Bao v Minister for Immigration - [2004] FMCA 1044

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAO v MINISTER FOR IMMIGRATION

[2004] FMCA 1044

MIGRATION – MRT decision – mandatory cancellation of Student Visa – breach of attendance and performance conditions – particulars not given before primary decision – effect of invalidity of delegate’s decision – Tribunal had power to affirm decision – allegation of reckless disregard of law and ostensible bias within Department not established – effect of Zubair’s Case.

Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act1958 (Cth), ss.116, 116(1), 116(3), 119, 119(2), 119(3), 124, 137J, 137P, 483A, Part 8
Judiciary Act 1903 (Cth), s.39B
Education Services for Overseas Students Act 2000 (Cth), s 20

Commissioner of Police v Gordon [1981] 1 NSWLR 675
Fang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1387
McGowan v Migration Agents Registration Authority (2003) 129 FCR 118
Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333
NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 210
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Griffin & others; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37
Re Polites; Ex parte Construction, Forestry, Mining & Energy Union (2002) 117 FCR 212
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
SBBS v Minister for Immigrationand Multiculturaland Indigenous Affairs [2002] FCAFC 361
Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238,
Tien v Minister for Immigration (1998) 89 FCR 80
Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294
Zubair v Minister for Immigration [2004] FCAFC 248

Applicant:

QI BAO

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 1440 of 2004

Delivered on:

14 December 2004

Delivered at:

Sydney

Hearing date:

14 December 2004

Judgment of:

Smith FM

REPRESENTATION

Counsel for the Applicant:

Mr N. Dobbie

Solicitors for the Applicant:

Parish Patience Immigration

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent's costs in the sum of $5000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1440 of 2004

QI BAO

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 Act1958 (Cth) challenging a decision of the Migration Review Tribunal handed down on 21 April 2004. The Tribunal affirmed a decision of a delegate taken on 13 October 2003 to cancel the applicant’s Student (Temporary) (Class TU) visa.
The jurisdiction of this Court under s.483A is the same jurisdiction as the Federal Court in relation to a matter arising under this Act, that jurisdiction being the Federal Court's judicial review jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s.39B of the Judiciary Act 1903 (Cth) subject to limitations under Part 8 of the Migration Act. Counsel for both parties presented their submissions to me on the basis that those limitations, as interpreted by the High Court in PlaintiffS157/2002 v Commonwealth of Australia (2003) 211 CLR 476 and subsequent cases, have the effect that the applicant must show a jurisdictional error in the decision of the Tribunal before he can obtain the relief he seeks.
The applicant’s amended application seeks orders in the nature of certiorari and mandamus directed at the Tribunal to quash its decision and to direct it to re-determine the applicant's application for review. It also seeks a writ of prohibition directed at the Minister preventing her or her agents from acting upon or giving effect to or enforcing the Tribunal's decision.
The amended application for review in this Court also seeks a declaration that the decision of the delegate to cancel the visa was "null and void". However, counsel for the applicant conceded that relief in relation to this primary decision would be appropriately denied by the Court, unless relief could also be given in relation to the Tribunal decision which had affirmed it. I consider that this concession was appropriate even if a ground of invalidity of the primary cancellation decision were made out. The refusal of relief in such a case would be on discretionary grounds that the applicant had elected to pursue a full merits and consequential legal appeal in relation to the Tribunal decision, rather than challenge the validity of the delegate's decision, and should not be allowed to raise a challenge to the primary decision after failing on the merits appeal (see Commissioner of Police v Gordon [1981] 1 NSWLR 675 at 689; Re Polites; Ex parte Construction, Forestry, Mining & Energy Union (2002) 117 FCR 212 at [76]; Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294 at 299F; and Re Griffin & others; Ex parte Professional Radio and Electronics Institute of Australia (1988) 167 CLR 37 at 41, and c.f. cases where the Court refuses relief where merits appeal has not been followed but should have been followed, e.g. recently in McGowan v Migration Agents Registration Authority (2003) 129 FCR 118).

