Uddin v MIMIA & Anor

[2006] HCATrans 248

[2006] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S560 of 2005

B e t w e e n -

MOHAMMED RAISUL UDDIN

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 MAY 2006, AT 2.12 PM

Copyright in the High Court of Australia

MR S.B. LLOYD:   May it please the Court, I appear with my learned friend, MR R.M. FOREMAN.  (instructed by Parish Patience Immigration)

MR S.J. GAGELER, SC:   If the Court pleases, I appear with MR R.J. BROMWICH for the first respondent.  (instructed by Clayton Utz)

GLEESON CJ:   Yes, Mr Lloyd.

MR LLOYD:   I propose to deal with my submissions in support of the application under six headings, the first few of which will be very brief.  I will identify the central special leave issue.  I will say what the applicant contends is the correct approach to that issue; I will take the Court to a decision of Justice Brennan applying what we say is the correct approach so the Court will see how it should apply; I will deal with why the question is one that merits the grant of special leave; and then quickly turning to the decision of the court below which applied the decision in Ahmed, I will then take the Court to Ahmed and identify where we say the errors are in Ahmed.

The central issue is if special leave were granted an appeal in the present matter would concern the powers, not the jurisdiction, of merits review tribunals in circumstances where the decision being reviewed was made in circumstances where the person who made the decision had no power to make any decision because a precondition for the exercise of power had not been met.  The applicant’s contention is that where a delegate was subject to constraints that precluded any exercise of power the Tribunal, on review, similarly lacks the capacity to exercise the statutory power.  We would adopt the metaphor often used about the Tribunal standing in the shoes of the original decision‑maker. 

We hasten to say that it is not our argument the Tribunal does not have jurisdiction to hear and determine an application in the circumstances but rather the power that it has is only to set aside the delegate’s decision and to make a decision or to substitute a decision, not to exercise the power.  This may be contrasted with a situation where all of the preconditions to the valid exercise of power have been met.  However, in those circumstances a tribunal, we say, has full capacity to undertake a full merits review, according to law, and if in such circumstances where preconditions to the exercise of power have been met the delegate has made some jurisdictional error in that exercise of power by, for example, misconstruing the statute or unfairly exercising the power, they are matters which the Tribunal would be able to rectify on the full merits review.

This approach is, in my submission, precisely the approach adopted by Justice Brennan in a case called Re Upton when he was sitting as President of the Administrative Appeals Tribunal.  That is in the Applicant’s Supplementary List of Authorities.  It is just a blue bundle.  It begins on page 24.  The particular details of the facts of that case are not critical but it is a case where a pilot was thought to have done something inappropriate and the licence was suspended.  If the Court goes to page 29 at about point 7 on the page, there is a paragraph:

In our view Mr Upton’s conduct fell short of discharging his duty with respect to the safe operation of his aircraft.

In the very last sentence on the page the Tribunal concludes that a “suspension was reasonable”.  Over onto the next page the Tribunal concludes that:

We would not therefore alter the decision of the Regional Director –

that is, as it were, on the merits –

if he had exercised his powers in the manner which the Regulations prescribe.

There is then in the next paragraph a reference to the drastic nature of the power to suspend a pilot’s licence.  Perhaps if I cut back to the present case, we say that the power to cancel a visa which can lead, and generally does lead, to detention is a more drastic power.

GLEESON CJ:   Mr Lloyd, there does not seem to be an enormous amount of merit behind your client’s position in this case, does there, having regard to what I might call his academic history?  His prospects of success were not very rosy.

MR LLOYD:   In the Tribunal?

GLEESON CJ:   Anywhere.

MR LLOYD:   To address that point, your Honour, it may be that my client breached the condition and as a result of which if procedures had been adopted and the Minister had properly exercised – if the preconditions to the exercise of power had been met, then the visa may well have been properly cancelled, but having never met those preconditions the cancellation, we say, was invalid and the Tribunal, we say, cannot remedy it absent the correction of the preconditions.  Your Honour might say, where is it going to lead?  In the present case my client’s visa has now expired so there is no scope for the Minister to cancel it any further.

GLEESON CJ:   I really was inviting comment on what appears on page 152, paragraph (d).

MR LLOYD:   Your Honour asked me about the merits of it.  Our case is the Tribunal, and for that matter the delegate, was never entitled to address those questions because no valid notice was given in order to get to the point of addressing those questions.

GLEESON CJ:   That is assuming Justice Bennett was wrong.

