Lin v Minister for Immigration

[2006] FMCA 1545

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LIN v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1545

MIGRATION – Student (Subclass 572)(Vocational, Education and Training Sector) visa cancellation – operation of cancellation provisions under s.116 and s.137J of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Education Services for Overseas Students Act 2000 (Cth), ss.20, 23, 24
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.116, 118A, 119, 137J, 137K, 137L, 338, 348, 349, 357A, 483A
Migration Regulations 1994 (Cth), reg.2.43

Cheng v Minister for Immigration [2006] FCA 1028
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307
Humayun v Minister for Immigration [2006] FCAFC 35
Kioa v West (1985) 159 CLR 550
Minister for Immigration v Ahmed (2005) 143 FCR 314
Minister for Immigration; Ex parte Lam (2003) 214 CLR 1
Minister for Immigration v Lay Lat [2006] FCAFC 61
Minister for Immigration v Zhou [2006] FCAFC 96
Morsed v Minister for Immigration [2005] FCAFC 193
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
Shek v Minister for Immigration [2006] FCA 522
Twist v Randwick Municipal Council (1976) 136 CLR 106
Uddin v Minister for Immigration [2005] FCAFC 218
Zubair v Minister for Immigration [2004] FCAFC 248

Applicant: FANG HUA LIN

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG2205 of 2004

Judgment of: Lloyd-Jones FM

Hearing date: 22 September 2006

Delivered at: Sydney

Delivered on: 8 November 2006

REPRESENTATION

Counsel for the Applicant: Mr J Gormly

Solicitor for the Applicant: Michaela Byers, Solicitor

Advocate for the Respondents: Mr L Leerdam

Solicitors for the Respondents: Phillips Fox

ORDERS

1. The Migration Review Tribunal is joined as the second respondent.

2. The name of the first respondent be amended to read ‘Minister for Immigration and Multicultural Affairs’.

3. The application filed on 2 July 2004 is dismissed.

4. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2205 of 2004

FANG HUA LIN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

1. These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court of Australia on 2 July 2004 for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”).

   
   

   The Tribunal decision was made on 9 June 2004, affirming a decision of the delegate of the first respondent made on 3 February 2004, to cancel the applicant’s Student (Subclass 572) (Vocational, Education and Training Sector) visa.  The applicant seeks relief in the form of constitutional writs against the decision of the Tribunal.

Background

1. The Tribunal decision of Amanda MacDonald, reference N04/01022, provides the following background material.  This is an application for review of a decision made by a delegate of the first respondent on

   
   

   3 February 2004 to cancel a Subclass 572 (Vocational, Education and Training Sector (Student)) visa held by Mr Fang Hua Lin, a national of the People’s Republic of China (“the PRC”).(Court Book (“CB”) 66)

2. The applicant first entered Australia on 19 June 2000 as a holder of a Student (Subclass 560) visa. Three further Subclass 560 visas were granted. On 18 March 2002, the applicant was granted a Subclass 572 (Vocational, Education and Training Sector (Student)) visa which was due to expire on 22 August 2005. Attached to this visa was Condition 8202 (‘Enrolment and course requirements’). On 3 December 2003, Lan-Grove Office Training Centre, of which the applicant’s education provider Sydney Business and Travel Academy (SBTA) is an affiliate, issued a notice to the applicant under s. 20 of the Education Services for Overseas Students Act 2000 (Cth) (“ESOS Act”), informing him that he was in breach of a condition of his visa relating to the attendance. If Mr Lin failed to attend a Department office within 28 days, his student visa would automatically be cancelled. The notice gave the particulars of the breach as:

   Student is being reported due to unsatisfactory attendance term 4.(CB 69)

3. On 11 December 2003, the applicant attended the Department and was issued a Notice of Intention to Consider Cancellation. The Notice stated that there may be grounds for cancelling the applicant’s visa under s.116 of the Act, for breach of Condition 8202 of the Migration Regulations 1994 (Cth) (“the Regulations”): “Your education provider has advised that you have failed to maintain at least 80% attendance and/or make satisfactory academic progress for each term/semester of your course.”(CB 3) An interview with the Department was scheduled for 3 February 2004. The Notice also stated, “Please bring your passport. Bring all medical certificates.” The Tribunal noted:

