Ahmed v Minister for Immigration
[2004] FMCA 127
•8 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AHMED v MINISTER FOR IMMIGRATION | [2004] FMCA 127 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of student visa – asserted failure to meet course requirements and non attendance – visa cancelled by the delegate on both these bases – MRT affirmed the decision but on a different basis – MRT found that attendance could not be evidenced but that there was no certification of satisfactory academic performance – whether the decision of the delegate was vitiated by jurisdictional error considered and, if so, whether that error could be corrected by the MRT – whether the MRT erred in finding that there was no certification of satisfactory academic performance considered – whether a decision of certification could be made before the end of the course considered – the MRT cannot affirm a delegate’s decision made in the absence of a power to make the decision – neither can the MRT affirm a cancellation of a student visa on the basis of a lack of certification of satisfactory academic performance where it remains open to the visa holder to obtain that certification. |
Migration Act 1958 (Cth), ss.116, 119, 120, 121, 349
Migration Legislation Amendment (Overseas Students) Act 2000
Migration Regulations 1994
Ariyagama v Minister for Immigration [2001] FCA 1407
Ariyagama v Minister for Immigration [2002] FCAFC 114
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307; (1979) 41 FLR 338
Comptroller-General of Customs v ACI Pet Operations Pty Ltd (1994) 49 FRC 56
Hope v Bathurst City Council (1980) 144 CLR 1
Minister v Conyngham (1986) 11 FCR 528
Minister for Immigration v Hou [2002] FCA 574
Minister for Immigration v Nguyen [2002] FCA 460
NAHV v Minister for Immigration [2003] FCAFC 102
Nong v Minister for Immigration (2000) 186 ALR 100
Pradhan v Minister for Immigration & Multicultural Affairs [1999] FCA 1240
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Re Brian Lawlor Automotive Pty Ltd v Collector of Customs (1978) 1 ALD 167
Shrestha v Minister for Immigration [2002] FCA 1607
Siddique v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 16
Tien v Minister for Immigration (1998) 89 FCR 80; (1998) 159 ALR 405
Yilmaz v Minister for Immigration (2000) 100 FCR 495
Zhang Jia Qing v Minister for Immigration (1997) 149 ALR 519
Zubair v Minister for Immigration [2003] FMCA 440
Applicant: | SHAHID AHMED |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ616 of 2003 |
| Delivered on: | 8 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 5 March 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr S Lloyd |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr D Jordan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Court declares that the decision of the Migration Review Tribunal made on 26 March 2003 and the decision of the delegate of the Minister made on 26 October 2000 are invalid and of no effect.
A writ of certiorari shall issue, quashing the decision of the Migration Review Tribunal.
The respondent shall pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ616 of 2003
| SHAHID AHMED |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the MRT”) made on 26 March 2003. The MRT affirmed a decision of a delegate of the Minister to cancel the applicant’s student (temporary) (class TU) visa.
The relevant background facts are accurately summarised in paragraphs 4-12 of written submissions prepared on behalf of the applicant by Mr Lloyd and filed on 1 March 2004. I note that in his written submissions prepared on behalf of the respondent and filed on 4 March 2004 Mr Jordan adopts that background. I adopt those paragraphs of the applicant’s written submissions for the purposes of this judgment:
The applicant, a citizen of Pakistan, first entered Australia on a student visa on 10 July 1998. He was granted a further student visa on 11 December 1998, which was to expire on 15 March 2001 (court book, page 77[9].
Attached to the visa granted on 11 December 1998 was, relevantly, condition 8202. At the relevant time, it was in the form set out by the MRT at court book, page 87 [59] and not the form apparently relied upon by the delegate: court book, page 4.
On 19 October 2000, a letter was sent to the applicant from an officer of the Department of Immigration and Multicultural Affairs (as it then was). It stated that it had come to the Department's attention that there might be grounds for cancelling the applicant's current student visa. It indicated that the relevant power for cancellation being considered was premised upon the applicant having not complied with the condition of his visa. It set out the wrong form of condition 8202. It then said that the Department had received information from the Chalmers Institute that indicated that the applicant had not complied with condition 8202 in that he had “failed to meet course requirements". No particularisation of this ground was included in the notice. Nor were particulars of the information relied upon by the Department provided to the applicant. The letter invited the applicant to contact an officer of the Department to discuss his circumstances.
The applicant contacted by phone the named departmental officer to discuss his circumstances. He was asked to attend the departmental officer at a particular time on 26 October 2000. Upon arrival at the Department at that time, the applicant was invited by notice in writing to an interview to be held in five minutes time [at 3.15pm] (court book, page 11). In that notice, the applicant was told that the Department had information stating that the applicant had “failed to meet his course requirements and has non attendance”. However, again, no particularisation of the alleged breach of condition or information relied upon was provided orally or in writing.
At 3:40pm, on 26 October 2000, a delegate of the Minister purported to cancel the applicant's visa on the basis that information received from the Chalmers Institute stated that the applicant had failed to meet his course requirements in 1999 and had poor attendance.
On 30 October 2000, the applicant lodged a valid application for review with the MRT (court book, page 78[17]).
On 20 February 2001, the MRT purported to affirm the decision to cancel the Applicant's visa (court book, page 82[36]).
