Chintala v Minister for Immigration
[2006] FMCA 999
•13 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHINTALA v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 999 |
| MIGRATION – Review by decision of Migration Review Tribunal – whether invitation to appear before Migration Review Tribunal was sent to correct address of authorised recipient nominated by the applicant – whether Migration Review Tribunal erred in inviting the applicant to a “video/face-to-face hearing” rather than “a hearing” as required by s.360 of the Act – whether Migration Review Tribunal complied with procedural requirements of dispatch of invitation to appear before Migration Review Tribunal – whether evidence of usual practice of Migration Review Tribunal in preparation and dispatching of invitations to appear before Migration Review Tribunal hearing was evidence of compliance with s.379A(4)(b) of the Act – whether in light of evidence of usual practice of dispatch of an invitation to appear before Migration Review Tribunal requires identification of person responsible for posting the invitation to applicant – whether notice of intention to consider cancellation was valid where it stated “there may be grounds” for cancellation, rather than “there appear to be grounds” for cancellation in accordance with s.119(1) of the Act – whether Tribunal was required to consider validity of cancellation of earlier 574 visa – whether Court has jurisdiction to consider to declare and make orders consequential upon such declaration where first decision may have lacked statutory foundation – whether applicant raised validity of earlier cancellation of 574 visa before the Migration Review Tribunal. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), s.65; 116; 116(1)(b); 116(3); 119(1); 360; 360A; 360A(1); 362B; 366(1); 379A; 379A(4); 379A(4)(b); 379(4)(c)(ii); 379C(4); 379G; 379G(1); 474; 475A Migration Regulations 1994, reg.2.43(2)(b); sch.4 para.4013 |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311 Korovata v Minister for Immigration and Multicultural Affairs [2001] FCA 1446 Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218 Plaintiff S157 v Commonwealth (2003) 211 CLR 476 Sukhera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1427 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 |
| Applicant: | ROHIT KUMAR CHINTALA |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | SYG1699 of 2005 |
| Judgment of: | Emmett FM |
| Hearing date: | 19 June 2006 |
| Date of last submission: | 19 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Ms T.L Wong |
| Solicitors for the Applicant: | Mr N. Dobbie, Parish Patience Immigration |
| Counsel for the Respondent: | Mr G. Kennett |
| Solicitors for the Respondent: | Ms N. Johnson, Sparke Helmore |
ORDERS
That the name of the First Respondent be amended from “Minister for Immigration and Multicultural and Indigenous Affairs” to “Minister for Immigration and Multicultural Affairs.”
The application before this Court is dismissed.
That the applicant pay the First Respondent’s costs in an amount of $10000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1699 of 2005
| ROHIT KUMAR CHINTALA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review made pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth) (“the Act”) for review of a decision made by the Migration Review Tribunal (“the Tribunal”) on 6 June 2005 that affirmed the decision of the Department of Immigration Multicultural and Indigenous Affairs (“the Department”) to refuse the applicant’s Student (Temporary) (Class TU) visa application (“the Visa Application”).
By consent, an amended application (“the Amended Application”) was filed by the applicant at the hearing before this Court.
The applicant was represented by counsel at the hearing before this Court.
The applicant is a national of India who obtained a student visa to study a Master of Science at the University of Western Sydney (“the Applicant”). A condition of that visa was that he complete his draft thesis by 31 December 2003 and that he attend at least 80 percent of the contact hours scheduled for his course and that his academic results be certified by the education provider. Those requirements are part of satisfying condition 8202. Section 116 of the Act relevantly provides that the holder of a visa, known as a Subclass 574 visa, must be cancelled upon non compliance with condition 8202.
On 16 March 2004, the Applicant’s 574 visa was cancelled pursuant to s.116(1)(b), s.116(3) of the Act and reg.2.43(2)(b) of the Migration Regulations 1994 (“the Regulations”) for breach of condition 8202.
However, on 17 February 2004 the Applicant made the second Visa Application. On 21 May 2004 the Visa Application was rejected on the basis that the Applicant was affected by a “risk factor” relevant to the Visa Application pursuant to sch.4 para.4013 of the Regulations (“Condition 4013”), and was also unable to demonstrate “compelling circumstances” in terms of para.4013(1)(b).
The relevant “risk factor” was that set out in sub-cl.(2)(b) of Condition 4013, which stipulated that a person is affected by a risk factor if a previous visa had been cancelled for non compliance with a condition such as 8202.