Procedural matters

Before addressing the grounds for review which were argued before me I should note the history of the litigation in this Court. The application for review was filed on 17 May 2004. That application was filed by the applicant unassisted by a lawyer, and did not plead any proper ground for judicial review. In particular, no ground was raised challenging any of the procedures followed by the delegate or the validity of the delegate's decision. Moreover, no such challenge had been put to the Tribunal either, although the applicant had been represented actively by an agent who had sought and obtained from the Tribunal an opportunity to put in further submissions after the hearing.
At the first hearing date in this Court on 24 August 2004 the applicant consented to a direction that he file and serve an amended application giving complete particulars and any affidavit evidence by 13 November 2004. The case was set down for final hearing before me on 1 December 2004. The applicant was also directed to file and serve written submissions five days prior to that hearing date.
Neither of those directions were complied with by the applicant, and the matter came on before me on 1 December 2004 with a Court Book prepared by the respondent which contained some basic documents but plainly was not compiled so as to include the whole of the file of documents that was before the delegate. At that time, the Minister was not on notice of any ground based on a challenge to the proceedings of the delegate.
On 1 December 2004 the applicant did not appear, but two friends arrived with a medical certificate which was inadequate since it certified unfitness to work but did not address attendance at a short hearing. However, I allowed an adjournment to today, 14 December 2004, and directed that the applicant be notified both by the friends and by the respondent's solicitors.
It appears that the applicant first instructed solicitors on 7 December, and they immediately filed without leave an amended application challenging aspects of the procedure followed by the delegate. Substantive affidavits in support of these grounds were only filed yesterday. These sought to adduce incomplete evidence concerning what documents and investigations were or were not considered or conducted by the delegate. The reading of these affidavits was objected to by counsel for the Minister on the basis that the legal representatives of the Minister had been unable to take instructions on evidence in reply or for cross-examination of the applicant on his affidavits. The applicant's representative did not dispute that the Minister was so prejudiced. Moreover, he sought a further adjournment to allow him to investigate the matter further and to serve notices to admit and to produce.
In the circumstances I have sketched above, I formed the view that the applicant had had ample opportunity to instruct legal representatives and to prepare his case on the point that was now raised. I refused the adjournment application.
I then proceeded to hear the submissions of the applicant fully on the material filed by the applicant, on the assumption that I might admit his recent evidence notwithstanding the possible prejudice to the respondent. Ultimately, counsel for the Minister withdrew his objection to the affidavits on the basis that, in the circumstances of their filing, I should draw no adverse inference from the absence of any evidence in reply from the respondent and from the lack of cross-examination of the applicant. I ultimately formed the opinion that there was no unfairness to either party in my deciding the case without any adjournment. This is because, for reasons explained below, I do not consider that the applicant’s new grounds have a legal basis even assuming the truth and completeness of the evidence presented by him. I note that, if the matter proceeds further or is returned to this Court, then it may be proper to allow the Minister an opportunity to lead further evidence and to cross-examine the applicant.

The s.116 power to cancel

The legislative provisions relating to cancellation of student visas have recently been examined by the Full Court in Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238, and Zubair v Minister for Immigration [2004] FCAFC 248, and there is no need for me fully to reproduce the legislation in this judgment nor to repeat their Honours’ analysis.
In short, s.116 of the Migration Act is in subdivision D of Division 3 of Part 2 of the Migration Act, which is headed: "Visas May Be Cancelled On Certain Grounds". Section 116(1) confers on the Minister a power to cancel a visa if he or she is satisfied as to one of a list of preconditions including:
"(b) its holder has not complied with a condition of the visa".
In most of the cases where one of these preconditions is found to have been satisfied, the Minister has discretion to take into account countervailing or excusing circumstances before deciding whether to cancel. However, s.116(3) provides:
"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."
Such circumstances are prescribed in regulation 2.43(2), which provides that in the case of a Student (Temporary)(Class TU) visa the circumstances in which the Minister must cancel a visa are:
"that the Minister is satisfied that the visa holder has not complied with: (i) condition 8104 or 8105 (if the condition applies to the visa); or (ii) condition 8202."
It is not necessary fully to set out the terms of these visa conditions. Condition 8104 is not relevant to the present case. Condition 8105 provides that:
"the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder's course of study or training is in session."
It is subject to an exception which is not relevant in the present case.
Condition 8202 provides, relevant to the present case:
(3)A holder meets the requirements of this subclause if:
(a)in the case of a holder whose education provider keeps attendance records — the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i)for a course that runs for less than a semester — for the course; or
(ii) for a course that runs for at least a semester — for each term and semester of the course; and
(b)in any case — the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i)for a course that runs for less than a semester — for the course; or
(ii)for a course that runs for at least a semester — for each term or semester (whichever is shorter) of the course.
The effect of s 116(3) and condition 8202(3) in relation to attendance and completion of studies was described in Tian's Case (supra):
54. Condition 8202(3) requires the holder to meet the requirements of both subclauses (a) and (b). If the visa holder does not meet either of the requirements of that subclause then the holder will have breached Condition 8202. A breach of a condition may lead to cancellation of the visa: s 116(1) of the Act.
…
66. Section 116(3) does not permit the Minister to exercise any discretion at all. If the prescribed circumstances exist, and they are the circumstances provided for in regulation 2.43(2), the Minister must cancel the visa. In our opinion, the words of the section are clear. The subsection is mandatory. No discretion arises if the prescribed circumstances referred to in s 116(3) and provided for in regulation 2.43(2) exist. The Minister must cancel the visa. Where Condition 8202 has been imposed as a condition of the visa, the failure to comply with that condition is a prescribed circumstance and obliges the Minister to cancel the visa.

