Lin v MIAC
[2008] FMCA 742
•5 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LIN v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 742 |
| MIGRATION – Review of Migration Review Tribunal – whether the Tribunal in affirming a decision to cancel a visa had “cured” the defect – whether the Tribunal’s “curing” of the decision applied as of the date of the decision – whether the “curing” of a defect requires the Tribunal to focus on the particular defect in the decision – in affirming a decision the Tribunal is not making a “new” decision – the delegate’s decision operates as of the date at which it was made – application dismissed. |
| Migration Act 1958 (Cth), ss. 47, 48, 116, 119, 124, 349, 338, 476, 65, 121 Migration Regulations 1994 Regulation, reg.2.43 |
| Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; (2004) 139 FCR 344 Twist v Randwick Municipal Council (1976) 136 CLR 106 Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1387 Bao v Minister for Immigration [2004] FMCA 1044 Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] 209 CLR 597; 187 ALR 117; 67 ALD 615 Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513 Daher v Minister for Immigration and Ethnic Affairs (1996) 141 ALR 311 Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220 |
| Applicant: | KUN-YANG LIN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2531 of 2006 |
| Judgment of: | Nicholls FM |
| Hearing date: | 13 December 2007 |
| Date of Last Submission: | 29 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2008 |
REPRESENTATION
| Appearing for the Applicant: | Mr R Turner |
| Solicitors for the Applicant: | Parish Patience Lawyers |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 8 September 2006 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $9,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2531 of 2006
| KUN-YANG LIN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) on 8 September 2006 seeking review of a decision of a delegate of the first respondent made on 28 August 2006, which deemed invalid the applicant’s application for a student visa made on 24 August 2006.
At the hearing of this matter before the Court, Mr R Turner appeared for the applicant, and Ms R Francois of Counsel appeared for the respondent.
Background
The material before the Court, in addition to the application, is:
1)The affidavit of Robert Liu, solicitor in the employ of the applicant’s solicitors, of 7 September 2006, with annexures (no objection taken by the respondent).
2)The applicant’s written submissions of 6 December 2007.
3)A bundle of relevant documents filed on 14 November 2006 (the Court Book – “CB”).
4)A further bundle of relevant documents filed on 8 October 2007 (the Supplementary Court Book – “SCB”).
5)The first respondent’s written submissions of 7 December 2007.
6)The affidavit of Miriam Mafessanti, solicitor in the employ of the respondent’s solicitors, of 15 January 2008.
7)Respondent’s Exhibit 1.
From the material before the Court the following background is relevant:
1)On 12 May 2006, the applicant was granted a student visa (Temporary Class TU Subclass 572 – Vocational Educational and Training Sector Visa – see CB 117.3).
2)On 11 July 2006, the applicant was issued with a “Notice of Intention to Consider Cancellation” in relation to this visa (see CB 10 to CB 12).
3)On 17 August 2006, a delegate of the respondent cancelled the applicant’s student visa (see annexure “B” to the affidavit of Mr Liu), which was said to have been done pursuant to ss.116(1)(b), 116(3) and reg 2.43(2)(b) (“the cancellation decision”).
4)The reason was: “breach of condition 8202, regulation 2.43(2) applies mandatory cancellation” (see page 7 of the affidavit of Mr Liu).
5)On 24 August 2006 the applicant applied to the respondent for a student visa to enable him to remain temporarily in Australia for the purpose of studying. (The application itself is not before the Court, but there was no issue between the parties that this was the case. See also respondent’s Exhibit 1 and annexure “A” to the affidavit of Ms Mafessanti, from which it can plainly be inferred that the applicant so applied).
6)On 25 August 2006 the applicant applied to the Migration Review Tribunal (“the Tribunal”) for review of the decision of 17 August 2006 to cancel his visa (see SCB 1 to SCB 8).
7)On 28 August 2006, the application of 24 August 2006 was refused (see annexure “E” to the affidavit of Mr Liu – this is the decision in respect of which the applicant seeks review (“the impugned decision”)).
8)On 8 September 2006 the applicant sought judicial review of this decision.
9)On 3 August 2007 the Tribunal affirmed the decision made on 17 August 2006 to cancel the applicant’s student visa (see SCB 110 to SCB 130).
Legislation
Legislation relevant to the impugned decision of 28 August 2006 is:
Section 47(1):
“The minister is to consider a valid application for a visa.”
Section 48(1):
A non‑citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) either:
(i) after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.”
In relation to the decision of 17 August 2006 to cancel the applicant’s student visa (which had been granted on 12 May 2006) the relevant legislation is:
(A) Section 116(1):
“Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) … or
its holder has not complied with a condition of the visa …
…
(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.”
