Cho v Minister for Immigration - [2006] FMCA 1913

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHO v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1913

MIGRATION – Student visa – whether s.20 notice valid – whether notice of intention to consider cancellation valid.

Migration Act 1958, ss.116, 119, 120, 137J
Education Services for Overseas Students Act 2000, s.20

Morsed v MIMIA (2006) 88 ALD 90
Uddin v Minister for Immigration & Anor [2005] FMCA 841
Minister for Immigration & Multicultural & Indigenours Affairs v Zhou [2006] FCAFC 96
Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] 141 FCR 448
Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
Chen v MIMIA [2005] FCA 229
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Erinfolami v MIMIA [2001] FCA 956
Tien v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80
Zubar v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 244

Applicant:

YIU CHUNG CHO

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

PEG 3 of 2006

Judgment of:

McInnis FM

Hearing date:

16 May 2006

Date of last submission:

4 August 2006

Delivered at:

Melbourne (by video link to Perth)

Delivered on:

20 December 2006

REPRESENTATION

Counsel for the Applicant:

Mr A Aristei

Solicitors for the Applicant:

Tan & Tan Lawyers

Counsel for the First Respondent:

Mr L Tsaknis

Solicitors for the First Respondent:

Australian Government Solicitor

ORDERS

The Application be dismissed with costs.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 3 of 2006

YIU CHUNG CHO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application seeking judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 8 December 2005. In its decision, the Tribunal affirmed a decision of a delegate of the First Respondent to cancel the Applicant's student (temporary) (class TU) visa.

Background

The background in this matter is not in dispute and has been accurately summarised in the First Respondent's Outline of Submissions as follows:
“1. The applicant arrived in Australia on 7 October 2002 as the holder of a student visa which was granted on 23 September 2002 and was due to cease on 15 March 2008. The student visa was subject to condition 8202: Court Book (CB) at p.61 [9], (page references are to the typed numbers in the bottom right hand corner).
2. The applicant was enrolled in a course at Curtin International College (Curtin). On 26 June 2005 Curtin sent the application a written notice under s.20 of the Education Services for Overseas Students Act 2002 (the s.20 notice) advising that the applicant had breached a condition of his student visa relating to satisfactory academic performance: CB p.5.
3. In 2003, 2004 and 2005 the applicant undertook a Certificate IV in University Foundation Studies — Commerce Stream. In Semester 1, 2003 he undertook three subjects and passed one. In Semester 2, 2003, he undertook three subjects and passed them all. In Semester 3, 2003 he undertook four subjects and passed two. In Semester 1, 2004 he undertook three subjects and failed them all. In Semester 2, 2004 he undertook three subjects and passed one. In Semester 3, 2004 he undertook two subjects and passed one. In Semester 1, 2005 he undertook three subjects and passed one. His attendance percentage was 92.31%: CB 3,4, 61 [12], [13].
4. The applicant attended the Department of Immigration and Multicultural and Indigenous Affairs (the Department) on

7 July 2005 in response to the s.20 notice and received a Notice of Intention to Consider Cancellation. Following an interview with the applicant, on 13 July 2005 a delegate of the Minister proceeded to cancel the applicant’s student visa pursuant to s.116(1)(b) and (3) of the Migration Act 1958 (the Act): CB 62, [14]-[15]; [17]-[19].
5. On 20 July 2005 the applicant applied to the Migration Review Tribunal (the Tribunal) for review of the delegate’s decision: CB 20. By an undated submission received by the Tribunal on 6 October 2005 the applicant said that his unsatisfactory academic results were a result of his poor command of the English language. He had no-one to guide him in choosing the right course and wanted a last opportunity to study in Australia to ensure he had a good future and career. He had worked very hard and his parents had spent thousands of dollars in the expectation that he would complete his studies. He had put his heart and soul into his studies. He had (since the s.20 notice) enrolled to study a Certificate Ill and Diploma in Business and had the confidence to perform well: CB 41-2.
6. On 24 October 2005 the Tribunal invited the applicant to comment on information and to provide additional information pursuant to ss.359 and 359A of the Act: CB 49-51. No response was received from the applicant and the Tribunal proceeded to determine the matter on the basis of the material before it without inviting the applicant to appear at a hearing: CB 62, [17]-[18].
7. On 8 December 2005 the Tribunal affirmed the delegate’s decision to cancel the applicant’s student visa. The Tribunal was not satisfied that the applicant met the academic performance requirements of condition 8202 and considered that it had no alternative but to affirm the delegate’s decision.”

