Dostanov v Minister for Immigration

[2007] FMCA 792

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DOSTANOV v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 792

MIGRATION – Subclass 573 (Higher Education Sector) visa – Condition 8202 – whether letter sent by applicant was adjournment request – whether letter sent by applicant was request pursuant to s.361 – whether letter sent by applicant was request pursuant to s.366A – no mandatory obligation to adjourn on request – handwritten notation on request not by Presiding Tribunal Member – No evidence that Tribunal adjournment request was referred to it – Tribunal did not exercise power pursuant to s.363(1)(b) – absence of evidence that request for adjournment was submitted to Presiding Member – Tribunal failed to consider issue of doctor’s absence and applicant’s capacity to give evidence – failure to accord procedural fairness – jurisdictional error – letter sent by applicant also s.361 request – no evidence that Tribunal gave consideration to the applicant’s request for specialist evidence as required by s.361(3) – jurisdictional error – application remitted.

Migration Act 1958, ss.116, 359A, 359(2), 116(3), 361, 366A, 363(1)(b), 360, 357A, 354, 361(2), 361(2A), 361(3), 353(1), 368
Migration Regulations 1994, Schedule 8, Regs.2.43, 2.43(2)
Education Services for Overseas Students Act 2000, s.20

Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61
SZCIJ v Minister for Immigration and Multicultural Affairs & Anor [2006] FCAFC 62
Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
Attorney-General (NSW) v Quin (1990) 170 CLR
Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908
Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72
W360/01A v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 211
Minister for Immigration and Multicultural and Indigenous Affairs v WAFJ (2004) 137 FCR 3

Applicant: YERMEK DOSTANOV

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS 

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2483 of 2005

Judgment of: Nicholls FM

Hearing date: 13 February 2007

Date of Last Submission: 20 March 2007

Delivered at: Sydney

Delivered on: 1 June 2007

REPRESENTATION

Counsel for the Applicant: Mr. M. T. Jones

Solicitors for the Applicant: Michael Jones, solicitor

Counsel for the Respondent: Ms. B. K. Nolan

Solicitors for the Respondent: Clayton Utz

ORDERS

1. The reference to the first respondent be amended to read “Minister for Immigration and Citizenship”.

2. That an order in the nature of certiorari issue quashing decision of the Migration Review Tribunal signed on 8 August 2005.

3. That there be an order in the nature of mandamus remitting the application for review of the decision of the delegate of the first respondent made on 15 March 2005 to the Migration Review Tribunal for determination according to law.

4. The first respondent pay the applicant’s costs set in the amount of $5,000.00

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2483 of 2005

YERMEK DOSTANOV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on 5 September 2005 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) signed on 8 August 2005 to affirm the decision of a delegate of the respondent Minister made on 15 March 2005 to cancel the applicant’s Subclass 573 (Higher Education Sector) visa.

2. Mr. Yermek Dostanov (“the applicant”) is a national of Kazakhstan who entered Australia on 9 March 2004. He held a Subclass 573 (Higher Education Sector) visa. Attached to this visa was a condition that the visa holder meet course requirements (Condition 8202 – See Schedule 8 of the Schedules to the Migration Regulations 1994 (“the Regulations”)). Relevantly, this required the applicant to be enrolled in a registered (education related) course (Condition 8202(2)(a)), to attend for at least 80% of the hours scheduled for each term or semester of the course (Condition 8202(3)(a)(ii)), and to achieve an academic result that was certified by the relevant education provider to be at least satisfactory for each term or semester of the course (Condition 8202(3)(b)(ii)).

3. The material provided by way of relevant documents in the Court Book (“CB”) reveals the following background:

   1)The relevant education provider wrote to the applicant by letter dated 21 February 2005 providing a notice pursuant to s.20 of the Education Services for Overseas Students Act 2000 (“ESOS”), notifying him that he had breached a condition of his student visa relating to satisfactory academic performance (CB 25 to CB 26).

   2)The applicant was issued with a notice of intention to cancel his student visa pursuant to s.116 of the Migration Act 1958 (“the Act”) by the first respondent’s (Minister’s) department (CB 28 to CB 29). The possible grounds for cancellation were stated as:

   “Breach 8202 – your education provider Insearch has advised that you have failed to maintain at least 8% (sic: 80%) attendance of the contact hours schedule AND you have failed to make satisfactory academic progress in second semester of your course.” (CB 28).

   3)By way of written response, the applicant provided a statutory declaration dated 15 March 2005 (CB 30 to CB 31).

   4)The applicant was interviewed by a delegate of the respondent Minister and the applicant’s visa was cancelled on 15 March 2005 (CB 32 to CB 38).

   5)The reason for the cancellation was that, with reference to s.116(1)(b) of the Act and Regulation 2.43(2), the delegate was satisfied that the applicant had breached Condition 8202 attaching to his visa (CB 34.4). The reasons were:

   “Reported by education provider Insearch UTS that a/n had failed to maintain at least 80% attendance of the schedule contact hours.  The a/n education provider also advised that he failed all subjects in Semester 2 (this was with reference to year 2004) and was placed on Academic Probation.  The a/n education provider advised that his current attendance is 58% and overall attendance is 69.74%.  This is a clear breach of visa condition 8202, which must result in a cancellation.” (CB 32.5).

   6)On 21 March 2005, the applicant applied to the Tribunal for review of the decision to cancel his visa (CB 39 to CB 44).

   7)The applicant’s complaint about the delegate’s decision was that the delegate failed to take into consideration “the circumstances and medical aspects” given in the applicant’s explanation (CB 43).

   8)The applicant was assisted by a migration agent before the Tribunal, and a number of submissions and documents were provided to the Tribunal on his behalf (see CB 47 to CB 53).

   9)By letter dated 8 April 2005, the Tribunal invited the applicant to comment on certain information (pursuant to s.359A of the Act) which it considered would be part of the reason for affirming the decision under review. Further, invited the applicant to provide information pursuant to s.359(2) of the Act, which may be relevant to the review of the delegate’s decision (CB 54 to CB 56).