On 16 March 2001, the applicant sought review of the decision by the Federal Court. The Minister conceded that an error had been made and consent orders remitting the case to the MRT for reconsideration were made on 4 June 2001 (court book, page 82[37]).
On 23 March 2003, the MRT, reconstituted, again purported to affirm the decision to cancel the applicant's student visa (court book, pages 75-95). It is sufficient for present purposes to note that the MRT was not satisfied that his attendance for the course at Chalmers Institute could be evidenced (court book, page 92[83]). The MRT then purported to find that the applicant had not provided any certification that his academic results for his course were at least satisfactory at the relevant time, relying upon condition 8202(c) (court book, page 95[96]).
In his application filed on 23 April 2003 the applicant specifies the following ground of review:
The Migration Review Tribunal made a jurisdiction error in making its decision of 26 March 2003 to affirm the delegate’s decision to cancel the applicant’s student visa.
The following particulars are given:
a)The MRT had only the same powers of the delegate to cancel the applicant’s visa on 26 October 2000 (s.349(1), Migration Act 1958 (Cth) (“the Migration Act”).
b)The notices of proposed cancellation given by the delegate did not comply with s.119 of the Migration Act because they failed to give particulars of the grounds and the information because of which the grounds appear to exist. It follows that the delegate had no power to cancel the visa. The MRT erred in failing to so hold and in failing to set aside the purported cancellation decision.
c)In the alternative to (b), neither of the notices of proposed cancellation gave any indication that a ground for cancelling the visa was breach of condition 8202(c). indeed, the most recent notice was expressly inconsistent with that being a ground of cancellation. As a consequence, the MRT, undertaking review, had no jurisdiction to affirm the decision to cancel on a ground not notified to the applicant.
d)Further and in the alternative to (b) and (c), a breach of condition 8202(c) can arise only upon completion of the course, which had not occurred on 26 October 2000 when the original cancellation decision was made.
Mr Lloyd, in his written submissions, slightly recasts the application as follows:
In essence, the applicant contends that:
a)The notice of intention to cancel given by the delegate to the applicant was invalid because it did not comply with ss.119-121 of the Migration Act. In particular, it did not contain the particulars and information required or did not contain a valid specification of grounds for cancellation.
b)As a consequence, the delegate’s decision to cancel was invalid.
c)The MRT should have so determined and, as such, should have determined that its jurisdiction was limited to setting aside the purported decision of the delegate for his want of jurisdiction.
d)In addition, the MRT erred in affirming the cancellation decision on the basis of a ground or particular not contained in the notice of intention to cancel, thereby exceeding its jurisdiction.
e)Further, or in the alternative, the MRT erred in its construction of condition 8202 in considering that condition 8202(c) could be breached before the course was completed.
f)Further, or in the alternative, the MRT erred in its construction of condition 8202(c) in coming to the conclusion that it had been breached at all in light of the certification which had been provided.
Submissions
Mr Lloyd also made extensive oral submissions in which he expanded upon and explained his written submissions. Mr Lloyd noted at the outset that the issue has come before this Court twice previously. Mr Lloyd noted that the issues had been argued recently before Federal Magistrate Barnes who has reserved her decision. Mr Lloyd also referred me to the decision of Federal Magistrate Raphael in Zubair v Minister for Immigration [2003] FMCA 440, which Mr Lloyd submits was wrongly decided.
Mr Lloyd submits that the giving of proper notification required by s.119 of the Migration Act is a condition precedent to the cancellation of a visa under s.116 of the Act. Mr Lloyd concedes that a notice need not be in writing and he also concedes that the matters of which notification is required need not all be notified at the one time. Nevertheless, Mr Lloyd submits that it is an essential pre-requisite to the exercise of the power of cancellation that the particulars required by s.119 are provided and that the invitation required by the section is given. He submits that, on any view, the particulars required to be given were not given. Mr Lloyd noted that the letter sent by the Department to the applicant on 19 October 2000 referred to a form of condition 8202 in the Regulations which was not the correct form of the condition at the relevant time. The letter contained the statement that the applicant had failed to meet course requirements but gave no particulars of how the applicant had failed to meet course requirements. The letter invited the applicant to contact the departmental officer to discuss his circumstances but did not, in terms, give the invitation specified in s.121 of the Migration Act. The letter warned of a possible cancellation of the applicant’s visa if no response was made.
Mr Lloyd also took me to the “Cancellation of Temporary Visa” form appearing from page 11 of the court book. He read, without objection, an affidavit by the applicant made on 1 March 2004. The applicant was not required for cross-examination. In paragraph 4 of that affidavit the applicant states that a Mr Massa gave him a piece of paper which he now knows to be a notice of intention to cancel his student visa. It appears that this was the document appearing from page 11 of the court book and that when it was initially shown to the applicant, Part A of the form, being the notification of intention to cancel, had been completed. That document contains a statement of the possible grounds for cancellation in the following terms:
Information received from Chalmers College stating A/N failed to meet his course requirements and has non attendance.
Mr Lloyd submits that this document does not satisfy the requirements of s.119 either on its own or in combination with the earlier letter. Mr Lloyd submits that neither the letter nor the form of notification provided information to the applicant sufficient for him to understand the case that he had to meet. Mr Lloyd noted that the Department had received from Chalmers College prior to the cancellation of the applicant’s visa the documents appearing at pages 1, 2, 3, 6, 7 and 8 of the court book, but that there is no evidence that those documents were disclosed to the applicant prior to the cancellation decision.