The Application

The Applicant relies upon an Application filed 3 January 2006. In that Application, the grounds relied upon are as follows:
“The decision of the Migration Review Tribunal to affirm the decision of the delegate of the First Respondent on or about 8 December 2005 involved a jurisdictional error by concluding that the Applicant did not satisfy Condition 8202 of the Applicant's Student Visa Subclass 573 because he failed to meet the academic performance requirements of the visa and his performance was unsatisfactory.”

Relevant Legislation

The relevant legislation has been accurately set out by the Tribunal in its decision at paragraph 19 where the Tribunal states:
“19.The relevant legislation, as at the time of the cancellation decision, is set out below:
Section 116. Power to cancel
(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; or
…
(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.
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:
…
(b)in the case of a Student (Temporary) (Class TU) visa, 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.
Condition 8202
8202 (1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID) or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)   A holder meets the requirements of this subclause if:
(a)     the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student — the holder is enrolled in a full-time course of study or training.
(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.
(4)   In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.”
In addition, it is also relevant to note that s.119(1) of the Migration Act 1958 (the Migration Act) provides:
“(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.”
Section 120 of the Migration Act provides:
(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 137J of the Migration Act provides:
“(1)This section applies if a notice is sent to a non‑citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non‑citizen (even if the non‑citizen never receives the notice).
Note: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non‑citizen’s visa relating to attendance or satisfactory academic performance. The notice must give particulars of the breach and must require the non‑citizen to attend before an officer for the purpose of explaining the breach.
(2)The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
(a) the non-citizen complies with the notice; or
(b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette ;
makes himself or herself available to an officer for the stated purpose of explaining the breach alleged in the notice.”
It is also relevant to note that s.20 of the Education Services for Overseas Students Act 2000 provides:
“(1) A registered provider must send an accepted student of the provider a written notice if the student has breached a student visa condition relating to attendance or satisfactory academic performance.
Note 1: The Minister may take action under Division 1 of Part 6 against a registered provider that has breached this section. A breach of this section is also an offence: see section 104.
Note 2: It is an offence to provide false or misleading information in complying or purporting to comply with this section: see section 108.
(2)The registered provider must send the notice as soon as practicable after the breach.
(3) The notice must be in a form approved by the Secretary of the Immigration Minister’s Department.
(4) The notice must:
(a)contain particulars of the breach; and
(b)state that the student is required to attend in person before an officer (within the meaning of the Migration Act 1958 ) at a specified place within 28 days after the day specified in the notice as the date of the notice, for the purpose of explaining the breach; and
(c)state that the student must present photographic identification when so attending; and
(d)set out the effect of sections 137J and 137K of that Act.
Unincorporated registered providers
(5)If the registered provider is an unincorporated body, then it is instead the principal executive officer of the provider who must send the notice as required under this section.”

Applicant's Submissions

It was submitted on behalf of the Applicant that the grounds in support of the claim for jurisdictional error are limited to the validity of:
i)the s.20 notice sent to the Applicant which led to the receipt by the Applicant of the notice of intention to consider cancellation; and
ii)the notice of intention to consider cancellation received by the Applicant on 7 July 2000.