   10) By letter dated 7 June 2005, the applicant was invited to appear before the Tribunal to give evidence.  The hearing was scheduled for 13 July 2005.  The letter also advised the applicant that he could request the Tribunal to obtain evidence from other persons and that such a request had to have been made to the Tribunal within 7 working days of the date of its letter, plus 7 calendar days (CB 67 to CB 68).

   11) By letter dated 14 June 2005, the applicant’s migration agent, acting on behalf of the applicant, wrote to the Tribunal in the following terms:

   “I act on behalf of my client, Mr. Yermek Dostanov.  His treating psychiatrist, Doctor Socolovic (sic: Sokolovic), has unexpectedly left Australia for 1.5 month.  He should be back to work in the last week of July 2005.  As treating specialist’s report would be utterly important in my client’s case, I am kindly asking you to reschedule the hearing and make an arrangement any time after the end of July 2005.  This would allow Mr. Y. Dostanov to be fully prepared for the Tribunal hearing. Thank you for consideration.” (CB 69).

   12) The applicant did attend the hearing, which remained scheduled for 13 July 2005, and gave evidence to the Tribunal on that date.  The applicant’s representative was also present (see CB 70 to CB 71 and CB 86.1).

   13) The Tribunal’s account of what occurred at the hearing is set out at CB 86.1 to CB 86.6).

4. The Tribunal’s “Findings and Reasons” are set out in its decision record reproduced at CB 86.7 to CB 88.4.  The Tribunal:

   1)Found that the applicant did not breach Condition 8202 attaching to his visa in Semester 1 of 2004 (CB 87.2).

   2)Accepted medical certificates that the applicant had provided and was satisfied that the applicant had not breached Condition 8202 in Semester 3 of 2004 (CB 87.3).

   3)Found that for Semester 2 of 2004 the applicant’s attendance was 76.36% (CB 87.3).

   4)Accepted that the applicant’s mother suffered from an illness and was hospitalised in July 2004, and that the applicant suffered from depression as a result of this (CB 87.7).

   5)Found, however, that on the evidence before it, the applicant first sought medical assistance for his depression in March 2005 and as this related to Semester 3 and not Semester 2, the Tribunal was unable to accept that the evidence established that the applicant’s attendance for Semester 2 was affected (CB 87.8).

   6)Found that the report provided by a Dr. Sokolovic, who first saw the applicant some 5 months after the end of 2 September 2004, made no reference to the applicant’s attendance being affected in the second semester of 2004 (CB 87.9 to CB 88.1).

   7)Found that the medical evidence did not establish that the applicant was unable to attend classes due to depression in Semester 2 of 2004 (CB 88.3).

   8)Found, as a result, that the applicant’s attendance for Semester 2 of 2004 was less than the required 80%, and that the applicant therefore breached Condition 8202 attached to his visa for that period (CB 88.4).

5. Given the above, the Tribunal found that it was required to cancel the visa held by the applicant because of a combined operation of s.116(3) of the Act and Regulation 2.43, in that the applicant breached one of the elements contained within Condition 8202.

6. The application to this Court filed on 5 September 2005 puts forward one particularised ground:

   “The Tribunal denied the Applicant procedural fairness or natural justice in the making of the decision, and in doing so failed to exercise its jurisdiction under the Migration Act 1958.

   Particulars:

   The Tribunal invited the applicant to a hearing scheduled for 13 July 2005. The Applicant’s adviser notified the Tribunal on 14 June 2005 that a psychiatrist treating the Applicant was overseas and would not be returning to Australia until the end of July, and requested an adjournment of the hearing until after that date in order to obtain a report and to allow the applicant to be fully prepared for the hearing. The Tribunal denied the request. Given the Applicant’s known psychiatric condition, the Tribunal’s refusal to delay the hearing meant that the Applicant was denied an opportunity to fully present his case at the hearing.”

7. At the hearing before the Court, the applicant was represented by Mr. M. Jones and the respondent was represented by Ms. B. Nolan of Counsel.  Arguments relating to the applicant’s ground were, naturally enough, developed during the course of the hearing. But Mr. Jones also raised an additional ground during the course of the hearing, and I therefore gave both parties leave to file further subsequent submissions in relation to the issues as they emerged at the hearing.

8. The applicant’s complaints derive from the letter sent by the applicant’s advisor on his behalf, dated 14 June 2005 (CB 69) (see also [3.11] above), the Tribunal’s treatment of what was contained in the letter, and the consequences for the applicant as a result of the Tribunal’s action, in light of its subsequent finding. The issues that arise for consideration are:

   1)Whether the letter was a request that the Tribunal adjourn the hearing and whether the Tribunal properly dealt with such a request.

   2)Whether this letter was a request pursuant to s.361 of the Act, and whether the Tribunal properly dealt with such a request to call a witness.

   3)Whether the letter was a request pursuant to s.366A of the Act. That is, whether the letter could be taken to be a request to have another person present to assist the applicant at the hearing, and whether the Tribunal properly dealt with such a request.

9. I have already set out above the terms of this letter.  Appearing at the foot of the copy of the letter in the Court Book at CB 69 is, in handwriting, the following:

   “Spoke to advisor.  Hearing to proceed on 13 July 2005.  Micaela Callan 20.6.05.”

10. Relevant to the issues for consideration are:

    1)The Tribunal’s letter of invitation to appear before the Tribunal dated 7 June 2005 set as the time for hearing the date of 13 July 2005 (CB 67 to CB 68).

    2)The letter directed the applicant to complete and return an attached form, which was the “Request for Hearing” form (CB 67.8).

    3)The letter also notified the applicant that if he wanted to request the Tribunal to obtain “oral or written evidence from other persons, or to obtain other written materials”, that this request had to be made in writing “within 7 working days plus 7 calendar days of the date of this letter” (CB 67.9).

    4)The applicant completed and returned the Request for Hearing form dated 22 June 2005, and confirmed he wished to appear. On that form, in contrast to the earlier letter from the advisor, made no reference and made no request for the Tribunal to take oral evidence or to summon any other person to attend (CB 70 to CB 71).