Essentially the Applicant relied on two grounds in the Tribunal’s decision as disclosing jurisdictional error:
Ground 1 alleges that the Tribunal failed to comply with s.360 of the Act.
Ground 2 alleges that, even if the procedural requirements were complied with, the decision by the Department to cancel his earlier 574 visa for non compliance with condition 8202 was invalid in that the notice requirements upon which the jurisdiction of s.116 is enlivened were breached.
Ground 1 – alleged breach by Tribunal of s.360 of the Act
Section 360 of the Act requires the Tribunal, relevantly, to invite the Applicant to appear before Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. Section 360A of the Act sets out what must be contained in such a notice of invitation and, relevantly, how such notice may be given to an applicant.
Relevantly, such a notice was required to be given to the Applicant in accordance with s.379A of the Act. Section 379A(4)(c)(ii) of the Act, relevantly provides that the Tribunal dispatch the notice of invitation by prepaid post to the last address for service or the last residential or business address provided to the Tribunal by the recipient. Relevantly, s.379G(1) of the Act provides that where an applicant gives the Tribunal written notice of the name and address of an authorised recipient, then the Tribunal must give the authorised recipient, instead of the applicant, any document that it would have otherwise given to the applicant.
The Applicant read the affidavit of David Lee Bitel, affirmed
2 December 2005. Mr Bitel stated that, on or about 16 February 2005, he lodged a completed “Appointment of Representative” form (“the Representative Form”) with the Tribunal signed by the Applicant and himself and providing Mr Bitel’s name, telephone number and address for contact as the Applicant’s authorised recipient. His address was identified by way of a stamp that had the following information, “D L Bitel, Parish Patience Immigration (emphasis added), Level 1 338 Pitt Street, Sydney NSW 2000 Australia email: [email protected], tel:61292868700 fax:61292833323.”
On 7 April 2005, the Tribunal, by letter, purported to invite the Applicant to appear before it to give evidence and present arguments (“the Invitation”), in accordance with s.360 of the Act. The Applicant contended that the Invitation did not comply with the Tribunal’s obligations under s.360 of the Act in the three following ways:
i)The Invitation was not sent to the authorised recipient’s address in that the Invitation was addressed to “Mr David Bitel, Parish Patience Solicitors (emphasis added), Level 1 338 Pitt Street Sydney NSW 2000”, whereas the Representative Form identified the correct contact address of the Applicant’s representative as, “Mr David Bitel, Parish Patience Immigration (emphasis added), Level 1 338 Pitt Street Sydney NSW 2000”. The Applicant contended that by addressing the Invitation to “Parish Patience Solicitors” rather than “Parish Patience Immigration”, the Tribunal breached s.379A(4) and s.379G(1) of the Act.
ii)The Invitation failed to delete one of the options, provided in the standard form of the Invitation template, for a “video/face to face hearing”. The Applicant contended that by inviting the Applicant to a “video/face to face hearing”, rather than simply “a hearing”, the Tribunal breached its obligations under s.360 of the Act, which requires the Tribunal to invite the Applicant to appear before it to give evidence and present arguments.
iii)That, having regard to the evidence of Mr Bitel that he did not receive the Invitation, and in the context of the two errors referred to above, the Court could not be satisfied that indeed, the Tribunal had in fact sent the Invitation by prepaid post or other means to Mr Bitel, in accordance with s.379A(4) of the Act.
i) Applicant alleged Invitation not sent to the authorised recipient’s correct address
It is common ground that a breach of s.360 of the Act is jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162). Counsel for the Applicant submitted that it is mandatory to comply with s.360 of the Act in its strictest terms and that compliance with s.360 of the Act required the Tribunal to address the Invitation to “Parish Patience Immigration”, rather than “Parish Patience Solicitors”. The Applicant conceded that in all other respects, the Tribunal used the correct address of the Applicant’s authorised recipient.
The First Respondent submitted that the relevant address for the Applicant’s authorised recipient was his solicitor’s office, being “Level 1, 338 Pitt Street Sydney NSW 2000.” The First Respondent contended that the fact that the Invitation was addressed to “Parish Patience Solicitors”, as opposed to “Parish Patience Immigration”, is immaterial. The First Respondent referred the Court to the definitions of “address” and “address for service” in the Encyclopaedic Australian Legal Dictionary. Relevantly they are as follows:
“Address
A private residence, place of business, or official location (emphasis added).
