Patel v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1317
•3 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1317
File number(s): SYG 2913 of 2024 Judgment of: JUDGE PAPADOPOULOS Date of judgment: 3 December 2024 Catchwords: MIGRATION – urgent interlocutory application to restrain Minister from removing applicant from Australia – whether serious question to be tried – whether damages an insufficient remedy – where balance of convenience lies – application dismissed. Legislation: Acts Interpretation Act 1901 (Cth) s 25D
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 140
Migration Act 1958 (Cth) ss 48, 116, 119, 127, 198, 476
Migration Regulations 1994 reg. 2.55, cll 4013, 4014 and 8202
Cases cited: ABH18 v Minister for Home Affairs[2020] FCA 620
AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 192
ARK16 v Minister for Immigration and Border Protection[2018] FCA 825
Calava v Minister for Immigration [2015] FCCA 2525
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; HCA 58
CPC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 734
CPK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 870
DFF17 v Minister for Immigration and Border Protection[2023] FedCFamC2G 149
Minister for Immigration and Border Protection v Srouji [2014] FCA 50
Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575
Mohammedv Minister for Immigration, Citizenship And Multicultural Affairs [2023] FedCFamC2G 839
Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 748
Division: Division 2 General Federal Law Number of paragraphs: 54 Date of hearing: 10 November 2024 Place: Sydney Solicitor for the Applicant Mr Sultan, Sultan Legal Solicitor for the Respondent Mr Sypott, Australian Government Solicitor ORDERS
SYG 2913 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARDIK BHIKABHAI PATEL
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE PAPADOPOULOS
DATE OF ORDER:
11 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The respondent is to provide a copy of the audio recording of the applicant’s interview with the delegate to the applicant on or before 13 November 2024.
2.The application for an interlocutory injunction heard on 10 November 2024 is dismissed.
3.The costs in relation to the determination of the applicant’s appeal for injunctive relief be costs in the cause.
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 PAPADOPOULOS
INTRODUCTION
Before the Court is an application for an interlocutory injunction filed on 10 November 2024, to restrain the first respondent (Minister) from removing the applicant from Australia on 11 November 2024.
BACKGROUND
The applicant is a citizen of India. On 18 June 2023, the applicant was granted a Subclass 500 Student (Class TU) visa (student visa) that was to cease on 15 September 2025.
On 14 August 2024, the applicant’s Confirmation of Enrolment (CoE) was cancelled.
On 4 November 2024, an administrative officer from an education and migration consultancy based in New South Wales sent an email to the applicant, attached to which was a conditional letter of offer of enrolment in the Master of Information Technology course at the Sydney International School of Technology & Commerce (offer letter).[1] The offer of enrolment was conditional upon the applicant:
(a)selecting a course specialisation; and
(b)completing a specified English language proficiency test and achieving a result which satisfies Sydney International School of Technology & Commerce admissions staff that he meets the English language requirements for entry to the Master of Information Technology.
[1] Applicant’s Affidavit affirmed on 10 November 2024 (Applicant’s Affidavit), pp 16-31.
A course fee payment schedule detailed within the offer letter provides that two instalments of $4,200 were payable by the applicant on 4 and 8 November 2024, respectively.
The applicant most recently arrived in Australia on 9 November 2024 at Sydney International Airport as the holder of a student visa. Upon arrival, a delegate of the Minister (delegate) interviewed the applicant. The applicant requested an interpreter in either the Hindi or Gujarati language to assist during that interview.[2] According to the Record of Interview annexed to the Affidavit of Mr Keith Maxwell Sypott affirmed on 10 November 2024 (Sypott Affidavit), the interview was conducted:
(a)with the assistance of a NAATI accredited interpreter in the Hindi language. Both the applicant and the interpreter confirmed that they understood each other.[3]
(b)in four discrete parts between 10.40 am and 1.17 pm as follows:
(i)Part 1 – an initial discussion which commenced at 10.40 am and concluded at 11.07 am (initial interview period);
(ii)Part 2 – a further discussion which commenced at 11.28 am and concluded at 11.46 am during which the delegate put the applicant on notice of their intention to consider cancelling his student visa under s 116(1)(b) of the Migration Act 1958 (Cth) (NOICC period);
(iii)Part 3 – a further discussion which commenced at 12.06 pm and concluded at 12.08 pm during which the applicant gave information to the delegate by way of response to the NOICC (response period); and
(iv)Part 4 – a final discussion which commenced at 1.11 pm and concluded at 1.17 pm during which the delegate notified the applicant of their decision to cancel his student visa under s 116 of the Migration Act 1958 (Cth) (notification of decision period).[4]
[2] Applicant’s Affidavit, p 3 at [10].