The Tribunal’s reasoning

In the delegate's decision in the present case the delegate found breaches of condition 8202(3) in relation to both of its sub-clauses. On review, the Tribunal examined the applicant's explanations for some of his non-attendances at his study and was not satisfied that sub-clause (a) applied. It was, however, satisfied that sub-clause (b) applied. It is not necessary to set out its full reasoning in that respect since it is not challenged by the applicant. Its conclusion was as follows:
48.After considering the legislation, policy considerations and available evidence, the Tribunal finds that the review applicant did not achieve an academic result that is certified by the education provider to be at least satisfactory, for each term or semester (whichever is shorter) of the course. The review applicant breached condition 8202.
49.In light of the findings above, the Tribunal has not gone on to assess whether the applicant complied with the remaining parts of condition 8202.
50.The tribunal makes the following findings:
·The review applicant has not complied with condition 8202 of the visa.
·The review applicant’s visa may be cancelled pursuant to paragraph 116(1)(b) of the Act.
·The review applicant’s failure to comply with condition 8202 is a prescribed circumstance in subparagraph 2.43(2)(b) of the Regulations.
·As a prescribed circumstance exists, subsection 116(3) of the Act directs that the review applicant’s visa must be cancelled.
DECISION
51.The tribunal affirms the decision under review to cancel the review applicant’s Student (Temporary) (Class TU) visa.