   The Department scheduled the interview for 11.30am on 3 February 2004.  The applicant did not attend the interview.  A Departmental file note states that the applicant was not contactable on his mobile phone at 11.45am or at 12.30pm on this day and there is no record that he attempted to reschedule this appointment.  Therefore at 1.00pm the delegate made the decision to cancel the applicant’s visa on the basis that he had failed to comply with condition 8202 because he had failed to maintain satisfactory attendance and academic results in Term 4, 2003.(CB 69)

Applicant’s claims

1. On 19 February 2004, the applicant applied to the Tribunal for merits review of the cancellation of his visa.  At the Tribunal hearing, the applicant claimed that he did not attend the interview with the Department scheduled on 3 February 2004 because he made a mistake about the date.  He said that his poor attendance was due to illness.  The applicant said that he did have medical certificates but had not submitted them to SBTA and had forgotten to bring them to the Department interview.  The applicant sent the Tribunal six medical certificates for 14, 15, 21 and 23 October 2003, 5 and 6 November 2003 and 11 December 2003.  Further, the applicant claimed that he was involved in a car accident on 10 November 2003.  He claimed he missed some school because he had to attend to his car, and he was distressed and often late to school or left school early.(CB 70)

Tribunal’s findings and reasons

1. The Tribunal affirmed the cancellation of the applicant’s Student (Subclass 572)(Vocational, Education and Training Sector) visa on the grounds that the applicant breached Condition 8202 as he did not attend at least 80% of classes in Term 4 of 2003. That term ran from 13 October to 12 December 2003. The Tribunal found that the applicant’s rate of attendance, even taking into account his medical certificates, was 74%, which fell short of the 80% attendance required. The Tribunal was not satisfied that the contact hours calculated should be further reduced because the applicant’s car accident. Finally, based on its findings and that the applicant attended less than 80% of his scheduled contact hours for Term 4 of 2003, the Tribunal found that he had breached s.116(1)(b) of the Act which mandated a cancellation of his visa under s.116(3).(CB 72)

Application for review of the Tribunal’s decision

1. On 2 July 2004, the applicant filed an application for review under s.39B of the Judiciary Act in the Federal Court of Australia. On

   
   

   13 July 2004, Branson J transferred the proceedings to the Federal Magistrates Court.  Amended applications were filed on 12 October 2004 and 23 February 2005.  A further amended application was filed on 26 September 2006, which contained the following ground of review:

   1.In that the applicant was denied natural justice arising from a notice issued to the applicant pursuant to s 20 of the Education Services for Overseas Students Act (2000)

   Particulars

   The s 20 notice incorrectly implied matters contrary to the provisions of the Migration Act 1958 (the Act), namely that compliance with the notice would allow the minister’s delegate a discretion to take into account exceptional circumstances which could vitiate the consequences of breaches of the visa conditions such that the visa might not be cancelled;

   Further, the s 20 notice did not state that the visa would be cancelled if there had a been a breach of the visa conditions;

   The applicant complied with the notice and as a result was unable to rely on s 137L (1)(b) of the Act to apply for a revocation of the automatic cancellation of the visa for exceptional circumstances pursuant to s 137L (1)(b) of the Act. These circumstances include illnesses and a car accident during the relevant term. (copied without alteration or correction)

Submissions

1. The written submissions from both Mr Gormly and Mr Leerdam indicate that the parties are in agreement in respect of two issues which arise in this matter:

   a)The automatic cancellation process as set out in s.137J of the Act and initiated by the s.20 Notice, was avoided when the applicant complied with the Notice and attended the Department interview of 11 December 2003. The Notice initiates a process specified by s.137J, whereby a student visa is automatically cancelled if the visa holder does not comply with its directions.

   b)The Tribunal could not consider, where non-compliance with Condition 8202 is established, “exceptional circumstances beyond the applicant’s control”. In October 2005, the Regulations were amended to include reg.2.43(2)(b)(ii)(B), which requires the Minister to be satisfied that any non‑compliance with Condition 8202 was not due to exceptional circumstances beyond the visa holder's control. The transitional provisions provide that reg.2.43(2)(b)(ii)(B) applied to student visas in force when that regulation commenced. Here the student visa was cancelled before, and was not in force, when reg.2.43(2)(b)(ii)(B) commenced.