11. The applicant’s complaint is that the Tribunal denied the applicant procedural fairness or natural justice, as exhaustively stated in Division 5 of Part 5 of the Act, in that the Tribunal’s failure to adjourn the hearing until Dr. Sokolovic returned to Australia deprived the applicant of an opportunity to address the issue that the Tribunal found determinative in resolving his case. In this sense, the Tribunal denied the applicant a reasonable opportunity to present his case.

12. The applicant’s complaint that he was denied the opportunity to put forward his case in relation to an issue which was determinative, arises from his medical condition.  A report provided by Dr. Sokolovic, and which is reproduced in the Court Book at CB 64 to CB 66, is relevant in this regard, as is a medical certificate provided by Dr. Aristoff (CB 50).  In its decision record (CB 87), the Tribunal notes medical evidence provided that the applicant’s mother was hospitalised in July 2004 (during the period of Semester 2), but then noted that the report stated that the applicant’s attendance and performance were “optimal for two semesters”, but that “in his third semester they were not satisfactory” (this was with reference to Dr. Sokolovic’s report at CB 65.5).

13. The applicant submits that, on the evidence before the Tribunal, it was clear that this (the psychiatrist’s) report was in error as to the relevant facts, in that the mother had been admitted to hospital during the second semester, and that it was during that same semester that the applicant’s performance was affected.  However, by reading the doctor’s report literally in this regard, the Tribunal then ultimately found that the medical evidence did not establish that the applicant was unable to attend classes due to depression in Semester 2 of 2004.  The applicant argues that it was on this issue that Dr. Sokolovic could have assisted the Tribunal, and could have assisted the applicant’s case in explaining that it was during Semester 2, and not Semester 3, that the applicant had been affected.

14. The applicant’s complaint is that the failure to grant the adjournment, sought by the applicant’s migration agent (as set out above), resulted in this breach of the statutory requirement to provide procedural fairness to the applicant. There appears to be an assumption that the Tribunal’s power to adjourn the hearing was otherwise properly exercised by the Tribunal, and that it was only the failure to provide procedural fairness (in the context of s.361 of the Act) by refusing to grant the adjournment and await Dr. Sokolovic’s return, on which the applicant complains. Mr. Jones, in submissions before this Court, noted that there was a handwritten note on the copy of the letter which indicates that the request was refused and that the hearing proceeded on the date as scheduled. No argument was put before this Court as to whether the Tribunal properly exercised its power in deciding not to adjourn the hearing (other than for the issue relating to procedural fairness).

15. In subsequent written submissions in addressing the question of whether the letter was a notice of a “s.361 request”, and submitting that it was not, the Minister asserts that “at best, the letter is a request that the Tribunal adjourn the hearing until the doctor returns” and that, in that sense, the letter was directed at the Tribunal’s power to adjourn the hearing pursuant to s.363(1)(b) of the Act. The Minister’s position, therefore, was (as set out at [20] of the Minister’s written submissions filed on 8 February 2007), that the fact that the Tribunal has the power to adjourn the review is not an imperative power and does not oblige the Tribunal to do so. Further, that the language of s.363(1)(b) of the Act gives discretion to the Tribunal as to whether to adjourn the hearing or not, and that the failure to grant an adjournment does not go to the jurisdiction of the Tribunal and does not constitute jurisdictional error.

16. I agree with the Minister’s submission relating to the meaning of s.363(1)(b) of the Act. Plainly, the language of this section does not impose a mandatory obligation on the Tribunal to adjourn a hearing merely on request. The Tribunal has discretion whether to do so.

17. Both sides in argument appear to assume that the Tribunal properly exercised the discretion arising from s.363(1)(b) of the Act. However, on the evidence before the Court now, I am not satisfied that this is the case. Divisions 2 and 3 of Part 5 of the Act establish the Tribunal’s jurisdiction in setting out the scheme relating to decisions reviewable by the Tribunal. Division 4 of Part 5 of the Act provides for the exercise of the Tribunal’s powers in reviewing certain decisions. Section 354 of the Act provides:

    “Constitution of the Tribunal for exercise of powers:

    354(1)For the purpose of a particular review, the Tribunal shall be constituted, in accordance with the direction under subsection (2), by:

    a) a single member;

    b) 2 members; or

    c) 3 members.

    (2)The Principal Member or a Senior Member acting in accordance with guidelines under subsection (3), may give a written direction about who is to constitute the Tribunal for the purposes of a particular review.”

18. On the best evidence available to the Court, the presiding member constituted for the purposes of conducting the review in this case is as set out on the face of the Tribunal’s decision record at CB 80. [I note if this were not the case, (in the absence of the actual instrument of direction about who is to constitute the Tribunal for the purposes of this particular review) then the respondent would also not succeed.]  There is no evidence before the Court to show that the person who signed the handwritten notation at CB 69 is the presiding member for the purposes of the review.  Nor can this be inferred from the evidence before the Court.  In my view, a contrary inference can be drawn.

1. The evidence before the Court is, that on 20 June 2005, a person who was not the presiding member constituted as the Tribunal for the purposes of conducting this review, spoke to the applicant’s advisor and advised him that the hearing was to proceed as had been originally scheduled. There is no evidence whatsoever before the Court that the advisor’s request for an adjournment was referred to the only person who had the power to exercise the Tribunal’s jurisdiction in conducting this review. Nor is there any evidence before the Court that the person (presumably an employee of the Tribunal, but certainly not a person who had been constituted to conduct the review), was acting on direction from the presiding member in advising that the hearing was to proceed. Nor is there anything in the Tribunal’s decision record to indicate that the presiding member ever had this issue referred to her for consideration. Nor is there anything in the Tribunal’s decision record to show that the person who spoke to the advisor was acting under direction from the presiding member. Nor is there anything in the Tribunal’s decision record to show that the presiding member gave any consideration to this adjournment request. I do not suggest that any such omission in the Tribunal’s decision record is itself an error of law. Plainly and obviously, the Tribunal does not need to refer to every procedural step taken in the making of its decision. However, the omission of any reference to an adjournment request, and how the Tribunal may have dealt with it, is a lost opportunity on the part of the Tribunal to have provided some evidence that, in fact, the adjournment request was referred to it, and that it exercised its power pursuant to s.363(1)(b), albeit not to grant the adjournment.

