been able to proffer corroborative evidence, or the extent of any opportunity that he had been afforded in which to do so. In any event, the Delegate did not, in clear terms, reject the possibility that the applicant had been unwell and that this had been raised with his college in the NOICC.
At [7] of the Delegate’s decision, the Delegate referred to the applicant’s evidence that he had been “disturbed” by his father’s passing in February 2022, but did not refer to the applicant’s claim that he had departed Australia in April 2023 because he was unwell. Reference is made in handwritten notes I am informed were made by the Delegate to “health issues” and “infections”, but these are not referenced in the Delegate’s decision. The Delegate’s decision also does not appear to refer to the applicant’s oral evidence during interview that he had informed his college that he was unwell.
There does, therefore, seem to me to be an arguable issue in this case about whether the Delegate engaged in their decision with the applicant’s claims and evidence regarding his health situation, and its communication to his college, in 2023.
The applicant also sought to develop an argument regarding whether the Delegate considered, in the requisite sense, the applicant’s recent confirmation of enrolment in its decision. Whilst this was referred to in the NOICC, I have not been taken to any consideration of this in the Delegate’s decision. I accept the Minister’s submission that this document and its limitations were raised with the applicant by the Delegate, as set out earlier. The limitations identified tend against both the objective significance of the evidence and the applicant’s contention that it was not considered by the Delegate, as opposed to having not been considered by the Delegate to have been material to their decision.
However, having regard to the foregoing, I am prepared to accept that the grounds relied upon by the applicant raise a prima facie case in the sense of having sufficient prosects of success to justify preservation of the status quo for a limited period until the matter is able to be heard and determined on the evidence. This weighs in favour of continuing the injunction.
Balance of convenience
The balance of convenience is difficult to determine in this case.
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, if the Minister does not grant him a bridging (or other) visa in the intervening period.
However, there may be some delay if such a review awaits the applicant’s departure from Australia and residence in his home country. The applicant is concerned that he may not be able to continue with his course if there is any delay in determination of this matter, in circumstances where he has only recently been granted an extension allowing him to complete his prerequisite course, the course has already started, and the extension that he was granted for completion is not a lengthy one. The applicant, it was submitted, has already invested time and money in pursuit of this course package.
On balance, and on the understanding that this matter may be expeditiously heard and determined, I accept that the balance of convenience somewhat favours the applicant in this matter.
CONCLUSION
For these reasons, I conclude that the interlocutory injunction granted to the applicant ought to be continued for a limited period and that this matter ought to be heard and determined expeditiously.
I will so order. I will also make orders providing a timetable for this matter.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Laing. Deputy Associate:
Dated: 18 September 2023
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