WANG v Minister for Immigration
[2006] FMCA 1034
•27 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WANG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1034 |
| MIGRATION – Migration Review Tribunal – temporary student visa – whether jurisdictional error – condition 8202 – whether failure to comply with s.359A of Migration Act – whether discretion in the event of breach of s.359A – discretion pursuant to s.75v of the Constitution. |
| Migration Act 1958, ss.116(1)(b), 357A91), 359A, 424A Education Services for Overseas Students Act 2002, s.20 Constitution, s.75(v) Judiciary Act 1903, s.39B |
| Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 444 SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 215 ALR 162 Kioa v West [1985] 159 CLR 550 Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 Shen v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 408 |
| Applicant: | NI WANG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File number: | MLG 644 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 28 June 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 27 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr R.Y. Niall |
| Solicitors for the Applicant: | Australia Legal Advisory Centre |
| Counsel for the First Respondent: | Ms E. Latif |
| Solicitors for the First Respondent: | Phillips Fox |
ORDERS
The Application as amended be dismissed.
The Applicant shall pay the First Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 644 of 2005
| NI WANG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an amended application filed 23 June 2006, the Applicant seeks judicial review of a decision of the Migration Review Tribunal (the Tribunal) dated 9 May 2005. In its decision, the Tribunal affirmed a decision of the delegate to cancel the Applicant's temporary student visa.
Background
The Applicant is a 23‑year‑old citizen of the People's Republic of China. She entered Australia on a student visa on 5 March 2000 which then expired on 15 March 2003. The Applicant was granted a temporary student visa which was then due to expire on 15 March 2006. It is common ground that the visa had conditions attached to it, including condition 8202 in schedule 8 of the Migration Regulations 1994 which provides as follows:-
“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 a secondary 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 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 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.”
It is not in dispute that s.116(1)(b) of the Migration Act 1958 (the Act) provides that the Minister may cancel a visa if satisfied that the holder has not complied with a condition of the visa. Further, it is not in dispute that regulation 2.43(2)(b) ascribes a breach of condition 8202 set out above has a prescribed circumstance for the purpose of s.116(3) which itself provides the cancellation of a visa under subs.(1) of that section being a mandatory cancellation if there exists "prescribed circumstances" in which the visa must be cancelled; that is, a breach of condition 8202 as a matter of law appears to be a prescribed circumstance.
In this matter, the Applicant had been enrolled in a Bachelor of Commerce course at Monash University which she commenced on 3 March 2003. The Applicant was due to complete the course on 31 December 2005. The material before the Tribunal demonstrated that by letter dated 4 March 2004, Monash University notified the Applicant that she had breached the condition of the visa relating to satisfactory academic performance. The letter in part provides the following (Court Book page 1):-
"This Notice is sent to you pursuant to section 20 of the Education Services for Overseas Students Act 2000 as you have breached a condition of your student visa relating to satisfactory academic performance in the course in which you have been enrolled at this institution.
Particulars of breach:
Excluded by the Faculty of Business and Economics for unsatisfactory academic progress in the 2003 academic year – breach of condition 8202
Pursuant to section 137J of the Migration Act 1958, your student visa will cease on the 28th day after the date of this notice and ends on the 28th day thereafter."
It is not in dispute that the Applicant appeared to have failed seven of the eight subjects for which she had been enrolled in the 2003 academic year. It is also not in dispute that the Applicant had not applied for any special consideration to be granted by Monash University or at any relevant time otherwise challenged the academic record.
The letter dated 4 March 2004 to the Applicant had also prompted what is described as a notice by the university to the First Respondent's Department pursuant to s.20 of the Education Services for Overseas Students Act 2002 (the s.20 notice) indicating the Applicant had been excluded from university for unsatisfactory academic performance.
Thereafter, the Department served a notice on the Applicant pursuant to s.116 of the Act, and did so on 30 March 2004 indicating the intention to consider cancellation of the Applicant's visa. That notice (Court Book page 7) under the provision headed "Possible Grounds for Cancellation" states:-
“You have been reported by Monash University on 4/3/04 for unsatisfactory academic progress.
Possible breach of 8202 condition.”
The same notice also has a box ticked next to the following:-
“s116(1)(b) and s116(3) and Reg 2.43(2)(b)
(Student breach of condition 8104, 8105 or 8202”
It should be noted that condition "8202" has been circled in the notice.
It appears that the Applicant was invited to attend an interview with the delegate on 7 April 2004 at 10 am. The Applicant then submitted documents in support of a submission that grounds existed in support of the proposition that her visa should not be cancelled. Specifically the Applicant referred to extenuating circumstances explaining her lack of academic progress.