2. The Minister submits that the letter “even at best” is a request that the Tribunal adjourn the hearing until the doctor returns.  The Minister has put no evidence whatsoever before this Court to satisfy the Court that the Tribunal (and clearly, in context, this means the person with the power to exercise the Tribunal’s jurisdiction, that is, the presiding member), ever considered this issue or even had this issue referred to her for consideration.  It was always open to the Minister to have done so and not relied on the handwritten note, or assumed that the handwritten note at the foot of what is reproduced at CB 69 was sufficient for this purpose. 

3. In relation to the issue of evidence, (and who bears the onus to put evidence before the Court to satisfy any contention made) in relation to consideration of the applicant’s complaint arising from s.361 of the Act, the Minister submitted that such an onus rests with the applicant. (See further at [58] below). However, on the issue of the use of the adjournment power, I note that orders were made (by consent) at the first Court date that the Minister file and serve a bundle of relevant documents (Order 2). Given that the letter from the migration adviser was identified by the Minister as relevant to the consideration of this matter, then the opportunity (if not requirement) existed for the Minister to submit further documentation relevant as to how the Tribunal proceeded to deal with the request in the letter.

4. It may be that the letter was referred to the presiding member, and that the employee who spoke to the advisor was acting under some direction. However, given the lack of evidence, it may equally be that someone in the Tribunal’s Registry purported to exercise the statutory discretion available only to the Tribunal. That is, the discretion given to the person exercising the Tribunal’s powers for the purposes of this particular review. It must be emphasised that the absence of evidence here is not as to how the Tribunal may have reached a decision not to adjourn the hearing, but that it is the absence of any evidence that such a request was submitted to the presiding member. Or even if it had been, that the presiding member turned her mind to it in the exercise of the discretion, pursuant to s.363(1)(b) of the Act. The Tribunal was asked to exercise its adjournment power. It needed to have turned its mind to this request.

5. The statutory scheme relating to the conduct of the review empowers the Tribunal to adjourn the (in effect) hearing “from time to time”. The failure to exercise such consideration is important in the context of s.360 of the Act. This section is part of Division 5 of Part 5 of the Act which, by virtue of s.357A (Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 and SZCIJ v Minister for Immigration and Multicultural Affairs & Anor [2006] FCAFC 62) is the exhaustive statement of the requirements of the natural justice hearing rule. Section 360 requires the Tribunal to invite an applicant to a hearing in certain circumstances. The circumstances of this case are such that the Tribunal was obliged to do so. A letter of invitation was sent to the applicant.

6. But the invitation and opportunity to appear before the Tribunal to give evidence and present argument must be meaningful.  It cannot be a “hollow shell or an empty gesture”. In Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759, Goldberg J. (dealing with the “RRT counterpart” to s.360 of the Act), after looking at relevant authorities, said at [31]:

   “These passages suggest that where the applicant appears, but is not able through the conduct of the tribunal to give evidence or present arguments, albeit that the applicant has been invited by the tribunal to appear, then there will be a contravention of s.425(1).  I agree with the observations of Wilcox J in Xiao above, at [30] that events subsequent to the invitation, which must remain open, are not necessarily immaterial.  The invitation must not be a hollow shell or an empty gesture. If an invitation to appear is extended to an applicant, where the tribunal knows that an interpreter is required, the obligation to extend the invitation will not be satisfied if the tribunal provides an interpreter whose interpretation is such that the applicant is unable adequately to give evidence and present argument to the tribunal.  If that situation arises, the tribunal will not have fulfilled its obligation under s.425(1).”

7. The adviser’s letter (at CB 69), while unclear in some respects, was very clear in stating that the applicant’s capacity to participate (“fully prepared”) in the hearing on the scheduled date was significantly affected by the absence overseas of his “treating specialist”.  His presence in Australia at the time of any hearing was said to be “utterly important” for the applicant in relation to his preparation and (in context) participation in the hearing.

8. The state of the evidence before the Court is that there is nothing to show that the presiding Tribunal member actually considered the request for the adjournment. Nor is there any such evidence specifically in the context of whether, or how, the absence of Dr. Sokolovic would impact on the applicant’s capacity to present his evidence and arguments at the hearing. In my view, such an omission goes to the issue of the Tribunal’s obligation to provide a meaningful opportunity for a hearing to the applicant. The Tribunal’s (that is, the presiding member’s) failure to consider this issue (at all) is a denial of the opportunity it was obliged to provide, pursuant to s.360 of the Act.

9. Further, even if it could be inferred that the adjournment request had been communicated to the presiding member, there is nothing to show that the Tribunal turned its mind to the impact on the applicant of Dr. Sokolovic’s absence.  That is, even if the Tribunal employee had told the presiding member at the relevant time that an adjournment had been sought, and the Tribunal purported to exercise its adjournment power, there is no evidence before the Court that the Tribunal actually saw the letter, let alone considered its contents beyond the mere request for an adjournment.

10. While the applicant did appear at the hearing, with his adviser, and gave evidence, it is, as the High Court emphasised in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63:

    “…what is required by procedural fairness is a fair hearing, not a fair outcome.” [At [25] with reference also to Brennan J. in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at [35-36]].

    Further, at [25], the High Court said:

    “It is, therefore, not to the point to ask whether the Tribunal’s factual conclusions were right.  The relevant question is about the Tribunal’s processes, not its actual decision.”

11. The Tribunal’s failure to consider the issue of Dr. Sokolovic’s absence and its impact on the applicant’s capacity to give evidence at the hearing is a failure to accord procedural fairness to the applicant, within the context of its relevant statutory obligations.  Such a failure reveals jurisdictional error on the part of the Tribunal in the making of its decision.

12. I am also of the view that the Tribunal’s decision reveals jurisdictional error on a separate (statutory) basis, which arises from the applicant’s complaint that the Tribunal did not properly consider the request made to it pursuant to s.361 of the Act.

