Uddin v Minister for Immigration
[2004] FMCA 493
•11 August 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| UDDIN v MINISTER FOR IMMIGRATION | [2004] FMCA 493 |
| MIGRATION – Application for review of decision to cancel student visa – jurisdictional error – claim notice under s.119 defective for lack of particulars – whether validity of such notice essential prerequisite for exercise of jurisdiction – whether notice defective for lack of bona fides and bias on part of delegate – whether Tribunal failed to exercise jurisdiction pursuant to s.359C to dispense with hearing. Judiciary Act1903 (Cth), s.39B Plaintiffs S157/2002 v Commonwealth of Australia (2003) 195 ALR 25 |
| Applicant: | MOHAMMED RAISUL UDDIN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ2930 of 2003 |
| Delivered on: | 11 August 2004 |
| Delivered at: | Adelaide |
| Hearing date: | 28 July 2004 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Dobbie |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr Bromwich |
| Solicitors for the Respondent: | Clayton Utz Lawyers |
ORDERS
That the application is dismissed.
That the applicant pay the respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ2930 of 2003
| MOHAMMED RAISUL UDDIN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
By his amended application filed on the 28th of July 2004, the applicant seeks orders pursuant to section 39B of the Judiciary Act1903 (Cth) and the Migration Act1958 (Cth) (“the Act”), for certiorari, mandamus and prohibition in relation to a decision of the Migration Review Tribunal (“the Tribunal”).
The applicant is Mohammed Raisul Uddin. He is a citizen of Bangladesh. He first entered Australia on 13 May 2000, as the holder of a subclass 560 (student) visa granted on 19 April 2000. Further such visas were granted to him on the 29th of August and the 11th of September, 2000. On 10 December 2000, the applicant was granted a subclass 573 (higher education sector student) visa on the basis that he was enrolled at the University of Ballarat undertaking a bachelor degree in information science. Attached to this visa were conditions. These conditions related to the applicant’s entitlement to work in Australia and his academic progress at university.
On the 9th of May 2003, the applicant was provided with a notice from an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) informing him that the Department was considering cancelling his student visa.
The applicant was interviewed by an official of the Department on
20 May 2003. Following this interview, a delegate of the respondent cancelled the applicant’s visa, finding that he had breached its conditions.
On the 28th of May 2003, the applicant applied to the Tribunal for a review of the delegate’s decision to cancel his visa. Thereafter, the Tribunal wrote to the applicant on a number of occasions requesting his comments on the information then before the Tribunal regarding the applicant’s progress at university. The applicant did not receive these notices as he had changed his address. However, he did not inform the Tribunal of this until 27 October 2003. By this time, the Tribunal member concerned had determined that the applicant had forfeited his entitlement to have a hearing before the Tribunal. The member did however allow the applicant to make further written submissions to the Tribunal.
On 3 December 2003, the Tribunal affirmed the decision of the delegate to cancel the applicant’s student visa. It is this decision which the applicant primarily seeks to challenge in this Court. He does so on two main bases:
·Firstly, in respect of the notice given to him on the 9th of May 2003, which he asserts was defective because of a lack of required particularity in the notice itself. He also asserts that the decision of the delegate to issue the notice was itself vitiated by bias and mala fides on the part of the officer issuing the notice. From this, he argues, it must follow that there was a failure of jurisdiction in the Tribunal as there was no proper decision of the delegate for it to consider. Accordingly, the only proper course for the Tribunal to take in such circumstances was to quash the decision of the delegate, which flowed from the defective notice.
·Secondly, the Tribunal failed to properly exercise the jurisdiction conferred upon it by the Act to dispense with a hearing involving the applicant, prior to making its decision on 3 December 2003.
In determining these issues, it will be necessary to consider the application of sections 116, 119, 359A, 359C and 360 of the Act.
Background
The applicant’s student visa had two conditions attached to it. These conditions were specified in conditions number 8105 and 8202 of schedule 8 of the Migration Act namely:
“8105(1) Subject to subclause (2), the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder’s course of study or training is in session.
(2)Subclause (1) does not apply to work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students.
8202(1) The holder (other than the holder of s 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 the 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 for 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 at 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 for less than a semester – for the course; or
(ii)for a course that runs for at least a semester – for each terms 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.
The narrative of this matter begins on 11 April 2003. On that date, the Director of International Education at the University of Ballarat sent the applicant a notice pursuant to section 20 of the Education Services for Overseas Student Act 2000 (Cth). This section requires the provider of tertiary educational services for overseas student visa holders to advise such students if they have breached any of the conditions of their visas by reason of a failure to attend properly or for lack of satisfactory academic progress. In the applicant’s case, the breach notified was:
“Student failed to enrol for the current semester.”
The notice was also forwarded to the Department and required the applicant to present himself to a compliance officer at the Department within 28 days, otherwise the applicant’s student visa would be automatically revoked.
As required, the applicant did present himself for interview at the Department on 9 May 2003. At the interview, the applicant was given written notice of the Department’s intention to consider cancellation of his student visa pursuant to section 116 of the Act. This is the so-called section 119 notice. The notice is in the form of a printed document, which has sections to be completed by the departmental officer concerned. The relevant section of the notice appears at paragraph 9 of the document. This section begins with the following printed heading:
“9 Possible grounds for cancellation
(include disclosable adverse information given by third parties)
It has come to the Department’s attention that there may be ground for cancellation of your visa under section 116 of the Migration Act 1958 for the following reasons (Note: Officer to complete prior to handing the notice to the visa holder).”
Under this heading, the Department Officer concerned has written as follows:
“Your education provider has advised that 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 of your student visa. You have failed to enrol for the current semester. It appears you have breached conditions 8105 and 8202 of your student visa.”
Thereafter, a further printed heading advises:
“If this is the case, your visa may be cancelled under:”
The form then provides a number of options, which may be indicated by ticking a box. In this case, the departmental officer concerned, a Mr Winter, has ticked a box indicating that the applicant’s student visa may be cancelled pursuant to section 116(1)(b) and section 116(3) and Regulation 2.43(2)(b), which in the form is described as “being student breach condition 8104, 8105 or 8202”.