Address for service
Practice and Procedure The place where a document can be served. In court proceedings, the plaintiff and defendant in their initial documents nominate the place where they will receive documents such as pleadings, or notices for discovery and interrogatories: (NSW) Supreme Court Rules Pt 9. The plaintiff nominates an address for service of the initiating process. The defendant nominates an address for service on a notice of appearance. The address for service may be a private or business address of a party, or the party’s solicitor’s office (emphasis added) or document exchange box number: for example (NSW) Supreme Court Rules Pt 9 r4(1)(d); Sheen v Burke [1993] 1 VR 584.”
Underneath the name “D L Bitel” on the Representative Form, the words “Parish Patience Immigration” are used as opposed to the words “Parish Patience Solicitors,” which were used on the Invitation. However, having regard to the definitions of “address” and “address for service”, as provided by the First Respondent, I note that an “address” is a “location” and an “address for service” may be the “party’s solicitor’s office”. In this case, the Applicant’s solicitor’s office was identified on the Representative Form as being located at “Level 1, 338 Pitt Street Sydney NSW 2000”.
Section 379A of the Act is qualified by s.379G of the Act, which states that if an applicant gives a tribunal written notice of the name and address of an authorised recipient, then the tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant.
The Applicant referred the Court to Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311 (“Vean”). In Vean, the Full Court held that, because a letter of invitation to attend a hearing was addressed to the appellant rather than the identified authorised recipient, although the address was that of the authorised recipient, the Tribunal had failed to comply with its statutory obligations in giving such a document to either the appellant or the authorised recipient.
In the case before this Court, the Invitation correctly identified the name of the Applicant’s authorised recipient, Mr Bitel, and the address to which the Invitation was directed was, in accordance with the Representative Form in all respects, save that, after the words “Parish Patience”, the Invitation had the word “Solicitors”, rather than “Immigration”. I do not regard the use of either of those words as critical to the Tribunal’s compliance with its obligations to give the Invitation to the Applicant’s authorised recipient at his identified address for service. The address was correct in all other respects and neither of the words “Solicitors” or “Immigration”, to my mind, form any part of the Name or Address of the authorised recipient, as contemplated by s.379G(1) of the Act. The name was correctly identified as “D L Bitel” and the address was correctly identified as “Level 1 338 Pitt Street, Sydney NSW 2000”.
In the circumstances, the Tribunal’s failure to contain the words “Parish Patience Immigration”, rather than “Parish Patience Solicitors”, is not jurisdictional error.
ii) Applicant alleged Tribunal erred in Invitation by inviting Applicant to a “video/face to face hearing”, rather than “a hearing”
The Applicant submitted that s.360 of the Act requires the Tribunal to invite the Applicant to appear before the Tribunal and that it is not for the Tribunal to set the hearing down for a video hearing without consulting the Applicant. The Applicant referred to Korovata v Minister for Immigration and Multicultural Affairs [2001] FCA 1446 (“Korovata”). In Korovata, Emmett J found that an invitation to attend a hearing containing the statement, “This will be a telephone hearing”, did not comply with s.360 and s.360A of the Act. Section 360A(1) of the Act requires the Tribunal to invite an applicant to “appear before the Tribunal”.
s.366(1) of the Act provides that a tribunal may allow an appearance by an applicant for the giving of evidence to be made by telephone, or closed circuit television or by any other means of communication and is in the following terms:
“Oral evidence by telephone etc.
(1) For the purposes of the review of a decision, the Tribunal may allow an appearance by the applicant before the Tribunal, or the giving of evidence by the applicant or any other person, to be by:
(a) telephone; or
(b) closed-circuit television; or
(c) any other means of communication.”
However, the Court in Korovata stated that the Tribunal cannot impose a hearing by one of those methods upon an applicant without providing the applicant with an opportunity to be heard as to why the applicant may or may not wish to appear by video conference at the time and place identified in the invitation to appear.
The First Respondent read the affidavit of Marina Osmo, sworn
15 June 2006, in which she annexed a copy of the standard template of an invitation to appear before a tribunal. That standard template disclosed that such an invitation contained the following words and instructions; “the Tribunal has set down a [***please choose one***] video/face-to-face hearing for:”. Ms Osmo stated that the standard template required the case officer, or the person sending the letter, to choose between the alternative forms of words in the template by deleting that which is inapplicable to the particular case. Plainly that was not done in the Invitation, the object of the proceeding before this Court.