Mr Lloyd also pointed out that the cancellation document at page 14 of the court book identified the notification of intention to cancel the visa as the notification given on 26 October 2000, that is Part A of the cancellation document, rather than the earlier letter. Mr Lloyd invited me to infer that all the applicant received was the form and the earlier letter.
Mr Lloyd submits that the MRT correctly found at paragraphs 61-68 of its reasons (court book, pages 88-89) that the notification procedure is a mandatory pre-requisite to the exercise of the cancellation power. However, he submits that the MRT erred in finding that the notification procedure had been complied with. Apart from the absence of particulars, Mr Lloyd submits that paragraphs (b) and (c) of condition 8202 are mutually exclusive and that a decision maker must elect between them and that that election must be made at the time notice is given to the applicant.
Mr Lloyd also submits that the MRT misconstrued condition 8202. He conceded that the MRT found correctly that it must consider whether the applicant’s visa should be cancelled as at the time the cancellation decision was made by the delegate: court book, page 90 at [75]. However, Mr Lloyd submits that the MRT erred in finding that it was open to the delegate, and hence the MRT, to make a cancellation decision prior to the conclusion of the applicant’s course: Nong v Minister for Immigration (2000) 186 ALR 100 at [39]. Mr Lloyd conceded that the Federal Court in Ariyagama v Minister for Immigration [2001] FCA 1407 at [4], [5], [14] and [15] and on appeal in Ariyagama v Minister for Immigration [2002] FCAFC 114 expressed a different view, namely that a decision could be made prior to the end of a course provided that the decision maker could be satisfied that course requirements could not be met by the end of the course.
Finally, Mr Lloyd submits that in any event the MRT had available to it at the time it made its decision a certification from the institution that the applicant was making satisfactory progress: court book, page 44. Mr Lloyd submits that the MRT erred in failing to accept that certification for the purposes of paragraph (c) of condition 8202.
Mr Jordan makes the following written submissions:
The applicant contends that he was not given valid notice of the proposed cancellation of his visa. He asserts that the requirements of s.119(1) of the Migration Act (the Act) were not complied with, primarily, because he was not given particulars of the proposed grounds for cancellation and of the information because of which those grounds appeared to exist.[1]
[1]Application for review filed 23 April 2003 (the Application), particular (b); Applicant’s written submissions, paras 18-21
In combination, the letter of 19 October 2000 (court book, pages 4-5) and the notice of proposed cancellation on 26 October 2000 (court book, pages 11-14) were sufficient for the purposes of s.119(1) of the Act.
Adequate particulars of the proposed grounds for cancellation were provided in accordance with s.119(1)(a):
i)The letter of 19 October 2000 referred to condition 8202. That reference included the requirement for evidence of 80% attendance and, in the alternative, a satisfactory academic result as certified by the education provider. If there was error in the delegate’s reference to the form of condition 8202 this was immaterial because the substance of the relevant provisions of the condition was adequately conveyed. In this context, the letter notified the applicant that (court book, page 4, original emphasis):
Information received by the Department from CHALMERS INSTITUTE indicates that you have not complied with condition 8202, in that you failed to meet course requirements
From this information, it appears that your visa must be cancelled because you have not complied with condition 8202.
ii)The notice of proposed cancellation on 26 October 2000 gave further particulars, also in the context of the earlier reference to condition 8202 (green book, page 11):
Information received from Chalmers College stating a/n failed to meet his course requirements and has non attendance.
The applicant was also given sufficient notice of the information because of which those grounds appeared to exist, pursuant to s.119(1)(a):
i)The letter of 19 October 2000 advised the applicant that the delegate was acting on information received from the Chalmers Institute.
ii)The notice of proposed cancellation on 26 October 2000 referred to information from Chalmers College.
In accordance with s.119(1)(b) of the Act, the applicant was invited to respond within a specified time:
i)The letter of 19 October 2000 invited the applicant to respond by telephone, pursuant to s.121(1)(c) of the Act, to allow an assessment as to whether or not an interview was necessary. The applicant was given five working days to make contact by telephone, in accordance with s.121(2) of the Act and clause 2.44(2)(a) of the Migration Regulations 1994 (court book, page 5).
ii)The notice of proposed cancellation on 26 October 2000 invited the applicant to respond at interview that afternoon (court book, page 11). In light of the earlier letter of 19 October 2000 this was a reasonable period for response, pursuant to s.121(3)(b) of the Act.[2]
[2]Contrast Zubair v Minister for Immigration [2003] FMCA 440 at [6]-[7], [18]
In these circumstances, the notice requirements in s.119(1) of the Act were satisfied. The applicant was alerted to the substance of the issues under consideration by the delegate, namely, non attendance and failure to meet course requirements. In the context of the delegate’s reference to condition 8202 in the letter of 19 October 2000, this was also sufficient notice of the effect of conditions 8202(b) and 8202(c).