There is no dispute between the parties that the applicant received this written notice and did so on the 9th of May, 2003. The notice also required the applicant to attend a further interview with the Department at 2.00pm on the 20th of May, 2003. Paragraph 10 of the notice contained in printed form the following information under the heading “Opportunity to Comment”:
“The Migration Act 1958 gives you the opportunity to comment on the intention to cancel your visa and to give reasons why your visa should not be cancelled. Your comments could include:
· why grounds for cancellation do not exist; or
· why your visa should not be cancelled.
Factors the delegate may take into consideration in making their decision whether to cancel your visa include (but are not limited to) the following:
· the purpose of your travel to and stay in Australia;
· extent of non-compliance with the conditions on your visa;
· the degree of hardship which may be caused to you or your family (Note: as per the Convention on the Rights of the Child, the best interests of any child in Australia under 18 years of age will be considered);
· your behaviour in relation to the department, now and on previous occasions.
You are invited to provide your comments at interview.”
On 12 May 2003, an officer of the Department sent a fax to the University of Ballarat requesting information about the applicant’s academic progress between 2001 and 2003. In a reply dated 13 May 2003, the University indicated that the applicant had not made satisfactory academic progress in semester 2 of 2002. The University also provided a copy of the applicant’s academic results for that semester, which indicated that he had not passed any one of the four subjects in which he was enrolled for that semester.
In addition, the University provided the Department with a letter dated 12 December 2002 addressed to the applicant which read in part as follows:
“The School of Information Technology and Mathematical Sciences Courses Committee has reviewed your results and considers your progress for semester 2 2002, to be unsatisfactory according to the regulations for the CT5 Bachelor of Information Technology. Poor performance in the consecutive semester may result in your exclusion from the course.”
On the 20th of May 2003, the applicant attended the interview with the Department as he had been requested. The interview was conducted by another officer of the Department, a Mr Wilson. Prior to this appointment, the Department had obtained further information from the Department of Education, Science and Training which indicated that the applicant had been previously enrolled in a Bachelor of Information Technology Degree course at Central Queensland University and had been suspended from that university for breaching its exam regulations in semester 1 of 2002. Obviously, this had resulted in the cessation of the applicant’s course of studies at the Central Queensland University.
The interview between Mr Wilson and the applicant was not comprehensively recorded. However, Mr Wilson made written notes, which indicate that the interview commenced at 2.000pm. Under the heading “History”, Mr Wilson briefly notes that the applicant had been excluded from the Central Queensland University; had failed all subjects at the University of Ballarat; and was not currently enrolled in a registered course.
The notes then indicate that at 2.30pm, Mr Wilson gave oral notice to the applicant of his intention to consider cancellation of the applicant’s student visa pursuant to section 116(1)(fa) of the Act. The applicant does not dispute that he was provided with this oral notice.
During the interview, the applicant apparently provided the delegate with a number of documents, which relate to an application for Crimes Compensation and some medical treatment which he had received in the second half of 2001. The applicant was apparently the victim of an assault in May of 2002 and as a result had to have an operation.
The interview notes that the applicant attributed his poor academic performance to this assault and indicated that he had problems with his concentration. In addition, he indicated that he had been overseas from February of 2003 until the 29th of April 2003 and as a result had missed the cut off date for enrolment. However, he indicated his intention to enrol for the second semester of 2003 commencing at Ballarat University in July of 2003. He denied working other than during the long university vacation between November and January.
On 20 May 2003, at the conclusion of the interview, the delegate, Mr Wilson, cancelled the applicant’s visa, finding that he had breached condition 8202 and was not a genuine student. The written reasons provided for this decision were as follows:
“Mr Uddin is not currently enrolled in a registered course of study – breach of 8202 – mandatory cancellation applies. Mr Uddin was suspended from CQU for cheating on exams in Semester 1, 2002. Mr Uddin did not make satisfactory academic progress at University of Ballarat in Semester 2, 2002, in that he failed all subjects attempted. Mr Uddin stated that his injuries sustained during an attack in May 2002 led to poor academic progress, however he continued to work as a security guard during this time. I do not consider Mr Uddin to be a genuine student in Australia.”
On the 28th of May 2003, the applicant applied to the Tribunal for a review of the delegate’s decision to cancel his visa. At that stage, he provided no information as to why he believed this decision was incorrect. The applicant provided a residential address on the application to which he indicated correspondence could be sent for him.
On the 29th of May 2003, the Tribunal wrote to the applicant at the address which he had provided inviting him to forward any documents or written arguments he wished the Tribunal to consider and which had not already been provided either to the Department or the Tribunal. Independently, a case officer from the Tribunal contacted the University of Ballarat to clarify the applicant’s academic record at that institution.
On the 29th of July 2003, the Tribunal wrote to the applicant again at the address which he had provided earlier. The letter drew the applicant’s attention to section 359A of the Act and invited his comments in respect of the following matters that the Tribunal considered could provide reason for affirming the delegate’s decision to cancel his student visa namely:
“l Information from the University of Ballarat states that you did not make satisfactory academic progress in Semester 2, 2002. You failed all four subjects that you attempted in Semester 2, 2002. You were not assessed in 2 subjects as you did not sit for final examinations in them, and you failed 2 other subjects due to your poor academic results.
lIt is a condition of your visa that you be enrolled in a registered course. You failed to re-enrol at the University of Ballarat, information received from the University of Ballarat is that you were enrolled there for Semester 2, 2002. There is no evidence before the Tribunal that you have been enrolled at any registered education provider since October 2002.
lAt interview with the Department you stated that you last attended class in October 2002.
lThe University wrote you on 12 December 2002 explaining that your academic performance was not satisfactory in Semester 2, 2002 and that your performance could lead to your exclusion from the course. You were requested to attend an appointment with a University staff member but did not do so.
lThere is no evidence that you made any enrolment arrangements prior to your departure from Australia in February 2003.
lThe Department delegate states that you have breached condition 8105 by working as a security guard for periods exceeding 20 hours each week, whilst your course was in session. It is recorded in the Decision to Cancel that you admitted that you had worked in excess of 20 hours per week.
lThe Department had deemed that you are not a genuine student. Information on the Departmental file that were suspended from a previous education provider, Central Queensland University (CQU) on 30 July 2002 for breaching University examination regulations; ie; cheating in examinations in Semester 1, 2002.”