Validity of s.20 Notice

Counsel for the Applicant referred the court to the s.20 notice (Court Book p.5) and in particular referred to the "Particulars of breach" in that notice where the author has simply inserted the words "poor progress".
It was submitted that the court should also have regard to the requirement in the s.20 notice that the Applicant "must report personally to a compliance officer" (emphasis added), and further, it was noted that a specific "Perth" office was referred to.
It was submitted that the s.20 notice is invalid, and reliance was placed upon the decision of the Full Court of the Federal Court in Morsed v MIMIA (2006) 88 ALD 90 (Morsed). It was submitted in the present case that the s.20 notice was defective because it failed to inform the Applicant that he could report to "any officer" for the purpose of explaining the alleged breach and was not required to report to a "compliance officer". It was further submitted that the notice was invalid as it required the Applicant to report to a particular departmental office rather than reporting to "any" office as permitted by s.137J(2)(b) of the Migration Act.
It was noted that in Morsed, the Department consented to orders allowing the appeal, and it was argued this was based upon an earlier decision of the Federal Magistrates Court in Uddin v MIMIA [2005] FMCA 841. The Applicant submitted therefore that the s.20 notice in this case should be held to be invalid and appropriate orders made as sought in the application.
In the alternative, it was submitted that in relation to the effect of the lack of validity of the s.20 notice, the compulsion of law contained in that notice, requiring the Applicant's attendance at a particular departmental office, thereby resulted in the Applicant's attendance on

7 July 2005 but did not constitute the "giving" of particulars in compliance with sub-s.119(1)(a) of the Migration Act. In the alternative, it did not constitute an "invitation" to the Applicant in compliance with sub-s.119(1)(b) of the Migration Act.
The Applicant submitted that the "forced" circumstances in which the Applicant was required to attend the Perth office of the Department at which he received the s.119 notice of intention to consider cancellation had the effect of "depriving the validity of the latter notice in relation to subs.119(1)(a) and (b)".
The First Respondent submitted that the validity of the s.20 notice is immaterial to the decision to cancel the visa made under s.116 of the Migration Act.
It was submitted by the First Respondent that cancellation of the Applicant’s visa was not made under s.137J of the Migration Act for failing to attend an interview as provided for in s.20 of the ESOS Act but under s.116(3) of the Migration Act and Regulation 2.43 of the Migration Regulations 1994 for non-compliance with Condition 8202. Accordingly it was submitted the adequacy of the s.20 notice was immaterial. It was submitted the Act does not limit the circumstances under which s.116 of the Migration Act operates to circumstances where there has been a breach of Condition 8202 or upon the giving of notice under s.20 of the Migration Act. Reference was made to Minister for Immigration & Multicultural & Indigenous Affairs v Yu [2004] 141 FCR 448 at [39-40] per Allsop J: at [7] per Tamberlin J; and Humayun v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 35 at [30] where the Court relevantly states:
“30 Mr Catterns argued the s 20 notice, issued to Mr Humayun on 7 February 2003, was defective for the reasons enunciated by McInnis FM in Zhou v Minister for Immigration and Multicultural and Indigenous Affairs (No 1) [2005] FMCA 1826. That case is presently under appeal so it is preferable for me not to offer any view about its correctness. Counsel for the Minister contended that, even if the s 20 notice was incapable of having the consequences set out in Subdivision GB of Division 3 of the Migration Act (ss 137J – 137P), that did not affect the power of the delegate to effect a visa cancellation under s 116 of the Act. They referred to the judgment of Allsop J (with whom Tamberlin J agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333; 141 FCR 448. Furthermore, said counsel, a legal deficiency in the delegate’s decision would not affect the power of the MRT to review the purported decision and to make such order as the delegate ought to have made. They cited three recent Full Court decisions: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248, 211 ALR 261; Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58, 143 FCR 314 and Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218.”
In supplementary submissions which both parties were permitted to file and serve arising out of the Full Court decision in Minister for Immigration & Multicultural & Indigenours Affairs v Zhou [2006] FCAFC 96 (Zhou) the First Respondent submitted that that decision confirmed the principle submissions made in these proceedings by the First Respondent.
It was submitted that the Court in Zhou upheld the Minister’s submissions in that case similar to the present case that if defects existed in the s.20 notice they were immaterial given the decision of the Tribunal was under s.116 of the Migration Act and was not an automatic cancellation of a visa pursuant to s.137J of that Act. It was noted that in accepting the Minister’s submissions in Zhou the Court adopted the reasoning of the Full Court in other cases and in particular in the case of Humayun referred to earlier in this judgment. The First Resopndent submitted that the Full Court in Zhou by applying the reasoning of the Full Court in Humayun had rejected the Respondent’s arguments that there was a legal interaction between s.20 of the ESOS Act and s.116 of the Migration Act. Section 116 of the Migration Act it was argued was not be read as subject to any implied limiation on its operation (see Zhou at [42 -43]).
The First Respondent submitted that the present case like Zhou was not a case of automatic cancellation under s.137J of the Migration Act but a cancellation under s.116(3) of that Act for non-compliance with Condition 8202.