[3] Sypott Affidavit, p 26.
[4] Sypott Affidavit, p 25.
Information relating to the procedures observed by the delegate, and the evidence of the applicant given, during each of the four parts of the interview are detailed in Departmental Form 1111 – Notice of intention to consider cancellation under s 116 of the Migration Act 1958 (For use in immigration clearance) (Form 1111).[5] Further, the delegate made handwritten notes in relation to the discussions that transpired during the initial interview period[6] and response period.[7]
[5] Sypott Affidavit, p 7-23.
[6] Sypott Affidavit, p 30.
[7] Sypott Affidavit, p 31.
By way of completing Form 1111 during the interview, the delegate recorded the basis upon which there was a possible ground for visa cancellation under s 116(1)(b) of the Migration Act 1958 (Cth) (Act) whereby it appeared that the applicant had not complied with condition 8202 imposed on his student visa because he was not enrolled in a full-time registered course.[8] The delegate also recorded a summary of the applicant’s statements during the initial interview relevant to this aspect of their assessment, along with the basis upon which they considered a possible ground for cancellation existed, in the following terms:[9]
During Interview you stated:
- You are studying Master of Business Administration at Holmes Institute
- You stated that you hold a COE but are unsure if it is valid and you need to check with your College.
- You also stated that you have not been enrolled since June as you needed to travel to India.
A check on the Provider Registration and International Student Management System (PRISMS) for a current Confirmation of Enrolment (COE) indicates that your last COE for a Masters of Business Administration was cancelled on 14/08/2024 due to non-enrolment of your course.
You do not have any other valid COE recorded on PRISM
Based on this information, it appears that there are grounds to cancel your visa as you do not hold a current COE and you have not complied with a condition of the visa, namely condition 8202(2)(a), which states: “A holder not covered by sub-clause (1) must be enrolled in a full-time registered course:” Therefore a ground appears to exist under s116(1)(b) because it appears that you have not complied with condition 8202.
[8] Migration Regulations 1994 (Cth) Sch 8, Condition 8202(2)(a).
[9] Sypott Affidavit, p 7.
Twenty minutes after having received the notice of intention to consider cancelling his visa, the applicant was provided an opportunity to comment on whether a ground for cancellation existed and, if so, to give reasons why his visa should not be cancelled. The applicant took two minutes to provide his response, the substance of which was recorded by the delegate in Part B of Form 1111 as follows:[10]
The visa holder stated:
-I request a chance to get a COE.
[10] Sypott Affidavit, p 11.
In their ‘Record of decision whether to cancel visa’, the delegate recorded their satisfaction that there was a ground for cancellation of the visa under s 116(1)(b) of the Act because the applicant had not complied with condition 8202. Having reached that state of satisfaction, the delegate recorded their assessment in relation to whether to cancel the visa. In doing so, the delegate made reference to the applicant’s circumstances, including statements made at interview, when apportioning weight to each of the following considerations in their assessment of whether the visa should be cancelled:
(a)The purpose of the applicant’s travel to and stay in Australia;
(b)The extent of the applicant’s compliance with visa conditions;
(c)The degree of hardship which may be caused to the applicant, his family members and others, if the visa is cancelled;
(d)The circumstances in which the ground for cancellation arose;
(e)The applicant’s behaviour in relation to the Department;
(f)Other relevant reasons (including mandatory legal consequences).
The delegate then weighed up all of the considerations before deciding to cancel the visa. That decision was made at 12.46 pm on 9 November 2024.
PROCEEDINGS BEFORE THE COURT
At 12.33 pm on 10 November 2024, I was contacted by the National after-hours duty Judicial Registrar (Registrar) who notified me of the possible urgent application to be made by the applicant. By way of liaison between the parties prior to the filing of the application, the Registrar facilitated the provision of a copy of the delegate’s decision record to the applicant’s representative at 2.16 pm. At 4.37 pm on 10 November 2024, the applicant filed with the Registrar the interlocutory application and accompanying affidavit.