This letter was returned to the Tribunal marked “return to sender”. It was not until 27 October 2003 that the applicant advised the Tribunal of his change of address. On this occasion, the applicant attended at the Tribunal and advised that he had received no correspondence from it. At this stage he completed a change of address form.
The only record in respect of what occurred between the applicant and the relevant officers of the Tribunal is contained in a file note dated the 27th of October, 2003. This file note indicates that the member of the Tribunal’s staff, who dealt with the applicant at this stage, contacted the Tribunal member who was considering Mr Uddin’s case. The Tribunal member informed her that Mr Uddin had lost his right to a hearing but directed the staff member to inform him that he may submit any further “info” he had in respect of the matter within two weeks of that date. It is clear that the applicant was also provided with a copy of the Tribunal’s letter dated the 29th of July, 2003.
It seems clear that as a result of this interaction between the applicant and the Tribunal that he forwarded a letter to it for further consideration by the Tribunal member concerned. The letter stated as follows:
“As meeting with the DIMIA officer, I stated everything what was happened. I was enrolled on the University of Ballarat on Semester 2 (July), 2003. But, unfortunately I couldn’t make satisfactory result as an incident was happened to me during May/June 2002 & I had a serious surgery operation on my mouth. I was going with my ongoing pain, numbness and loss of feeling in my jaw. I have to visit my treating doctor after every two weeks & I have also have to see Dr.Gary Banks (Physiologist) for the hit I was suffering on my head. I start feeling better around Oct/Nov. By the meantime, I couldn’t attend my university properly and that causes me today this problem for the incident.
It also stated saying that, I breached the condition 8105 by working as a security guard more than 20hours per week. But,as the summer semester is not compulsory, I can work exceed hours and I started to work more than 20hours after my semester finished. I have already given all of my pay slips and the bank statements from the first to end of my work which I started on November and finished on January.
I have been to overseas on 1st Feb, where I am supposed to be back on the first week of March to enroll and continue with my semester. But, I have got serious sick on my country and couldn’t be able to be back by that time (Original medical documents and hospital admission & release letter submitted to (DIMIA). So, I have decided to come back on first week of July and continue studies enrolling on July semester as I know student couldn’t stay here without enrolling on a registered course, otherwise to leave country and come back to get on next semester. But, my cousin who was living with me informed DIMIA sent me letter states to contact them within 28days of the notice. For the reason I have to come back at the end of July and had a meeting with an DIMIA officer on 19th May2003.
At present, I enrolled on the July semester and going on with my studies as a full time student. As I know everything what happened my fault, I hope to get a chance to continue with my studies in Australia at any condition you provide. You can check my academic results and others from now on where I have the confident to do my best result.”
It also seems clear that the applicant had provided either the Department or the Tribunal with records of his academic progress between 4 September 2000 and 13 July 2001 at the Information Technology Training Institute, during which time he completed a Diploma of Information Technology. A certificate of attendance indicates that the applicant attended 86% of the course time for the completion of this diploma.
On 3 December 2003, the Tribunal affirmed the decision of the Minister’s delegate to cancel the applicant’s visa. The Tribunal provided written reasons in support of its decision and found as follows:
· That in accordance with section 359C of the Act, the applicant was no longer entitled to appear before it at hearing and therefore the Tribunal would determine the matter on the basis of the papers before it.
· The Tribunal noted that under the mandatory cancellation regime in place, if a breach of one of the requirements of condition 8202 was made out, the applicant’s visa must remain cancelled.
· In determining whether the applicant had achieved satisfactory academic results during the period of his visa, the Tribunal noted that the applicant did not dispute that he had failed to make satisfactory academic progress during Semester 2 of 2002 but attributed this failure to illness.
· The Tribunal accepted the evidence on the Department’s file received from the University of Ballarat, which indicated that the applicant had made unsatisfactory academic progress in Semester 2 of 2002 and been advised that this might result in him being excluded from the course.
· The Tribunal considered the various medical documents provided by the applicant to the Minister’s delegate regarding his poor health in 2001 and the assault on him in May of 2002. However, the Tribunal noted that this evidence was far from complete and did not state that the applicant was unable to attend class for any significant period of time. Accordingly the Tribunal noted that the evidence indicated that the applicant may not been able to attend class for “some days in 2002”.
· Accordingly, the Tribunal found that on the evidence before it, it could not be established that the applicant had failed his subjects in the second semester of 2002 due to serious ill health as the applicant claimed.
· In any event, the Tribunal noted that the applicant had not reported his health problems to the University of Ballarat and there was no evidence which indicated that he had sought to withdraw or defer his studies because of his medical difficulties.
· Accordingly the Tribunal found that the applicant had failed to achieve a satisfactory result for the second semester of 2002.
· Therefore the Tribunal found that the applicant had breached the requirements of condition 8202(3) during the second semester of 2002 of his studies at Ballarat University. Accordingly the Tribunal found as follows:
“The Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantiated breach of 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. The Tribunal finds that the applicant’s visa should remain cancelled.
The Tribunal notes that other grounds for cancellation relating to the applicant’s compliance with condition 8105, and other aspects of condition 8202 were put forward by the delegate and commented on by the applicant. The delegate also found that the applicant was not a genuine student in Australia and was therefore subject to cancellation in accordance with s116(fa). However, given the findings made above, no purpose would be served in this review by pursuing any possible further grounds for cancellation.”
The legislative framework
Division 3 of Part 2 of the Act deals with the issue and regulation of visas for non-Australian citizens, entitling such people to enter and remain in Australia. In particular, Subdivision D relates to the grounds on which such visas may be cancelled and Subdivision E relates to the procedures to be followed for cancelling such visas.