(B)Migration Regulations 1994
Regulation 2.43(2):
“For subsection 116 (3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a) …
(aa) …
(b) in the case of a Student (Temporary) (Class TU) visa:
(i) … or
(ii) that the Minister is satisfied that:
(A) the visa holder has not complied with condition 8202; and
(B) the non‑compliance was not due to exceptional circumstances beyond the visa holder's control.”
(C)Section 119(1)
(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.”
(D) Section 124(1)
“Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first …”
The Application
The grounds as stated in the application before the Court are:
“Ground 1. The Minister’s delegate constructively failed to exercise his jurisdiction by failing to consider the Applicant’s student visa application made on 24 August 2006 and or by deeming that application as invalid.”
[particulars follow]
“Ground 2. The Minister had an obligation to consider the Applicant’s associated application for a bridging visa A (010) which was combined with the student visa application made on 24 August 2006.”
[particulars follow]
The Applicant’s Position
The applicant’s position is that the notice of 1 July 2006 pursuant to s.119 was not properly given. The power to cancel the visa under s.116, therefore, did not “arise.” The decision of 17 August 2006 to cancel the applicant’s visa, not having been properly made, had no application to s.48. That is, that the applicant was not precluded by making a student visa application on 24 August 2006 by operation of s.48 of the Act. The delegate, therefore, was wrong in making the “decision” of 28 August 2006, to rely on what was said to be the cancellation of the visa on 17 August 2006.
The applicant’s argument is that, with reference to Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 218 (“Uddin”), the applicant was not properly notified, pursuant to s.119, of the intention to cancel the visa and that this invalidated “the whole cancellation process.” The failure to properly notify was said to be that the applicant was not notified (in the prescribed way) that there appeared to the Minister to be grounds for cancelling the visa. The words “used” as in Uddin, was that there “may be grounds” (see annexure “A” to the affidavit of Mr Liu – particularly at page 3).
Further, that when cancelling the visa on 17 August 2006 (see annexure “B” to the affidavit of Mr Liu) the delegate failed to apply sub-regulation 2.43(2)(b)(ii)(B) by failing to determine whether the purported non-compliance was not due to exceptional circumstances beyond the applicant’s control.
The Minister’s Response
In short, the Minister’s response is that whatever defects may be said to have arguably affected the cancellation decision, any such alleged defects would have been “cured” by the Tribunal when it affirmed the cancellation decision pursuant to s.349(2)(a) of the Act. The argument, as I understood it, is that the Tribunal did not make any “new” decision, or substitute a decision, by affirming the cancellation decision. Any such defects, therefore, were cured. The Minister relies on Zubair v Minister for Immigration and Multicultural and Indigenous Affiars [2004] FCAFC 248; (2004) 139 FCR 344 (particularly at [32], citing Twist v Randwick Municipal Council (1976) 136 CLR 106 (“Twist”) at 116, which was followed in Fang v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1387 (“Fang”) at [35]), and in this Court in Bao v Minister for Immigration [2004] FMCA 1044 (“Bao”) at [33] to [39].
The Applicant’s Submissions
In submissions before the Court, Mr Turner stated that the applicant did not concede that the cancellation decision was “cured.” But that, in any event, even if it could be said to have been cured, it was not done so until the Tribunal made its decision on 3 August 2007. Further, that at the time of the making of the decision currently impugned before this Court (that is, with reference to 24 August 2006 – the time when the applicant applied for his visa and on 28 August 2006, the date of the impugned decision) no such curing had taken place.
Further, and in challenging the Minister’s position that the Tribunal did in fact cure the cancellation decision of 17 August 2006, Mr Turner submitted that the only way the Tribunal could have “cured the problem” would be to have somehow issued: “a proper notice under section 119,” and that the Tribunal did not do so (“the first defect”).
Mr Turner submitted that the action taken by the Tribunal can be derived from what is to set out in the SCB. That even when the Tribunal wrote to the applicant on 30 April 2007 (SCB 27 to SCB 28), inviting him to comment on certain information, there was nothing in this letter that could be said to be either a “section 119 notice,” or “a curing of the defect in the section 119 notice.” Given that it was not specifically addressed, that defect, therefore, remains uncured, even if it could otherwise be said that the Tribunal’s curing could have some “retrospective” effect to validate the cancellation decision.