In his application, the applicant sought the following orders (reproduced without alteration and numbered accordingly):
1.An order that the decision of the tribunal, Immigration Assessment Authority or Minister be quashed.
2.An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
3.An order that the Respondent is to provide a copy of decision (Form 1111) to cancel the Applicant’s Student (subclass 500).
4.An order that the Respondent is to provide complete record pertaining to Interview and accompanying notes taken by the concerned delegate of the Minister.
5.Such further or other orders as the Court thinks fit.
6.Costs.
I listed an urgent hearing for the applicant’s interlocutory application at 8.45 pm on 10 November 2024. At that hearing, the applicant was represented by Mr Sultan of Sultan Legal, and the Minister was represented by Mr Sypott of The Australian Government Solicitor. At the outset of the hearing, I confirmed that I did not propose to determine the substantive application and would primarily restrict my consideration to the request for injunctive relief. Mr Sultan also confirmed that the applicant no longer sought the third order requested in the application as he had received a copy of the delegate’s decision from the Court at 2.16pm that afternoon. At the conclusion of the hearing, the application for interlocutory injunction was dismissed. These are the reasons for dismissal.
CONSIDERATION
Removal injunction 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 within it a power of equity traditionally exercised to grant injunctions to preserve the status quo, pending a determination of a claim for a legal remedy: see Mohammedv Minister for Immigration, Citizenship And Multicultural Affairs [2023] FedCFamC2G 839 per Judge Laing at [11]-[12]; AJH17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 192 per Judge Given at [8]; Calava v Minister for Immigration [2015] FCCA 2525 per Judge Manousaridis at [8].
The principles which guide the exercise of that power are well-established. A court will grant interlocutory injunction if it is satisfied that:
(a)there ‘is a serious question to be tried or that the [applicant] has made a prima facie case, in the sense that if the evidence remains as it is there is a probability that the trial of the action the [applicant] will be held entitled to relief’;
(b)the applicant ‘will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted’; and
(c)the ‘balance of convenience favours the granting of an injunction’.[11]
[11] Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; HCA 58 at 153 per Mason ACJ.
The principles were also more recently 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 such that there is a serious question to be tried?
The Court has jurisdiction under s 476 of the Act to entertain an application for constitutional writs directed to the Minister in relation to the delegate’s decision to cancel the applicant’s student visa. As writs will only issue where jurisdictional error has been established, the question I must consider is whether there is a prima facie case, such that there is a serious question to be tried, that the delegate made a jurisdictional error in cancelling the applicant’s student visa.
The applicant relies upon an application containing the following grounds (reproduced without alteration and footnote omitted):
Ground 1: Denial of procedural fairness
1. If the Minister is considering cancelling a visa under sub-s.116(1)(b) of the Act. The Minister is required by s119(1) of the Act to notify the visa holder that there appear to be grounds for cancelling the visa, giving particulars of those grounds and of the information because of which the grounds appear to exist, Sub-section 119(2) of the Act requires that the visa holder is to be notified in one of the ways prescribed by regulations. Regulation 2.55 of the Migration Regulations 1994 (the Regulation) provides that one of the way by handing it to the person personally.
2. The Applicant in statutory declaration has affirmed that he was not provided with the decision record. The delegate made a jurisdictional error because she failed to take notice of an account of the Regulation 2.55
Ground 2: Legal Unreasonableness
3. The applicant in his affidavit has stated that he lost his ability to articulate meaningful responses to all of the questions raised by the Delegate. The Applicant further states that due to his obstructed ability to think the Applicant may not have informed the delegate about the offer letter which was available in his email inbox. Lastly the applicant also stated the Delegate of the Minister had taken his phone before the start of the interview.
4. It is pertinent to mention here that the Offer letter received on 4 November 2024 was centrally relevant to the matters that the Delegate was considering in their decision. Failure to consider or engage with this evidence was, accordingly, capable of giving rise to error considered in SZRKT. It is worth mentioning here that none of this evidence was noted or engaged with in the Delegates reasons for decision.
5. Section 127 of the Act required the Delegate’s decision to be notified in writing and specify grounds of cancellation. Section 25D of the Acts interpretation Act 1901 (Cth) (Interpretation Act) provided:
“Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based”
39. The delegate appears to have been aware of the offer letter in the email, whereas she did not refer to it at all in their reasoning. Had the delegate engaged with this evidence as to why he had ceased studying and his communication regarding the new offer letter with the different education provider, the result may have been different.