MR LLOYD:   Indeed.  So, on that view, while the merits may or may not be against my client, those questions were never validly considered by the delegate, or we say by the Tribunal, as a consequence of which the only thing the Minister could do now, or could have done, if it had have been done properly, that the Minister could have given a proper notice and the matter could have been considered at the time, but that has – because of the delays in the appeal process that has transpired now, so there is no scope any longer to cancel a visa because it does not otherwise exist.

GLEESON CJ:   At some stage before you complete your submissions we would like to hear what you have to say about what Justice Bennett said concerning whether there was a failure to comply.

MR LLOYD:   Certainly.  I think, returning to the decision in Upton, the Court will see that on page 30 at around about line 10 there is a similar procedural requirement as in this case, a show cause‑type notice and an opportunity to comment.  Then at about line 30 there is the observation that:

the Secretary or his delegate is bound to abstain from making a finding or reaching a decision until the opportunity to show cause has been given.

Then over onto page 31 at about line 6:

the Regional Director did not give the holder of the licence an opportunity to show cause in accordance with sub‑reg (3) before making his finding and reaching his decision.  As failure to comply with sub‑reg (3) precludes the exercise of the power to suspend under sub‑reg (1), it follows that the Regional Director had no power to suspend the applicant’s licence.

The Tribunal then says in the next paragraph that although there was no power to make the decision, that does not deny the Tribunal jurisdiction.  We do not dispute that.  But then in the final paragraph the Tribunal says all it has power to do is set aside the decision and make a decision that the suspension not take place.  That is what we say is the correct approach. 

The question of importance, in my submission, for the Court is whether or not that approach is correct or the approach in Ahmed which would say that even though there are preconditions that prevent the exercise of power, nonetheless, the power is available to the Tribunal.  What the Full Court in Ahmed said was the Tribunal does not stand in the shoes of the original decision-maker but in substance has a greater ambit of power.

The second reason is, in my submission, there is a divergence of opinion in the Full Court because the approach of Justice Brennan in Upton was adopted by his Honour in the Brian Lawlor decision which was itself approved by the Full Court of the Federal Court.  That is another reason for the grant of special leave. 

The third point is that their Honours Justices Wilcox and Branson, in this case, expressed some doubt about the correctness of Ahmed and followed it because they felt bound to do so by the Transurban clearly wrong principle.  They did not think it was clearly wrong but they did indicate that free from authority they may have been persuaded by the applicant’s arguments.

Finally, there is another factor of relevance to the Court which is on the approach taken by Ahmed, that means that if somebody – not necessarily my client – receives a notification of a proposed cancellation which is invalid or does not meet the requirements and a cancellation nonetheless transpires, that person then would be forced to make an election.  What the Court said in Ahmed is correcting that kind of error is something for courts to do.  Alternatively, you can go on and in effect abandon the fact that your cancellation and detention is invalid and then go on to the Merits Review Tribunal who may or may not on the merits of the case change their decision.

The reason why that is a matter of relevance to a question of the grant of special leave is that subsequently the Parliament has limited the jurisdictions of the Federal Magistrates Court and Federal Court such that neither of those courts can hear any judicial review of such decisions; only this Court has jurisdiction.  So on the view of the Full Court in Ahmed somebody who was in detention, who said that they were unlawfully in detention, could only seek interlocutory or any other kind of relief in this Court and given the implications for the workload of this Court, in the broader concept of the interests of justice generally, that is another factor which would warrant, in my submission, the Court considering whether Ahmed was correct.

In the decision of Uddin in the court below, which starts at page 80 of the application book, the majority deal with the question of the correctness of or the validity of the notices on page 91 through to 95.  In substance their Honours find a number of errors with the notice.  One is that it does not say that the Minister has reached the relevant kind of satisfaction both in terms of it does not identify the Minister at all, a formal type error – it identifies the Department.  It also does not say that there appear to be grounds for cancellation.  It says there may be grounds, which, as the majority said in paragraph 39, is a different matter.

The majority also noted that it was a case where the delegate had, in effect, misconceived the nature of the process by issuing the notice prior to having evidence.  Your Honours will see that section 119 requires to have in the notice particulars of the information upon which the proposal to cancel was made.  There was no such evidence.  The notice to cancel in this case was not exclusively but largely speculative.  Breaches were posited without any skerrick of evidence.  For example, there was an allegation my client had worked in breach of a work limitation order.  There is no suggestion there was any evidence of that whatsoever.

HEYDON J:   It is not a question of evidence though; it is a question of what particulars are in the notice, and there were particulars in the notice:

you have failed to maintain at least 80% attendance and make satisfactory academic progress –

and so on.

