RUSSO v Minister for Immigration

[2015] FCCA 2526

FEDERAL CIRCUIT COURT OF AUSTRALIA

RUSSO v MINISTER FOR IMMIGRATION [2015] FCCA 2526

Catchwords:
MIGRATION – Application for interlocutory injunction in aid of application for constitutional writs to quash the decision of delegate of Minister for Immigration and Border Protection to cancel student visa – whether there is a serious question to be tried that the delegate’s decision was made when the applicant was not “in immigration clearance” and therefore was a Part 5-reviewable decision – whether, if there is a serious question to be tried the delegate’s decision was a Part 5-reviewable decision whether there was a serious question to be tried that the Court has jurisdiction in relation to the delegate’s decision – whether there is a serious question to be tried that the delegate failed to give the applicant a reasonable opportunity to make inquiries about matters relevant to the cancellation of the visa – whether balance of convenience favours the granting of interlocutory injunction – interlocutory injunction refused.

Legislation:

Federal Circuit Court of Australia Act1999 (Cth), s.15

Migration Act 1958 (Cth), ss.166, 166(1), 172(1), 172(1)(c), 172(2), 338(3),

338(3)(b), 347, 476(1), 476(2)(a), 476(4)

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148

Applicant: LORENZO RUSSO

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 2540 of 2015

Judgment of: Judge Manousaridis

Hearing date: 15 September 2015

Delivered at: Sydney

Delivered on: 16 September 2015

REPRESENTATION

Solicitors for the Applicant: Mr F Nikjoo of AC Law Group

Solicitors for the Respondent: Mr A Markus of Australian Government Solicitor

ORDERS

1. The application for an interlocutory injunction heard on 15 September 2015 is dismissed.

2. The applicant pay the respondent’s costs of the application.

3. The matter stand over for directions on a date to be fixed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2540 of 2015

LORENZO RUSSO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application for an interlocutory injunction to restrain the respondent (Minister) from removing the applicant from Australia.

Background

1. The applicant is an Italian citizen. On 28 October 2014 he was granted a Student Temporary (Class TU) (Subclass 572) visa (visa). Sometime after he was granted the visa, the applicant departed Australia.

2. On 12 September 2015 the applicant returned to Sydney Airport. According to an email from an officer of the Department of Immigration and Border Protection (Department) to the applicant’s solicitor, the applicant “was initially immigration cleared at the Primary Line however due to adverse information (no Confirmation of Enrolment for his studies) he was subsequently interviewed”.

3. According to the applicant’s solicitor, Mr Nikjoo, the applicant returned to Sydney Airport with a friend. After the applicant was cleared through the initial checking of documents, he noticed that an officer of the Department (who I will assume was a delegate of the respondent (Minister)) was speaking to the applicant’s friend. The applicant went over to his friend. When he did so, the delegate questioned the applicant. Although Mr Nikjoo made these statements without any supporting evidence, Mr Markus, the solicitor for the Minister, accepted for the purposes of this application that that is what occurred.

4. At the time the delegate questioned the applicant, the delegate was aware that it was a condition of the applicant’s visa that the applicant remained enrolled in a registered course; that the applicant had been granted his visa on the basis of his having been confirmed for enrolment in two courses; that both courses had been cancelled, one because the applicant did not pay fees, and the other because the applicant had not commenced the course; that the applicant did not have a current certificate of enrolment in relation to a registered course; and that the applicant’s last day of study was 12 August 2015. The applicant informed the delegate he did not have a letter of offer to enrol in a registered course.

5. At 12 pm on 12 September 2015 the delegate handed to the applicant a notice of intention to consider cancellation of the visa (Notice). In a section headed “Possible grounds for cancellation”, the Notice contained the substance of the matters I have set out in the previous paragraph. The Notice stated that “[b]ased on the above information, it appears there are grounds for cancelling your visa as you are not enrolled in a registered course”. In a section headed “Opportunity to comment”, the Notice informed the applicant he has an opportunity to “comment on the intention to consider cancellation of your visa and to give reasons why your visa should not be cancelled”. The Notice indicated that the applicant’s comments could include why grounds for cancellation do not exist, and why the applicant’s visa should not be cancelled. The Notice stated that the applicant was invited to provide his comments at an interview to be held on 12 September 2015 beginning at 12.20 pm at Sydney Airport.