These grounds were to some extent clarified and further particularised at hearing by Mr Sultan such that five areas of complaint were ultimately pressed which, for the purposes of my consideration, I have categorised as follows:
(a)Defective notifications;
(b)Failure to provide a meaningful opportunity to respond;
(c)Failure to consider evidence;
(d)Defective decision;
(e)Interpreter error.
Defective notifications
By way of paragraphs 1 and 2 of Ground 1 and oral submissions raised at hearing, the applicant contends that he was denied procedural fairness because the delegate did not properly notify him of:
(a)the proposed cancellation in accordance with s 119(2) of the Act because he was not given that document in a way prescribed by reg 2.55 of the Migration Regulations 1994 (Regulations); and
(b)the decision to cancel his visa in accordance with s 127(2) of the Act because he was not given that document in a way prescribed by reg 2.55.
The applicant accepted at hearing that such a document may be given in a number of ways, including by way of it being handed to him personally.[12] Nevertheless, by way of affidavit evidence, the applicant contended that these documents, as contained within Form 1111, were not given to him. The applicant further submitted that the delegate was required to give him a copy of Form 1111 in written format and that failure to do so is capable of giving rise to jurisdictional error.
[12] Reg. 2.55(3)
The Minister submits in response that this complaint is not borne out in the documentary record. The Minister took me through the Sypott Affidavit and drew my attention to the applicant’s signature at two parts of Form 1111 which clearly indicated the applicant’s:
(a)acknowledgment that he had received the notice of the proposed cancellation of his visa (as set out in Part A of Form 1111) at 11.45am on 9 November 2024;[13] and
(b)verification that he had received the decision to cancel his visa, and notification of same, (as set out in Parts B and C of Form 111 respectively) at 1.17pm on 9 November 2024.[14]
[13] Sypott Affidavit, p 9.
[14] Sypott Affidavit, p 23.
The Minister observed that the signature at each of the abovementioned sections of Form 1111 was the same signature used by the applicant in his application and affidavit filed with the Court. The Minister further contended that the applicant’s representative had not raised any defect in the notices provided within Form 1111.
I acknowledge the applicant’s insistence that he had not been given the requisite documents, particularly the decision record, in a manner prescribed by reg 2.55. However, the applicant’s chronology of events surrounding what transpired during the interview is undetailed in various parts of his affidavit. Notably, the applicant has not given any detail or explanation in relation to why he signed two sections within Form 1111 in order to acknowledge his receipt of the requisite documents he subsequently complains that he did not receive.
By contrast, there is greater force in the Minister’s submissions and evidence in relation to this ground. The material before the Court clearly details the applicant’s written contemporaneous confirmation that each of the requisite notifications were handed to him personally, the first during the interview and the second at the conclusion of the interview. The applicant’s assertion in relation to defective notification in relation to each of these documents is difficult to reconcile in circumstances where an interpreter was present during the interview and the applicant indicated at the outset of the interview that they had no difficulty understanding that interpreter.
I am therefore not satisfied that there is a serious question to be tried such that the applicant has made out a prima facie case in the sense that if the evidence remained as it is at the time, that there is a probability that the trial of the action would be that the applicant would be entitled to relief.
Failure to provide a meaningful opportunity to respond
By way of paragraph 3 of Ground 2 and oral submissions raised at hearing, the applicant complains that during the interview he ‘lost his ability to articulate meaningful responses to all of the questions raised’ and that he ‘may not have informed the delegate about the offer letter’ due to ‘his obstructed ability to think’. The applicant’s submissions at hearing, when taken at the highest, were that the applicant experienced feelings of panic during the interview and this adversely impacted upon his ability to provide more fulsome responses in relation to the matters raised by the delegate as well as clearly draw the delegate’s attention to the offer letter.
The Minister acknowledges that interviews of the kind involved in this case may well be confronting to a non-English speaker, including in circumstances where the interviewee has recently completed a period of international air travel of approximately 15 hours. Nevertheless, the Minister contends that the contemporaneous record of evidence indicates the applicant’s capacity to participate during the interview was not impaired to the degree that he was unable to engage meaningfully with the delegate in the interview context. In support of that argument, the Minister drew my attention to the documentary record whereby the applicant had answered “No” to each of the following questions the delegate asked at the outset of the interview:[15]
Do you have any medical condition or on medication which may affect this interview or require access to your medication during the interview?