Section 116 of the Act deals with the Minister’s powers to cancel a visa and reads as follows:
“(1)Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)any circumstances which permitted the grant of the visa no longer exist; or
(b)its holder has not complied with a condition of the visa; or
(c)another person required to comply with a condition of the visa has not complied with that condition; or
(d)if its holder has not entered Australia or has so entered but has not been immigration cleared – it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e)the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or
(f)the visa should not have been granted because the application for it, or its grant was in contravention of the Act or of another law of the Commonwealth; or
(fa) in the case of a student visa:
(i)its holder is not, or is likely not to be, a genuine student; or
(ii)its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
(g)a prescribed ground for cancelling a visa applies to the holder.
(1A)The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
(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.
Section 118A of the Act indicates that Subdivision E is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule in respect of the matters with which the subdivision deals.
Section 119 deals with the notice the Minister is required to give to a non-citizen visa holder if consideration is being given to the cancellation of that person’s visa. It reads as follows:
“(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.
(2)The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3)The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4)The other provisions of this Subdivision do not apply to a cancellation:
(a) under a provision other than section 116; or
(b) to which Subdivision F applies.
Section 120 deals with the information which must be given to a visa holder and reads as follows:
“(1)In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for cancelling a visa; and
(b)is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c) was not given by the holder; and
(d)was not disclosed to the holder in the notification under section 119.
(2) The Minister must:
(a)give particulars of the relevant information to the holder; and
(b)ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and
(c) invite the holder to comment on it.
(3)The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.”
Sections 123 and 124 deal with the potential consequences of a notice provided to a visa holder pursuant to section 119 and read as follows:
“If a visa holder does not respond to an invitation under paragraph 119(1)(b) or 120(2)(c) before the time for giving it has passed or tells the Minister that the visa holder does not wish to respond, the Minister may make the decision about cancellation without taking any further action about the information.
(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:
(a) the holder responds to the notice;
(b)the holder tells the Minister that the holder does not wish to respond;
(c) the time for responding to the notice passes;
(2)The Minister is not to cancel a visa after inviting the visa holder to comment on the information and before whichever one of the following happens first:
(a) the comments are given;
(b)the holder tells the Minister that the holder does not wish to comment;
(c) the time for commenting passes.”
The second limb of the applicant’s submissions relate to the failure of the Tribunal to exercise its discretion to allow the applicant to attend a hearing before it regarding the cancellation of his student visa. Accordingly, it is necessary to set out the relevant provisions of the Act which deal with this matter. Division 5 of Part 5 of the Act deals with procedures to be followed by the Tribunal in conducting a review of decisions of the Minister and his delegates. In particular sections 359, 359A and 359B deal with how the Tribunal may seek additional information in respect of the decision which it is reviewing.
Section 359 reads as follows:
“(1)In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2)Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3)If an invitation is given to a person other than the Secretary, the invitation must be given:
(a)except where paragraph (b) applies – by one of the methods specified in section 379A[1]; or
(b)if the invitation is given to a person in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(4)If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.
[1] Section 379A deals with the methods by which the Tribunal is to serve documents on parties in the proceedings before it. It provides an exhaustive list of such methods of service, which include service by hand; by pre-paid post; and transmission by fax, email or other electronic means.
Section 359A reads as follows:
“(1) Subject to subsection (2), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies – by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(4) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.”
Section 359B reads as follows:
“(1) If a person is:
(a)invited under section 359 to give additional information; or
(b)invited under section 359A to comment on information;
the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2)If the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3)If the invitation is to give information or comments at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b)at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4)If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5)If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b)a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.”
Section 359C deals with the failure of an applicant to provide additional information or comments to the Tribunal, if requested to do so and reads as follows:
“(1) If a person:
(a)is invited under section 359 to give additional information; and
(b)does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the additional information.
(2) If the applicant:
(a)is invited under section 359A to comment on information; and
(b)does not give the comments before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.”
Section 360 of the Act makes it mandatory for the Tribunal to invite an applicant to appear before it to give evidence and present arguments unless certain specified criteria are satisfied. It is the applicant’s position that the Tribunal has failed to properly apply section 360. Section 360 reads as follows:
“(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a)the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b)the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
The applicant is not entitled to a re-hearing, in this Court, of the case before the Tribunal or to a review, on the merits, of his application. The decision in this case is subject to section 474 of the Act, which reads as follows:
“(1) A privative clause decision:
(a) is final and conclusive; and
(b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”
Privative clause decision is defined as meaning decisions of an administrative character made under the Act. Accordingly, the effect of sections 474, is to prevent the judicial review of all decisions under the Act, except those vitiated by jurisdictional error. The effect of section 474 has been considered by the High Court in Plaintiffs S157/2002 v Commonwealth of Australia [2] and Re: Minister for Immigration; ex parte Applicant S134/2002[3].
[2] Plaintiffs S157/2002 v Commonwealth of Australia (2003) 195 ALR 25
[3] Re: Minister for Immigration; ex parte Applicant S134/2002 (2003) 195 ALR 1
In summary, a decision by the Tribunal that involves a jurisdictional error – either a failure to exercise jurisdiction or an excess of the jurisdiction conferred by the Act – is not a “decision under the [Migration] Act” and is thus not a privative clause decision as defined in sections 474(2) and (3) of the Act.[4] Such a decision is therefore reviewable, notwithstanding section 474.
[4] See S157 at [77] (per Gaudron, McHugh, Gummow, Kirby, Hayne JJ); S134 at [15] (Gleeson CJ, McHugh, Gummow, Hayne, Calliman JJ), [61], [72] (Gaudron and Kirby JJ).
However, not every breach of a restriction, limitation or requirement in the Act will result in jurisdictional error. The effect of section 474 of the Act is to necessitate an examination of the restriction, limitation or requirement in question to ascertain whether, in the light of section 474’s restrictions on judicial review, for non-observance of those limitations or requirements results in jurisdictional error.[5] This is a matter of statutory construction and involves an attempt to reconcile section 474’s restrictions on judicial review with the particular restriction, limitation or requirement.[6]
[5] See S157 at [77] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ); S134 at [72] (Gaudron and Kirby JJ).