6. The delegate commenced interviewing the applicant at 12.24 pm. The applicant did not address the question whether the grounds for the cancellation of his visa existed or did not exist. The only reason the applicant gave about why the applicant’s visa should not be cancelled was that he was not sure why his education provider cancelled his confirmations of enrolment. The applicant did not present any claims of hardship that may result from his visa being cancelled.

7. At 1.05 pm the delegate notified the applicant of his decision to cancel the applicant’s visa. The delegate was satisfied there existed grounds to cancel the applicant’s visa, those grounds being the applicant’s not having a valid certificate of enrolment or an offer of one. The delegate noted the applicant made no claims for hardship.

Ground on which injunction is sought

1. The Court has power under s.15 of the Federal Circuit Court of Australia Act1999 (Cth) to make, among other things, “interlocutory orders”. That includes the power courts of equity have traditionally exercised to grant injunctions to preserve the status quo pending the determination of a claim for a legal remedy.

2. The principles which guide the exercise of that power are well established: a court will grant an interlocutory injunction if it is satisfied that:[1]

   a)there “is a serious question to be tried or that the [applicant] has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the 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”.

   [1] Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 (Mason ACJ).

3. The applicant seeks constitutional writs directed to the Minister in relation to the delegate’s decision to cancel the applicant’s visa. The applicant relies on the following grounds:

   1.The decision is affected by jurisdictional error in that it denied the applicant his statutory right of review.

   Particulars

   ·    The applicant has satisfied requirements of s172(1) of the Migration Act 1958 and been “initially immigration cleared”. At that point, accordingly, the applicant’s statutory right of review has enlivened. S388(3)(b) [sic].

   ·    The applicant has past immigration officers and was on his way out of the airport.

   2.Alternatively the decision maker denied the applicant procedure [sic] fairness or made a legally unreasonable decision.

   Particulars

   ·    At the interview the applicant has told the decision maker that “he is not sure why his education provider cancelled his CoEs”. At [8] Part B Form 1111

   ·    The applicant has been denied an opportunity to find out the reason behind the cancellation of his CoEs which can only be a matter of administrative nature.

Serious question to be tried - ground 1

1. Whether or not ground 1 raises a serious question to be tried depends on the answer to two questions. The first is whether the delegate’s decision to cancel the applicant’s visa was made when the applicant was “in immigration clearance” within the meaning of s.172(2) of the Migration Act 1958 (Cth) (Act). That is relevant because, under s.338(3) of the Act, a decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is a “Part 5-reviewable decision”. Under s.338(3)(b) of the Act, however, such decision would not be a “Part 5-reviewable decision” if the decision is made at a time when the non-citizen is “in immigration clearance”. Thus, if in the case before me the delegate did not make his decision when the applicant was “in immigration clearance”, the delegate’s decision would be a “Part 5-reviewable decision”. That would mean that the applicant, as he claims in ground 1 of his application, would have a right to apply under s.347 of the Act to the Administrative Appeals Tribunal for a review of the delegate’s decision.

2. Under s.172(2) of the Act, a person “is in immigration clearance” if the person is “with an officer or at an authorised system for the purposes of section 166” and the person “has not been refused immigration clearance”. Subsection 166(1) of the Act provides that a person, whether a citizen or a non-citizen, who enters Australia must without unreasonable delay present to a “clearance authority” evidence referred to in that subsection. Where the person is a non-citizen, the person must provide evidence of the person’s identity and of a visa that is in effect and is held by the person. In addition, a person, whether a citizen or a non-citizen, must provide to a “clearance authority any information . . . required by this Act or the regulations”.

3. In my opinion, there is a serious question to be tried that the applicant was not “in immigration clearance” within the meaning of s.172(2) of the Act at the time the delegate decided to cancel the applicant’s visa. As the email from the Department states, the applicant had been “initially immigration cleared at the Primary Line”. It is reasonably arguable on the basis of that statement that the applicant had provided to the satisfaction of a clearance officer the evidence the applicant was required to provide under s.166(1) of the Act. It is also reasonably arguable that, although the applicant may have been with a Departmental officer at the time the delegate cancelled the applicant’s visa, the applicant was not with such officer for the purposes of s.166 because, as I have already held, it is reasonably arguable that the applicant had already satisfied the purposes of s.166 by having been “initially immigration cleared at the Primary Line”.