I should note that Mr Turner submitted that the Tribunal’s action “may have cured” the “second defect” in the cancellation decision in relation to regulation 2.43(2)(b)(ii)(B) in that the Tribunal did make reference to:
“If the Tribunal finds that you breached condition 8202, your visa must remain cancelled, unless the Tribunal finds that the breach was due to exceptional circumstances beyond your control” (SCB 27.8).
But that no such curing of the “first” defect ever took place.
To the extent therefore that the Minister relies on Zubair, Mr Turner submitted, the applicant does not challenge the proposition that Zubair stands for authority that the Tribunal can cure a defect in a delegate’s decision. However, in this case, the Tribunal did not cure the defect relating to s.119, and at no time had the applicant been given a “proper” notice under s.119.
The applicant’s arguments, therefore, were that the Tribunal could not be said to have cured the defect because what it had done in purporting to have done so, was done after the application for the visa was lodged, and at the point in time at which the application for the visa was lodged, the cancellation remained invalid. Further, that in any event it did not cure at least one of the defects in the cancellation notice.
The relevant questions that can be said to arise from the applicant’s submissions, therefore, are as follows: first, at what point in time can a subsequent Tribunal’s affirmation of a delegate’s decision be said to have cured any defects in the delegate’s decision? Second, does the curing require the Tribunal to directly focus on what may be said to be the specific or particular defect in the delegate’s decision?
The Court’s Jurisdiction
The applicant’s student visa granted to him on 12 May 2006 was cancelled on 17 August 2006, following a notice sent to him pursuant to s.119 on 11 July 2006. This decision is an MRT reviewable decision pursuant to s.338 of the Act. Once the applicant sought a review of that decision (SCB 1 to SCB 8), the Tribunal was obliged to review it. The Tribunal handed down its decision on 3 August 2007 (see SCB 115 to SCB 130). The Tribunal's decision was to affirm the delegate’s decision to cancel the applicant’s student visa (see SCB 130.7). In relation to the cancellation decision, this Court does not have jurisdiction pursuant to s.476, as that decision is a primary decision, which is reviewable (and was, in fact, reviewed) under Part 5 of the Act. In any event, the applicant has not sought judicial review of this Tribunal decision.
The “decision” of 28 August 2006 requires some scrutiny as to its nature, and purportedly what was done. Both parties have put before the Court a letter dated 28 August 2006 (see annexure “E” to the affidavit of Mr Liu, and annexure “A” to the affidavit of Ms Mafessanti.”) The letter is in the following terms:
“Dear Mr Kun-Yang LIN,
Re: Decision on 157P application
I refer to your application for a student visa with permission to work lodged with the Department on 24th August 2006.
I regret to advise that your application for a student visa with permission to work has been refused. The reasons behind this decision are listed below:-
Your Student visa was cancelled on 12th May 2006.
In order to be granted a student visa with permission to work you must currently hold a valid Student visa.
If you have any enquires in regard to this matter please contact the NSW Student Centre on 131 881.
Yours Sincerely,
Student Admin Team
NSW Student Centre
DIMA Sydney CBD”
It does not appear that any separate decision record was created. The reasons for the decision, therefore, can only be derived from what is stated in this notice to the applicant.
The reference to “the visa was cancelled on 12th May 2006” is unclear. There is no evidence before the Court that the applicant’s student visa was cancelled on that date, or that the applicant held any other student visa that had been cancelled on that date. On what is before the Court, I am satisfied that this is a mistaken reference to the date of the grant of the visa which was cancelled. That is, the visa which was cancelled was the student visa granted to the applicant on 12 May 2006.
On its face, the letter states that the “application for a student visa ... has been refused.” The letter makes no reference as to who made the decision. The identity of the author (let alone, the identity of the decision maker) remains unstated. The evidence of Ms Mafessanti (at [8] of her affidavit), indicates that the “decision,” which was conveyed to the applicant by this letter, was sent to the applicant by an employee of the respondent’s department, who was purportedly empowered to act pursuant to s.65 of the Act. This suggests that a decision was made to refuse the visa in that the relevant employee was said to have been acting pursuant to s.65. Therefore, they acted to refuse an application for a visa.
The relevant terms of s.65 are as follows:
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
…
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.”
If it is the case that the Minister seeks to rely on the purported author of the letter of 28 August 2006, as having exercised delegation pursuant to s.65 of the Act, then the exercise of this power presupposes: “a valid application for a visa.”
The Minister is required to consider a valid application for a visa (s.47(1)), but s.48 relevantly provides that a person whose visa has been cancelled may only apply for particular visas that are prescribed for the purposes of s.48, and not for a visa of any other class.