Whilst the choice between a video hearing and face-to-face hearing was not made in the Invitation by the relevant case officer, the Invitation did not state that a hearing was to take place only by way of video link. Accordingly, there was not the imposition of a video hearing in terms of Korovata, where the Tribunal stated clearly “This will be a telephone hearing”.
In the circumstances, whilst unfortunate that the Tribunal did not make clear the opportunity to the Applicant to have his hearing by way of video link, it did not impose a video link hearing upon the Applicant. For those reasons, the failure by the Tribunal to delete the word “video” from the alternatives provided in the Invitation does not amount to a breach of s.360 and s.360A of the Act.
iii) Applicant alleged Invitation failed to comply with s.379A(4)(b) of the Act
Section 379C(4) of the Act provides that a person is deemed to have received a document sent in compliance with s.379A(4). Section 379C(4)(b) provides that a document may be sent by, inter alia, prepaid post or by other prepaid means. The Applicant contended that the Court could not be satisfied that the Invitation was in fact sent by prepaid post or other prepaid means.
The First Respondent read the affidavit of Ms Osmo, the Registry Manager of the Tribunal, who gave evidence on behalf of the First Respondent of the usual procedure in respect of sending s.360 invitations in purported compliance with s.379C(4). Relevantly, Ms Osmo stated that letters are sent by ordinary pre-paid post in an envelope prepared by the case officer who prepared the s.360 invitation. In April 2005, the usual practice was either to use a window faced envelope or to hand address the envelope to the same address on the letter. Ms Osmo stated that letters are sent on the date appearing on the letter as the date on which the letter was written, or the next day if the letter has missed the external mail dispatch for that day. The external mail is dispatched each working day usually before 4pm. Whilst Ms Osmo was cross examined by counsel for the Applicant, it was not put to Ms Osmo that the usual practice in respect of which she gave evidence, was not correct.
Counsel for the Applicant submitted that where there was evidence before the Court from Mr Bitel that the Invitation had not been received by him as the Applicant’s authorised recipient, and that the Invitation on its face contained other inaccuracies (the incorrect address and the failure to delete the alternatives between video and face-to face hearings) and the fact that the First Respondent called no evidence to establish the precise manner in which the Invitation had been dispatched, the Court should draw the inference that none of the witnesses available to the First Respondent would have assisted the First Respondent’s case. Counsel for the Applicant submitted that the overwhelming inference was, therefore, that the letter had not been sent by pre-paid post or by other pre-paid means. However, I reject that submission. There is no evidence, nor was Ms Osmo cross examined to suggest that there was an identified person responsible for posting the Invitation to the Applicant.
The Applicant also contended that the errors in sending the Invitation to the incorrect address and failing to delete the option of a video hearing, demonstrated sufficient incompetence and ineptness on the part of the Tribunal that the Court should not be satisfied that the usual procedure identified by Ms Osmo for the posting of the Invitation was in fact carried out.
Whilst, on the Invitation, there is discrepancy between “Parish Patience Solicitors” and “Parish Patience Immigration” and the failure to delete the alternatives of video and face-to-face hearing, I do not regard those errors as sufficient to draw an inference that the practices of the Tribunal are so incompetently and ineptly carried out that the Court ought not to find that the usual procedure was carried out. They are, to my mind, inconsequential errors that do not result in even a technical failure to comply with statutory obligations. They demonstrate an unfortunate lack of attention to detail that falls short of disclosing jurisdictional error. I accept the evidence of Ms Osmo as to the usual practice of the preparation and dispatching of such invitations.
Accordingly, I find that the Invitation was dispatched in accordance with the usual practice and, therefore, complied with s.360A, s.379A(4) and s.379G of the Act.
Counsel for the Applicant also submitted that the evidence before the Court was that Mr Bitel did not receive the letter. However, I do not regard that fact as sufficient, either by itself or in conjunction with the two inaccuracies on the face of the Invitation, to draw the inference that the Invitation was not sent in accordance with the usual procedure.
In those circumstances, s.379C(4) of the Act deems that the Invitation was indeed received by the Applicant’s authorised recipient and therefore the Applicant.