13. Section 361 of the Act relevantly provides:

    “(Applicant may request Tribunal to call witnesses and obtain written material) 361:

    (1)In the notice under Section 360A, the Tribunal shall notify the applicant:

    (a)that he or she is invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review; and

    (b)of the effect of subsections (2) and (2A) of this section.

    (2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

    (2A)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain:

    (a)written evidence from a person or persons named in the notice, or

    (b)other written material relating to the issues arising in relation to the decision under review.

    (3)If the Tribunal is notified by an applicant under subsection (2) or (2A), the Tribunal must have regard to the applicant’s notice, but is not required to comply with it…”

14. The Minister’s position is that the letter sent by the migration adviser is neither a request to obtain oral, or written, evidence from the doctor. That it is a request to reschedule the hearing until after the return of the applicant’s treating psychiatrist. I agree with Ms. Nolan that the letter lacks precision as to the extent of what is being asked of the Tribunal in this regard.  The letter was clearly sent after the date of the Tribunal’s letter of 2 June 2005 (CB 67 to CB 68).  In the Tribunal’s letter, the applicant was put on notice that if he wished the Tribunal to obtain oral, or written, evidence from another person, that such a request must be made in writing within a certain period.  There is no issue that the adviser’s letter was sent within the period specified in the Tribunal’s letter.

15. However, I also note that had this been, clearly, a request for the doctor to appear before the Tribunal, or to provide written evidence to the Tribunal, that the applicant could have taken the opportunity to have additionally requested this of the Tribunal when the “Request for Hearing” form was returned to the Tribunal some time after the agent’s letter.  But I do not see that the omission from the form of any reference to the doctor, in itself, detracts from whatever the request may have been in the adviser’s letter.  The Tribunal’s letter, to which the relevant form was attached, requires any request from the applicant for the Tribunal to obtain oral or written evidence to be in writing and be made within a specified time.  This was done.  The use of the form was optional for this purpose:

    “You may use the attached form for this purpose.” (CB 67.10).

16. The adviser’s letter, therefore, needs to be read as best understood from what is stated on its face. In this regard, the options as to what was meant by the letter appear to be:

    1)A request for an adjournment. (Dealt with above.)

    2)A request that the specialist psychiatrist give oral evidence to the Tribunal.

    3)A request that the specialist psychiatrist provide a written report to the Tribunal.

    4)That Dr. Sokolovic be present at the hearing for the purposes of s.366A.

17. I have already set out that the letter is at least a request for an adjournment of the scheduled hearing. The Minister initially submits that, “at best”, this is the ostensible purpose of the letter, and that this is how the Tribunal dealt with it. [See paragraph 20 of written submissions of 8 February 2007 and paragraph 6 of further submissions of 12 March 2007.] [Although somewhat in contradiction, the Minister also submits (at paragraph 13 of further written submissions), albeit for the purpose of dealing with the applicant’s second ground (breach of s.366A of the Act), that: “…the terms of the Letter itself, notably its reference to the assistance required being in the form of a report, the Letter can only, at its highest, be understood as a request to obtain evidence, either written or oral.”]

18. I do not agree with the Minister’s (initial) submission that the letter requests only an adjournment of the scheduled hearing. In my view, the letter does more than just request an adjournment. Plainly, the letter provides a reason for requesting the adjournment. That is, that a “treating specialist’s report would be utterly important” in the applicant’s case. The adjournment was sought so that the applicant would be “fully prepared”, armed with the “specialist’s report”, whether to be provided orally at the hearing or in writing. In my view, whether this was a reference to the specialist psychiatrist giving evidence in person, pursuant to s.361(2) of the Act, or the provision of written evidence or written material pursuant to s.361(2A) of the Act, it is at least one of those, such as to make the letter a request, pursuant to s.361 of the Act. That the Tribunal’s power to consider an adjournment pursuant to s.363(1)(b) was engaged does not preclude that the applicant was also, at the same time, seeking to submit a request pursuant to s.361 of the Act.

19. The Minister submits at paragraph 7 of further written submissions filed on 12 March 2007, a number of matters which, Mr. Jones asserts in his further submissions in reply, go beyond the grant of leave for the filing of further written submissions. I do not agree with Mr. Jones’ submission in this regard. The leave for the filing of further submissions was specifically aimed, amongst other things, at the opportunity to make submission as to whether the letter was notice of a “s.361 request”. This also included that, if the letter was to be so considered, as to whether the Tribunal properly exercised its obligation pursuant to s.361 of the Act. How it purported to exercise its discretion is clearly an issue relevant to the Court’s consideration.

20. The Minister’s position is that, on the basis that if the letter were to be construed as a request to summon a witness or evidence, pursuant to s.361 of the Act, then the Tribunal is not obliged to accede to such a request by virtue of the provisions of s.361(3) of the Act. The Minister submits that this requires that the Tribunal “must have regard to the applicant’s notice”, and that the applicant has not been able to demonstrate that the Tribunal did not have regard to the request, and that in the absence of a “transcript and submissions”, the onus in this regard has not been discharged.

21. I should just note on this point that, given that the consideration as to whether the Tribunal would accede to the applicant’s request would have occurred prior to the hearing, (assuming for the purposes of consideration of this aspect of the applicant’s complaint, that the Tribunal, that is, the presiding member, did consider the request), then it is difficult to see how a transcript of any such consideration, presumably a transcript of a hearing, would have been possible, given that the Tribunal’s consideration (if any took place) would have occurred prior to the hearing.  Nor, it is trite to say, are “submissions” evidence for the purpose of considering whether the Tribunal did have regard to the request.

22. The Minister’s position, in any event, is that the phrase in s.361(3): “to have regard” is to be understood as “to take into account” or “consider”. The Minister relies on what Bennett J., said in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [62] (“Katisat”).  The Minister’s submission was that the Tribunal did have regard to the notice, and on this issue, relies on the handwritten notation at CB 69. I note further in the Minister’s submission the fact that the Tribunal had not, in its statement of reasons, given its reasons for not acceding to the “s.361 request”, does not constitute an error of jurisdiction.  On this issue, I agree with Ms. Nolan’s submissions that this, on its own, that is the failure to mention the request in the decision record, does not constitute an error of jurisdiction.  In particular, the Tribunal is not required to set out its reasons for, as I have said earlier, this procedural step in the making of its decision.  On this issue, therefore, I accept what is set out in [7(f)] of the Minister’s submissions. But I do not see that this is determinative of this particular issue.