The grounds for review

The applicant’s recently amended application raises no ground of review attacking how the Tribunal conducted its review nor its reasons in relation to the above conclusions. In the face of Tian’s Case (supra), the Tribunal's opinion as to the mandatory nature of the cancellation power in s.116(1) when read with subs (3) and the prescribed circumstances is not open to question, nor is its opinion that both sub-clauses must be complied with by the applicant.
The amended application also does not raise any ground of review based on the relationship of Subdivisions D and GB of Part 2 Division 3 of the Act. As I have indicated above, Subdivision D contains the power of cancellation in s.116 which is applicable to a range of visa classes including student visas. Exercise of that power by a delegate is subject to procedural provisions set out in Subdivisions E and F.
Subdivision GB contains ss.137J to 137P, which sets up a procedure for automatic cancellation of a student visa where the provider of the education serves a notice on the student under s.20 of the Education Services for Overseas Students Act 2000 (Cth), and where the student does not comply with that notice by reporting to the Immigration Department within 28 days. If that automatic cancellation takes effect, then a student who has not reported obtains an opportunity to apply for revocation of the cancellation. He can then put forward extenuating circumstances which must be taken into account by the Minister. However, curiously, if the student does comply with the education provider’s notice and does report to the Immigration Department before the expiry of the 28 days, then a delegate may exercise the mandatory power of cancellation under s.116 in which the extenuating circumstances are irrelevant.
This happened in the present case, since the notice given by the applicant’s education provider is dated 24 September 2003, he attended DIMIA on 3 October and was then given notice of cancellation action under s.116, he was interviewed on 9 and 13 October, and a s.116 mandatory cancellation decision was made and given to him on
13 October. On this procedure, the applicant’s explanations for his poor attendance and performance record arising from his health and other compassionate circumstances never arose for consideration at first instance in DIMIA nor on appeal in the Tribunal. If he had avoided attendance on DIMIA, he may well have enjoyed the benefit of a revocation decision under s.137K.
No point was taken in the present proceedings that this anomalous and unfair procedure was not legally permissible. It was not argued that the s.116 power was not available to the Minister where a s.137J notice had been served and had not expired. I therefore need not address that issue. In his submissions to me, counsel for the applicant proceeded on the basis that the s.116 power was available in the present case provided that the s.119 show cause procedure was followed, and I am content to accept his concession. [I also note that, after I had given my decision, a majority in the Full Court has accepted that the exercise of the s.116 power is not subject to a restraint implied by Subdivision GB: see Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333].
Rather than attack the availability of the s.116 cancellation power on the above basis, the amended application challenges its exercise in the hands of the delegate and Tribunal on the ground of procedural ultra vires concerning a s.119 “show cause” notice served on the applicant before the delegate made the primary cancellation decision.
The ground taken in the amended application was framed as follows:
The Migration Review Tribunal (‘the MRT’) constructively failed to exercise its jurisdiction under the Act.
The MRT erred in its understanding and or application of the applicable law:
Particulars:
The MRT had no jurisdiction to affirm the delegate’s decision for the following reasons:
a)The purported notice given on 3 October 2003 was not a notice authorised under the Act because it was issued with reckless disregard to the law:
The purported notice was not authorised under the Act because the delegate did not have before him at the time the notice was issued information showing that the Applicant had failed to maintain at least 80% attendance and make satisfactory academic progress for each term/semester of his course of study. Furthermore, the delegate did not have information that the Applicant may have breached Condition 8105. It was therefore not a ‘bona fide’ notice. As no notice had been issued, the cancellation could not proceed.
b)There is an apprehension of bias relating to the purported notice:
A fair minded observer would be of the opinion that the delegate was intent on cancelling the Applicant’s visa by including in the purported notice, by way of shotgun approach, a breach of Conditions 8105 and 8202, when the delegate did not have information before him to support the allegation made.
c)The mandatory procedure set out in ss119-120 was not followed by the delegate:
The delegate did not give, in the purported notice, the particulars of the information because of which the grounds appeared to exist. For the breaches alleged to ground cancellation of the student visa. As such, there was a breach of the mandatory procedure set out in s119-120 of the Act.
It is convenient to deal with the evidence and law in relation to the third of these particulars first.

Particular (c): failure to provide particulars under section 119(1)(a)