For the reasons referred to above, the Tribunal did comply with its obligations pursuant to s.360 and s.360A of the Act and, accordingly, the Tribunal was entitled to proceed with its decision on the review without taking any further action to allow or enable the Applicant to appear before it, pursuant to s.362B of the Act.
Ground 2 - Effect of invalid cancellation of 574 student visa
Counsel for the Applicant submitted that the Notice of Intention to Consider Cancellation form dated 17 February 2004 (“the Cancellation Notice”) upon which the cancellation of the Applicant’s 574 visa was based failed to give proper particulars of the grounds relied upon for the cancellation.
Counsel for the Applicant referred the Court to Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218 (“Uddin”), a decision of the Full Court of the Federal Court of Australia and a decision which plainly binds this Court. In Uddin, the Court at [39] found that a notice that stated that “there may be grounds” is not the same as a notice that states “there appear to be grounds” and that compliance with s.119 of the Act requires notice that “there appear to be grounds”. Section 119(1) of the Act is set out as follows:
“(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 (emphasis added) 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.”
The Cancellation Notice given to the Applicant stated that “there may be grounds” for cancelling the visa, rather than using the language of s.119(1) of the Act that “there appear to be grounds.” The Full Court in Uddin clearly states that to be valid, a s.119 notice would need to notify an applicant that there appeared to be grounds for cancelling his visa. Unless notification under s.116 of the Act complies with s.119 of the Act, there is no valid notice pursuant to s.116 of the Act. The First Respondent conceded that, in those circumstances, the Cancellation Notice is invalid according to Uddin’s case. Whilst counsel for the First Respondent submitted that Uddin’s case is wrongly decided, counsel acknowledged that this Court is bound by Uddin.
Moreover, the Full Court in Uddin identified an absence of particulars where the purported s.119 notice merely stated “Your education provider has advised that you have [sic] failed to maintain at least 80% attendance & make satisfactory academic progress for each term of your course of study. It appears that you have breached condition 8202 of your student visa. You have failed to enrol for the current semester. It appears you have breached condition 8105 & 8202 of your student visa.”
In the case before this Court the grounds were identified as follows:
“Breach 8202 – Your education provider has advised that you have failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of your course.
Your provider advises that your candidature in the M.Sc(Hons) program has lapsed.”
Those grounds are in substantially the same terms as those in Uddin’s case. The Full Court held that the notice in Uddin was deficient in 3 respects. They are as follows:
(a) the tribunal’s failure to state that there appeared to be grounds for cancelling his visa, namely, a failure to comply with a condition of the visa (s.116(1)(b) of the Act);
(b) the tribunal’s failure to give particulars of the ground, namely that the Minister (or her Delegate) was satisfied that the Appellant had not complied with condition 8202(2) of his visa; and
(c) the tribunal’s failure to give particulars of the information because of which the grounds appeared to exist, namely the notice give by the Appellant to the university.
Those are all particulars omitted from the Cancellation Notice in the proceeding before this Court. The notification of decision to the Applicant dated 16 March 2004 identified the Cancellation Notice as the document upon which it relied in making its decision to cancel the Applicant’s visa.
In the circumstances, it would appear that the purported cancellation of the Applicant’s visa by that decision dated 16 March 2004 is invalid.
In circumstances where a decision to cancel was absent of authority then there is no decision at all (Plaintiff S157 v Commonwealth (2003) 211 CLR 476 at 506).
In Sukhera v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1427 (“Sukhera”) Allsop J stated at [22], “The first “decision” lacked statutory foundation.” Allsop J went on to state in Sukhera at [27] that:
“The later superimposition of the Tribunal’s decision does not remove the jurisdiction or power of this Court to declare that and make orders consequential upon such declaration. Nor does it in any way make the matter before the Court hypothetical.”
For those reasons, this Court can consider whether or not the Tribunal committed jurisdictional error in proceeding with its decision, dated
6 June 2005, (the judicial review of that decision being the proceeding before this Court) on the basis that the Applicant’s cancellation of his 574 student visa on 16 March 2004 was valid.
Counsel for the Applicant contended that it is an error of law amounting to a jurisdictional error for the Tribunal to fail to consider the validity of the cancellation.
The First Respondent contended that there was no challenge raised before the Tribunal to the validity of the cancellation of the Applicant’s 574 visa and that, in those circumstances, the Tribunal did not err in failing to go behind the cancellation and consider its validity.