In the alternative, the notice requirements in ss.119 to 121 of the Act are not essential to the exercise of the MRT’s power to cancel a visa. Their purpose is to accord procedural fairness by allowing a visa holder to respond to the proposed grounds of cancellation.[3] Even if a delegate’s decision is vitiated by a failure to comply with ss.119 to 121, the MRT retains the power to cancel a visa so long as the requirements of procedural fairness imposed by the Act upon the MRT have been fulfilled.[4]
[3]Tien & Ors v Minister for Immigration (1998) 89 FCR 80 at 99-100, quoting Burchett J in Zhang Jia Qing v Minister for Immigration (1997) 149 ALR 519 at 532-533
[4]Zubair v Minister for Immigration [2003] FMCA 440 at [20]-[28]; see also Yilmaz v Minister for Immigration (2000) 100 FCR 495 at [3], [85]-[88]; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Limited (1979) 24 ALR 307 at 317, 337
Notice of proposed cancellation – reference to condition 8202(c)
The applicant contends, in the alternative, that there was no indication that a breach of condition 8202(c) was a ground for cancellation.[5] In his written submissions, however, the applicant accepts that the delegate purported to rely upon both conditions 8202(b) and 8202(c) but submits that this resulted in an invalid notice because conditions 8202(b) and 8202(c) are mutually exclusive.[6]
[5] Application, particular (c)
[6] Applicant’s submissions, paras 22-24
In the event that evidence of attendance in support of condition 8202(b) could not be provided, condition 8202(c) provided an alternative basis for compliance with the condition.[7] As such, it was entirely appropriate for the notice of proposed cancellation to make reference to both alternatives in order to inform the applicant that condition 8202(c) was available if he could not provide the evidence of attendance needed to satisfy condition 8202(b). This is consistent with s.119(1) of the Act which clearly contemplates reference to several grounds in a notice of proposed cancellation.
[7]Nong v Minister for Immigration (2000) 106 FCR 257 at [39]; see also Ariyagama v Minister for Immigration [2001] FCA 1407 at [14]-[15] which was not the subject of analysis by the Full Court in Ariyagama v Minister for Immigration [2002] FCAFC 114
In the alternative, the submission put above at paragraph nine is repeated.
Cancellation of visa – breach of condition 8202(c) before completion of course
Further, and in the alternative, the applicant asserts that the MRT erred in finding that the applicant had contravened condition 8202(c) at a time before the completion of his course.[8]
[8] Application, particular (d); Applicant’s submissions, paras 25-26
In support of this ground, the applicant relies on the decision of Katz J in Nong v Minister for Immigration.[9] That decision turned on His Honour’s construction of condition 8202(b). In dealing with that issue, Katz J also referred to condition 8202(c) and noted that “in the usual case” the academic results contemplated in condition 8202(c) will not be known until after completion of the course.[10]
The MRT distinguished Nong v Minister for Immigration because, at the time the applicant’s visa was cancelled, it was clear that he would not obtain academic results which would be certified as satisfactory (court book, page 94 at [91]). This finding was open on the evidence available to the MRT, which included:
i)evidence from the applicant that he did not sit for any examinations nor receive any results in 1999 (court book, page 93 at [89]);
ii)a facsimile from the Chalmers Institute dated 30 November 2000 stating that the completion date for the course was 8 December 2000 and noting that the applicant would be unable to finish the course by that date because he had not completed the required amount of subjects (court book, page 36);
iii)a facsimile from the Chalmers Institute on 8 December 2000 stating that the applicant had only completed approximately twenty percent of his course subjects and confirming that he would not be re-enrolled based on his prior academic performance (court book, page 37), and
iv)the absence of any certification of satisfactory academic results in relation to the course, as a whole, over its two year duration (court book, page 94 at [93]).
In relation to cancellation of a visa pursuant to condition 8202(b) before completion of the relevant course, Nong v Minister for Immigration was distinguished on a similar basis by Hill J in Shrestha v Minister for Immigration [11] and by Ryan J in Ariyagama v Minister for Immigration.[12] The MRT was correct in applying analogous reasoning in relation to condition 8202(c).
Finally, the applicant submits that the MRT erred because there was certification of satisfactory academic progress.[13] The information relied upon in support of this submission was limited to the second year of the course (court book, pages 44-46). As such, it was open to the MRT to find that that this was insufficient for the purposes of condition 8202(c) because it did not cover the whole course, in circumstances where the applicant had received no results for the first year of the course (court book, page 93 at [89]. Indeed, the MRT’s finding was consistent with the reasoning in Nong v Minister for Immigration because it focused on the available academic results “for the course” as a whole.[14]
[9] (2000) 106 FCR 257 at [39], [41], [47]
[10] (2000) 106 FCR 257 at [39]
[11] [2002] FCA 1607 at [32]
[12] [2001] FCA 1407 at [17]; affirmed by the Full Court in Ariyagama v Minister for Immigration [2002] FCAFC 114 at [21]-[23]
[13] Applicant’s submissions, para 27, referring to court book, page 83
[14] (2000) 106 FCR 257 at [39]
Mr Jordan also augmented his submissions orally. He confirmed that there are essentially two issues, for me to determine, namely the validity of the notification given to the applicant which is a jurisdictional argument and the issue of the legal merits of the MRT decision which focuses on condition 8202. Mr Jordan submits that the applicant received sufficient notification in the form of the letter of 19 October 2000 and the notification form of 26 October 2000 in that the relevant factors in paragraphs (b) and (c) of condition 8202 were identified and that the Department informed the applicant that it had information from the institution which might support a cancellation decision. He submits that it does not matter that the wrong version of condition 8202 was quoted in the letter because, in relevant respects, the form of the condition was the same. He submits that at the time notice is given to an applicant, it is legitimate to call upon an applicant to answer both a possible cancellation based upon paragraph (b) of 8202 and a possible cancellation of paragraph (c) of 8202.
