Lui v Minister for Immigration - [2004] FMCA 481

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LUI v MINISTER FOR IMMIGRATION

[2004] FMCA 481

MIGRATION – Review of decision to affirm decision to cancel Student (Temporary) (Class TU) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.65, 116, 121, 124, 137J, 362B
Education Services for Overseas Students Act 2000 (Cth), s.20

Migration Legislation Amendment (Overseas Student) Act 2000, Condition 8202, Item 4 of Sch 4

Migration Regulations 1994 (Cth), cl. 8202 of Sch 8

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Re Minister for Immigration; Ex parte Applicants S134/2002 (2003) 195 ALR 1
Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6
Coal & Allied Operation Pty Limited v Australian Industrial Relations Commission (2000) 174 ALR 585
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21

Scargill v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 116
NAGV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 144

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 748

Budiyal v Minister for Immigration & Multicultural Affairs [1998] 243 FCA

Applicant:

YAN YAN LUI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 682 of 2003

Delivered on:

24 September 2004

Delivered at:

Sydney

Hearing date:

3 August 2004

Judgment of:

Lloyd-Jones FM

REPRESENTATION

Counsel for the Applicant:

Mr Gibson

Solicitors for the Applicant:

Gil Boffa & Associates

Counsel for the Respondent:

Ms Riley

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The applicant pay the respondent’s costs set in the amount of $6,000 pursuant to Rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 682 of 2003

YAN YAN LUI

Applicant

And

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an application for review under s.39B of the Judiciary Act 1903 (Cth) as provided in Part 8 of the Migration Act 1958 (Cth) (“the Act”) of a privative clause decision made by the Migration Review Tribunal (“the Tribunal”) under Part 5 of the Act.

The history

The applicant was born in Hong Kong in 1982 and holds a British passport. The applicant enrolled in a Certificate of Business and Information Technology at Monash College of Monash University International Centre, Monash University (herein referred to as “Monash College”), from March to October 2002.
The applicant arrived in Australia on 24 September 1999 as the holder of a Student (Temporary) (Class TU) (subclass 560) visa that was issued on 24 August 1999 and ceased on 20 February 2002. On 20 February 2002 the applicant was issued with a Student (Temporary) (Class TU) (subclass 572) visa which was due to cease on 21 November 2002. Attached to this visa was condition 8202: (Enrolment and course requirements).
On 25 October 2002 a delegate of the Minister cancelled the applicant’s visa owing to the applicant’s breach of condition 8202. The delegate found that the applicant’s attendance as a student at Monash College between the period 1 July 2002 to 24 September 2002 was 38%. Since the cancellation date of 25 October 2002 the applicant has held a bridging visa granted on the basis of the application for a visa.
On 4 November 2002 the applicant lodged an application for review of the delegate’s decision with the Tribunal. The Tribunal had before it a written submission prepared by the applicant’s representative dated 4 November 2002. On 17 March 2003 the applicant’s migration agent requested that the 18 March 2003 Tribunal hearing be postponed. This request was not granted however the Tribunal was willing to grant time after the hearing in which additional information or opinion could be presented to the Tribunal.
The Tribunal conducted the hearing on 18 March 2003. The applicant did not attend. The Tribunal elected to make a decision on the review under s.362B of the Act. Prior to making its decision the Tribunal invited the applicant and her agent to make any submission of additional information including legal submissions by 5pm on 28 March 2003.
On 30 May 2003 the Tribunal affirmed the decision of the delegate to cancel the Student (Temporary) (Class TU) visa and on 26 June 2003 the applicant filed an application in this Court seeking judicial review of the decision of the Tribunal. An amended application was filed 18 September 2003.
The applicant filed Contentions of fact and law on 18 September 2003 and was assisted by her representatives in the preparation thereof. The respondent filed Contentions of fact and law on 13 October 2003 and also a Court Book on 25 August 2003.