It would appear to be a mixed question of fact and law as to whether or not the cancellation of the Applicant’s 574 visa was valid. Even if it is an error of law, not all errors of law are jurisdictional errors (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at page 407).
The First Respondent submitted that the question before the Tribunal was whether or not the 574 visa had been cancelled. The Tribunal accepted that there had been a cancellation of the 574 visa because there was a breach of criterion 4103, namely a prior cancellation of a 574 visa for breach of s.116 of the Act
Condition 4013 is in the following terms:
“(1) If the applicant is affected by any of the risk factors specified in subclauses (2), (3), (4) and (5):
(a) the application is made more than 3 years after the cancellation of the visa or temporary entry permit, or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or
(b) the Minister is satisfied that, in the particular case:
(i) compelling circumstances that affect the interests of Australia; or
(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justifying the granting of the visa within 3 years after the cancellation or determination.
…
(2) A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116 or 128 of the Act:
…
(b) if the visa was of a subclass specified in Part 2 of this Schedule – because the person did not comply with a condition specified in that Part in relation to that subclass; or…”
Section 116(1)(b) of the Act is in the following terms:
“(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(b) its holder has not complied with a condition of the visa…”
The Applicant submitted that the Tribunal should have asked, not just was there a cancellation, but rather, was the cancellation valid.
The First Respondent contended that even if the cancellation is legally ineffective it does not necessarily mean that the Tribunal in the proceeding before this Court has committed jurisdictional error.
Certainly, there was nothing on the material before the Tribunal to suggest that the Applicant wished to challenge the validity of the cancellation of the student visa.
Further, the Applicant was represented before the Tribunal from the commencement of his proceeding by Mr David Bitel, solicitor.
The Applicant was invited to provide whatever documents or evidence he wished in support of his application. Mr Bitel wrote to the Tribunal on 16 February 2005 seeking access to the Tribunal’s file and seeking time for the Applicant to respond after a copy of the file had been made available. By email, dated 23 February 2005, the Tribunal acceded to Mr Bitel’s request. A letter from the Tribunal dated 23 February 2005 to Mr David Bitel granted a further 28 days to respond following provision of the file. By letter dated 9 March 2005 the Tribunal wrote to David Bitel granting access to all relevant Tribunal and Department files. On 22 March 2005, Mr Bitel wrote again to the Tribunal requesting a hearing and noting the Tribunal had sought the Applicant’s response and information as to the compelling or compassionate circumstances justifying waiver for the purpose of Condition 4013.
It is apparent that there was regular correspondence over the relevant period between the Applicant’s solicitor, Mr Bitel, and the Tribunal.
However, there is no evidence before me at all of any challenge at any time by the Applicant or his solicitor to the validity of the cancellation of the Applicant’s visa.
The Tribunal found that the Applicant’s 574 student visa was cancelled on 16 March 2004 and that therefore he would not be entitled to a grant of a further student visa until 16 March 2007, unless there were reasons of a compelling or compassionate nature to justify the waiver of the exclusion period. The Tribunal noted that Condition 4013 provided that a person is affected by a risk factor if a visa previously held by that person was cancelled under s.116 of the Act. The Tribunal noted that the Applicant’s student visa was cancelled under s.116(1)(b) of the Act on 16 March 2004.
In the circumstances, there was nothing before the Tribunal to prompt it to undertake an analysis as to the validity of that cancellation.
The Tribunal was required to address the public interest criteria as to whether or not it was satisfied pursuant to s.65 of the Act that the criteria were met. Whether or not the prior student visa was cancelled was a criterion of that public interest consideration. It was not required to consider whether such cancellation was valid where that was not an issue before it.
Accordingly, although the cancellation may have been invalid, where that was not an issue before the Tribunal raised by the Applicant or his solicitor, the Tribunal was entitled to proceed on the basis of being satisfied in respect of the criteria as to whether or not the Applicant’s student visa had been cancelled. The Tribunal was not required to further consider whether such cancellation was invalid where no such issue was raised by the Applicant and was not otherwise squarely raised on the material before the Tribunal (NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [60]).
Conclusion
Accordingly, the Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Pursuant to s.474 of the Act, this Court has no jurisdiction to interfere and the application is dismissed.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: S.Choo
Date: 12 July 2006
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