A copy of the application for a student visa has not been put into evidence before the Court. There is insufficient evidence before the Court to determine with any clarity the exact nature of what the Minister’s “delegate” was purporting to do by way of the letter of 28 August 2006. If the delegate was purporting to act pursuant to s.65, then this presupposes that a “valid application for a visa” was before the Minister and that this application was “refused” because the applicant was required to hold a current student visa in order to “be granted a student visa.” On the face of the letter itself, some of the language would appear to indicate that this is what the “delegate” was purporting to do.
If it is the case, therefore, that there was a valid application (as is inferred given the evidence put forward), and was accepted as such by the Minister’s delegate, but was refused because a condition necessary to the grant was not met by the applicant (given that his substantive student visa which he had previously held had been cancelled) and that this can be characterised as a refusal of a valid visa, then with reference to s.338 of the Act, this would be considered to be an MRT-reviewable decision. With reference to s.476 of the Act, this could be said to be a “primary decision” reviewable under Part 5 of the Act, such that this Court would lack jurisdiction to hear the applicant’s complaint.
The applicant, both by way of pleading, and by way of submission, has sought to characterise what the “delegate” did on 28 August 2006, by asserting that the matter (of the applicant’s attempt to apply for a visa) was dealt with on the basis that the “application” was deemed to be invalid (because of the operation of s.48 of the Act). Mr Turner submitted that, in part, the language of the letter of 28 August 2006 is misleading, because although it states that the application is refused, the reasons for that “refusal” are given as being that the applicant was not the holder of a current student visa because of the cancellation of the earlier visa held by the applicant. That with reference to s.48 of the Act and, in particular, the language of s.48(1)(b)(ii), the Minister’s delegate was purporting to deal with the applicant on the basis that he was unable to apply for the visa for which he had purportedly made an application because he did not hold a substantive visa, and had previously held a visa that was cancelled under s.116.
In these circumstances, it is submitted, this was not a decision to refuse to grant a visa, such as to come within the provisions of s.338, but was a determination that the applicant was unable to apply for the relevant visa. As such, this is not an MRT reviewable decision, and this Court therefore has jurisdiction to hear the applicant’s application pursuant to s.476(1).
In submissions, the Minister does not appear to argue with the applicant’s characterisation. Respondent’s Exhibit 1, tendered by Ms Francois, being a copy of what was described as a “dump of the respondent’s department’s computer screens that records action taken in relation to this particular applicant” shows that this “decision” was recorded as a “section 48 decision.”
Given that the Minister did not take issue with the applicant’s characterisation (and, in fact, appeared in some small part to support it), I proceeded on the basis that the Court did have jurisdiction to hear the applicant’s complaint in relation to the “decision” of 28 August 2008 (the impugned decision), and comprehend, on the best view of the evidence before the Court, that the decision was a declaration, or a determination, that the applicant was, pursuant to s.48, unable to apply for the student visa for which he had purportedly made an application.
Consideration
Dealing first with the applicant’s second issue (see [17] to [18] above), that is, that notwithstanding what was found in Zubair, the applicant was not given (and for that matter, was never given) a notice pursuant to s.119. That, while it may be that the Tribunal can cure a delegate’s decision, in this case, the Tribunal did not do so because, at least in relation to the defect in the notice pursuant to s.119, Mr Turner submitted, with reference to s.349(1) of the Act, that the Tribunal may exercise all powers and discretions conferred by the Act on the Minister. Therefore, it was open to the Tribunal to exercise the power set out in s.119 and to provide a proper notice to the applicant pursuant to that section. But that the Tribunal did not do so.
The difficulty for the applicant, however, is that I cannot see that the reasoning in Zubair imposes an obligation on the Tribunal to specifically address the particular point of invalidity in the delegate’s decision before such a decision can be said to have been cured of any such defect.
In Zubair, the relevant delegate’s decision was found to be “not a valid decision.” It was invalid because it did not follow the mandatory requirements of ss.119(1)(a) and 121(2) (see Zubair at [19]). The Full Court found, first, that the invalidity in the delegate’s decision in that case, which was based on a failure to give particulars in the requisite notice prior to cancellation, that such an invalidly did not deprive the Tribunal of jurisdiction to review the cancellation decision (see Zubair at [27] to [28]).