2. The parties agree that the Tribunal was correct in identifying that:

   Following the decisions of the Federal Court in Minister for Immigration v Hou [2002] FCA 574 and Minister for Immigration v Nguyen [2002] FCA 460 the Tribunal does not have any discretion to set aside a visa cancellation where the review applicant has failed to comply with condition 8202. Once non-compliance with the condition is established the Tribunal is bound, by the operation of s116(3), to affirm the visa cancellation.(CB 71-72)

3. Mr Gormly submits that the applicant was denied natural justice as a result of his compliance with the s.20 Notice. That is because the terms of the Notice were misleading and the applicant’s compliance committed him to a particular cancellation process. This was not a process in which the applicant could raise, nor could the decision-maker consider, “exceptional circumstances” to explain why he failed to meet the required course hours. The two cancellation processes, are “automatic cancellation” under s.137J and cancellation under s.116 of the Act. Each of these processes is in respect of a breach of a visa condition.

4. Section 20 of the ESOS Act requires that an education provider send notice to a student visa holder of a breach of the student’s visa conditions relating to attendance or satisfactory academic performance. Section 20(3) of the ESOS Act provides that the notice must be in the form approved by the Secretary of the Department. Section 20(4)(b) of the ESOS Act provides that the notice is to state that the student is required to attend in person at a specific place within a specified time period to explain the breach.

5. Section 137J of the Act provides that if the student does not comply with the s.20 Notice, then the student’s visa is automatically cancelled 28 days after the date of the notice. Sections 137K and 137L provide for revocation of the automatic cancellation by the Minister, including:

   (b)…the breach was due to exceptional circumstances beyond the non‑citizen's control.(s.137L(1)(b) of the Act)

   The other process of cancellation is through s.116, which is a mandatory cancellation upon breach of Condition 8202. The decision maker is not allowed to take into account any discretionary factors which might explain the breach, nor is there any procedure for revocation of the cancellation made under s.116.

6. Mr Leerdam submits that Mr Gormly’s reference to the ss.116 and 137J cancellations in relation to the operation of the s.20 Notice is misguided. He submits that this application for review of the Tribunal decision is about a cancellation of the student visa under s.116. The cancellation power under s.116 is separate to, and cannot be constrained by, the cancellation power under s.137J which is initiated by a s.20 Notice. This is made clear in the Full Federal Court decisions of Humayun v Minister for Immigration [2006] FCAFC 35 (Humayun); Minister for Immigration v Zhou [2006] FCAFC 96 (Zhou); Shek v Minister for Immigration [2006] FCA 522 (Shek). It is submitted that the only relationship between s.137J and s.116 is the factual basis which grounds the cancellation. In Zhou, the Court accepted the Minister’s argument that “a mere factual, casual, connection between a s.20 notice and the initiation of the cancellation process under s.116 of the Act cannot affect the validity of a decision mandated by the latter section”: at [27]. The Court also found that there was no “legal interaction” between the two cancellation powers:

   For the “legal interaction” relied on for M/s Zhou to be determinative, it would be necessary for s 116 to be interpreted as subject to an implied limitation on its operation. The wording of that section is against such an implication, as it contains a detailed catalogue of specific circumstances in which the power of cancellation may be exercised… (Zhou at [42])

7. In Humayun the Court concluded at [30] - [31]:

   30.…Counsel for the Minister contended that, even if the s 20 notice was incapable of having the consequences set out in Subdiv GB of Div 3 of the Migration Act (ss 137J — 137P), that did not affect the power of the delegate to effect a visa cancellation under s 116 of the Act. They referred to the judgment of Allsop J (with whom Tamberlin J agreed) in Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 ; 141 FCR 448…

   31.Both the respondents’ contentions are correct. There is nothing in this point.

8. The Court in Humayun found that even if, in the circumstances, the s.20 Notice did not give the applicant a right to reinstatement of the visa due to exceptional circumstances as per ss.137J and 137P, a misleading s.20 Notice does not affect the power to cancel under s.116. Humayun was cited with approval in Shek at [43] – [44] and Zhou at [28] and [43].