23. Mr. Jones relies on what the full Court said in Minister for Immigration and Multicultural and Indigenous Affairs v Maltsin [2005] FCAFC 118 at [48] (“Maltsin”).  He submitted (with respect) that this Court is bound to follow what was said in this Full Court decision over what was said by a single judge (albeit sitting on appeal from this Court).

24. The relevant circumstances before the Court in Katisat (with reference to [4] to [9]) were that the applicant in that matter sought that the Tribunal take evidence from a particular person and that, ultimately, the Tribunal did not do so. At first instance, in the Federal Magistrates Court, the Court found that the applicant in that case was denied natural justice in not being permitted to call a witness (at [27]).

25. In relation to this particular issue, the Federal Court said, as now relied upon by the Minister:

    “[62] In the context of s.361, I take “have regard to” to be used in the sense of “to take into account” or “consider”. The transcript of the hearing on 16 August 2004 shows that there was discussion between the Tribunal and Mr. Katisat about the request for the summons.  The Tribunal pointed out to Mr. Katisat that he would not be able to cross-examine Ms. Dimas and that it would be the Tribunal that would ask the questions.  The Tribunal also said that, even if she were to say things in his favour, the Tribunal would still want documentary evidence; if she were to say things that were adverse to him, then that would not be in his favour.  Mr. Katisat reiterated his preference to summons Ms. Dimas because he wanted “the truth” to be before the Tribunal.  The Tribunal responded that it had decided not to summons her.  It gave as a reason “I suppose part of it is I don’t see that she - that having evidence from her would necessarily advance your case”.  Later in the hearing, the Tribunal asked Mr. Katisat what he thought Ms. Dimas would say if she were summonsed.  The Tribunal observed that it was “highly unusual for an ex-spouse to be summonsed because generally what they are going to say is not going to be in your favour.”  It was clear from the transcript that a somewhat acrimonious relationship was described between Mr. Katisat and Ms. Dimas, to the extent that he claimed that there was domestic violence against him.”

1. Further, at [63], the Court said:

   “[63] It has not been demonstrated, in my view, that the Tribunal failed to have genuine regard or consideration to Mr. Katisat’s request to summons Ms. Dimas.  The Tribunal was not required to comply with the request and did not do so.  The failure to exercise the power in the absence of the duty or obligation to do so does not go to jurisdiction.  The Tribunal’s decision was not arbitrary, nor demonstrably unreasonable.  Ms. Dimas’ evidence would not, in the view of the Tribunal, have overcome the absence of documentary evidence even if Ms. Dimas reverted to her original statement about the genuineness of the relationship.”

2. Plainly, the situation before the Court now can be distinguished on the basis that, in Katisat, there was ample evidence that the Tribunal turned its mind to the applicant’s request that it should take evidence from another person.  There is no such evidence in the case before me.  In the matter of Katisat, the Court, at [61], said:

   “The next question to be considered, as set out in Maltsin at [38], is whether the Tribunal genuinely applied its mind to the contents of the notice and, in particular, to the question whether it should take the oral evidence of the nominated individual in accordance with the applicant’s wishes. Such genuine consideration must take account of matters such as the relevance and potential importance to the outcome of the review of the evidence that could be given by that witness.”

3. At [66], Her Honour, with reference to Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 (“Applicant VEAL”) at [16], noted that principles of natural justice are not concerned with the merits of a particular case but with the procedure that must be observed in its exercise and found:

   “[66]…the transcript demonstrates that, in the context of the evidence before the Tribunal, it did properly have regard to the notification.  As part of the process before finally determining not to comply with it, the Tribunal canvassed the nature of the proposed evidence with Mr. Katisat and expressed the view that even if the evidence was what he hoped it would be, it would not be sufficient in the absence of supporting documentation.”

4. Ultimately, the Court found that the Tribunal’s decision not to call the witness did not involve jurisdictional error, because the Tribunal was not obliged to call the witness under the Act. Further, that the applicant in that case did not demonstrate that there had been a legitimate expectation that the witness would be called, so that the failure could be said to be “procedurally unfair”.

5. Mr. Jones relies on Maltsin, particularly at [48]. In Maltsin, the Full Court was concerned with an appeal from this Court relating to a Tribunal decision concerning a “partner” visa (Partner (Provisional) (Class UF)), and whether the Tribunal breached the rules of procedural fairness in the making of its decision.  Specifically, and relevantly (from  [11]), the issue was whether “there was a denial of procedural fairness by reason of the Tribunal’s failure to allow Mr. Maltsin to have his witness give oral evidence before it.” 

6. In that case, the applicant gave written notice to the Tribunal that he wanted the Tribunal to take evidence from himself and four other people. It was further indicated to the Tribunal that the applicant wanted the Tribunal to take evidence from a witness in Russia (see Maltsin at [34]). The Tribunal did hear evidence from the applicant, but did not hear evidence from one other person who attended the hearing with him for this purpose.

7. With specific reference to what is set out in Part 5 of the Act, the Court said (at [37]):

   “[37] It is in keeping with the Tribunal’s inquisitorial nature that the Tribunal does not err if it decides that, notwithstanding the applicant wants oral evidence to be obtained from persons named in a notice under s.361(2), it decides not to obtain such evidence, always providing that it acts in conformity with s.361(3) of the Act and has regard to the notice that the applicant has given. In this circumstance, there is no obligation on the Tribunal to take oral evidence from anyone other than the applicant.”