The delegate’s decision

The applicant was enrolled as a student from March to October 2002. On 12 August 2002 Monash College sent the applicant a first warning letter. A second warning letter was sent on 2 September 2002 advising that the applicant’s attendance was below 80% and that she would be reported to DIMIA on 20 September 2002. It also said that if the applicant had legitimate reasons for any of her absences, she should bring this evidence to her Program Manager or Student Adviser before 20 September 2002.
On 24 September 2002 Monash College sent the applicant a Notice under s.20 of the Education Services for Overseas Students Act 2000 stating that she had breached a condition of her student visa in that her attendance in her enrolled course was below 80%. This notice specified that pursuant to s.137J of the Migration Act 1958 the applicant’s visa would cease on the twenty-eighth day after the date of the notice unless she reported to the Dandenong office of DIMIA by that time. This notice stated as follows:
“If you report to DIMIA as required under this notice, the automatic cancellation of your student visa will not proceed, but a decision will then be made whether or not to cancel your visa. Your student visa will not be cancelled if you can show that no breach occurred.”
By letter dated 11 October 2002 DIMIA wrote to the applicant stating that there may be grounds for cancelling the applicant’s then current student visa for non-compliance with condition 8202 as proscribed by s.116 of the Act. Condition 8202 and relevant parts of s.116 of the Act and Migration Regulation 2.43 were set out in the letter. By this letter DIMIA invited the applicant to attend an interview at 10am on 21 October 2002.
At the 21 October 2002 interview the applicant was in attendance and signed a Form 1099 Notice of Intention to Consider Cancellation issued pursuant to s.116 of the Act. Item 9 of this notice (headed “Possible grounds for cancellation”) specified that the possible grounds for cancellation were that the applicant’s attendance rate at College between 1 July 2002 and 24 September 2002 had been 38%.
Item 10 of this Notice (headed “Opportunity to comment”) invited the applicant to attend an interview on 25 October 2002 at 2:30pm to comment on the intention to cancel her visa and give reasons why her visa should not be cancelled. Item 10 specified that the applicant would need to provide her comments within 10 minutes of the start of the interview.
At the 25 October 2002 interview the applicant was present and admitted that she thought she had attended about 38% of classes. In summary of why her visa should not be cancelled the applicant was recorded as saying:
“I really want to go school but was unable because I can’t sleep at night and I have headache in the daytime."
“Because I’m sick. I can’t concentrate.”
The applicant said she had been referred to a psychiatrist but as yet had not attended. She said that she had seen a counsellor at Monash once. These comments were recorded at Item 3 (headed “Visa holder’s response”) of the Record of Decision Whether to Cancel Visa.
The delegate of the Minister made the decision to cancel the applicant’s visa at 2:50pm on 25 October 2002 for reasons of student breach of condition 8202 pursuant to s.116(1)(b) and s.116(3) and Regulation 2.43(2)(b) of the Act citing mandatory cancellation thereof.
Item 6 of the Form (headed “Decision whether to cancel”) specified that Item 6 was not applicable for mandatory cancellation under Regulation 2.43. The delegate of the Minister filled this item out nonetheless.
At 2:55pm the applicant signed the Notification of Decision to Cancel Visa under s.116 of the Migration Act 1958.