Further, as a result of the Tribunal having the power to review the delegate’s decision, the Tribunal was able to “cure” the defect in the delegate’s decision (see [32] and the reference to Twist). As I understand Zubair, as long as the Tribunal properly conducts the review which it is empowered, and obliged, to conduct, and if after having done so, after a “full merits review” (Zubair at [28]), and subject to the limitation upon its power to not make a decision that is not authorised by the Act or the Regulations (s.349(4) and see Zubair at [28]), the Tribunal affirms the delegate’s decision, any such review properly conducted would “cure” the delegate’s decision of any defect. As did Smith FM in Bao, I note what was said as to the effect of Zubair in Fang at [35]:
“However, as the respondent’s contentions state, all these matters were cured by the nature of the review before the MRT: see s 349 of the Act. The MRT has jurisdiction to review even where the decision of the delegate may be legally ineffective: see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, at [28]-[32], and the cases therein cited. Further, to the extent there may have been a defect in the decision of the delegate, the full merits review in the MRT was able to cure that defect Zubair at [32], citing Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 116.
36 I agree with the respondent’s submission that in exercising its review, however, the MRT was not required to consider whether the delegate had erred. Rather it was required to determine whether the appellant had not complied with condition 8202. The question for the MRT was whether the appellant had achieved an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester – for the course; or (ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.”
In the case currently before the Court, the Tribunal was required, in exercising its review, not necessarily to consider whether the delegate had erred, but to consider the issue of whether the applicant had complied with condition 8202 (which attached to his then visa) and whether the ground for cancellation in s.116(1)(b) existed. The Tribunal found that the applicant had not so complied with the relevant condition and therefore the ground for the cancellation did exist (see SCB 130).
As Smith FM said in Bao at [37]:
“As I understand the effect of Zubair and the basis for its reasoning, it is that the procedural provisions of subdivision E, including s.119 and the specification in s.124 that "the Minister may cancel a visa at any time after notice about the cancellation has been given over s.119" impose procedural requirements on a delegate whose non-observance may give rise to invalidity of a delegate's decision, but are not substantive preconditions to the power to cancel under s.116 which would bind a merits review tribunal reviewing the exercise of a s.116 power.”
As did Smith FM, I follow this reasoning and find that the applicant’s secondary complaint (with reference to the question set out at [18] above) does not succeed.
The applicant’s other argument (see [18] above) is that even if the Tribunal did cure the defects in the delegate’s decision, what it purported to do was done in August 2007, after the application for the “second” student visa was lodged, and that as at August 2007 (the time of the impugned decision), the cancellation of the first visa remained invalid.
There was no argument from the Minister that the cancellation decision by the delegate did not contain (even “arguably”) defects. The issue before the Court now turns on the question of at what point in time can the delegate’s decision be said to have been “cured” by the Tribunal conducting a full merits review, and doing so properly and meeting relevant requirements of the Act.
In submissions, Mr Turner referred the Court to Zubair at [19] to submit that in the present case, as was the situation in Zubair, the cancellation decision was not a valid decision. It was “invalid” because it did not follow the mandatory requirements of s.119 (with reliance on Uddin). As already referred to above, this matter was not at issue before the Court as the respondent appeared to accept this. In any event, with reference to Uddin, I agree with the applicant.
Second, Mr Turner referred the Court to what was said in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] 209 CLR 597; 187 ALR 117; 67 ALD 615 (“Bhardwaj”) (and as referred to in Zubair at [22]) at CLR 614 [51]:
“There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.”
The applicant’s position therefore is that given that there is jurisdictional error in the cancellation decision, it should properly be regarded as “no decision at all.” Therefore, when the Minister’s delegate on 28 August 2006 purported to apply the “bar” in s.48 to the applicant’s application by relying on this cancellation decision, given that it was “no decision at all,” it was not open to the delegate to have so relied on it, and the applicant’s application therefore should have been properly considered. That the Tribunal can be said to have “cured” this cancellation decision, this curing was not done on or before 28 August 2006, and at that time, it was not open to the delegate who made the impugned decision to have acted in the way that she did.
Ms Francois’ submission in response was that in considering the question of what is the effect of the review by the Tribunal, the Court should look firstly at the Tribunal’s relevant powers and while there may not be a direct answer in Zubair, as to the question of what “curing” means in the context of a date (that is, the date of the delegate’s decision or the “date” of the Tribunal’s completion of the review), that nonetheless, guidance in relation to that question can be found in the reasoning in Zubair.
I am ultimately persuaded by Ms Francois’ submission in this respect. In my view, for the reasons that follow, the Tribunal decision had the effect of curing the defects in the cancellation decision as at the time of the cancellation decision.
I turn first to the relevant legislation, and the Tribunal’s powers in the disposition of a matter put on review to it. In this regard, s.349 of the Act is in the following terms:
“(1) The Tribunal may, for the purposes of the review of an MRT‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.