[6] See S154 at [60], [77] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ)
Reconciliation will not be possible where the non-observance is of an “inviolable jurisdictional restraint” or an “imperative duty”[7] and therefore the jurisdictional error cannot be protected by section 474.
[7] See S157 at [21], [26] (Gleeson CJ), [76] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ); S134 at [79].
Examples of situations where an error will amount to a jurisdictional error, in the light of section 474, are where there has been a “manifest defect of jurisdiction” and “manifest fraud”[8] or where the error involves a limitation or duty which is “indispensable” or “essential to valid action.”[9] However, as a general proposition, jurisdictional error for the purposes of section 474 carries the same meaning as under the general law. In SDAV v Minister for Immigration[10] the Full Court of the Federal Court, comprising Hill, Branson and Stone JJ said that:
“[27] The statement that a particular error is a “jurisdictional error” is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void; Plaintiff 157 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult, but, either way an action or decision is either one which falls within the decision maker’s lawful authority or it is not. If it falls within the decision maker’s lawful authority then the error is made “within jurisdiction”. If it does not fall within the decision maker’s lawful authority and the error is a “jurisdictional error” and as such cannot be a valid action or decision. …
[30] … the legislature may grant wide or narrow jurisdiction and the scope of jurisdictional error will vary correspondingly. In construing the statute to determine the scope of the jurisdiction granted, due regard must be had to the intention of the legislature in enacting the privative clause. In Plaintiff S157, the High Court … noted that an effect of the section might be that “some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision” …
[33] It must be emphasised that the aim of the process of reconciliation is to determine whether the impugned act is within the jurisdiction granted by the Migration Act. As such the process does not distinguish between jurisdictional error and are not protected by the privative clause. It distinguishes between errors that are jurisdictional error and those that are not jurisdictional error.”[11]
[8] See Gleeson CJ in S157 at [12], [13], [18] and see Gleeson CJ’s references to “degrees of error” at [12]; see too S157 at [57] and [76] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ). See too the judgment of Callinan J in S157.
[9] S157 at [20] (Gleeson CJ), [76] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ) and see the references to Bhardwaj v Minister for Immigration (2002) 76 ALJR 598 in S134 at [38].
[10] SDAV v Minister for Immigrationand Multicultural Affairs (2003) FCAFC 129
[11] M136 of 2002 v Minister Immigration and Multicultural Affairs [2004] FMCA 120
A decision by the Tribunal made unfairly and in serious breach of the rules of natural justice is a jurisdictional error and is therefore not within the scope of protection afforded by section 474.[12]
[12] S157 at [37] – [38] (Gleeson CJ), [83] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ)
Section 474 will not protect a decision which on its face exceeds jurisdiction.[13] The protection that section 474 purports to afford will also be inapplicable unless the three Hickman provisos are satisfied.[14] The three Hickman[15] provisos are that the decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body.
[13] S157 at [57] (Gaurdon, McHugh, Gummow, Kirby, Hayne JJ); Gleeson CJ at [13] and Callinan J at [160] use the phrase “manifest error of jurisdiction”.
[14] S157 at [64] (Gaudron, McHugh, Gummow, Kirby, Hayne JJ).
[15] R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.
It is the applicant’s position that the delegate of the Minister in his decision of 20 May 2003, was made so unfairly and so in contravention of the requirements of section 119 of the Act that it amounts to a jurisdictional error, and is therefore not a decision which is accorded the protection of section 474.
The applicant’s submissions
The main thrust of the applicant’s submissions is that the two notices issued to him pursuant to section 119 of the Act – in writing on the 9th of May, 2003 and orally on the 20th of May, 2003 – are an essential prerequisite for any exercise of power by the Minister’s delegate pursuant to section 116 – particularly a decision to cancel a visa, such a decision having serious repercussions for the visa holder concerned. Mr Dobbie, counsel for the applicant, argues that the two notices are so defective that they cannot form the basis of the delegate’s decision to cancel Mr Uddin’s student visa on 20 May 2003 and that therefore there has been a jurisdictional error, which is not protected by the privative clause.
It follows therefore that the jurisdiction of the Tribunal has also failed. There being no proper decision of the delegate for it to consider and the only course open to it being to quash the purported decision of the delegate, which flowed from the defective section 119 notice. In this regard Mr Dobbie relied on a decision of Federal Magistrate Driver, Ahmed v Minister for Immigration[16], where His Honour said as follows:
“However, the MRT, like the AAT, stands in the shoes of the original decision maker. If the original decision maker had no shoes to begin with, the review tribunal cannot go barefoot. To put it another way, the stream cannot rise higher than its source. If the original decision maker had no jurisdiction to make the decision purportedly made, upon review, the tribunal cannot affirm that decision. The only available power under s.349(1) of the Migration Act would be to set the decision aside. However, the MRT could not substitute a new decision if the jurisdictional prerequisite for the making of a new decision did not exist. In order to have jurisdiction to cancel a visa under s.116 of the Act the Minister, or her delegate, must follow the procedures set out in ss.119 and 120. The procedure set out in s.121 may not be a jurisdictional prerequisite to the exercise of power: NAHV v Minister for Immigration [2003] FCAFC 102, but the procedure set out in ss.119(1) and 120 is a jurisdictional prerequisite to the exercise of power: Zubair at [19]. It follows, in my view, that the presiding member was correct in finding that if the procedure in ss.119 and 120 was not followed, there was no power in the MRT to affirm the decision under review. It is probably correct to say that these actions are a statutory expression of procedural fairness. But they are more than that. They are a jurisdictional prerequisite to the exercise of power. It follows that a breach of these sections is not simply a jurisdictional error in the form of a want of procedural fairness; it is a jurisdictional error removing the very foundation of the decision subject to review.”[17]
[16] Ahmed v Minister for Immigration and Multicultural Affairs [2004] FMCA 127
[17]Ahmed v Minister for Immigration and Multicultural Affairs (supra)
Mr Dobbie’s criticisms of the section 119 notice fall under a number of different heads:
·Firstly, the written notice of 9 May 2003 fails to contain sufficient particulars of the grounds and information on which the delegate formed his view that there may be grounds for cancelling Mr Uddin’s visa. This being an indispensable requirement of section 119(1)(a). In the words of Mr Dobbie, the notice contains “conclusions” but not particulars. As a result, it is Mr Dobbie’s submission that the notice itself is irremedially bad.