Alternatively, Mr Jordan submits that even if insufficient notice was given to the applicant the legislative purpose of s.119 is one of procedural fairness: Project Blue Sky Inc vAustralian Broadcasting Authority (1998) 194 CLR 355 at [22]. Mr Jordan also took me to the decision of the Full Federal Court in NAHV v Minister for Immigration [2003] FCAFC 102. Mr Jordan submits that provided that procedural fairness is accorded by the MRT any want of procedural fairness on the part of the delegate can be cured. This was in substance what Federal Magistrate Raphael found in Zubair. He also took me to the decisions in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 and His Honour Gyles J in Yilmaz v Minister for Immigration (2000) 100 FCR 495at [85].
Mr Jordan submits that whether sufficient particulars were given to the applicant is a question of fact and that the MRT was entitled on the material before it to make a decision on that fact for the purposes of its decision: Hope v Bathurst City Council (1980) 144 CLR 1 at [7] and [8].
Mr Jordan further submits that His Honour Katz J in Nong was only addressing the usual case and referred me to paragraph 16 of his written submissions. He submits that in an unusual case, such as the present, it was open to the decision maker to seek a certification prior to the end of the course. He referred me to paragraph 15 of his written submissions. Mr Jordan submits that it was open to the MRT on the material before it to conclude that there was no certification in respect of the period up to the cancellation decision and that the applicant was unable to satisfy the institution as to his performance by the end of the course. It was open to the MRT to conclude, as it did, that the certification provided by the applicant did not relate to the course as a whole. In his submission, it only related to the year 2000.
In reply, Mr Lloyd submits that I should find that no particulars of information held by the delegate were provided and that I should find that the defect in notification was not curable by due process before the MRT. He submits that a cancellation decision should be seen as being materially different from a refusal to grant a visa, having regard to the consequences. He submits that, quite apart from any debate about legislative intention, one must read the legislation itself and that, in its terms, s.119 is a jurisdictional pre-requisite. The adequacy of notice is a jurisdictional pre-requisite to the exercise of power by the delegate and, as was found by the MRT, a finding of adequate notice was a jurisdictional fact necessary for a valid MRT decision. Mr Lloyd also relies on s.349(1) of the Migration Act which sets out the powers of the MRT on review.
Mr Lloyd finally submits that if it is possible for a decision to be made to cancel a visa based upon paragraph (c) of condition 8202 prior to the end of the course, it would be necessary to look forward to the end of the course and satisfy oneself that no certification could be obtained. Such a finding was not reasonably open.
The legislation
Sections 116, 119, 120 and 121 of the Migration Act provide as follows:
Section 116
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)any circumstances which permitted the grant of the visa no longer exist; or
(b)its holder has not complied with a condition of the visa; or
(c)another person required to comply with a condition of the visa has not complied with that condition; or
(d) if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e)the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or
(f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
(fa) in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student; or
(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
(g) a prescribed ground for cancelling a visa applies to the holder.
(1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
(2)The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
Section 119
(1)Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a)give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4) The other provisions of this Subdivision do not apply to a cancellation:
(a) under a provision other than section 116; or
(b) to which Subdivision F applies.
Section 120:
(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for cancelling a visa; and
(b)is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c) was not given by the holder; and
(d) was not disclosed to the holder in the notification under section 119.
(2) The Minister must:
(a)give particulars of the relevant information to the holder; and
(b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and
(c) invite the holder to comment on it.
(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.
Section 121
(1)An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
(b) at an interview between the holder and an officer; or
(c) by telephone.
(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and
(b)at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
(a) a later time within that period; or
(b) a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be given at an interview at the new time.
(6)This section is subject to sections 125 and 126. [which are not presently relevant]
Reasoning
This case raises for consideration some quite basic issues of administrative and judicial review. The first issue, which occurred to me independently of the parties’ submissions, was whether the setting aside of the first MRT decision had any impact upon the reconsideration of the matter by the second MRT decision. The first MRT decision made on 20 February 2001 was set aside by order of His Honour Emmett J by consent on 4 June 2001. The matter was remitted to the MRT, differently constituted, for redetermination according to law. In the meantime, the applicable law changed retrospectively. Did then, the setting aside of the first decision of the MRT which affirmed the delegate’s decision have any impact upon the original decision of the delegate to cancel the applicant’s visa and the applicable law? The short answer is no: Re Brian Lawlor Automotive Pty Ltd v Collector of Customs (1978) 1 ALD 167 at 175.
