Australian Immigration Daily News

Is it possible to get an injunction to stop the Department from deporting a client whose student visa has been cancelled? 

If the recent decision of Judge Manousaridis of the Federal Circuit Court in the case of Calava v Minister for Immigration (2015) FCCA 2525 (16 September 2015) is any indication, the answer to this question is that: “It will very likely be a hard slog to get an injunction, and your chances are pretty bleak!” 

The case illustrates that this is so even when the visa holder’s visa is cancelled by the Department at the airport when the visa holder is seeking to re-enter Australia, and the visa is cancelled based on a short interview that takes place at the airport only a few minutes after the visa holder is stopped at "customs".

The facts of this case were as follows:  The visa holder was a citizen of Italy. He had obtained a student visa in August 2014 to study business and marketing.  He departed from Australia at some point after first entering the country, and attempted to return in September 2015.  On his arrival at the airport, he was questioned by an officer of the Department (apparently at a “customs” post).  He stated that he had started a diploma course in business and marketing in October 2014, but that he had stopped attending classes after one month.  He further said that he had attended a new education provider to enroll in a different course, but  apparently he never returned to the second school. He was unable to provide the Departmental officer with basic details about the new course, such as the name and address of the second education provider, or the date when the new course was due to commence. He admitted that he had not attended the new school.

On the basis of the visa holder’s answers to the questions that were put to him at “customs” , the Departmental officer handed the visa holder a notice of intention to consider cancellation of his visa.  The notice invited the visa holder to attend an interview at the airport that was scheduled to take place ten minutes later.

The interview did in fact proceed at the airport a few minutes after the visa holder was given the notice of intended cancellation.  At this interview, the visa holder said that “he found it tough to study after not being at school for five years”; that he had “trouble at the beginning with his drug conviction”  and that “the classes and program following this conviction made him feel depresses and it was hard to study”. 

On the basis of the visa holder’s answers at this interview, the Departmental officer concluded that there were grounds to proceed with the cancellation of the student visa – specifically, that the visa holder’s history of not attending classes and not making any effort to attend a new course from the second education provider supported a conclusion that the visa holder was not a genuine student. 

The visa holder then made an application to the Federal Circuit Court for an injunction to restrain the Department from putting him back on a plane and sending him outside of Australia.  The application rested on two grounds: 1) that it was unreasonable for the interview to take place only a few minutes after the notice of intended cancellation had been issued; and 2) that it was “unreasonable” for the Departmental fficer to go forward with the cancellation of the visa. 

As to the first question, Judge Manousaridis determined that it was not unreasonable for the Department to provide the visa holder with only a few minutes’ notice before going forward with the interview of the visa holder.  His Honour found that it was not improper to proceed with the interview, because the visa holder did not indicate that he needed further time to respond to the invitation to attend the interview, or that he could only respond by obtaining information that was not available to him at the airport.

It appears from Judge Manousaridis ‘s analysis that if the visa holder had  said that he needed more time to prepare for the interview, or that he needed to get material that he did not have with him at the airport to respond to the notice of intended cancellation, then in that circumstance His Honour might have found that it was unreasonable for the Department to proceed with the interview on such short notice.

With regard to the second question, Judge Manousaridis held that it was not “unreasonable”, in the legal sense, for the Department to cancel the visa. His Honour found that this particular case did not present a situation where the decision to cancel the visa was “so unreasonable that no reasonable decision-maker…would have made it”.  In the Court’s view, the visa holder had himself “pronounced the death sentence” on his own visa by admitting that he was not a genuine student.  Judge Manousaridis  thus concluded that there was not a serious question to be raised as to whether the Department had committed jurisdictional error, and, that therefore there was no basis for the grant of an injunction.

In determining whether or not to grant the injunction that was sought, Judge Manousaridis looked at another issue beyond whether there was a serious question to be tried as to whether there had been a jurisdictional error.  This further issue concerned whether “the balance of convenience”  favoured the grant of an injunction.  

It was Judge Manousaridis determination that the balance of the convenience weighed against the grant of the injunction: The factors in the balance were that if an injunction was not granted, the visa holder would be returned to Italy, where he would still be able to pursue his claim that the Department had wrongfully cancelled his visa, and that if the injunction were granted, the visa holder would very likely remain in immigration detention until his application for a permanent injunction to prevent his deportation was granted.  Judge Manousaridis determined , after considering these factors, that the balance of convenience was properly determined by preserving the visa holder’s liberty by allowing him to be sent back to Italy.

There is certainly a cautionary lesson in this case for the holders of student visas.  There is a high level of risk that a person who comes to Australia on a student visa but does not attend classes will be stopped and questioned at “customs”/immigration clearance if they leave Australia and then attempt to re-enter. And if they cannot satisfactorily demonstrate that they are in fact a genuine student when questioned, they may face a very rapid and abbreviated cancellation of their visa!

 Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837