On the same date of the interview the delegate, after considering the Applicant's written and oral submissions, cancelled the Applicant's visa and then notified her of the decision. In the record of decision (Court Book page 62) the delegate states in relation to the "evidence of and reasons why grants for cancellation do or do not exist" the following:-
“Student was reported by Monash University on 4/3/04 for unsatisfactory academic progress in 2003. Academic record shows that student failed 4 out of 4 subjects in semester 1, 2003 and 3 out of 4 subjects in semester 2, 2003. Student provided documentary evidence regarding her mother's illness, previous school reports and VCE results.
Possible breach of condition 8202 on academic grounds.”
The Applicant made an application for review of that decision with the Migration Review Tribunal (the Tribunal) on 8 April 2004. Submissions and evidence were filed in support of that application (Court Book pages 69-81). Those submissions were forwarded under cover of letter dated 7 April 2004 from the Applicant's lawyers. The Applicant attended a hearing before the Tribunal and was represented and gave oral evidence. On 9 February 2005, the Tribunal sent the Applicant a letter pursuant to s.359A of the Act inviting her to comment on information the Tribunal considered may be the reason or part of the reason for affirming the decision under review.
In this application, having regard to the grounds relied upon, it is relevant in my view to set out in part an extract from that s.359A letter (Court Book page 96):-
“Section 359A of the Act states that the Tribunal must explain, and invite comment on, '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’.
You are invited to comment, in writing, on the following information:
· Monash University has notified DIMIA that your (sic) were excluded by the Faculty of Business and Economics for unsatisfactory performance in the 2003 academic year. Academic records from Monash University show that you failed 4 out of 4 subjects attempted in Semester 1 of 2003 and 3 out of 4 subjects attempted in Semester 2 of 2003.
This information is relevant to the review because it may be the reason, or part of the reason, for affirming the decision under review.”
The Tribunal decision
The Tribunal referred to the material provided by the Applicant and considered the validity of the s.20 notice served on the Applicant by the university. The Tribunal concluded that the notice filed by the university was defective but in compliance with the authority of Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 444 (Zubair) found it nevertheless had jurisdiction to determine the application.
Specifically, the Tribunal under the heading "Findings and Reasons" when analysing the "notification procedures" at Court Book pages 234‑235 states the following:-
“31. What constitutes sufficient particulars of the grounds for cancellation of a visa was considered in Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235, where the Full Federal Court of Australia discussed the level of particularity that is required in a notification under section 119 of the Act and held that:
Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. The supporting information will include a description of any evidence upon which the grounds are based.
The overall purpose to be served by section 119 is procedural fairness and it is that which informs the construction and application of the section.
32. The Tribunal notes that a possible failure of the delegate to meet the provisions of the procedure set out in ss.119(1) and 120 of the Act would not in itself be an impediment to a review by the Tribunal. In Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, after considering the meaning of an ‘MRT reviewable decision,’ the Court found:
It should therefore be concluded that the Tribunal did have power to review the delegate’s decision. The Tribunal was, in consequence, able to ‘cure’ the defect in the delegate’s decision.
33. The decision in Zubair was recently followed by the Full Court of the Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 which found at paragraph 42 of the decision:
… the constitution and powers of the Tribunal are appropriate for a body conducting review on the merits rather than making decisions as to compliance with statutory provisions. An application for review to a tribunal is an application for review on the merits. Judgments as to the validity of actions by the Minister is for the courts, not for an administrative body such as the Tribunal.
34. On the evidence before it, the Tribunal finds that the NOICC issued, under section 119 of the Act, did not particularise the breach in sufficient detail to inform fairly the visa holder of the basis upon which cancellation was being considered. There was no detail given in the NOICC in relation to the ‘unsatisfactory academic performance’.
35. However, following the decision in Zubair and the most recent Full Federal Court decision in Ahmed discussed above, the Tribunal has determined that the defect in the notification provision has been ‘cured’ by the Tribunal. The letter sent to the review applicant under section 359A of the Act provided particulars of the alleged breach and enclosed copies of the Academic History provided by Monash University. The review applicant was invited to comment on these allegations and did so in her statutory declaration dated 24 March 2004. In addition, the Tribunal specifically discussed the review applicant’s academic results with her at the hearing and received oral evidence in relation to her reasons for failing to achieve a satisfactory academic result for Semesters 1 and 2 of 2003.
36. Therefore, the Tribunal will now consider the grounds for cancellation.”
The Tribunal then proceeded to refer to the relevant law in relation to condition 8202 and specifically made the following relevant findings at Court Book page 237:-
“43. Therefore, following these decisions of the Federal Court the Tribunal does not have any discretion to set aside a visa cancellation where there has been a substantial breach of condition 8202. Accordingly, if the Tribunal is satisfied that the review applicant has breached condition 8202, it must affirm the visa cancellation.
44. The central question for the Tribunal is whether the review applicant breached condition 8202 of her visa. Compliance with 8202 must be assessed from 2 May 2003 (when the visa was granted) to 7 April 2004 (when the visa-was cancelled).
45. There is no evidence before the Tribunal that Monash University kept attendance records during the relevant period and this does not appear to have been an issue for the delegate.