At page 56 of the reasons for decision of the second MRT decision (court book, page 87) the presiding member states:
As noted at hearing, the review applicant’s visa was granted on 11 December 1998. On 1 December 1998, subregulation 2.43(2) was amended by the Migration Amendment Regulations 1998 (No 10) 1998 No 305 to include non-compliance with condition 8202 as a ground for mandatory cancellation under subsection 116(3). In Pradhan v Minister for Immigration & Multicultural Affairs [1999] FCA 1240 (10 September 1999) Gyles J held that that paragraph 2.43(2)(b) applies only to a Student (Temporary)(Class TU) visa, subclass 560 granted on or after 1 December 1998. This was later confirmed in Nong’s case [7]. For the reasons stated in Nong’s case [26-27] the Tribunal does not consider that the visa granted on 11 December 1998 was an extension of the previous student visa which had been granted on 18 June 1998. As the visa granted to the review applicant with condition 8202 was issued on 11 December 1998, the Regulations provide that the discretion to cancel set out in section 116(1)(b) does not apply and the visa must be cancelled if the grounds of the cancellation are made out.
I am satisfied that the decision of the MRT on this point was correct.
I am also satisfied that the MRT identified and applied the correct migration regulation and the correct version of condition 8202 as appears in paragraphs 57-60 of the MRT decision (court book, pages 87-88):
As at 11 December 1998 and 26 October 2000, paragraph 2.43(2)(b) provided:
Regulation 2.43 Grounds for cancellation of visa (Act, s.116)
…
(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
…
(a)in the case of a Student (Temporary) (Class TU) visa – that the Minister is satisfied that the visa holder has not complied with condition 8202.
Following the decision of the Federal Court in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460 the Tribunal does not have any discretion to set aside a visa cancellation where there has been a breach of condition 8202. Once non-compliance with the condition is established, the Tribunal is bound to affirm the visa cancellation by the operation of section 116(3) and paragraph 2.43(2)(B) of the Regulations.
Relevant version of condition 8202
At the time that the review applicant’s visa was granted, condition 8202 required:
8202
8202 The holder must:
(a) be enrolled in a registered course; and
(b)attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and
(c)if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and
(d)comply with any requirement of the education provider in relation to payment of fees for the course.
Since the review applicant’s visa was granted, there have been a number of changes to condition 8202. On 21 December 2000 the Migration Legislation Amendment (Overseas Students) Act 2000 introduced provisions which had the effect of retrospectively replacing condition 8202 for all student visas which were in effect on 1 December 2000 or granted between 21 December 2000 and 1 July 2001. (As to the retrospective effect of the legislation, see most recently Siddique v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 16 (20 February 2003 [12]). However, the review applicant’s visa was cancelled on 26 October 2000 and was no longer in effect as of 21 December 2000. Therefore the provisions of the Migration Legislation Amendment (Overseas Students) Act 2000 do not apply in this case and the review applicant must be assessed against condition 8202 as set out above.
The first issue of substance raised by the applicant is whether s.119 of the Migration Act was complied with. The MRT found that the procedure for cancelling visas under subdivision E of the Migration Act was mandatory and that the MRT had no power to affirm a cancellation decision where the legislatively prescribed cancellation procedure had not been followed. In my view, the presiding member was correct in so finding. The presiding member stated, at paragraphs 65-68 of the decision (court book, pages 88-89):
The procedure for cancelling visas under subdivision E of the Act was found to be mandatory by the Federal Court in Tien v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 405 (Tien). In Tien, Goldberg J stated that:
…[t]he Minister is only entitled to cancel a visa on grounds and information which the Minister is satisfied exist if the scheme in Subdiv E of Div 3 of Pt 2 has been followed, that is to say the particulars of the grounds and the information of which they are based must be notified to the visa holder in an appropriate way, which may be orally…
Goldberg J stated:
…[t]he scheme of sections 119 and 120 is such that it requires the Minister or the Minister’s delegate to take into account only information which would be a reason for cancelling a visa where that information has not been given by the visa holder and has been provided to the visa holder in the manner set out in sections 119, 120 and 121.
Goldberg J further noted:
The Act provides for a procedure which must be implemented and carried out before a decision to cancel a visa can be made and be said to be valid or effective.
Following the proper procedure is therefore an essential precondition to the exercise of the cancellation power. As the Tribunal may only exercise the same powers and discretions conferred on the primary decision-maker, it follows that the Tribunal has no power to affirm a cancellation decision where the proper cancellation procedure has not been followed. Nor does the legislation allow for the Tribunal to “cure” a defect in the notification procedures.
I agree with this aspect of the presiding member’s decision. I reject Mr Jordan’s submission that the presiding member was wrong. Mr Jordan sought to rely on the decision of Federal Magistrate Raphael in Zubair v Minister for Immigration [2003] FMCA 440. I agree with Federal Magistrate Raphael’s finding in that case that a want of procedural fairness in a cancellation decision may be cured by the provision of procedural fairness on review by the MRT. Similarly, if the original decision maker asks himself the wrong question, takes into account irrelevant considerations, fails to take into account relevant considerations or even misunderstands the task he has to perform, such jurisdictional errors may be cured on review: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 220. Like the AAT, the MRT has jurisdiction to review not only lawful decisions of a delegate, but also purported decisions of a delegate.