9. Mr Gormly’s application was on the understanding that documents or factors in one cancellation procedure can affect the second cancellation procedure. He submits that the applicant was effectively denied an opportunity to put information to the Tribunal as a result of compliance with the defective notice, which was approved by the secretary of the Minister’s department pursuant to s.20(3) of the ESOS Act. Further, because of the consequences of compliance with the Notice, procedural fairness is disallowed by a cancellation under s.116(3) of the Act.

   
   

   Mr Leerdam submits that this proposition cannot stand in light of Humayun, Shek and Zhou.

10. Mr Gormly, in support of his denial of natural justice argument, relies upon Morsed v Minister for Immigration [2005] FCAFC 193 (“Morsed”) and Minister for Immigration; Ex parte Lam (2003) 214 CLR 1 (“Lam”).  Morsed at [22] - [24] per Hely, Marshall and Weinberg JJ states:

    22.…we consider that the statement in the s 20 notice, extracted above, is misleading. In the event that a person has breached condition 8202, and reports to DIMIA as requested, it is incorrect to state that "a decision will then be made whether or not to cancel your visa". This may imply some sort of discretion on the part of the officer, particularly given that the notice asks the recipient to "explain" their breach. It implies that it is possible that the visa will not be cancelled if the breach is adequately explained. However, the true position is that the Minister is obliged under s 116 to cancel the visa if satisfied there has been a breach.

    23.Furthermore, the s 20 notice may be misleading by omission. The notice states that the visa will not be cancelled "if you can show that no breach occurred". It does not go on to say the corollary of that, which is that a visa will be cancelled if a breach did occur, (or, probably more accurately, if it cannot be shown that no breach occurred).

    24.For those visa-holders who have breached condition 8202, but may have exceptional circumstances beyond their control to explain that breach, the notice creates a trap. It encourages the visa-holder to explain their circumstances to avoid automatic cancellation. However, it does not tell them that in doing so, and in admitting a breach, they will then have their visa cancelled pursuant to s 116.

    Mr Gormly submits that the further amended application filed on
    26 September 2006 is pleaded on the basis of Morsed. That decision was based on a s.20 Notice that was, in effect, identical to the circumstances oin this case.

11. Mr Gormly submits that it was a requirement of natural justice that the s.20 Notice not mislead or trap the applicant into losing the opportunity to have all “exceptional circumstances beyond his control” taken into account by a decision maker. The Tribunal’s reliance on the statement in the Notice resulted in a practical unfairness to the applicant, namely, the loss of an opportunity to put forth and have considered circumstances arising from his illness and the car accident.

12. Mr Gormly referred to Kioa v West (1985) 159 CLR 550 at 584 – 585 per Mason J:

    …depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (cases cited)…In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. 

    Mr Gormly also refers to Lam at [34] per Gleeson CJ:

    …And it is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed…The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.

13. Mr Leerdam submits that the part of the decision in Morsed relied upon by Mr Gormley was obiter dicta and that the circumstances in that case were quite different to the current circumstances.  In Morsed, the applicant’s student visa was automatically cancelled by s.137J of the Act because the applicant did not attend the Department interview.

    
    

    The cancellation decision was set aside because of a conceded defect in that s.20 Notice which started the cancellation process. It stands in stark contrast to this case where the cancellation was made under s.116. While the Court in Morsed was critical of the interaction between ss.137J and 116, it is implicit in its reasoning that the unfortunate effect of that interaction is correct. Therefore, the respondents submit that Humayun, Shek and Zhou are binding on this Court.

14. Mr Gormly acknowledges that his argument in respect of a denial of procedural fairness or natural justice of a s.116 cancellation is limited in that:

    a)The structure of the Act denies any argument that there is a breach of natural justice hearing rule.

    b)The rejection by the Courts of a “legal interaction” between the two cancellation procedures.

    c)Prior to the 2005 amendments to the Regulations, the s.116 cancellation power did not allow a decision maker any discretion to consider explanations for the breach of visa conditions.