(2) The Tribunal may:
(a) affirm the decision; or
(b) vary the decision; or
(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or
(d) set the decision aside and substitute a new decision.
(3) If the Tribunal:
(a) varies the decision; or
(b) sets aside the decision and substitutes a new decision;
the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.
(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.”
The reasoning in Zubair (particularly at [21] to [32]), although focussed on the question as to whether the Tribunal had power to review the impugned decision of the delegate, does nonetheless provide guidance in relation to the relevant question now before the Court. This is particularly so on the relevant issues of the nature of the delegate’s decision, the appropriate starting point for the Court in considering such questions, and the nature of the review conducted by the Tribunal.
Following that part of the judgment in Zubair which referred to Bhardwaj and on which the applicant relied to argue that the impugned cancellation decision involving (as it did) jurisdictional error was “no decision at all,” the Full Court in Zubair referred to what had been said earlier in that case by Gaudron and Gummow JJ at [23] to [24]:
“However, earlier in their reasons, Gaudron and Gummow JJ at 612 – 613, [45] – [46] referred to the tendency to ask whether administrative decisions which involve reviewable error are either void or voidable, the former expression indicating that the decision is ‘ineffective for all purposes’, and the latter that it is valid and effective unless challenged, but then deemed to have been set aside ab initio. Their Honours said:
‘The tendency to conceptualise erroneous administrative decisions as voidable rather than void may be the result of the need to treat a decision as having at least sufficient effect to ground an "appeal" or other legal proceedings.’”
After referring to the remarks of Lord Wilberforce in Calvin v Carr [1979] UKPC 1; [1980] AC 574 at 589 – 590, their Honours continued at 613, [46]:
‘In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as ‘void’, ‘voidable’, ‘invalid’, ‘vitiated’ or, even, as ‘nullities’. To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made. Further, the use of the term ‘appeal’ and the proposition that an administrative decision must have sufficient vitality to provide the subject matter of such a curial proceeding should not obscure the fundamental proposition that such an ‘appeal’ or other proceeding for judicial review is an exercise of original jurisdiction by the court concerned. It will be necessary to refer further to this consideration later in these reasons.’
In the light of those remarks, in our judgment the appropriate starting point is the provisions of the Act itself. In Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55; [2003] FCAFC 288, Gray and Downes JJ at 68, [42] said:
‘In our view Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend on the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1988) 194 CLR 355 at 388 – 399
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with a condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.’”
I draw, relevantly, the following from that part of the reasoning in Zubair:
1)The starting point of the Court’s consideration of the issue before the Court now is the (relevant) provisions of the Act itself.
2)That it is not “helpful to describe erroneous administrative decisions as ‘void’, ‘voidable’, ‘invalid’, ‘vitiated’ or, even, as ‘nullities.’”
I note that in Zubair, the argument raised by the applicant was in circumstances where a cancellation of a visa did not follow the mandatory requirements of s.119 (as in this case) and was that the delegate’s decision was “no decision at all” (see Zubair at [4]).
As the Court stated in Zubair, it was asked to declare that the delegate’s decision was “of no effect,” so that the applicant’s visa in that case was “not cancelled.” The Court plainly rejected that submission: “For the reasons given below, we do not consider that ground of appeal is made out” (Zubair at [4]). Ultimately, the Court found that the impugned decision was a decision that was capable of being reviewed by the Tribunal (see Zubair at [27]).
What I relevantly draw from Zubair is that it is not helpful to describe the delegate’s decision relating to the cancellation of the applicant’s visa as a decision which is void, voidable, invalid, vitiated or a nullity. That Bhardwaj cannot be taken as authority that jurisdictional error on the part of the delegate who made the cancellation decision leads to that decision having no consequence whatsoever, and further, it is not necessarily invalid, and of no effect.
That this can be drawn and applied to the case currently before the Court is supported by inference, at the very least, in the Court’s analysis of Zubair (see [27] to [32]) of the language of s.338 of the Act (the provision of the Act relevant to the question that the Court was required to address in Zubair), I note in the reasoning in Zubair the reference to Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513 (“Yilmaz”) at [31]:
“In Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513 (Yilmaz) Gyles J (with whom Spender J agreed, Marshall J dissenting) followed the principles as established in Lawlor in holding that an invalid decision (in that case concerning rights of review by the Refugee Review Tribunal (the RRT) under ss 411 and 412 of the Act) is a decision capable of being reviewed by the RRT …”
The reasoning of the Court in Zubair, at this part of its Judgment, is that the impugned decision in that case (comparable to the case currently before the Court) was not “no decision at all,” and that it had some consequence in that it was “a decision capable of being reviewed.” It was this consequence that lead the Tribunal, in that case, to be able to “cure” the delegate’s decision.