8. However, the Court also went on to say (at [38] and [39]):

   “[38] It does not follow from this, however, that the appeal in this case should be upheld. By virtue of s.361(3), the Tribunal is obliged to have regard to any notice given by an applicant under sub-ss 361(2) or (2A) of the Act.  This means that the Tribunal must genuinely apply its mind to the contents of the notice, and in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes.  The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice.  As the respondents’ counsel said, the authorities establish that the invitation to appear before the Tribunal must be “real and meaningful and not just an empty gesture”: NALQ at [30]; SCAR at [37]; and Mazhar at 188 [31]. It follows that the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine.  The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness (compare W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 (“W360/01A”) at [2] per Lee and Finkelstein JJ and [30]-[32] per Carr J)), the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal.  These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just, economical, informal and quick”: see s.353(1).  The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.”

   [39] The real question in this case is whether or not the Tribunal gave genuine consideration to the notice given by Mr. Maltsin under s.361(2) of the Act.”

9. The Court then reviewed the evidence before it and the relevant parts of the transcript of the hearing before the Tribunal which dealt with the issue of hearing evidence from various witnesses. The Court ultimately found:

   “[47]…The Tribunal did not in fact limit the taking of oral evidence by reference to such relevant considerations as the importance of the proposed evidence for the review, or the time the applicant might reasonably require fairly to put his case. It follows that the Tribunal did not genuinely give regard to the notice that Mr. Maltsin gave under s.361(2) of the Act. It therefore acted in breach of its obligation under s.361(3) of the Act.”

10. Ultimately, at [48], on which Mr. Jones specifically relies, the Court stated:

    “[48] The Tribunal’s obligation under s.353(1) of the Act is related to the rule of procedural fairness that requires that a person in the position of the applicant in this case to have a reasonable opportunity to present his or her case: compare Minister for Immigration and Multicultural and Indigenous Affairs v WAFJ [2004] 137 FCR 30 (“WAFJ”) at [68] per French J (dissenting in the result), [114] per Lee J, and [122] per RD Nicholson J; W360/01A at [2] per Lee and Finkelstein JJ; and R v Thames Magistrates’ Court, ex parte Polemis [1974] 2 All ER 1219 at 1223 per Lord Widgery CJ, with whom Ashworth and Bristow JJ agreed.  In Polemis, the master of a ship, who was convicted of an oil pollution offence by a stipendiary magistrate, obtained a writ of certiorari setting aside the conviction because he was not given sufficient time to prepare his defence and was thereby denied natural justice.  The rules of procedural fairness required that Mr. Maltsin be given a fair opportunity to put his case.  The Tribunal’s failure to have a genuine regard to his wishes concerning the oral evidence that it was to obtain and the apparent haste in which it set about obtaining oral evidence deprived him of this opportunity.  This is not a case in which it should be concluded that the apparent breaches could have no bearing on the outcome of the hearing.”

11. The Minister relies on what was said in Katisat and in the joint judgment of Kenny and Lander JJ. in Maltsin at [37]. In response, the applicant relies on what was subsequently said in Maltsin, and submits that the judgment of Bennett J., sitting alone in Katisat, should be read as limited to its facts, and that this Court should follow the principles approved by the Full Court in Maltsin. 

12. In my view, it is not necessary for this Court to consider Mr. Jones’ submission on this latter point.  With respect, both Katisat and Maltsin stand for the proposition that the Tribunal, pursuant to s.361(3) of the Act, must have regard to the applicant’s notice to take evidence from another person, but that the Tribunal is not required to comply with the applicant’s notice (see Katisat at [54] and, in particular, Maltsin at [37]). Further, with respect, both cases are consistent on the issue that the Tribunal “genuinely applied its mind to the contents of the notice, and in particular, to the question of whether it should take the oral evidence of the nominated individual in accordance with the applicant’s wishes” (see Katisat at [61] and Maltsin at [38]).

13. Further, the Courts in both cases reviewed the evidence before them in that context.  In Katisat, the Court found, with reference to Applicant VEAL, that principles of natural justice are not concerned with the merits of particular case, but with the procedure that must be observed in its exercise.  In Katisat, the Court found that the evidence before it demonstrated that the Tribunal did properly have regard to the notification.  In Maltsin, after reviewing the relevant evidence before it, the Court concluded that the Tribunal did not genuinely have regard to the notice that the applicant gave under s.361(2) of the Act, and therefore breached its obligations under s.361(3) of the Act.

14. The issue that is relevantly drawn for the purposes of consideration of what is before me in this case, is whether the Tribunal gave consideration to the issue of the applicant’s request that it consider the (“utterly important”) evidence of the specialist psychiatrist by way of his report (either oral or in writing). In the matter before me, there is no evidence that the Tribunal gave consideration, whether genuine or otherwise, to the applicant’s request for the specialist evidence to be put before it, pursuant to s.361 of the Act. There is no evidence to show that the Tribunal had regard to the applicant’s notice, as is required by s.361(3) of the Act, even though the Tribunal plainly is not required to comply with the request under the notice.

15. The Minister asserts that the applicant bears the onus of demonstrating that the Tribunal did not have regard to the request and submits that, firstly, in the absence of a transcript, and secondly, in the absence of submissions on this point, the onus has not been discharged.  In relation to the issue of the transcript, as I have already set out, given that the Tribunal’s decision (even on the basis that the handwritten note at the bottom of CB 69 is reflective of the Tribunal’s consideration of the adjournment power), such consideration plainly would have occurred before the hearing, and plainly did not occur at a hearing at which a transcript would, in any event, have been available.  The applicant cannot, plainly, be said to bear an onus of providing a transcript of a hearing that never took place.  Further, as I also set out earlier, “submissions” are plainly not evidence. 

16. In any event, the state of the evidence that has been put before the Court reveals that there is no evidence of any such consideration either by way of the Tribunal’s decision record or otherwise.  Further, even if what is set out in the handwritten notation at CB 69 is taken to be the Tribunal employee acting under direction from the presiding Tribunal member, that is, that the letter was referred to the presiding member, and the Tribunal employee was merely the conduit by which the Tribunal’s decision was transmitted to the advisor, in my view, even in these circumstances, the handwritten notation would provide evidence only that the Tribunal had turned its mind to the exercise of its adjournment power.  There is nothing in the handwritten note to show that it turned its mind to any consideration, let alone proper consideration, of the applicant’s request that it should take evidence from the treating specialist.  While the letter from the adviser makes reference to this treating specialist’s report, there is nothing to show that the Tribunal understood this as being a request, beyond a request for an adjournment.  I can only note that this is in stark contrast with both the situations in Katisat and Maltsin, where the evidence in relation to both Tribunals in those cases was that the Tribunals plainly understood the request that was being made, and in the case of Katisat, dealt properly with it, and in the case of Maltsin, did not.