Are you feeling unwell/ill now?
Are you under the influence of any alcohol or drugs now?
[15] Sypott Affidavit, p 26.
On this basis, the Minister submits that there is no evidence to indicate the applicant’s capacity was so affected by the circumstances that he could not provide meaningful responses at the interview. The Minister referred to Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575, in which Keane CJ, Emmett and Perram JJ held that the evidence presented by the applicant in that case did not indicate that his mental condition was such that it prevented him from making rational decisions in relation to the presentation of his case at hearing before the Refugee Review Tribunal. Acknowledging that this authority related to a procedural fairness obligation in a Tribunal context, the Minister maintains that the proposition is nevertheless relevant in this context such that the mere fact that a person has a mental illness is not enough to vitiate a decision, rather the applicant must establish that the condition prevented them from giving evidence and presenting arguments. Given that threshold, the Minister submits the applicant’s argument that he could neither clearly articulate his responses in the interview nor draw the delegate’s attention to the offer letter, which was accessible through his email account on his mobile telephone, does not disclose jurisdictional error on the part of the delegate.
More broadly, the Minister submits that circumstances in which the applicant was given 21 minutes to respond to a NOICC whilst in immigration clearance is not unusual and does not, in itself, give rise to jurisdictional error: see Minister for Immigration and Border Protection v Srouji [2014] FCA 50 where the applicant was afforded a period of 20 minutes; and Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 748 where the applicant was afforded a period of 10 minutes.
I acknowledge the applicant’s evidence in his affidavit that he was in a state of panic once he became aware of the delegate’s intention to cancel his student visa.[16] However, I am persuaded by the Minister’s submissions in relation to this complaint. I observe that the evidence indicates that the applicant was afforded a period of 20 minutes to consider how he would respond to the NOICC and there is no evidence suggesting that he had a medical or other condition which impaired his ability to articulate any meaningful responses during the interview period. I also observe that the interview period spanned a period of almost three hours during which the applicant was clearly put on notice that he was not enrolled in a registered course and that he needed to address that issue. The applicant was also afforded breaks between discrete parts of the interview and had access to an interpreter during the interview. Having considered the available evidence, I reject the assertion that the applicant was denied an opportunity to participate meaningfully during the interview, or that he was in a state of panic throughout the interview, such that he was unable to address the delegate’s inquiries or draw the delegate’s attention to existence of the offer letter on his mobile telephone. The record of interview clearly indicates that the applicant gave various responses to the delegate’s inquiries and that he made no mention of the offer letter that was accessible through the email account on his mobile telephone, instead insisting that his mobile telephone contained a copy of a CoE. The issue of the applicant not being enrolled was a matter that had been squarely brought to his attention at various stages during the interview and it cannot be ignored that the applicant became equivocal about whether he was so enrolled and ultimately gave evidence to the delegate that he was not enrolled and still needed to pay course fees in order to secure a CoE.
[16] Applicant’s Affidavit, p 3 at [16].
Further, the applicant’s oral evidence proffered to the delegate during the response period merely took the form of a plea for additional time to obtain a CoE so that he would no longer be in breach of condition 8202. There is no indication that the applicant had been denied any opportunity to draw the delegate’s attention to the existence of the offer letter or had requested or indicated a need for additional time to reflect upon or respond to the matters raised in the NOICC.
In these circumstances, I am not satisfied that there is a serious question to be tried such that the applicant has made out a prima facie case in the sense that if the evidence remained as it is at the time, that there is a probability that the trial of the action would be that the applicant would be entitled to relief.
Failure to consider relevant evidence
By way of paragraph 4 and 39 of Ground 2 and oral submissions raised at hearing, the applicant contends that the delegate ‘failed to consider or engage with’ the offer letter when making their decision. The applicant maintains that this is clear from the delegate’s reasons which neither note nor engage with that piece of evidence. The applicant submits that during the interview he drew the delegate’s attention to the existence of the offer letter on his mobile telephone and, in circumstances where the applicant’s mobile telephone had been taken from him prior to the interview, the delegate was required to search the applicant’s mobile telephone and locate the offer letter.
