Al Mamun v Minister for Immigration
[2005] FMCA 147
•9 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AL MAMUN v MINISTER FOR IMMIGRATION | [2005] FMCA 147 |
| MIGRATION – MRT decision – cancellation of student visa for non-attendance – failure by delegate to give particulars prior to decision – power of Tribunal to affirm decision – Zubair applied. |
Migration Act 1958 (Cth), ss.116, 116(1), 116(1)(b), 116(3), 119, 119(1), 119(1)(a), 119(3) , 121, 121(1), 121(2), 121(4), 137K, 474(1), 477(1A),
483A, Part 8
Education Services for Overseas Students Act 2000 (Cth), s.20
Ahmed v Minister for Immigration [2004] FMCA 127
Australian Postal Corporation v Forgie (2003) 130 FCR 279
Bao v MIMIA [2004] FMCA 1044
Buck v Comcare (1996) 66 FCR 359
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZEEM v Minister for Immigration [2005] FMCA 27
Tien v Minister for Immigration (1998) 89 FCR 80
Zhao v The Minister for Immigration & Multicultural Affairs [2000] FCA 1235
Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248
| Applicant: | ABDULLAH AL MAMUN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG 1616 of 2004 |
| Delivered on: | 9 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 9 February 2005 |
| Judgment of: | Smith FM |
REPRESENTATION
| Counsel for the Applicant: | Mr N Dobbie |
| Solicitors for the Applicant: | Parish Patience Immigration |
| Counsel for the Respondent: | Mr R Beech-Jones |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
Objection to competency upheld.
Application dismissed.
Applicant to pay the respondent's costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1616 of 2004
| ABDULLAH AL MAMUN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Migration Review Tribunal handed down on 30 June 2003. The Tribunal affirmed a decision of a delegate taken under s.116(1) of the Migration Act, cancelling a Student (Temporary) (Class TU) visa held by the applicant which entitled him to reside in Australia while pursuing studies.
The ground for cancellation found by the delegate and Tribunal was provided in s.116(1)(b): that “its holder has not complied with a condition of the visa.” Pursuant to s.116(3) and regulation 2.43(2) the delegate was required to make the decision cancelling the visa upon satisfaction that the visa holder had not complied with condition 8202 attaching to the visa. These provisions allow no opportunity for a decision-maker to consider extenuating circumstances explaining and excusing the failure to meet that condition, which defines mandatory levels of course attendance and academic achievement. I have recently had occasion to set out the relevant provisions, and to refer to Full Court cases which consider their construction in Bao v MIMIA [2004] FMCA 1044 (“Bao”) and shall adopt, without repeating, paragraphs 12 to 18 of those reasons.
The ground of review upon which the present application relies depends on a point of interpretation which was also argued in Bao, and which I did not accept. It is argued that the s.116 power in the hands of the delegate and the Tribunal is preconditioned upon the delegate’s compliance with the procedures set out in Sub-division E of the relevant part of the Migration Act. In particular, it is argued that the power is conditioned upon the delegate’s compliance with ss.119 and 121, and that the Tribunal cannot affirm a cancellation decision if these provisions were not complied with. Section 119(1) requires that the visa holder must be notified “that there appear to be grounds for cancelling” (the visa) 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.
Under s.121(1) the invitation is “to specify” how the response may be given, whether “at an interview between the holder and an officer” or otherwise. Under s.121(2) and (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a prescribed period or “a reasonable time” and may be extended. The implication from these provisions, in my opinion, is that there must be a reasonable interval of time allowed between the applicant being notified of the particulars of the grounds of the contemplated cancellation and the interview or other opportunity to respond.
Section 119(3) allows “the way of notifying” the particulars to be “orally”, and counsel for the applicant accepted that it might be possible that notification of particulars and the invitation to respond might be given at an earlier stage of one interview in which the opportunity to respond was also given. Whether this could be done would depend upon the circumstances, and the implicit requirement that an appropriate time to respond must be allowed. I consider that some appropriate adjournment of the interview would usually be required to allow the visa holder reasonable time to understand the allegations particularised, reflect upon them, and consider what sort of response was appropriate. In some circumstances, this may require a substantial adjournment to allow the visa holder to obtain advice and collect relevant evidence. For that reason, it would seem that the Department’s forms expect that, in cases such as the present, particulars will normally be provided in a written s.119 notice given some days before the appointed interview.