The Tribunal’s decision and reasoning

The Tribunal had before it the Tribunal’s case file, the Departmental file, the applicant’s application for review lodged with the MRT on 4 November 2002, a submission from the applicant’s representative dated 4 November 2002 and a letter from the applicant’s migration agent dated 17 March 2003.
In respect of the applicant’s notice as to her College attendance rate and the concomitant risk to her visa status, the Tribunal noted the following:
a)On 11 October 2002 the delegate wrote to the applicant and notified her that there may be grounds for cancellation of her student visa under s.116(1)(b) and s.116(3) of the Act and Regulation 2.43(2)(b) based on information received by the Department that she may not have complied with condition 8202.
b)Monash College provided an advice dated 2 September 2002 which informed the applicant that, despite an initial warning letter regarding her attendance on 12 August 2002, her attendance remained below the required 80% and that she would be reported to DIMIA on 20 September 2002.
c)The applicant presented at DIMIA on 21 October 2002 and was notified again that there may be grounds for cancellation of her student visa under s.116(1)(b) and s.116(3) of the Act and Regulation 2.43(2)(b) based on a report from Monash College which advised that her attendance between the period 1 July – 24 September 2002 was 38%.
d)On 25 October 2002 the applicant presented at DIMIA and stated that she thought she attended 38% of her classes.
The Tribunal found that:
a)The applicant was given a first warning by Monash on 12 August 2002 about attendance;
b)The applicant was given a second warning on 2 September 2002 in which it was stated that the applicant would be reported to the Department on 20 September 2002; and
c)On 11 October 2002 notice was given to the applicant by the Department and the applicant presented at the Department on 21 October 2002 aware that she had not met course requirements and that there may be grounds for cancellation.
The Tribunal found that the applicant was given reasonable warning that her visa may be cancelled. The Tribunal also found that proper procedures were followed in terms of notice of possible cancellation, invitation to show either that the grounds do not exist or that there are reasons why the visa should not be cancelled and the provision of an opportunity to the applicant to respond.
The Tribunal noted that at interview the applicant advised that she really wanted to attend school but was unable to as she suffered from headaches and was unable to sleep at night. The Tribunal noted that the applicant advised that her concentration was affected by headaches, that she had been referred to a psychiatrist and that she had not yet acted on the referral. The Tribunal noted that the applicant stated she was seen by a counsellor at Monash once and that the onset of her depression was as a result of a medical procedure which caused her emotional and psychological stress. The Tribunal had before it the applicant’s submissions dated 4 November 2002 which stated that the applicant felt she was unable to approach Monash College regarding her condition.
The Tribunal noted that the applicant presented endocrinology pathology reports dated 22 April 2002. The Tribunal noted that the applicant presented a report from a Chinese Medical Practitioner that advised that the applicant had received 14 treatments for depression, insomnia and migraine headaches during the period 14 June – 13 September 2002. The Tribunal member observed that the delegate of the Minister noted that the appointments at the Chinese Medical Centre were not included as these appointments were of an half-hour’s duration.
The Tribunal noted that in respect of the degree of hardship the applicant stated that her parents would be very disappointed. The applicant’s representative had asked the Tribunal to assess the applicant’s circumstances compassionately and to provide her with the opportunity to complete her education in Australia.