However, the MRT, like the AAT, stands in the shoes of the original decision maker. If the original decision maker had no shoes to begin with, the review tribunal cannot go barefoot. To put it another way, the stream cannot rise higher than its source. If the original decision maker had no jurisdiction to make the decision purportedly made, upon review, the tribunal cannot affirm that decision. The only available power under s.349(1) of the Migration Act would be to set the decision aside. However, the MRT could not substitute a new decision if the jurisdictional pre-requisite for the making of a new decision did not exist. In order to have jurisdiction to cancel a visa under s.116 of the Act the Minister, or her delegate, must follow the procedures set out in ss.119 and 120. The procedure set out in s.121 may not be a jurisdictional pre-requisite to the exercise of power: NAHV v Minister for Immigration [2003] FCAFC 102, but the procedure set out in ss.119(1) and 120 is a jurisdictional pre-requisite to the exercise of power: Zubair at [19]. It follows, in my view, that the presiding member was correct in finding that if the procedure in ss.119 and 120 was not followed, there was no power in the MRT to affirm the decision under review. It is probably correct to say that these sections are a statutory expression of procedural fairness. But they are more than that. They are a jurisdictional pre-requisite to the exercise of power. It follows that a breach of these sections is not simply a jurisdictional error in the form of a want of procedural fairness; it is a jurisdictional error removing the very foundation of the decision subject to review.
The presiding member found that ss.119 and 120 had been satisfied because proper notice had been given. At paragraph 71 of the reasons for decision (court book, page 89) the presiding member said:
The second issue was raised in the representative’s submissions of 3 March 2003 as set out in paragraph [52] above. However, in the current matter, the Tribunal considers that the review applicant was amply advised of the grounds for cancellation of his visa. In the letter of 19 October 2000 the delegate set out the correct version of condition 8202 and advised that information from Chalmers Institute suggested that the review applicant might have breached that condition. The delegate gave the review applicant the opportunity to explain his circumstances. The second notice of 26 October 2000 set out the information from Chalmers, namely that the review applicant had failed to attend (ie non attendance) and failed to meet course requirements. The Tribunal does not agree with the representative’s contention that the notice of 19 October 2000 cannot be taken into account due to the further notice issued on 26 October 2000. The Tribunal considers that the notice of 26 October 2000 supplemented the earlier notice. There is nothing in the legislation to suggest that a visa holder cannot be notified of the grounds for cancellation twice. The Tribunal considers these notices to comply with the obligations set out in section 119 and the explanation of those requirements set out in Tien’s case.
I accept Mr Lloyd’s submission that the presiding member was in error in stating that the letter of 19 October 2000 set out the correct version of condition 8202. The version of condition 8202 notified to the applicant on that day was the version in force as at 1 September 2000, not the correct version, which was the version in force as at 11 December 1998 (when the visa was granted). In material respects, the two versions of condition 8202 notified to the applicant were similar but they are not identical. The version notified to the applicant is materially different from the correct version in that it does not specify in paragraph (b) that attendance can be evidenced by something other than the records of the education provider. The absence of the words “or otherwise” in the version notified is significant and rendered the notice misleading. Even worse, however, was the reliance upon the ground of “failure to meet course requirements”. This was simply a repetition of condition 8202 as it applied at 12 December 1994. At that time the condition simply stated:
8202 The holder must satisfy course requirements.
The presiding member was correct in finding that more than one notice could be given and that notice could be contained in more than one document. Indeed, notice could be given orally. However, in this matter there is no evidence of oral notification and I infer that there was none. The relevant notices given were the letter of 19 October 2000 and the notice of 26 October 2000. No version of condition 8202 was notified in the latter notice.
In my view, the presiding member erred in finding that these two documents, either singly or in combination, met the requirements of s.119. The section requires that the decision maker must notify the visa holder of the grounds contemplated for cancelling the visa and further requires that particulars of those grounds be given. The proposed ground of cancellation is sufficiently identified in the letter of 19 October 2000 in that sufficient reference is made to condition 8202. However, particulars were required of how the visa holder had failed to comply with condition 8202. The only particular provided in the letter was the statement that information received from Chalmers Institute indicated that the applicant had “failed to meet course requirements” which was simply an erroneous reference to the 1994 version of condition 8202. That was uninformative both in terms of the wrong version of condition 8202 that was set out in the letter dated 19 October 2000 and the correct version. To the extent that the particular conveyed anything, it would have conveyed an implication that it was alleged that the applicant had failed to meet some unspecified course requirement imposed by the Institution. It might have had something to do with enrolment. It might have had something to do with attendance. It might have had something to do with academic performance. The applicant was not to know. Part A of the form given to the applicant on 26 October 2000 was no more informative. It lists as the ground contemplated for cancellation that there was information received from Chalmers Institute stating that the visa holder had failed to meet his course requirements and has non‑attendance. This would have alerted the applicant to the issue of the 80 per cent attendance requirement. However, the reference to a failure to meet course requirements remained delphic. In order to satisfy the requirement for particulars, the notices given to the applicant needed to identify which parts of condition 8202, as it applied at the time, were being relied upon. I see no objection to a notice identifying particulars bringing into play all elements of condition 8202 but it would have to clearly do so. The notices given to the applicant were sufficient to identify paragraph (b) of condition 8202 but the vague reference to a failure to meet course requirements left open the possibility that the decision maker might also be relying upon paragraphs (a), (c) or (d). The applicant could not even begin to ponder which paragraph might be relied upon because he was given the wrong version of condition 8202. Notices given to the applicant needed to contain sufficient particulars as to explain why the relevant parts of the applicable version of condition 8202 were proposed to be relied upon. The visa holder is entitled to know the case that he or she has to meet. Insufficient particulars were given to the applicant for that purpose. It follows that s.119 was not complied with. Neither was the required information given pursuant to s.120(2). Accordingly, the MRT should have set aside the decision of the delegate.