I agree with Ms Francois that what can be drawn from the reasoning in Zubair, and the reference there to various authorities, that the decision to cancel the applicant’s visa, containing the jurisdictional error (which the Minister appears to concede is contained in the case before the Court now) was nonetheless unable to be described as void, voidable, invalid, vitiated or a nullity. I do not agree, therefore, with the applicant’s submission that this decision should be described as “no decision at all.”
Therefore, it is a decision that has some effect and some consequence. The consequence that it can be reviewed by the Tribunal is drawn from the authority of Zubair. The effect of the curing, however, and in particular, the timing of the curing (that is, the effect of the curing on the cancellation decision, which is not void, voidable, invalid, vitiated or a nullity) is in my view, to be found in the relevant language of the Act relating to the powers of the Tribunal in exercising its review which is obliged to conduct pursuant to s.348 of the Act.
Section 349 sets out the powers of the Tribunal in relation to the disposition of the review. In my view, the statutory language provides for a distinction to be drawn between the various options available to the Tribunal in disposing of the review. At sub s.349(2), the Tribunal may do one of the following:
· affirm the decision; or
· vary the decision; or
· in certain circumstances, remit the matter for reconsideration; or
· set the decision aside and substitute a new decision.
The legislation specifically contemplates that the Tribunal could “substitute a new decision” after setting the decision aside. In my view, the legislation plainly distinguishes between the affirming of the decision, and the varying and the setting aside of the decision, and the substituting of a new decision. Section 349 provides that if the Tribunal varies the decision, or sets it aside and substitutes it for a new decision, this is taken to be a “decision of the Minister” (s.349(3)).
In my view, the legislation is silent in this regard as to the affirming of the decision because affirming of the decision does not need a specific provision describing its nature as if it were taken to be a decision of the Minister, because it is assumed already to be so. The inference that I draw from the language of the legislation is that when affirming a decision, the Tribunal is not making a new decision (this only occurs when it is varying or setting aside a decision, in which latter circumstance, it substitutes a new decision) but that it addresses and confirms the decision already made.
This view is consistent with the reasoning in Zubair. A delegate’s decision to cancel a visa, when affected by jurisdictional error because of a failure to observe a mandatory prerequisite to the making of the decision should not be described as void, voidable, invalid, vitiated or a nullity. It is not “no decision at all.” Although affected by error, it still has some consequence. Where the decision is varied, or set aside, by the Tribunal pursuant to s.349, a new decision is made or substituted for the delegate’s decision.
However, the legislation distinguishes those situations from the situation (as occurred in the current case) where the Tribunal affirms the decision, and on the authority of Zubair, cures the decision of its affliction of jurisdictional error. In my view, and when read together, the distinction explicitly made in s.349 and the inference to be derived from the reasoning in Zubair, means that in affirming the decision, the curing of the decision, the Tribunal does not make a new decision or substitute a new decision, but its conduct of the review operates to make good that which was affected in the delegate’s decision. That is, the delegate’s decision remains the operative decision as of its date.
I am strengthened in this view, by what was found by North J in Daher v Minister for Immigration and Ethnic Affairs (1996) 141 ALR 311 (“Daher”) and in particular at 313. The proceedings before the Court in that matter involved an appeal from a decision of the Administrative Appeals Tribunal (“AAT”) alleging that the AAT lacked jurisdiction to review a decision of the Refugee Review Tribunal (“RRT”) under s.501C of the Act (at 311). In considering the question as to whether the AAT has jurisdiction to review the RRT decision, His Honour stated (at 313):
“However, the form and effect of the decision of the RRT was an affirmation of the decision of the delegate. The delegate refused to grant the protection visa, and the RRT exercised the power conferred by s 415(2)(a) of the Act to affirm the decision of the delegate. Thus, it made a decision which operated upon the initial decision of the delegate. It did not, by itself, make a decision refusing to grant a protection visa.”
Further (at 313):
“The decision on review [that is, the decision in that case which was before the RRT] is better described as a decision to affirm a refusal of a protection visa, or a decision which has the consequence of a refusal of a protection visa. Its effect is more removed than a decision of the delegate.”