17. That the Tribunal does not, in its statement of reasons, give reasons for not acceding to the request, pursuant to s.361 of the Act, as I have already stated, does not of itself constitute an error in the exercise of jurisdiction. Nor does s.368 of the Act, as the Minister submits, impose an obligation to do anything more than refer to the evidence on which the findings of fact are based. Nor is it necessary for the Tribunal to give reasons for rejecting, or attaching no weight to, any evidence or other material that would tend to undermine any finding which it, in fact, made. But this is not such a situation in the case before me. The issue here is that there is simply no evidence to show that the Tribunal gave any consideration to the applicant’s request, as is plainly required by s.361(3) of the Act.

18. In this regard, the Tribunal has failed to comply with its statutory obligation, pursuant to s.361 of the Act, and this reveals jurisdictional error in its decision.

19. At the hearing before the Court, Ms. Nolan also made the submission that Condition 8202, for the relevant purposes of this case, contains two elements, and that a failure to comply with either of these elements leads to a mandatory cancellation of the relevant visa. Condition 8202(3) contains two parts: (a) and (b).  The first requires the holder of the student visa to satisfy the Minister that he or she has attended the relevant course for at least 80% of the contact hours scheduled, and (the submission was this was plainly not “or”) that the holder also achieves an academic result that is certified by the education provider to be at least satisfactory for the relevant period.  The Minister’s position was that it only requires a breach of one, that is, of either (a) or (b), to then engage the mandatory requirement that the visa be cancelled. 

20. Ms. Nolan submitted that, on the evidence before it, the Tribunal found that the applicant’s attendance in Semester 2 of 2004 was less than 80% and that the Tribunal found this to be the breach of Condition 8202. But that there was also evidence before the Tribunal that the applicant had not provided certification of satisfactory academic achievement, such that this also provided a basis for asserting a breach of Condition 8202(3)(b). Further, that such a breach would also, separately, support the mandatory cancellation of the visa. Ms. Nolan referred the Court to paragraph 10 of the Tribunal’s decision record reproduced at CB 83.4. In particular, that in setting out the evidence before the Tribunal, noted what had been stated in the s.20 ESOS notice provided by the relevant education provider (see CB 25). The Tribunal records this at CB 83:

    “Particulars of breach:

    Current Attendance: 58% inc 2 hrs medicals  Overall Attendance: 69.94% Attendance Notes: sem1/04 74.53% incl 1 hr medicals, sem2/04 76.36% incl 4 hrs medicals. 

    Academic Progress Notes: Yermek is in his 3rd semester.  He achieved 1 D, 2 Cr and 1 P in his first semester.  He failed all subjects in his second sem and was placed on Academic Probation for the current sem.  He attended the meetings when requested.  He needs to focus more on his studies and to his needs to find the motivation for them. 

    Other Academic Advising Notes: Yermek has written an explanation of the low attendance that he has had this semester. He says he has missed classes early in the semester and found it difficult to catch up afterwards.  He is apathetic about his studies and his current situation in general.  He has no idea about what he wants to do in the future but does not feel that he is the right field. He is concerned about his progress this semester, particularly about explaining poor progress to his parents.”

21. Ms. Nolan, when pressed, was unable to point to any specific finding by the Tribunal relating to the matter set out in Condition 8202(3)(b).  While there may have been some evidence before the Tribunal as to the issue of academic results, I could not see that the Tribunal made any specific finding in relation to this issue. Any plain reading of the Tribunal’s decision record reveals that, having found a breach of Condition 8202(3)(a), the Tribunal did not turn its mind (notwithstanding the evidence before it) to the issue set out in Condition 8202(3)(b).  The reason that the Tribunal relied on, and based its affirmation of the delegate’s decision to cancel the visa, was the breach of Condition 8202(3)(a). It did not rely on Condition 8202(3)(b). Ms. Nolan’s submission that, given the state of the evidence, this was a “foregone conclusion”, does not, in my view, overcome the problem that the Tribunal made no finding in this regard on whatever the state of the evidence that was before it.  It is not for the Court to make findings of this nature.  Plainly, this is the Tribunal’s function.

22. Nor do I consider that the state of the evidence, in any event (in the context of whether the Court should exercise its discretion to grant the relief sought by the applicant), was such to have resulted in a “foregone conclusion” that there was a breach of Condition 8202(3)(b). As Mr. Jones submitted, even though the s.20 ESOS notice makes reference to the applicant having failed all his subjects in the second semester, the result was that he was placed on academic probation and that this did not amount to a certification of unsatisfactory academic performance, nor that there was, in those circumstances, an absence of certification of satisfactory academic performance.

23. I also note that, consistent with this submission, the Tribunal itself, at paragraph 10 of its decision record, relied solely on the s.20 ESOS notice as “informing him that he was in breach of a condition of his visa relating to his attendance”. There is nothing in the Tribunal’s decision record to say, even where it set out the evidence before it, that it drew from the notice that the applicant had failed to achieve satisfactory academic performance, or that there was an absence of certification by the relevant provider that he had achieved satisfactory academic performance.

24. In all, therefore, the Tribunal’s decision is, as I have set out above, infected with jurisdictional error, I can see no reason to deny the applicant the relief that he seeks, and will make the relevant orders accordingly.

25. For the reasons set out above, it is not necessary to consider the ground raised at the hearing before the Court by Mr. Jones that the Tribunal breached its obligations pursuant to s.366A of the Act. However, I should just note for the benefit of the parties that I am persuaded by what is set out in the further written submissions of the first respondent at paragraphs 10 to 12, save that I would delete the word “legal” where it first appears at paragraph 11.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Dawnie Lam

Date:  13 June 2007