The procedure followed by the delegate was also unfair in that inadequate time was given to the applicant to consider the proposed cancellation before the cancellation decision was made. The cancellation decision was made only about five minutes after the notice was given to the applicant on 26 October 2000. However, that want of procedural fairness was cured by the proceedings before the MRT for the reasons given by Federal Magistrate Raphael in Zubair. It is also strongly arguable that s.121 was not complied with in that the letter of 19 October 2000 did not meet the requirements of an invitation for the purposes of that section. It is unnecessary to decide that issue. For the reasons already given I doubt that compliance with s.121 is a jurisdictional pre-requisite. In any event, an invitation is meaningless without the requisite particulars and the requisite particulars were not given. That is a breach of a jurisdictional pre-requisite and the delegate had no jurisdiction in the circumstances to cancel the visa.
That finding is sufficient to dispose of these proceedings. However, given the possibility that I may be wrong in the above finding I will consider the remaining grounds set out in the application. Those remaining grounds of review relate to the construction of condition 8202 by the MRT and the finding by the MRT that the applicant had failed to meet academic course requirements. In my view, the MRT erred in finding that it was open to the delegate, and hence it, to determine whether condition 8202(c) had been complied with before the conclusion of the applicant’s academic course. The presiding member referred to Nong’s case in which Katz J found that a decision on whether condition 8202(b) (and possibly also 8202(c)) were met could be made only at the conclusion of an academic course. However, the weight of authority supports the proposition that a decision can properly be made based upon condition 8202(b) before the end of an academic course if the 80 per cent attendance requirement could not be satisfied at the time the decision was taken (Ariyigama v Minister for Immigration [2001] FCA 1407) per Ryan J (approved on appeal in Ariyigama v Minister for Immigration [2002] FCAFC 114). See also Shrestha v Minister for Immigration [2002] FCA 1607. However, that is merely an arithmetical exercise. The assessment of academic performance for the purposes of condition 8202(c) is a subjective exercise and depends upon an assessment by the relevant institution. The MRT decided the matter on the basis of adverse information provided by the institution about the applicant’s academic performance during 1999. The MRT discounted letters received from the institution (after several changes of ownership) upon the basis that although they indicated satisfactory performance they were apparently limited to academic progress in 2000.
In my view, the MRT misconstrued condition 8202(c). In the first place, the condition only applies in circumstances where attendance cannot be evidenced. Leaving aside any other defect in the notices given to the applicant by the delegate, no notice had been given of an asserted absence of certification of academic performance and so it was not open to either the delegate or the MRT to consider it. Secondly, condition 8202(c) requires the certification by the education provider of academic performance that is at least satisfactory. Indications of unsatisfactory performance by the institution are irrelevant if it remains open to a visa holder to obtain certification of satisfactory performance. At the time the delegate made his decision the course had not been completed and, in my view, it did remain open to the applicant to obtain such certification. The fact that the applicant later obtained a document expressing satisfaction on academic performance on the part of the institution proves that. It is up to the relevant institution to decide whether a student who performs unsatisfactorily in a year of his or her studies is able to recover their position in the remainder of the course. At the time the delegate made his decision that appeared unlikely but it was not impossible. Accordingly, and consistently with the decision in Nong and in Shrestha, it was not open to the MRT to affirm the cancellation of the visa.
Finally, in my view, the MRT erred in failing to accept the certification of satisfactory academic performance ultimately provided by the applicant. The presiding member discounted the certification on the basis that it related only to the year 2000 and not to the course as a whole. It is true that the certification obtained by the applicant referred specifically to his satisfactory performance in 2000 but it does not follow that the document was not certification for the course as a whole. As I have already noted, a student may, through additional effort, satisfy an institution of satisfactory performance in the latter part of a course that satisfies course requirements as a whole. At most, there was doubt as to whether the certification provided by the applicant was sufficient for the purposes of condition 8202(c). The MRT should have sought clarification from the institution. It did not do so and in its failure to do so it erred. Given that the issue of certification was fundamental to the exercise of jurisdiction by the MRT, its refusal to accept the certification, its failure to seek clarification from the institution, and its basing of its decision upon earlier expressions of unsatisfactory performance at a time when certification could still have been obtained, constitute jurisdictional error.
I will grant relief in the form of a writ of certiorari. I will also grant declaratory relief to deal with any doubt as to the jurisdiction of this Court to grant relief in the form of constitutional writs. That declaration will extend to the invalidity of the decision of the delegate. As there is no possibility that the MRT could lawfully have done anything other than set aside the delegate’s decision, there is no point in remitting the matter to the MRT for redetermination. In a circumstance such as this the Court can do what the tribunal was bound to do: Minister for Immigration v Conyngham (1986) 11 FCR 528 at 537-538 per Sheppard J; Comptroller-General of Customs v ACI Pet Operations Pty Ltd (1994) 49 FCR 56 at 81.
Costs should follow the event in this case. I will order that the respondent pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 8 April 2004
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