In the present case, the evidence before me consists of an affidavit by the applicant upon which he was not cross-examined, and documents from the Department's file collated and tendered by the respondent. This evidence shows that on about 15 October 2002, the applicant was given a notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth) stating that he was alleged to have breached a condition of his student visa relating to attendance in a course at Cambridge International College (Vic) Pty Ltd, being: “Student attendance semester 2 2002 unsatisfactory. Unable to achieve the required 80%”. The notice told him:
You must report personally to a compliance officer at the following Department of Immigration and Multicultural and Indigenous Affairs Office (DIMIA) office: (giving an address in Melbourne). …
If you report to DIMIA as required under this notice, the automatic cancellation of your student visa will not proceed, but a decision will then be taken whether or not to cancel your visa. Your student visa will not be cancelled if you can show that no breach occurred.
The notice on its second page also referred to s.137K of the Migration Act which would allow the Minister to revoke an automatic cancellation if the breach was “due to exceptional circumstances beyond the student’s control”. However, the notice did not point out that the only way the applicant could get such considerations addressed would be if he ignored the notice and allowed the 28 days to elapse without attending to the DIMIA office (see Bao at [21 to 24]).
The applicant in this case did comply with the notice and attended the DIMIA office on 4 November at 2pm. Here, he was given a document which consisted of, or included, a “Notice of Intention to Consider Cancelling a Visa”. Clause 9 of this document said in printing:
It has come to the Department's attention that there may be grounds for cancellation of your visa under s 116 of the Migration Act 1958 for the following reasons. (Note: Officers to complete prior to handing the notice to the visa holder).
And in handwriting:
Reported by Cambridge for non attendance.
Possible breach of condition 8202.
And under that, by a tick in a box:
If this is the case your visa may be cancelled under: s116(1)(b) and s116(3) and reg 2.43(2)(b) (student breach of condition 8104, 8105 or 8202).
There is no evidence before me of any further particulars of the alleged ground of cancellation being given to the applicant by or on behalf of the Minister prior to the applicant attending an interview. This was specified by the notice as follows:
You are invited to provide your comments at interview.
Interview will be held on 28/11/2002 (Thursday)
Beginning at 2 pm
At the following location: level 15, 2 Lonsdale Street
You will need to provide your comments within 5 minutes of the start of the interview.
If you choose not to comment the immigration officer may his/her decision based on the information available to them.
In the absence of cross-examination, I accept the applicant's statement that he was given no further information orally or in writing why his visa might be cancelled prior to his attendance at that interview.
The only evidence as to what happened during the interview is a record inserted in Pt B of the Form 1099, apparently handwritten by the delegate who made the cancellation decision. The document notes that the visa holder had received "the notice of intention to consider cancelling the visa" and had "responded to the notice to consider cancelling the visa” on 28 November 2002 at “1400 hours (? to) 1500 hours”. There are notes of what the applicant told the delegate during the interview, but I am unable to find any indication that the interviewer paused in the interview to attempt to give further particulars complying with s.119(1)(a) and a further invitation to respond after giving a reasonable time to consider those further particulars. Counsel for the Minister does not contend that this happened.
The documents before me show that at some point, possibly after the interview with the applicant had finished, the delegate telephoned Cambridge International and received more information about the applicant's attendances, before making a decision to cancel which is recorded as being made at 4.10 pm on the same day. The delegate subsequently received facsimile information from Cambridge International concerning the applicant's attendances.
More information concerning the applicant’s attendances and academic results was subsequently given to the Tribunal, both from the applicant and from Cambridge International College. The Tribunal assessed all this material before upholding the delegate’s decision, but it is not necessary for me to detail that additional information and how it was received. There is no claim in the present proceedings that the applicant was not given proper particulars of a ground for cancellation and a real opportunity to respond between the making of the delegate's decision and the Tribunal deciding to affirm that decision. Nor is it challenged before me that the material allowed the Tribunal to conclude that there was a breach of condition 8202 which justified a mandatory cancellation of the visa.