In Madafferi v Minister for Immigration and Multicultural Affairs [2002] FCAFC 220, a Full Federal Court said with reference to Daher (at [68])
“Analogous reasoning in Daher v Minister for Immigration and Ethnic Affairs (1996) 70 FCR 585 at 507 led North J to conclude that a decision of the Refugee Review Tribunal affirming a decision of the Minister to refuse a visa was not itself a decision to refuse the grant of the visa.”
Further, in Kim v Minister for Immigration and Citizenship [2008] FCAFC 73 (“Kim”) a full Federal Court (Tamberlin, Gyles and Besanko JJ) said, per Tamberlin J at [23] with which Besanko J agreed [at 42]:
“It is now settled law that an affirmation of a decision of the delegate by the Tribunal has the effect that the decision of the delegate is the original decision which continues to operate and is not substituted by the later decision of the Tribunal: see Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 249-250.”
Section 414 of the Act, which refers to the powers of the RRT is analogous to s.349, dealing with the powers of the Tribunal. Drawing on the reasoning in Daher, by analogy, the Tribunal’s decision in the case before the Court in relation to the cancellation decision can therefore be described as a decision which operated upon the initial decision of the delegate to cancel the visa. By analogy, again, it cannot be said that by itself, the Tribunal made a decision cancelling the applicant’s first visa. The effect, therefore, of the Tribunal’s conduct in determining the review, which it was obliged to conduct, was to cure the defect in the cancellation decision, which therefore remains as the decision operating to have cancelled the applicant’s visa from the time of its making.
The conduct of the Tribunal in the current case in so affirming the decision already made to cancel the applicant’s visa (and thereby curing it) is to be distinguished from the situation where, as contemplated by s.349, the Tribunal had sought to vary the decision, or to set it aside, in which case by so doing (and obviously, not curing any defect) the delegate’s decision would cease to have any effect or operation and by extension of the reasoning in Zubair, would cease to have any consequence.
This is to be further compared with the situation that on judicial review of any administrative decision, once an error is found, and a Court acts to grant relief to the person who is the adverse subject of the decision (in the context of the Court’s review of Tribunal decisions), then the effect of the Court’s action, and its orders, is to make the decision “no decision at all.” But by analogy to the reasoning in Zubair, this delegate’s decision, again, is not a decision which is no decision at all, until a Court acts to determine that it should be so. Up until that point, it is not helpful to describe such erroneous administrative decision as void, voidable, invalid, vitiated or a nullity.
I note further that in Kim the Court also found that in circumstances where a Court made orders that, at least implicitly, held the relevant cancellation decision to be invalid does note mean that the relevant Tribunal subsequently lacked jurisdiction to conduct a review and, by affirming, cure the cancellation decision (see Kim at [30]).
I should just note that, in any event, in the current case, the applicant chose not to press to finality the proceedings currently before the Court before the decision made by the Tribunal in relation to the cancellation decision. As at the time of the first court date of this matter on 12 October 2006 which was conducted before a Registrar of this Court, the applicant had previously on 25 August 2006 applied for a review of the cancellation decision to the Tribunal.
Summary
In the case currently before the Court, the delegate’s decision to cancel the applicant’s visa was, on the authority of Uddin, affected with jurisdictional error. That decision was a decision with some consequence notwithstanding the jurisdictional error. That consequence was such as to enable the Tribunal to conduct a review of that decision. In subsequently conducting that review, and in determining that it should affirm that decision, the Tribunal cured the defect in the cancellation decision, which continued to operate as at the date of its making. For the reasoning set out above, I agree with Ms Francois, that as the cancellation decision was subsequently affirmed and is not “no decision at all,” the impugned decision still stands because at the time of the application for a “second” student visa, that is on 24 August 2006, the applicant did not have a substantive visa, as the visa that he had previously held had been cancelled.
Conclusion
On what is before the Court now therefore, Ground 1 in the application is not made out for the reasons set out above. Ground 2 in the application relates to the applicant’s associated application for a bridging visa which was “combined with the student visa application made on 24 August 2006” (applicant’s submissions). At the hearing before the Court Mr Turner explained that Ground 2 was consequent on Ground 1, which was the ground containing the issue strongly pressed before the Court. The outcome of Ground 2, given that it relates to an application for a bridging visa, pending final disposition of the application for the student visa applied for on 24 August 2006, and in circumstances where the visa application has been found to have not been validly made (as was found by the Tribunal) and even if the applicant were otherwise able to show that the bridging visa had to be considered, it would be in Mr Turner’s words, of “no effect.” On this basis, given my finding in relation to Ground 1, consideration of Ground 2 does not (on the applicant’s own submission) assist in the relief that he seeks from this Court.
For the reasons set out above, therefore, this application is dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 5 June 2008
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