Reasoning

In my view the First Respondent’s subimssions in relation to this ground are correct. Applying the authority of Zhou which in turn had applied and adopted the authority referred to of the Court in Humayun I accept the submissions by the First Respondent that the arguments advanced for and on behalf of the Applicant as a matter of law cannot succeed. I further accept as submitted by the First Respondent that accordingly the Tribunal has to exercise power under s.116 of the Migration Act and cancel a visa holder’s visa where there has been non-compliance with Condition 8202.
Accordingly this ground fails.

Validity of s.119 Notice

Reference was made to the s.119 notice (Court Book p.8) and in particular paragraph 9 which provides as follows:
“It has come to the Department’s attention that there may be grounds for cancelling your visa under section 116 of the Migration Act 1968. the particulars of those grounds and the information (not being non-disclosable information) because of which the grounds appear to exist.
YOUR EDUCATION
PROVIDER CURTIN
INTERNATIONAL
COLLEGE NOTIFIED
YOU BY LETTER DATED
28/6/05 THAT YOU
HAVE ‘POOR PROGRESS’
POSSIBLE BREACH OF
VISA CONDITION 8202”
It was submitted by the Applicant that no other relevant material with respect to the particularity of the grounds relied upon for cancellation were set out by the First Respondent in the s.119 notice.
Reliance was then placed upon a number of authorities including a Full Court of the Federal Court decision in Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 where in that case the court at paragraph 25 stated:
“Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. The supporting information will include a description of any evidence upon which the grounds are based. The grounds, as particularised, may be inferences from the evidence and in that sense conclusionary. The other element of the notice is the invitation to the holder to show, within a specified time, that the grounds do not exist or that there is a reason why the visa should not be cancelled. It is important to note that the terms of the invitation do not reflect the imposition upon the visa holder of a statutory onus at this point which, if not satisfied, will result in the visa being cancelled. That would no doubt be the case if a firm intention to cancel the visa had been formed and the visa holder’s task was to persuade the decision-maker to abandon that intention. The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. The state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.”
It was submitted by the Applicant that the present case is similar to the circumstances in Zhao. Reference was made to the decision of Lander J in Chen v MIMIA (2005) FCA 229 and in particular paragraphs 62, 66, 67 and 68 where the court states as follows:
62 In Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 1235 at [25], which was an appeal not concerned with a student visa of the kind in this review application, the Full Court of this Court said, in speaking of s 119 of the Migration Act, which as already demonstrated provides a procedure for the Minister considering cancelling a visa that requires the Minister to first notify the visa holder and give particulars information upon which the Minister might rely:
Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open.
66.If the student complies with the notice by attending but cannot explain the breach alleged in the notice, then the student will, in due course, receive all the information that

s 119 of the Migration Act demands and be accorded the protection of the procedures which the Minister must observe in Subdivsion E of Division 3 of Part 2 of the Migration Act.
67.It follows, therefore, in my opinion, that a notice under