    Mr Gormly submits that the aspect of natural justice in question is akin to the bias rule.  He noted that in Minister for Immigration v Lay Lat [2006] FCAFC 61 at [27] the Court said (in obiter dicta) that a provision identical to s.118A and s.357A of the Act did not apply to exclude aspects of common law natural justice apart from the hearing rule, such as the bias rule.

1. Mr Gormly acknowledges the Tribunal’s power under s.349 of the Act to review a primary decision affected by jurisdictional error: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 (“Brian Lawlor”).  In this case, it follows from Zubair v Minister for Immigration [2004] FCAFC 248 (“Zubair”) and Brian Lawlor that the Tribunal did have power to review the delegate’s decision, however, because it did not have the power to cure the denial of natural justice by keeping the promises in the s.20 Notice, the jurisdictional error remained and the Tribunal’s purported exercise of power was thereby affected.

2. It does not follow from Zubair or Brian Lawlor that the Tribunal’s power to review a decision affected by jurisdictional error automatically cures the jurisdictional error.  Zubair is not authority for the proposition that any legal defect in a primary decision can be cured on review.  A “decision”, as that term is used in the statute, relates to the right to apply for review and refers to a decision “made in fact” and not to the legal effect the decision may have had: Zubair at [29] (applying Bian Lawlor at 337 per Smithers J).  The “cure” for a departure from natural justice depends upon the conduct of the reviewing Tribunal and not on the mere existence of a right of review: Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116.

3. Mr Gormly submits the denial of natural justice because of a misleading s.20 Notice is not able to be cured by merits review by the Tribunal. Neither the delegate nor the Tribunal had the necessary discretion under either ss.116 or 237J of the Act to keep the promises made in the s.20 Notice, nor could the applicant be exempt from s.116 once he has complied with the Notice. As the Tribunal could not “cure” the procedural unfairness, Mr Gormly submits that the jurisdictional error resulting from the s.20 Notice survived the Tribunal’s review. Neither the delegate nor the Tribunal has discretion to consider exceptional circumstances for a breach of a condition of a student visa and therefore the power to cure the denial of natural justice; Zubair does not apply to deny the applicant relief.

4. Mr Gormly submits that Zubair may be distinguished from this case on the basis that the jurisdictional error in the delegate’s decision in that case was curable by the Tribunal review.  The jurisdictional errors of the delegate in Zubair, Minister for Immigration v Ahmed (2005) 143 FCR 314 (“Ahmed”) and Uddin v Minister for Immigration [2005] FCAFC 218 (“Uddin”) all concerned defective notices under s.119 of the Act. In Zubair the Court found that despite the jurisdictional error resulting from the s.119 notice, there was still an obligation on the Tribunal to review the decision under s.348(1) of the Act as it was a “MRT reviewable decision” under s.338 of the Act: Zubair at [25] – [27].

5. Mr Gormly submits the test in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 of “legislative purpose” applied to give full remediating powers to the Tribunal in Zubair, Ahmed and Uddin, only because in those cases the legislation allowed merits review by the Tribunal which would “cure” the delegate’s decision affected by a defective s.119 notice in a s.116 cancellation.

6. Mr Leerdam submits that if there is no legal interaction between the s.137J cancellation process and the s.116 cancellation process, then it follows that the s.20 notice cannot afford the s.116 cancellation as a denial of procedural fairness or natural justice. In this case, the delegate and the Tribunal complied with the requirements of natural justice and procedural fairness as clarified by the Act. The claim argued by Mr Gormly that there is a breach of natural justice characterised by the denial of the opportunity to put information or argument about exceptional circumstances because he complied with a defective notice.

7. Mr Leerdam submits that the applicant was given an opportunity to put his exceptional circumstances and provide information to explain his breach of Condition 8202 both before the delegate and the Tribunal. Both decision makers considered the applicant’s evidence but were not entitled to take exceptional circumstances into account because of s.116 of the Act. The operation of s.116 cannot be cured by affording the applicant natural justice or procedural fairness. The only way the delegate could cause a favourable outcome for the applicant was to ignore his breach of Condition 8202 and not exercise its power under s.116. Mr Gormly concedes that once the applicant attended the interview, the s.137J cancellation procedure was avoided.

   
   

   That cancellation process could not be revived by the delegate or the Tribunal.