·Secondly, the decision of the delegate to issue the notices on 9 May and 20 May 2003 is itself vitiated by error as from the circumstances surrounding the issue of the notices, it can be inferred that the delegate was acting in bad faith and was biased against Mr Uddin. Essentially, the applicant submits that the delegate has recklessly disregarded the obligations placed on him pursuant to section 119 and has sought out every possible ground on which the applicant’s visa could be cancelled, without any proper evidentiary basis on which to base such an assertion. This approach is categorised by Mr Dobbie as being “contrived” or “scattergun” and so essentially unfair and in breach of the principles of natural justice, albeit those codified by subdivision E.
·Thirdly, it is the applicant’s submission that the various matters listed in the notice of 9 May 2003 as being possible bases for cancellation of the applicant’s visa namely:
i. Failure to maintain at least 80% attendance;
ii. Failure to make satisfactory progress for “each” term;
iii. Failure to enrol for the current semester;
iv. The breach of condition 8105 relating to work;
cannot be severed from one another. It is the applicant’s submission that at the time of the issue of the section 119 notice, the delegate was required to have all the information before him on which he could possibly consider cancellation of the applicant’s visa. This was to ensure that these matters could be fairly put toward the applicant. In this case, it is the applicant’s position that it is manifestly clear the only information before the delegate as at 9 May 2003, which could possibly found such a decision, was the notice from the University of Ballarat regarding the applicant’s failure to enrol in the first semester of 2003. Thus, at that stage, it was erroneous, on the basis of the information before the delegate, for him to assert that the applicant had failed to make satisfactory academic progress for each term; or failed to attend courses as required; or that he had failed to comply with the work requirements of his visa. In Mr Dobbie’s submission these were all unfounded conclusions, which the delegate had erroneously reached. The attachment of these erroneous grounds to the one which might possibly found jurisdiction – the failure to enrol – fatally infects the notice and cannot be severed from it.
·Fourthly, as the only basis on which a section 119 notice could have been issued on 9 May 2003 was the failure of the applicant to enrol for the first semester of 2003, the Tribunal did not have the jurisdictional prerequisite to reach the conclusion that the applicant had failed to achieve satisfactory progress in the second semester of 2002, which was the basis on which the Tribunal confirmed the delegate’s decision.
By this I take it that Mr Dobbie submits that the Tribunal failed to direct itself to answering the appropriate question which flowed from the delegate’s decision.[18]
[18] In this regard the applicant relies on Saleem v Migration Review Tribunal & Minister for Immigration [2004] FCA 234 per Allsop J at paragraph 60 and 63
The second limb of the applicant’s case is that the Tribunal failed to exercise the jurisdiction conferred upon it by the Act, when it considered his case prior to its decision of 3 December 2003. In particular that the Tribunal erred in its understanding of the application of sections 359C and 360 of the Act and failed to exercise the discretion conferred upon it regarding its decision to deal with the applicant’s case without a hearing.
There is no dispute that the Tribunal complied with the mandatory requirements of section 359A, by sending a letter on the 29th of July, 2003 to the address which the applicant had provided and that pursuant to other provisions of the Act, the applicant is deemed to have received that letter and the invitation which it contained. It is also uncontested that the applicant failed to respond to the notice within the time frame demanded by the Tribunal. These circumstances evoked the provisions of section 359C.
Pursuant to section 359C(2) the Tribunal has a discretion as to whether it will proceed to a decision without further reference to the applicant concerned, if that applicant does not provide further information. It is the applicant’s case that the Tribunal failed to exercise this discretion properly by in effect regarding it as mandatory to dispense with a hearing, when the applicant failed to respond to the section 359A notice within the stipulated temporal frame work.
The respondent’s submissions
It is the respondent’s position that the applicant has misconceived the nature of the notices given to the applicant pursuant to section 119 on 9 May and 20 May 2003. In the submission of Mr Bromwich, counsel for the respondent, such notices are not a jurisdictional prerequisite but are more properly described as being a necessary precursor to an interview, the purpose of which is to put a potential visa cancellee on notice as to the issues which will be raised by the delegate concerned at interview and so give such a person an opportunity to respond to the issues raised, after an appropriate period of time for consideration and, if necessary, to enable the potential cancellee to muster evidence.
In such circumstances, Mr Bromwich contends that it is not to be unexpected that section 119 notices may contain a multiplicity of matters, some of which are subsequently shown to have no basis as potential grounds for cancellation. This was the case in this matter. Mr Bromwich argues that, quite properly, the delegate raised the issue of Mr Uddin’s employment with him and Mr Uddin, at interview, was able to put this issue to rest, to the delegate’s satisfaction. This, in Mr Bromwich’s submission, demonstrates the essential fairness of the process in this case.
In Mr Bromwich’s submission, each case regarding the notice provided under section 119 and the subsequent decision pursuant to section 116 which is then made, must turn on its own particular facts. In this case, the delegate raised with Mr Uddin several possible bases on which his visa might be cancelled and gave him ample time in which to respond and prepare himself for interview. It was not unreasonable for the delegate to gather other information between the date of the notice and the subsequent interview to support the grounds already raised. This was the case in this matter, where the delegate made further inquiries of the University of Ballarat and Central Queensland University regarding the applicant’s academic progress.
It is the respondent’s position that the notice given to Mr Uddin on 9 May 2003 did provide him with sufficient particulars to enable him to prepare for the interview on the 23rd of May, after which the decision was made pursuant to section 116 to cancel Mr Uddin’s visa. In Mr Bromwich’s submission, the applicant could have been under no misapprehension as to the matters which would be raised at interview and was given an ample amount of time between the receipt of the notice and the interview itself to gather any evidence which he wished to put to the delegate at interview. Therefore it cannot be said that Mr Uddin was taken by surprise at interview.