Section 119 appears in Subdivision E of Division 3 of Part 2 of the Act, which has the heading "Procedure for Cancelling Visas Under Subdivision D in or outside Australia". It sets up a procedure which applies in all cancellation cases under s.116, some of which carry a right of merits appeal and others do not. Included in that procedure is a show cause procedure under s.119 which requires that the Minister “must notify the holder 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.
The allegation in the present ground of review is that the delegate in the present matter at no stage gave particulars of "the information" because of which it appeared to the delegate that there were grounds for cancelling the visa. It is argued that such particulars were not given either in the notice that was served on the applicant nor in oral or written form subsequently (oral notification is permitted by subsections (2) and (3) of s.119). It was argued that such particulars, however given, must be given “before the applicant is invited to show within a specified time” that the grounds do not exist. It was submitted that the evidence showed that this had not occurred.
The evidence before me is that a s.119 notice dated 3 October 2003 was given to the applicant on the same day. It was on a printed form with handwritten insertions, and included this part:
9.Possible grounds for cancellation
(include disclosable adverse information given by third parties)
It has come to the Department’s attention that there may be grounds for cancellation of your visa under section 116 of the Migration Act 1958 for the following reasons (Note: Officers to complete prior to handing the notice to the visa holder)
[in handwriting] Breach 8202 – Your education provider has advised you have failed to maintain at lease 80% attendance and/or make satisfactory academic progress for each term/semester of your course. Breach 8105 You may have worked in excess of 20hrs/pw while your course was in session.
A box was ticked under the above writing which showed that it was the delegate's choice to say:
"If this is the case, your visa may be cancelled under s 116(1)(b) and 116(3) and reg 2.43(2)(b) (student breach of condition 8104, 8105 or 8202)."
There is no documentary evidence in the Court Book showing that any further particulars were given by the delegate to the applicant. In his affidavit sworn on 13 December 2004 the applicant says:
"3. During my interview with DIMIA on 13 October 2003, DIMIA did not give me any information showing I had worked more than 20 hours per week in breach of my student visa conditions.
4. I did not receive from DIMIA before my interview on 13 October 2003, any information showing that I had breached any of my student visa conditions."
For the purposes of dealing with this argument and subject to what I have said above at [11], I accept on the above evidence that the delegate in fact did not provide sufficient particulars of the allegation that the applicant was in breach of conditions at 8202 and 8105 at a time which allowed the applicant an appropriate period to respond. The delegate’s cancellation decision was then taken on 13 October 2003, apparently at the end of the interview with the applicant, and was explained with these reasons:
“I am satisfied that the visa holder has breached condition 8202 of his student visa as his attendance was below 80% in particular term 2 of 2003, and his academic performance is unsatisfactory in term 2, 3, 4, 5, 6 and 7 of 2003. Therefore cancellation is mandatory pursuant to s 116(1)(3) and s 116(1)(b) and regulation 2.43(2)(b).”
I am also prepared to assume the correctness of the submission of counsel for the applicant, based on Tien v Minister for Immigration (1998) 89 FCR 80 and other cases, that a failure to give s.119 (1)(a) particulars of the alleged breaches of conditions results in the invalidity of a consequential cancellation decision, at least where that failure was material to the grounds on which the cancellation was subsequently based. That is, where the ground upheld in the cancellation decision was not properly particularised prior to the decision.
On these factual and legal assumptions, the delegate’s cancellation decision in the present case was invalid by reason of the failure to particularise the breaches of condition 8202 upon which the decision was based. Counsel for the applicant then submitted that this invalidity meant that the primary decision was a legal nullity, so that it was not legally open to the Tribunal to affirm that decision.
However, the difficulty facing the submission is that the Full Court judgment in Zubair (supra) is, in my opinion, authority which decides squarely that, even if an applicant can make out an invalidity of the delegate's decision making based on a failure to give particulars during the show cause procedure prior to cancellation, such an invalidity neither deprives the Tribunal of jurisdiction to review the cancellation decision nor obliges the Tribunal to set aside that decision on the ground of the defect in procedure prior to the primary decision.
As I understand their Honours’ reasoning in paragraphs [19], [27-28] and [32] of their judgment, the merits review jurisdiction of the Tribunal, in the course of which it arrives at its own view as to what the correct or preferable decision on the exercise of a s.116 power based on the evidence presented to the Tribunal and after affording procedural fairness to the applicant, will cure the procedural irregularities of the delegate.
The effect of Zubair was summarised by Nicholson J in Fang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1387 as follows:
35 However, as the respondent’s contentions state, all these matters were cured by the nature of the review before the MRT: see s 349 of the Act. The MRT has jurisdiction to review even where the decision of the delegate may be legally ineffective: see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, at [28]-[32], and the cases therein cited. Further, to the extent there may have been a defect in the decision of the delegate, the full merits review in the MRT was able to cure that defect: Zubair at [32], citing Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116.
36 I agree with the respondent’s submission that in exercising its review, however, the MRT was not required to consider whether the delegate had erred. Rather it was required to determine whether the appellant had not complied with condition 8202. The question for the MRT was whether the appellant had achieved an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester – for the course; or (ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.
As I understand the effect of Zubair and the basis for its reasoning, it is that the procedural provisions of subdivision E, including s.119 and the specification in s.124 that “the Minister may cancel a visa at any time after notice about the cancellation has been given over s.119” impose procedural requirements on a delegate whose non-observance may give rise to invalidity of a delegate's decision, but are not substantive preconditions to the power to cancel under s.116 which would bind a merits review tribunal reviewing the exercise of a s.116 power.
Whether their Honours are correct in that opinion is of course not a matter for me to address. I am bound to apply their Honours reasoning. In my opinion, on their Honours reasoning, the present ground under particular (c) must fail.
Even on a narrow application of Zubair to cases which are factually indistinguishable, the present ground as particularised would fail. This is because in Zubair their Honours reasoning proceeds on the basis that the delegate's decision was invalid:
“because it did not follow the mandatory requirements of s 119 (1) (a) and s 121 (2). In particular… the delegate did not provide the appellant with the particulars of the grounds of possible cancellation or of the information because of which the grounds appear to exist as required by s 119(1)(a) of the Act. (see [19] of the judgment).