8. Mr Leerdam submits that the cancellation power under s.116 is mandatory and places an obligation on the Minister to cancel. If s.137J cannot constrain s.116, as concluded by the Full Federal Court, then it follows that because of natural justice a s.20 Notice cannot constrain a decision maker from exercising power under s.116.

Conclusion

1. Mr Gormly has presented a detailed argument in respect of the restriction of the powers to cancel a visa under s.116 of the Act through a natural justice limitation arising from the issue of a s.20 Notice. However, I believe that this Court is bound by the Full Federal Court in Humayun, Shek and Zhou.  I note that the Court in Morsed was critical of the interaction between s.137J and s.116. However, those comments are obiter dicta and Morsed is readily distinguishable from the circumstances before this Court.

2. The main difference between the parties relates to interpretation of the Zhou.  The respondents clearly rely upon Zhou in that there was no legal interaction between the two cancellation processes provided for under ss.137J and 116. Further, that there was no natural justice obligation in relation to the s.116 process. The applicant seeks to distinguish Zhou from this case by arguing that natural justice was not raised in that decision.  Mr Leerdam submits two arguments in support of his contention.  The first is that a number of Courts, including the High Court, have said that natural justice is tied to the exercise of a statutory power.  Both parties referred to Kioa v West.  Mr Leerdam relies on Brennan J’s decision in Kioa v West on whether a statutory power is conditional on the observance of the principles of natural justice and demands a universal answer, or is a question of construction:

   Two distinct but closely related questions can be perceived in the cases relating to the exercise of a statutory power: the first, or threshold, question is whether the exercise of the power is conditioned upon observance of the principles of natural justice; the second question, arising when the exercise of the power is so conditioned, is what the principles of natural justice require in the particular circumstances. It is seldom possible to say that the legislature intends to exclude observance of the principles of natural justice in the exercise of a statutory power which is apt to affect individual interests, and the more difficult and more frequently addressed question is what the principles of natural justice require in the particular circumstances. (Kioa v West at 612)

   Mr Leerdam submits that the two principles as discussed by Brennan J are clear that there is no legal interaction between the two processes.

3. Mr Leerdam’s second argument is that this conclusion was also reached in Cheng v Minister for Immigration [2006] FCA 1028 at [68] per Siopis J:

   The applicant submitted that she had been denied procedural fairness because of the misleading nature of the s 20 Notice.

   Mr Leerdam submits that Zhou held that there was no legal relationship or interaction between the two cancellation processes, which leads to the conclusion that there was no procedural fairness obligation arising from the s.20 notice in the visa cancellation made under s.116 of the Act. Justice Siopis went on to say at [72] and [75]:

   72.…the submission of the applicant misapprehends the relevance and function of a s 20 Notice to a cancellation decision made under s 116 of the Act. As previously mentioned, the Full Court in Zhou 2006 held that there is no legal interaction or relationship between the process invoked by a s 20 Notice and the cancellation process under s 116 of the Act, even if the attendance by the visa holder at the departmental office in response to a s 20 Notice led to the issue of a s 119 Notice under the Act. As the impugned decision was made under s 116 of the Act, it does not, therefore, avail the applicant to complain of procedural unfairness in relation to a process which is unrelated to the legally separate process that led to the making of the impugned decision by the first respondent.

   75. The applicant also submitted that the s 20 Notice contained two other defects which were recognised in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193…

   Mr Leerdam submits that Morsed has no relevance to the present facts.

4. Mr Leerdam submits that a s.20 Notice is not an instrument of cancellation and is not a precondition to a cancellation under s.116. This was a constant theme throughout Zhou, Humayun and Shek. 

   
   

   The s.116 cancellation process is not subject to any implied limitation: Zhou at [42].

5. Mr Gormly submits that a procedural fairness obligation arises and that there is an implied limitation on its operation.  Mr Gormly seeks to distinguish Zhou on the basis that there is no legal interaction between the two cancellation processes and that the phrase, “no legal interaction” did not consider the natural justice question.

6. I believe that there is no basis for not following either Zhou or Cheng v Minister for Immigration both of which are directly on point to the matter currently before the Court.  I am satisfied that the application should be dismissed.

7. I order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: 

Date:  7 November 2006