s 20(4) of the ESOS Act does not require the same sort of particularity as a notice under s 119 of the Migration Act.
68.In my opinion, it would be sufficient to comply with s 20(4)(a) of the ESOS Act for the service provider to identify the condition which has been breached (i.e. in this case, Condition 8202) either by number or description and by identifying the manner in which the condition has been breached.”
It was submitted by the Applicant that notwithstanding the reduced level of particularity required of a s.20 notice when compared with a s.119 notice, the court in Chen nevertheless regarded that the former notice should:
“identify the condition which has been breached (ie, the case Condition 8202) either by number or description and by identifying the manner in which the condition has been breached.”
Particular emphasis was placed upon the requirement to identify "the manner in which the condition has been breached". It was noted that in Chen, the court found that the expression "poor progress" did not particularise the alleged breach or breaches of Condition 8202. It was submitted that the particularity of the s.20 notice was found to be deficient in Chen, and the same lack of particularity in the s.119 notice in the present case should also be found to be inadequate and/or deficient.
It was submitted that unlike the effect of a deficiency in particulars in a s.20 notice, a deficiency in a s.119 notice will have the effect that the notice is invalid and of no effect. Reference was made to Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389.
Reference was further made to the Federal Court decision in Erinfolami v MIMIA [2001] FCA 956 where at paragraphs 25, 26, 34 and 38 the court relevantly states:
“25.Mr Erinfolami submitted that the lawfulness of a cancellation decision under s 116 of the Act depended on its having been preceded by the giving of an effective notification under s 119 of the Act. That flowed, he said, from subs 124(1) of the Act, which deals with the question when a decision about visa cancellation may be made and provides relevantly that ‘the minister may cancel a visa at any time after notice about the cancellation has been given under section 119’”.
26.I did not understand the Minister to dispute the correctness of Mr Erinfolami’s submission that the lawfulness of a cancellation decision under s 116 of the Act depends on its having been preceded by the giving of an effective notification under s 119 of the Act, the correctness of which submission I accept. Its correctness is supported, not only by the terms of subs 124(1) of the Act, but also by the approach taken in the Zhao case, to which I will refer below, and by the decision of Goldberg J in Tien v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80 at 92 and 98.
…
34.I note also that, in the passage which I have quoted above from the Full Court’s reasons for judgment, there is (see at[23]) a reference to the fact that s 119 addresses “both the content and the manner of the notification to be given by the Minister or the Minister’s delegate before proceeding to cancellation under s 116”. Implicit in that statement appears to me to be an acceptance of the view which I take of the matter, namely, that the notification under subs 119(1) of the Act, in order to be effective, must be given when either the Minister or a delegate of the Minister who is capable of “proceeding to cancellation under s 116” of the Act is considering whether so to proceed.
…
38.In the result, I have decided that I should set aside the cancellation decision made regarding Mr Erinfolami’s visa, for the reason that it was not preceded by the giving to Mr Erinfolami of an effective notice of the type required to be given to him by subs 119(1) of the Act. In those circumstances, I propose to say nothing about the other two matters on which Mr Erinfolami relied before me in attacking the cancellation decision. Costs will follow the event.”
Further reference was made to the decision of Tien v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80 (at pp.92 and 98).
It was submitted by the Applicant that the decision made by the Second Respondent in the present case and the decision by the delegate of the First Respondent to cancel the Applicant's visa should be set aside.
The First Respondent submitted that the notice was sufficiently particularised. It was argued that it fairly informed the visa holder the basis upon which the cancellation was being considered. It was noted that in addition to the reference to “poor progress” the notice referred to both Condition 8202 and the education provider’s letter of 28 June 2005. The Applicant was therefore adequately equipped, it was argued, to provide relevant information as evidenced by the Applicant’s submission to the Tribunal (Court Book p.42).
In the alternative it was argued that if there was insufficient particularity in the s.119 notice then that was immaterial as the Tribunal had cured that deficiency. The Tribunal conducts a full review of the merits and is not limited to or confined to considering any error made by the Minister and accordingly it was submitted by the First Respondent any errors made by the Minister did not vitiate the decision of the Tribunal (See Zubar v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 139 FCR 244 at [21] – [32].

Reasoning

In my view the submissions of the First Respondent in relation to this ground are correct.
Although I have some reservations about the inadequacy of the reference to “poor progress” I accept as submitted by the First Respondent that the cross reference to Condition 8202 combined with the education provider’s correspondence dated 28 June 2005 provided sufficient detail to alert the Applicant to the fact that his academic performance was not satisfactory.
Further the Applicant’s submission to the Tribunal (Court Book p.41) clearly addresses the unsatisfactory academic performance and the key issue which was the basis upon which the notice was issued.
I further accept as argued in the alternative that in any event the review of the matter conducted by the Tribunal is not limited to or confined to any error made by the Minister and those errors, if any, do not vitiate the Tribunal’s decision applying the authorities to which reference was made.
Accordingly it follows that this ground should fail.

Conclusion

It follows for the reasons given that the Application should be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 20 December 2006