The Tribunal referred to the 17 March 2003 request of the applicant’s migration agent to delay the MRT hearing for three months to allow advice from counsel on various “technical and evidentiary issues” to be provided to the applicant. The Tribunal considered that, as the appeal had been lodged on 22 November 2002, the applicant had ample time to seek additional legal opinion and furthermore it was not made clear to the Tribunal, apart from the vague statement of “technical and evidentiary issues”, as to what was being sought and how it might be relevant to the case.
In relation to the agent for the applicant’s submission, that the notice given by Monash University International to the applicant was defective and invalid because only 20 minutes notice was given, the Tribunal found that the applicant was given reasonable warning that her visa may be cancelled and that the proper procedures were followed.
Further, the Tribunal found that the primary decision-maker followed the procedure set out in subdivision E of the Act for the cancelling of visas under s.116. The relevant parts of s.116 in force at the time of the cancellation decision are as follows:
Section 116:
(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
a) …
b)its holder has not complied with a condition of the visa;
(2)The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(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.
The Tribunal found that the applicant’s visa was cancelled for breach of condition 8202 (Schedule 8 of the Regulations) as the applicant had not met attendance requirements whilst enrolled at Monash College.
The following condition 8202 applied to the applicant at the time of the cancellation decision:
Condition 8202:
(1)The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)      A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is an exchange student – the holder is enrolled in a full-time course of study or training.
(3)A holder meets the requirements of this subclause if:
(a)in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled:
(i)   for a course that runs for less than a semester – for the course; or
(ii)   for a course that runs for a least a semester – for each term and semester of the course; and
(b)in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory:
(i)   for a course that runs less than a semester – for the course; or
(ii)   for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course.
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa – the holder is enrolled in a full-time course of study or training.
Section 116(1) provides that “the Minister may cancel a visa” if he or she is satisfied of any of the grounds in s.116(1). The discretion to cancel in s.116(1) is fettered by s.116(3), which provides that the Minister must cancel a visa in certain prescribed circumstances (set out in Regulation 2.43(2)). This section removes the Tribunal’s discretion in relation to those prescribed circumstances in that, where there are prescribed grounds, there is no discretion to cancel. The Tribunal stated that the issues of depression, insomnia, migraine headaches and the operation cannot be considered in terms of the Tribunal exercising any discretion.
The Tribunal stated that the applicant’s visa was cancelled under the mandatory provisions prescribed in Regulation 2.43(2). Regulation 2.43(2) of the Regulations provides as follows:
Regulation 2.43(2):
(2)For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are:
(a)each of the circumstances comprising the grounds set out in paragraphs (1)(a) and (b); and
(b)in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with:
(i) condition 8104 or 8105 (if the condition applies to the visa); or
(ii) condition 8202.
The Tribunal stated that:
“Section 116(3), Regulation 2.43(2) and condition 8202 appear designed to deny discretion whether or not to cancel a visa if the condition was not complied with. That is the Tribunal must affirm a decision to cancel if a breach of a condition is established. This view was confirmed by Emmett J in the recent Federal Court decision of Minister for Immigration & Multicultural Affairs v Nguyen [2002] FCA 460 (15 April 2002).”
The Tribunal found that the question for the Tribunal was whether condition 8202 was breached. The Tribunal found that the applicant breached s.116(1) and that cancellation of the visa was mandatory pursuant to Regulation 2.43(2) thereby affirming the decision of the delegate.