The applicant’s argument is that it was not open to the Tribunal to affirm the cancellation because proper particulars had not been given to the applicant prior to the delegate’s decision. The submission invited the Court to reach a conclusion for itself about compliance with s.119 on the evidence now presented to it. In effect, the argument identified compliance with s.119 as a “jurisdictional fact” conditioning the Tribunal’s powers on review (c.f. Minister for Immigration and Ethnic Affairs v Naumovska (1983) 88 ALR 589 at 601, Buck v Comcare (1996) 66 FCR 359 at 362, and c.f. Australian Postal Corporation v Forgie (2003) 130 FCR 279 at [57], c.f. Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [34] and [59] and cases there cited).
As to whether there was compliance with s.119(1)(a) before the delegate’s decision, I accept the submissions of the applicant that on the evidence before me the applicant was not "given particulars of those grounds and the information because at which the grounds appeared to exist" prior to the interview at which he was expected to respond to the s.119 notice. In my view, merely telling the applicant that he was “reported by Cambridge for non attendance” does not particularise the non attendances which have been alleged in a manner which would allow a visa holder to be "fairly informed" "of the basis upon which cancellation has been considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make submissions as may be open" (see Zhao v The Minister for Immigration & Multicultural Affairs [2000] FCA 1235 at [25], and also my discussion in SZEEM v Minister for Immigration [2005] FMCA 27 at [39]).
A contrary conclusion was not pressed upon me by counsel for the Minister, nor was it contended by the Minister that a failure to comply with s.119 would cause a delegate's decision to be invalidly made because of failure to comply with a mandatory procedural obligation (c.f. Tien v Minister for Immigration (1998) 89 FCR 80 at 98).
However, in my opinion, the failure by the delegate to provide proper particulars under s.119 and the consequential invalidity of the delegate's decision did not deprive the Tribunal of jurisdiction to review that decision on the application of the visa holder, nor deprive the Tribunal of the power to re-exercise the s.116 power of cancellation in the course of conducting its review. My reasons for this conclusion are explained in Bao, where I considered that I was bound to that conclusion by Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248. I remain of that opinion for the reasons I gave in Bao at [34-38] (see also my further consideration of Zubair in SZEEM (supra) at [33 to 36]).
Counsel for the applicant accepted that I would follow my previous opinion, and did not attempt to persuade me to change it, but preserved the applicant's right to pursue the issue on appeal. He noted that Zubair may be considered further in an appeal from Ahmed v Minister for Immigration [2004] FMCA 127 which is pending in the Full Court. The applicant had previously sought to adjourn the present proceedings before me to await the outcome of that appeal but I declined to give an adjournment, considering that the law binding upon me is clear and that I should apply what I regard to be a clear interpretation of the law by the Full Court directly on point.
I conclude, based on Zubair, that compliance with s.119 was not an issue that the Tribunal needed to address, and that the fact of non-compliance prior to the delegate’s decision did not deprive it of its power to affirm the decision. The Tribunal's decision has therefore not been shown to be vitiated by any jurisdictional error, as needs to be shown before the limitations under Part 8 of the Migration Act can be avoided (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). I must therefore find that the decision of the Tribunal was a privative clause decision to which s.474(1) applies, and also that the applicant's application is incompetent for being brought outside the time required in relation to applications to this Court in respect of privative clause decisions, see s.477(1A).
The respondent's notice of contention objection to competency must therefore be upheld, and the application dismissed.
For the above reasons I dismiss the application.
I should note two further aspects of the matter. First, that the applicant has not sought to obtain relief directed at the delegate's decision on the ground of the invalidity which I have pointed to above. In my view that was a correct approach to the matter for the reasons I refer to in [4] of Bao.
Secondly, the respondent has drawn my attention to the substantial delay between the Tribunal's decision in June 2003 and the bringing of the present application in this Court in May 2004. The applicant in his affidavit gives some explanation. Without providing details, he says that during the interval he "made an appeal to the Minister through my then agents". The Minister contends that this does not adequately explain the delay, and that it should warrant the refusal of relief in relation to the Tribunal decision. Due to my opinion expressed above that the matter fails on its substantial merits, I have not needed to address the Minister's contentions in relation to delay.
RECORDED: NOT TRANSCRIBED
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Iliya Marovich-Old
Date: 22 February 2005
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