Particular (a): the notice was issued with reckless disregard to the law.

Counsel for the applicant submitted that the reasoning and decision in Zubair's case did not address a situation where a delegate's decision was invalid by reason of: “reckless disregard of the requirements in s 119 when serving a show cause notice”.
No authority was cited to me that invalidity under such a characterisation was any different than invalidity of the species addressed in Zubair and I am unaware of any such authority. In my opinion, the reasoning in Zubair is directly applicable to any ground of invalidity based on procedural irregularity on the part of the delegate, including any abuse of power or bias or "reckless disregard" of any other duty personal to the delegate. I therefore consider that this submission cannot provide a ground for invalidating the Tribunal decision.
I should however note that in my opinion the applicant has not put forward evidence raising substance in this allegation. An allegation of “reckless disregard” of a statutory obligation would require evidence allowing the Court to draw the serious inference that the delegate “was recreant to his duty by wilfully and deliberately making the impugned decision without attempting to carry out the statutory duty lying upon him” (See Gyles J in NAKF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 210 at [24], and his discussion of the “ninth proposition” in SBBS v Minister for Immigrationand Multiculturaland Indigenous Affairs (2002) 194 ALR 749 at [48], upon which counsel for the applicant relied).
The submission put to me was that the delegate had no basis whatsoever for alleging in the notice that there "may be" grounds for cancelling the visa on the basis of breach of 8105, the limited work condition. However, I am not prepared to draw the conclusion that there was no information upon which this allegation could properly be raised under a s.119 notice. It appears that before the notice was drawn up the delegate had information from the education provider, including the education provider's formal notice under s.20, that student attendance was less than 80 per cent for at least one academic term. The delegate also had information indicating that the applicant held employment and had been working in it. In my opinion, even if the information did not directly suggest that work had been undertaken in excess of the limit set out in the condition, the combined circumstances cannot be characterised as manifestly insufficient to allow a delegate to form a suspicion upon which an allegation could properly be put forward in a show cause notice under s.119.
In my view this particular of review fails on both legal and factual bases.

Particular (b) – apprehension of bias relating to the purported notice

This allegation was, in effect, a watered-down repetition of particular (a). The applicant’s submissions sought to characterise the argued lack of foundation for an allegation of a breach of condition 8105 as giving rise to ostensible bias as distinct from reckless disregard of the law.
I was referred to the test indicated in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28, 75 ALJR 982 at [28]:
28 Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
In my opinion, on the material at present before me, a fair-minded lay person, taking into account the nature of the proceeding at the stage where a delegate is contemplating raising a show cause allegation, would not form the view that this particular delegate or any other delegate in the Department had prejudged the outcome of the cancellation decision making, particularly when it is noted that the cancellation decision was ultimately made by a different delegate. The statutory procedure of a show cause notice necessarily requires some allegation to be formed and presented on the basis of information giving rise only to a suspicion. I consider that a fair-minded person would appreciate that a delegate would be conscious that what was put forward was no more than an allegation open to rebuttal, and would not think the delegate ultimately deciding the mater would not be open to be persuaded that the allegation in fact had no basis. In the present case we know indeed that the present decision-maker did not make a finding of breach of condition 8105, but reached a conclusion on a breach of condition 8202 whose merits has, at least in part, been upheld by the MRT on review in a manner which has not been challenged in this Court.
For the above reasons I dismiss the application.

RECORDED : NOT TRANSCRIBED

I shall order the applicant to pay the respondent's costs in the sum of $5000.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 20 January 2005