The application for review of the Tribunal’s decision

The grounds of the application for judicial review, asserted by the applicant in the amended application filed on 18 September 2003, are:
That the decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or an inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s116 of the Act to cancel the visa and its powers to conduct a review under s348 of the Act. The Tribunal exceeded it jurisdiction and/or constructively failed to exercise jurisdiction in that:
Particulars
i)the cancellation decision was not validly made as the delegate fixed a time in relation to the invitation to respond at an interview which was not within a reasonable period for the purposes of s121(3)(b) of the Act and had no regard to the particular circumstances of the case;
ii)the cancellation decision was not validly made in breach of the requirements of s124(1) as the visa holder was not allowed a reasonable period to respond and/or the cancellation decision was made before a reasonable time for responding to the notice had passed;
iii)in considering whether the cancellation decision was defective and invalid the Tribunal imposed an erroneous test of whether the applicant was given reasonable warning that her visa may be cancelled and failed to interpret correctly the provisions of s116, 121 and 124 of the Act.

The law

Plaintiff S157/2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“S157”)I and Ex parte Applicants S134/2002 (“S134/2002”) together now represent the law concerning the extent to which migration decisions are reviewable and the effect of the privative clause. These judgments authoritatively cite the effect and scope of s.474 of the Act.
In Plaintiff S157, paragraphs [76]-[78] of the joint judgment demonstrate that the first task of a reviewing Court is to identify jurisdictional error; if it exists upon examination of the Act because of, for example, a failure by a Tribunal to discharge “imperative duties”, or to observe “inviolable limitations or restraints”, or conditions or criteria which must be satisfied before the power reposes in the decision-maker by s.65 can be exercised, that is the end of the matter. A decision so affected by jurisdictional error is not a decision made under the Act.
However, s.474 of the Act may operate so that “some procedural or other requirements laid down by the Act are to be construed as non essential to the validity of the decision”: S157 at [69], [70], [77] and [78]. This may occur when there is something less than a “manifest” jurisdictional error: S157 at [12], [13] and [18] per Gleeson CJ and [160], [163] per Callinan J.
In S157 the High Court makes it clear that s.474 of the Act precludes a grant of certiorari for non jurisdictional error of law. The long standing distinction between jurisdictional and non jurisdictional error of law is maintained in Australia: Minister for Immigration & Multicultural Affairs; Ex parte Lam at [77]. An error of law consisting of a misconstruction of, or a failure to address or comply with the expressed statutory provisions, will not always constitute jurisdictional error, even the absence of a privative clause: Coal & Allied Operation Pty Limited v Australian Industrial Relations Commission at [9]-[232].
A decision-maker does not err in failing to take into account a relevant consideration unless it was a consideration he was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited; Paul v Minister for Immigration & Multicultural Affairs. The failure to take into account a particular piece of evidence does not constitute jurisdictional error, unless the Tribunal fails to take into account a consideration that it was bound by the Act to take into account.
While a breach of the rules of procedural fairness may constitute jurisdictional error, each case needs to be considered on its merits, with the privative clause given due weight in the process of statutory reconciliation: S157 at [33] per Gleeson CJ. The concern of the law is with “practical justice” (Ex parte Lam) at [37] not mere technicalities. Jurisdictional error is limited to “manifest” or “serious” error: S157 at [12], [13] and [18] per Gleeson CJ and at [160] per Callinan J.
This interpretation of S157 and S134/2002 was confirmed by Ryan J in VBAC v Minister for Immigration & Multicultural & Indigenous Affairs. His Honour said at [23] following the judgments of the High Court in S134/2002 and S157 that:
“A denial of procedural fairness, at least in some circumstances, may render a purported decision under the Act one which is not protected from judicial review by a privative clause. If a purported decision is not protected by a privative clause, a plaintiff may be able to seek orders for relief under s.75(v) of the Constitution. However, I do not understand that either S134/2002 or S157/2002 to establish that any denial of procedural fairness will be sufficient to place a challenge decision outside the protection of s.474.”
Section 116 of the Act provides that the Minister may cancel a visa if it is satisfied that one of the grounds of cancellation set out in ss.1 are made out. The act prescribes in s.119(1), s.121(1) and (3) and s.124(1) essential steps which must be completed before a decision can validly be made. The Minister’s satisfaction (or non satisfaction) is an “anterior matter being, a component of the condition precedent to the discharge of an obligation to grant or refuse a visa”: Minister for Immigration & Multicultural Affairs v Eshetu at 647 [199] per Gummow J.
An imperative duty or inviolable limitation is one that is imposed by those sections of the Act which require a consideration by a decision-maker of the relevant criteria, and his or her satisfaction or lack of satisfaction in that regard is a condition precedent to a valid decision. This is the approach taken by the High Court which has held that a misconstruction or misapplication of prescribed visa criteria will result in jurisdictional error: Scargill v Minister for Immigration & Multicultural & Indigenous Affairs at [36]-[37] in the joint judgment of French, Von Doussa and Marshall JJ; NAGV v Minister for Immigration & Multicultural & Indigenous Affairs at [86] per Emmett J and [93]-[94] per Conti J.
However, if the Tribunal is found to have been in error, relief will only be available to the applicant if, in the absence of error, the decision would have been different: Australian Broadcasting Tribunal v Bond. Under s.39B of the Judiciary Act 1903 the Court’s power is discretionary, consequently if an error is found in the particular case it remains open to the Court on discretionary grounds.