Essentially the delegate was concerned at the fact that Mr Uddin had failed to enrol; was not progressing satisfactorily at his course; and had worked. The notice of 9 May 2003 raised all these issues fairly and squarely with Mr Uddin and it cannot be said that he was taken by surprise at interview. In addition, the oral notice given on 23 May 2003 that the delegate had grounds for believing that Mr Uddin was not a genuine student was of itself not a radical departure from the matters raised in the original written notice. In Mr Bromwich’s submission, it is inevitable that there be some overlap of grounds in cases such as the present one.
It follows from these various matters, in Mr Bromwich’s submission, that the applicant’s submissions regarding the inability to “sever” the various grounds provided in the section 119 notice and the tainting effect of grounds which are subsequently shown to have no basis in fact, is misconceived.
In Mr Bromwich’s submission, the onus to establish any bias or mala fides on the part of the Minister’s delegate lies with the applicant. It is Mr Bromwich’s case that the applicant has failed to discharge this onus. In particular, he argues that the applicant cannot reasonably establish that the delegate has manufactured any of the information, which was inserted into the printed form of the section 119 notice provided to the applicant on 9 May 2003. This is particularly so given that it was ultimately established that the applicant had in fact failed to enrol in his course for the first semester of 2003; had failed to progress satisfactorily at the course in the previous semester; and inquiries made of the applicant ultimately revealed that the had been working, albeit within the terms of his visa condition. In these circumstances, Mr Bromwich argues that not only has the applicant failed to shift the onus placed upon him but also there is no evidence whatsoever to indicate that the delegate has approached the task set for him with improper motives.
Similarly, in these circumstances, there is no evidence of any bias on the part of the delegate, who was in effect putting the Department’s legitimate concerns to the applicant quite fairly and allowing him an opportunity to respond in due course.
Finally, it is incontrovertible that the applicant failed to enrol in the course for the first semester of 2003 and so has breached clause (2)(a) of condition 8202 of his visa. Therefore, pursuant to section 116, it is mandatory for the Minister to cancel the applicant’s visa. Accordingly, it is Mr Bromwich’s position that the applicant cannot succeed in his ultimate objective of overturning or otherwise avoiding the cancellation of his visa and so this is an appropriate case for the Court to exercise its discretion to refuse relief upon the grounds of futility.
It is the respondent’s position that there has been no failure on the part of the Tribunal, in respect of the exercise of its power under section 359C. In Mr Bromwich’s submission, the discretion created by subsection 2 of 359C is not a “mandatory discretion”. In any event, it is his submission that a discretion was exercised in favour of the applicant by allowing him to make written submissions to the Tribunal, after the time specified in the letter sent to the applicant pursuant to section 359A had expired. The Tribunal was under no legal obligation and certainly there was no jurisdictional requirement placed on the Tribunal to compel it to grant this opportunity to the applicant. In this regard Mr Bromwich drew my attention to Makhu v Minister for Immigration and Multicultural and Indigenous Affairs[19], where His Honour Justice Mansfield said as follows:
“Under s 359C his failure to respond to that letter empowers the Tribunal to make a decision on the review without taking any further action to obtain the additional information or to obtain the applicant’s views on that information. Moreover, s 360, which obliges the Tribunal to invite the applicant to appear before it to give evidence and to present arguments relating to the issue arising in relation to the decision under review does not apply where there has been a failure to respond to a notice under s 359A: see s 360(2)(c). Section 360(3) expressly says that in such circumstances the applicant is not entitled to appear before the Tribunal.
Accordingly in my judgment, notwithstanding the applicant’s evidence that he did not in fact receive the notice under s 359A of the Act, the Act deems him to have received it in the circumstances and the Tribunal was not, under Div 5 of the Act, (including s 360), obliged to give him a further opportunity to give evidence or to present arguments as he did not respond to that notice. It was entitled to proceed to hear and determine his application, as it did.”
[19] Makhu v Minister for Immigration and Multicultural Affairs [2004] FCA 221
Conclusions
In my view, the evidence in this case does not indicate that there has been any jurisdictional error disclosed on the part of the Minister’s delegate in reaching the decision of the 23rd of May, 2003 to cancel Mr Uddin’s student visa. The notice given to Mr Uddin on the 9th of May, in my view, made it clear that the Department was considering cancellation of Mr Uddin’s visa on the basis that he had failed to make satisfactory academic progress. This was the ground ultimately confirmed by the Tribunal.
Subdivision E of Division 3 of the Act provides an exhaustive statement of the requirements for natural justice which need to be accorded to a visa holder who is subject to any potential decision of the Minister’s delegate to cancel his or her visa. I accept that those requirements are mandatory. However, whether they have been met or not must depend on the circumstances of each case.
Mr Dobbie places significant reliance on Ahmed’s case, to which reference has already been made. In that case, Federal Magistrate Driver applied Tien v Minister for Immigration and Multicultural Affairs.[20]. In that case, His Honour Justice Goldberg said as follows:
“The issue, in short, is whether the Minister in cancelling a visa under s 116 is limited to reasons specified in a s 119 notice and a s 120 notice. The issue arises this way. The scheme set out in Subdiv E of Div 3 of Pt 2 of the Act in relation to the procedure for cancelling visas requires the Minister, if considering cancelling a visa, to give particulars of the grounds which appear to exist for cancelling the visa and the information because of which the grounds appear to exist. The Minister is then required to invite the visa holder to show within a specified time that those grounds do not exist or that there is a reason why the visa should not be cancelled. The power to cancel a visa is found in s 116 and it sets out the grounds upon which such cancellation may occur.
It seems to me therefore that the Minister is only entitled to cancel a visa on grounds and information which the Minister is satisfied exist if the scheme in Subdiv E of Div 3 of Pt 2 has been followed, that is to say the particulars of the grounds and the information on which they are based must be notified to the visa holder in an appropriate way, which may be orally. However the scheme of the subdivision is not satisfied or complied with simply by the communication of the information. The fact of the nexus between the grounds of cancellation and the information giving rise to the grounds must be communicated to the visa holder. The visa holder must be told that the Minister or delegate considers that the information is a reason for the grounds of cancellation which were being considered. This is made clear by s 119(1)(a) and s 120(2)(b). Under s 119(1)(a) the Minister must give particulars of the information “because of which” the grounds appear to exist.”