The Minister submits that the delegate’s contemporaneous notes taken during the interview indicate that the applicant made no mention during the interview of having an offer letter from his proposed course provider. [17] Rather, the applicant only made mention of a CoE which he purported to have a copy of on his mobile telephone.
[17] Sypott Affidavit, pages 30-31.
For reasons outlined above, the applicant’s complaint is misconceived as the evidence clearly demonstrates that the offer letter was not before the delegate let alone drawn to the delegate’s attention for their consideration. The delegate’s contemporaneous notes taken during the initial interview period reveal that the applicant:
(a)did not draw the delegate’s attention to the existence of the offer letter;
(b)initially maintained that he had a CoE on his mobile telephone and later conceded that he was not enrolled and would need to pay course fees in order to secure a CoE.
On this basis, I do not accept the contention that the delegate was required to search the applicant’s mobile telephone for the offer letter as its existence had not been brought to her attention by the applicant. It follows that the delegate was not required to consider that material as it was not brought to her attention before she made her decision. Accordingly, this complaint must fail.
Defective decision
Further, by way of paragraph 5 of ground 2, the applicant takes issue with the content of the delegate’s decision arguing that it did not specify reasons and was therefore defective. In support of the contention, the applies relies upon s 25D of the Acts Interpretation Act 1901 (Cth), which reads:
Content of statements of reasons for decisions
Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression "reasons", "grounds" or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
By way of response, the Minister contends that the delegate was under no obligation to provide reasons in the manner contended by the applicant. The Minister relied upon the interpretation of the relevant provisions by Judge Vasta in CPC22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 734 where his Honour articulated the scope of the content of a written decision made pursuant to s 127 of the Act in the following terms:
152. The fact that what the Applicant has said is not reflected in the reasons, does not mean that there has been no consideration. Whilst the Applicant has drawn the Court’s attention to s 25D of the Acts Interpretation Act 1901 (Cth), this does not mean that there was an obligation on the Minister to write down all the considerations that the Minister has made in coming to the decision.
153. All that is required for the Minister to do (pursuant to s 127) is to specify the ground for cancellation and to state whether the decision is reviewable. This section also legislates that failure to give notification of the decision does not affect the validity of the decision.
His Honour did not consider it necessary to conclusively determine the issue. I also consider it similarly unnecessary to determine that particular issue as reasons were provided by the delegate in this case. It has been held that where a decision maker elects to provide reasons despite having no obligation to do so, ‘a supervising court is entitled to take a decision record as expressing the delegate’s reasoning on the exercise of power’: see ARK16 v Minister for Immigration and Border Protection[2018] FCA 825 at [10] per Mortimer J (as her Honour was) and the cases cited therein; see also ABH18 v Minister for Home Affairs[2020] FCA 620 at [25] per Charlesworth J and DFF17 v Minister for Immigration and Border Protection[2023] FedCFamC2G 149 at [45]-[53] per Deputy Chief Judge Mercuri.
The delegate’s reasons were fulsome such that the dispositive issues were determined on the basis of fact-finding undertaken by reference to the available evidence. Those reasons purportedly summarise the applicant’s evidence under various headings in the decision including ‘Details of the evidence and findings about why the delegate is satisfied GROUNDS for cancellation DO EXIST’, ‘Reasons the visa should not be cancelled’, ‘Delegate’s assessment of the reasons the visa should not be cancelled’ and ‘Other relevant reasons (including mandatory legal consequences)’. Relevantly, the applicant has not clearly articulated any particular defect or shortcoming in the reasons apart from the alleged failure to address the offer letter, a matter which has been addressed earlier in this judgment. Within this context, and having considered what the delegate included under these various headings within their decision, I am unprepared to accept the presence of error in this regard on the delegate’s part. Therefore, I am not satisfied that there is a serious question to be tried on this basis.
Complaint regarding interpretation during the interview
An additional ground was raised during the course of the applicant’s oral submissions where it was alleged that an interpretation issue had occurred during the interview. When pressed further to particularise that error, the applicant’s representative submitted that there may have been an interpretation issue with regard to the discussions surrounding the CoE and offer letter throughout the interview but accepted that he was ‘not in a position to determine whether [the applicant] said confirmation of enrolment or offer letter’ to the delegate during the interview.