Submissions

In the applicant’s written contentions, reference is made to the relevant matters (Court Books 6-9), on Form 1099 Notice of Intention to Consider Cancellation under point 10, the document states:
“You are invited to provide your comments at interview”.
“Interview will be held on 25/10/02.”
“Beginning at 2.30 p.m.”
“At the following location: DIMIA Dandenong.”
“You will need to provide your comments within ten minutes of the start of the interview.”
“If you choose not to comment, an immigration officer may make his/her decision based on the information available to them.”
This was signed by the Departmental officer and dated 21/10/02 at 10.20 a.m. and countersigned by Yan Yan Lui on the same date and time. This was a full four days and four hours prior to the interview taking place.
Under Part C of the same document, Notification of Decision to Cancel Visa under s.116 of the Migration Act 1958 (Court Book 20), the time for the receipt of that decision was at 2.55 p.m. The applicant’s contentions argue that the effect is that almost immediately after the ten minute period, the delegate began writing down the applicant’s explanation and, without comment, made the decision. The argument is proffered that the inference can be drawn that the making of the decision was indistinguishable from the process of making the response. The applicant’s contentions then proceed by saying there is a mandatory requirement under s.124(i) of the Act, once the Notice is issued, to wait until the visa holder responds to it or indicates that he or she does not wish to respond to the notice. In the majority of these cases, previously decided notice has been given and a period of up to ten minutes has elapsed before the decision-maker commences with the decision. This is not the situation in this matter because the applicant had four clear days notice of issues to which she had been requested to respond.
The applicant contends in paragraphs 13 and 14 of her contentions that the Tribunal erred in making the decision to cancel only ten minutes after hearing the applicant’s case against cancellation. The respondent submits that the applicant puts forward no legislation or case law in support of the proposition that the Tribunal made a jurisdictional error in dealing with the matter forthwith.
It is further submitted that in the circumstances of this present cancellation decision, all of the relevant matters required to be evaluated prior to proceeding could have been done more or less instantaneously. There is support for this contention in that the delegate was obliged to observe a mandatory cancellation position. Once the applicant’s admitted that she had only attended 38% of the classes, the mandatory provision immediately became operative and the delegate did not have any discretionary power.
In paragraph 15 of the contentions for the applicant the question is raised as to what is reasonable time for the purposes of s.121(3)(b) and the circumstances will depend on each case. It was submitted that the period of ten minutes was unreasonable for an overseas student for whom English was a second language.
In response, the respondent raises four issues:
a)The applicant conceded that she had attended only 38% of the classes.
b)The applicant raised that she had certain emotional problems.
c)The applicant did not raise any other issue for which she required further time to explain.
d)The applicant has not claimed that she required further time or that she was refused such a request.
The respondent met this contention by noting that ten minutes was found by Kenny J to be a reasonable time for the purposes of s.121(3)(b) of the Act in the circumstances that existed in Zhaou v Minister for Immigration & Multicultural & Indigenous Affairs at [80]. In that case, Her Honour said at [78] that:
“Absent s.474 considerations, what is a reasonable period for the purposes of s.121(3)(b) of the Act would fall to be considered in the light of all the circumstances of the case as they exist when the time of the interview is fixed. The circumstances may not include the nature of the cancellation grounds which the decision-maker is considering, the personal attributes of the visa holder (i.e., age, facility in English language, physical infirmity or well being), the presence of an interpreter or lawyer, the visa holder’s familiarity with the matters of concern to the decision-maker, the circumstances in which decision falls to be made, and the availability of matters cooperative for the applicant. Regard should also be taken to the statutory content and the purposes of s.121(3)(b) of the Act.”
The respondent argued that the circumstances of this case are very straightforward and provided the following items in support of that argument:
a)The ground for cancellation was set. There was a failure to attend 80% of the classes in any particular term and that was sufficient to result in mandatory cancellation.
b)The incontrovertible evidence of the applicant’s attendance levels had been provided by Monash College. The applicant had sufficient English to undertake a course at an Australian tertiary institution.
c)The applicant had lived in Australia for three years at the time of the cancellation decision.
d)There was no suggestion of any physical infirmity.
e)The applicant was entirely familiar with the matters of concern to the decision-maker being her level of attendance.
f)The attendance levels had been conceded. The applicant had at least four days notice of the issues to be raised at the interview and she had ample time to gather any corroborative material required.
The respondent’s Counsel submits that the statutory purposes of s.121(3)(b) clearly includes the purpose of dealing promptly and efficiently with cancellation decisions. In all the circumstances of this case, it is submitted and I accept, that the ten minute period stipulated for the purposes of s.121(3)(b) were entirely reasonable.
The applicant further contends that the delegate’s stipulation of the ten minute period was the adoption of his own or others usual practice without consideration to the particular circumstances of the applicant’s situation or the specificities of her case. It is argued that the decision-maker is obliged to have regard to particular circumstances and ought not to fix a time solely by reference to a standard practice: Budiyal v Minister for Immigration & Multicultural Affairs per Tamberlin J at 174.
It is the respondent’s submission that it is not apparent that the delegate did not consider the circumstances of the case. In any event, compliance with usual practice is not, of itself, a defect of the decision. Practices become usual because they are appropriate in most circumstances. The applicant would need to show that in the circumstances of these case as they were known to the delegate at the time when the duration of the interview was fixed, that ten minutes was not reasonable.
It was submitted that the applicant had not put forward anything to suggest that in these circumstances ten minutes was not reasonable. It was further submitted that in the submission made by the applicant adviser to the Tribunal, nothing of substance was put to the Tribunal that was additional to the statements made by the applicant at the interview.
This leads to the reasonable inference that there was nothing further that the applicant would have said if she had been given further time to make out her case.