4. Mr Markus, for the Minister, submitted that even though the Department’s email stated that the applicant had been “initially immigration cleared at the Primary Line”, the applicant was not a person who “is immigration cleared” within the meaning of s.172(1) of the Act because the applicant had not left the airport, as required by s.172(1)(c). That may be accepted. The question, however, is not whether the applicant was immigration cleared, but whether, at the time the delegate cancelled the applicant’s visa, the applicant was “in immigration clearance”. As I have found, there is a serious question to be tried whether the applicant was “in immigration clearance”.

5. Assuming, as I have found, it is reasonably arguable that the applicant was not “in immigration clearance”, the second question that arises is whether the Court has jurisdiction to grant any relief in relation to the delegate’s decision.

6. The source of this Court’s jurisdiction to issue constitutional writs in relation to decisions made under the Act is s.476(1) of the Act. That subsection provides that this Court “has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. Paragraph 75(v) of the Constitution provides that the High Court has jurisdiction in all matters in “which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”. Thus, at the very least, this Court has jurisdiction under s.476 in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth who has made a “migration decision”.

7. The Court’s jurisdiction conferred by s.476(1), however, is subject to exceptions. One exception is provided for by s.476(2)(a) which provides that the Court does not have jurisdiction in relation to any decision that is a “primary decision”. That expression is defined in s.476(4) of the Act as a “privative clause decision or purported privative clause decision” that is reviewable under Part 5, among other provisions. If, therefore, as the applicant contends, there is a serious question to be tried that the delegate’s decision is a Part 5-reviewable decision, there is no arguable case that the Court would have jurisdiction to grant relief in relation to that decision. Accordingly, ground 1 of the application raises no serious question to be tried because it is not reasonably arguable that the Court has jurisdiction in relation to a decision that is a Part 5-reviewable decision.

Ground 2

1. If, as I have found, there is an arguable case the delegate did not cancel the applicant’s visa when the applicant was in immigration clearance and, for that reason, there is no arguable case that the delegate’s decision is not a Part 5-reviewable decision, and, therefore, this Court has no jurisdiction in relation to the delegate’s decision, it follows there is no arguable case that the Court has jurisdiction to consider this ground of the application. Assuming on the contrary, however, that it is reasonably arguable the Court has jurisdiction over the delegate’s decision to cancel the applicant’s visa, I will consider whether there is a serious question to be tried that the delegate’s decision is infected with jurisdictional error claimed in ground 2 of the application.

2. In my opinion, ground 2 raises no serious question to be tried. That the applicant simply stated he did not know why educational institutions had cancelled his confirmations of enrolment does not arguably entail the applicant was denied an opportunity to investigate why the cancellations occurred. There is no evidence the applicant requested, or intended to request the delegate provide the applicant with an opportunity to undertake such an inquiry. Why he would have done so is not even arguably apparent. The applicant failed to provide to the delegate any information in relation to his previous course; and he made no claim that he would suffer any hardship if the delegate were to cancel his visa.

Balance of convenience

1. If, contrary to my conclusions, the applicant has raised a serious question to be tried, where does the balance of convenience lie? If an injunction is not granted, the applicant will be returned to Italy. The applicant, however, will still be able to pursue his claim that the delegate’s cancellation of the applicant’s visa resulted from jurisdictional error. If, on the other hand, an injunction is granted, but the applicant will not succeed at the final hearing, there is a high probability that the applicant will remain in detention until such time as his application is determined.

2. In my opinion, the balance of convenience clearly favours my not granting an injunction. By not granting an injunction, the applicant’s liberty will be preserved, and the applicant will continue to maintain his application in relation to the delegate’s cancellation of the applicant’s visa if he so chooses.

Conclusion

1. The applicant has not made out a case for the granting of an interlocutory injunction. I propose, therefore, to dismiss the application with costs. I also propose to stand the matter over for directions on a date to be fixed.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  16 September 2015