The Minister submits that the evidence clearly indicates that the applicant was asked whether he needed the assistance of an interpreter and, if so, which language he would require, to which the applicant responded with either Hindi or Gujarati.[18] The Minister submits that in circumstances where the delegate provided an interpreter in one of the two languages the applicant nominated, and where there is otherwise nothing to indicate an interpretation issue, the Minister maintains that this ground does not disclose jurisdictional error.
[18] Applicant’s Affidavit, at [10].
In my view, the applicant’s complaint lacks evidentiary foundation and is best characterised as speculative. I prefer the Minister’s submissions on this point and note that the documentary record provides clear confirmation from each of the applicant and the interpreter that they understood each other. In this context, and without any clear evidence from the applicant in relation to this allegation specified within his affidavit, I regard this allegation of interpreter error to be purely speculative. Therefore, I am not satisfied that there is a serious question to be tried on this basis.
Overall, the material before the Court indicates that in its present form the applicant’s case lacks sufficient likelihood of success that the first criterion for the grant of an interlocutory injunction is satisfied.
Are damages an adequate alternative to the injunctive relief sought?
The applicant submits that damages would not amount to a sufficient remedy because, if removed from Australia, he would sustain an irreparable loss as he would not be able to make another student visa application for three years, visit another country due to his adverse Australian immigration record or complete his education in Australia.
The Minister submits that damages are generally not relevant in these matters and that an undertaking as to damages would be provided by the respondent insofar as it would be a sufficient remedy.
In my view, the matters raised the applicant have greater bearing upon the determination of the question relating to the balance of convenience which I address below. However, for present purposes, I accept the Minister’s submissions that damages are not relevant in this case.
Balance of convenience
As stated above, the applicant submits that he would not be able to make another student visa application for three years, visit another country due to his adverse Australian immigration record or complete his education in Australia. In my view, these matters have not been properly made out as they are speculative and without evidentiary foundation. For example, the legislative regime permits the applicant to make a further student visa application offshore, rather than onshore due to the operation of s 48 of the Act, and there is a possibility that a bar applicable to the grant of a further student visa within the requisite three year period may be waived.[19] Further, the applicant has not adduced any evidence suggesting that he intends to travel to another country or the basis and likelihood of his entry into countries other than Australia being fettered, particularly in circumstances when the outcome of the substantive application before the Court is unknown. Further, in terms of any interruption to his proposed Australian studies, the evidence before the Court indicates that the applicant was unprepared to commence studies in Australia scheduled to commence on 11 November 2024. At the time of hearing of the application for injunctive relief on 10 November 2024, the applicant had neither paid the fees for his proposed course nor satisfied his course provider of having met their requisite English language proficiency test for course admission. Accordingly, these maters do not favour the grant of the injunction.
[19] Migration Regulations 1994 (Cth) Sch 4, see cll 4013 and 4014.
The applicant further submits that the balance of convenience lies in his favour as ‘there are some basic irregularities noticed in the exhibits provided by the respondent’ and that ‘there is a possibility that the applicant could have a positive decision in his favour’. When pressed at hearing to particularise these matters further, the applicant was unable to do so.
The Minister submits that it is important for the Court to bear in mind that he is obliged, under s 198 of the Act, to remove persons from Australia in circumstances where they do not have a visa. The Minister further argues that there is no reasonable basis to interrupt the discharge of that statutory obligation, namely the removal of an unlawful non-citizen, in circumstances where the applicant will return to a country he was living in prior to his arrival in Australia, has made no claim to fear harm, does not have an established life in Australia, and most importantly, is able to pursue judicial review of the delegate’s decision offshore.
In circumstances where the applicant has not demonstrated that he has a prima facie case, other matters relevant to the balance of convenience would have to be weighty in order to tip the balance in favour of the granting of an injunction. As stated above, the applicant’s submissions are, in their own terms, unsubstantiated and speculative. Further, the applicant has not adduced any evidence suggesting that the Court should be concerned about the prospect of his return to India, a country where he had been living for number of months before he sought to return to Australia on 9 November 2024. Absent any real evidence of hardship or inconvenience to be faced by the applicant, I am not willing to draw any inferences in that regard. I do not conclude that the balance of convenience favours the grant of an injunction.
CONCLUSION
In these circumstances, the application for an interlocutory injunction is refused.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Papadopoulos. Associate:
Dated: 3 December 2024
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