Conclusion

It is submitted that the Tribunal erred in making a decision to cancel the visa only ten minutes after hearing the applicant’s case. However, the applicant put forward no legislation or case law in support of the proposition that the Tribunal made a jurisdictional error in deciding the matter after that ten minute break. I support the submission that all of the relevant matters could have been fully considered more or less simultaneously.
The applicant conceded that she had only attended 38% of the classes. In respect of the reference to emotional problems, there were no details provided nor was there any request for further time in which to give an explanation. The ground for cancellation was the failure to attend 80% of the classes and that was a mandatory term. Incontrovertible evidence of the applicant’s attendance level had been provided by the education provider. The applicant had sufficient interest to undertake a course at an Australian tertiary institute. She had lived in Australia for three years prior to the cancellation decision. There was no evidence of any physical infirmity and she was entirely familiar with the matters of concern to the decision maker about attendance levels.
The applicant was notified at the time of the interview to be held four days later, the nature of the issue to be considered and there was sufficient time for her to be able to marshall any material that she may require at that interview. It was submitted that the delegate erred in stipulating a time for the interview conforming with usual practice rather than considering the circumstances of this particular case. However, there is no evidence that the delegate did not consider the circumstances of this case. The applicant did not show that in the circumstances ten minutes was not reasonable.
In the submissions made by the applicant’s adviser to the Tribunal, nothing of substance was put to the Tribunal that was additional to the statement made by the applicant at the interview. This leads to the reasonable inference that there was nothing further that the applicant would have said had she been given further time to make out her case.
The general claim that the Tribunal erred by finding that there had been compliance with requirements that are essential for the validity of a decision. However, there have been no specific provisions identified in which the delegate had failed to comply.
The findings by the Tribunal are reasonably open to it on the material before it. I am satisfied that the Tribunal made no legal error going to jurisdiction in coming to its decision. In addition, the decision of the Tribunal was a bona fide attempt to exercise the power conferred on it by the Act.
I find that the decision of the Tribunal is a privative clause decision having regard to the decision of the High Court in S157/2002. In the circumstances, I dismiss the application.
I am satisfied that an order for costs should be made in the circumstances of this matter. I order that the applicant pay the Minister'’ costs and disbursements of and incidental to the application.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM

Associate: Menna McMullan

Date: 24 September 2004