[20] Tien v Minister for Immigration and Multicultural Affairs [1998] FCA 1552
Later in his judgment, His Honour held:
“The language used in ss 119, 120 and 121 makes it clear that the procedure set out is mandatory and must be followed. I do not regard this failure as insignificant or of no importance.”
Following the proper procedures provided by Subdivision D of Division 3 of Part 2 of the Act is therefore an essential pre-condition to the exercise of the cancellation power by the Minister’s delegate. I also accept that, as the Tribunal may only exercise the same powers and discretions conferred on the primary decision maker, it must follow that the Tribunal has no power to affirm a cancellation decision where the proper cancellation procedure has not been followed. However, I do not accept that in this particular case there has been a failure to follow the proper procedure. In my view, the circumstances which surrounded Mr Uddin are materially different to those which surrounded both Mr Tien and Mr Ahmed.
Mr Tien received notice pursuant to section 119 whilst in immigration clearance on the day he arrived in Australia. The notice which he received specified no time on which the interview envisaged by the notice would take place. However of the greatest importance in this case was the fact that the notice provided to him did not cover all the reasons which ultimately led the delegate to believe that there was strong grounds for cancelling Mr Tien’s visa. The interview which led to the decision to cancel Mr Tien’s visa took place eighty five minutes after he had been given the notice. These circumstances led His Honour Justice Goldberg to conclude that the nexus between the grounds of cancellation and the information giving rise to those grounds had not been communicated to Mr Tien prior to the adverse decision to him.
In Ahmed’s case, Federal Magistrate Driver found that the decision maker concerned had failed to notify the visa holder of the grounds contemplated for cancelling his visa. He found that a letter to the visa holder concerned had insufficiently identified the proposed ground of cancellation.
In this particular case, the notice provided to Mr Uddin on 9 May 2003 succinctly, if somewhat baldly, set out the grounds on which the delegate was considering cancelling Mr Uddin’s student visa. In my view, there is no ambiguity or uncertainty in any of the reasons and Mr Uddin would not have been taken by surprise by anything that occurred at the subsequent interview. In addition, Mr Uddin had a reasonable amount of time to prepare the interview.
In my view, there is nothing untoward in the fact that the various departmental officers made further inquiries of both the University of Ballarat and Central Queensland University in respect of Mr Uddin’s academic progress at these institutions. These inquiries revealed that Mr Uddin had in fact failed to make satisfactory academic progress. It is not necessary, in my view, in order to accede to the codified requirements for natural justice as set out in Subdivision D for the Minister’s delegate to set out precise details of the unsatisfactory academic progress.
In my view, in this particular case, the evidence indicates that the Minister’s delegate did indeed follow proper procedures and did accord the applicant the prerequisite information to accord him procedural fairness before the decision was made to cancel his student visa. It must follow from this conclusion that there has been no jurisdictional error by reason of any failure arising from the application of the provisions contained in Subdivision D of Division 3 of Part 2 of the Act.
In addition, I am satisfied that the applicant has failed to establish any jurisdictional error based on a lack of bona fides or bias on behalf of either Mr Winter or Mr Wilson.
In SBBS v Minister for Immigration and Multicultural and Indigenous Affairs[21], the Full Court of the Federal Court summarised the principles applicable to a determination as the whether a decision under review constituted a bona fide attempt to exercise the power of review. Those principles are as follows:
[21] SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361
l An allegation of bad faith is a serious matter involving personal fault on the part of the decision maker.
l Such an allegation is not to be lightly made and must be clearly alleged and proved.
l There are many ways in which bad faith can occur and it is not possible to give a comprehensive definition.
l However, the presence or absence of honesty will often be crucial.
l The circumstances in which a court will find an administrative decision maker has not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon are the written reasons for the decision under review.
l Mere error or irrationality does not of itself demonstrate lack of good faith. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to a finding that decision maker did not undertake its task in a way which involves personal criticism.
l Errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
l The court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task.
l Finally, it is not necessary to demonstrate that the decision maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.
In this case, it appears to be the applicant’s case that the various decision makers involved in his case approached their respective tasks with a degree of recklessness or capriciousness, which demonstrates a lack of bona fides. In particular, he asserts that Mr Winter recklessly asserted that Mr Uddin had breached the work requirements of his visa and that he had failed to achieve satisfactory academic progress in “each” term of his course.
I do not believe that the evidence, which can be deduced from the record, indicates either a recklessness or capriciousness on the part of the delegate concerned. To the contrary, the delegate was putting matters about which the Department had legitimate concerns. Ultimately, particularly in respect of Mr Uddin’s work history, those concerns were assuaged. However, this was not the case in respect of the other matters raised with him at interview on the 23rd of May, 2003.
The test to be applied in respect of apprehended bias regarding administrative proceedings is set out in Re Refugee Review Tribunal; Ex parte H.[22] In this case, the High Court (per Gleeson CJ, Gaudron and Gummow JJ) held as follows:
[22] Re Refugee Review Tribunal; Ex parte H [2001] HCA 28
“…
In the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias [is the proper formulation].”
In my view, there is no evidence to indicate that either of the delegates concerned did not bring an impartial mind to the resolution of the question to be decided in respect of Mr Uddin and his student visa.
Finally, I do not believe that the Tribunal’s discretion pursuant to section 359C miscarried. In this regard, I accept the submissions of Mr Bromwich and in particular his view of the effect of Makhu’s case. The Tribunal was under no obligation to make any decision regarding whether it would or would not allow the applicant a hearing. In particular, subsection (1) of s.360 did not apply to the applicant’s case. Clearly s.359C (1) did apply to the applicant. Accordingly, it follows that there has been no failure of the discretion.
For all these reasons, it must follow that the application should be dismissed. The applicant has failed to demonstrate any jurisdictional error on the part of either the Minister’s delegate or the Tribunal itself.
The respondent has sought an order for costs. Costs should follow the event in this case. I will order that the applicant pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.00.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C White
Date: 18 August 2004
3
10
0