MR LLOYD:   But the Act also requires particulars of the information and it was on particulars ‑ ‑ ‑

HEYDON J:   “Your education provider has advised”

MR LLOYD:   But they had not.

HEYDON J:   Are you challenging the notice or is there is some other challenge?  I thought it was just a question of the formal validity of this step antecedent to the performance of the duty, the issuing of a notice.

MR LLOYD:   We certainly challenge the validity of the notice and we say that on the evidence before the Court there was not any information that was able to satisfy the Minister in relation to the particulars of the ground of 8202.

HEYDON J:   It does not have to be satisfied.  He must simply say there appear to be grounds.

MR LLOYD:   I should hasten to say also, your Honour, that even at the level of particulars we say that they are not adequate because although it says:

you have failed to maintain at least 80% attendance and make satisfactory academic progress for each term of your course of study.  It appears that you have breached condition 8202 –

Then, in relation to 8105, there is no particulars of 8105, which is the work issue, and there is no particulars of the information, as required by the section, upon which this allegation is made.  Then, as the evidence shows, what happened after sending the notice, the delegate then wrote to the Department and said, “Do you have any information that these people have failed to make satisfactory academic progress” and so on and so forth.  So it was a speculative notice.  They then went down and collected evidence.

The majority of the Full Court said that that was erroneous and, in my submission, that was correct to say that that was erroneous, but perhaps also from the point of view of special leave, if your Honours are of the view that Justice Bennett was correct, that is still a reason for granting special leave because otherwise in the relation to the construction of these provisions the majority’s view is currently perceived to be the correct view.  The majority also found errors, for example, in paragraph 43, page 93, relating to the substance, that:

the s 119 notice did not notify the appellant that there appeared to be grounds for cancelling his visa.  It did not notify the appellant that any person was satisfied, even on a provisional basis . . . It did not notify the appellant that reliance was being placed on the notice dated 11 April 2003 –

That is what the court considered was the kind of particulars that was required.  In my submission, that is correct.  We, of course, are not challenging that.  I note the time.  I have not really got to what I was going to say about Ahmed but perhaps I should say that, in our submission, the approach in Ahmed was that powers can be available to a decision‑maker even though preconditions are not met.

As a result, the Tribunal accedes to powers, even powers that the delegate did not have.  We say as a question of principle that is wrong.  Justice Brennan’s approach, standing in the shoes of the decision-maker, is the orthodox approach and that has been erroneously rejected in Ahmed.  Whatever the Court might think of the merits of my client personally, it is

an important issue because it does affect not just the MRT but the RRT and the AAT.  The same issue arises in relation to the nature of preconditions and the constraints of preconditions upon the Tribunal. 

In relation to errors in the decision in Ahmed, at paragraph 35 the Full Court said that the delegate had an available power, and, as I have indicated, on the basis of the approach in Upton, in our submission, it was not available and it is a misconception of the notion of availability of power to say that power is available if preconditions are not met.  That would be the same as saying the Minister has a power to cancel the visa of any visa holder, in a general sense, even though nothing has been done that would activate that power.

In our submission, as we say, even a condition precedent in a contract, the power that is activated by the condition precedent is not available until the condition precedent is done and that is the fundamental flaw of the approach in Ahmed.  It is also said that this kind of jurisdictional error is no different to any other kind.  We say there is a material difference.  There is a difference between making an error of law in the process of exercising a power which you do have and exercising a power which you do not have at all.

It was also said to be important by the Full Court in Ahmed that the Tribunal accedes to the powers and discretions of the delegate but not to the procedures.  That is a strange proposition that a tribunal ‑ ‑ ‑

GLEESON CJ:   Thank you, Mr Lloyd.  We do not need to hear you, Mr Gageler.

For three reasons we think that this case is an unsuitable vehicle for the agitation of any issue of law suitable for resolution by this Court.  The first is that any failure on the part of the delegate to afford statutory procedural fairness was rectified by the Tribunal and the applicant was given ample opportunity to comment on the reasons for affirming the cancellation of his visa.  The second is that by failing all the subjects attempted at the University of Ballarat in semester two of 2002 with the result that the university certified that this did not amount to satisfactory academic progress, it is difficult to see how the applicant could meet the mandatory visa condition of satisfactory academic progress.  The third reason is that having regard to the reasons advanced by Justice Bennett in her judgment in the Full Court of the Federal Court, there is substantial room for argument that there was no failure to comply with the statutory requirements in question in any event.

Accordingly, the application is dismissed with costs.

AT 2.34 PM THE MATTER WAS CONCLUDED