46. However, in relation to the review applicant’s academic results, Monash University confirmed that the review applicant did not meet course requirements in semesters l and 2 of 2003 and that her enrolment had been terminated due to academic reasons. The academic history provided to the Department by Monash University, which has since been provided to the review applicant by the Tribunal, indicated that the review applicant failed 4 out of 4 subjects attempted during semester 1 of 2003 and failed 3 out of 4 subjects attempted in semester 2 of 2003. She withdrew from 3 other subjects. There is no claim or evidence that the education provider has certified that the student achieved an academic result that is at least satisfactory as required by regulation 8202(3)(b). Therefore, on the evidence before it, the Tribunal finds that the breach of condition 8202 is made out.
47. The review applicant submitted that her study in 2003 was disturbed by her mother’s diagnosis and illness. While the Tribunal is sympathetic to the review applicant’s situation, following the decisions of the Federal Court in Minister for Immigration and Multicultural Affairs v Hou [2002] FCA 574 and Minister for Immigration and Multicultural Affairs v Nguyen [2002] FCA 460, 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 section 116(3), to affirm the visa cancellation.
48. The requirement in condition 8202(3)(b) is that the education provider certifies that the academic results achieved by a student are at least satisfactory, not the delegate or the Tribunal. In this case, Monash University determined that the review applicant’s results were not satisfactory for semesters I and 2 of 2003. As there is no evidence before the Tribunal that the education provider has certified that the review applicant achieved an academic result that is at least satisfactory, the Tribunal finds that the review applicant has breached condition 8202(3)(b) of her subclass 573 visa.
49. Consequently the Tribunal is satisfied that the grounds for cancellation of the review applicant’s visa exist. In light of this finding, section 116(3) of the Act and Regulation 2.42(2)(b) require that the review applicant’s visa must be cancelled. On the basis of the reasoning in Nguyen and Hou, the Tribunal does not have any discretion not to cancel the review applicant’s visa.”
The Tribunal then concluded that it was satisfied the Applicant had breached condition 8202 of her visa and affirmed the decision under review.
The amended application
In the amended application, the grounds relied upon are as follows:-
1. The Tribunal, in holding that the applicant was not entitled to the grant of a subclass 801 visa, exceeded its jurisdiction, committed jurisdictional error or failed to exercise jurisdiction;
PARTICULARS
(a)the Tribunal failed to comply with s 359A of the Migration Act in that the letter of 9 February 2005 did not provide any information that would enable the applicant to understand why the information referred to in the letter is relevant to the review;
(b) further or alternatively in breach of s 359A(1)(b) of the Act the Tribunal did not ensure, as far as is reasonably practicable, that the applicant understands why the information referred to in its letter of 9 February 2005 was relevant to the review.”
Submissions and reasoning
It will be evident from the amended application that the submissions made for and on behalf of the Applicant involve a somewhat narrow issue raised in this application.
The Applicant's counsel referred to the s.359A letter and in particular submitted that in this instance the Tribunal failed to comply with s.359A because it did not "ensure as far as reasonably practicable that the Applicant understands why it is relevant to the review". Those words are taken directly from s.359A which relevantly provides 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.”
Criticism was made of the s.359A letter where the Tribunal simply states that "this information is relevant to the review because it may be the reason or part of the reason for affirming the decision under review". It was submitted that that passage indicated nothing to the Applicant concerning the basis upon which the material might be relevant to the review. It was submitted the Tribunal was obliged to draw to the Applicant's attention the connection between the information received and the possible operation of condition 8202 of the visa. There was a requirement to ensure that the Applicant understood why the information identified by the Tribunal is relevant to the review and that this is crucial to the operation of s.359A of the Act.
It was submitted that the obligations of the Tribunal under the section are not satisfied by the use of the words that the information would be "the reason or part of the reason for affirming the decision". It was submitted that the Applicant is entitled to rely upon the High Court authority in SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 215 ALR 162. Reference was made to the following extracts from that decision, per McHugh J:-
“70.Because the language of s 424A is imperative, failure to comply with the obligation to provide the applicant with particulars of adverse information in writing constitutes a breach of that section. Gray J remarked in VEAJ that[45]:
‘It is clear from sub-s (2) [of s 424A] that the Tribunal cannot discharge its obligation by giving to an applicant oral particulars of the information in the course of a hearing. The obligation of the Tribunal to give both the particulars and an indication of the relevance of the information by one of the means specified in s 441A, or by the prescribed means of giving documents to persons in detention, makes it clear that the particulars and the explanation of relevance must be reduced to writing. Even in the case of relatively simple, and perhaps uncontroversial, items of information, the Tribunal is not given the option of raising them with an applicant in the course of a hearing and giving an oral explanation of its view as to their relevance. The Tribunal must give written particulars and a written explanation."
71.His Honour's approach should be followed. There was some debate before this Court as to whether the term "must" in s 424(1) necessarily imposed a "mandatory" requirement to provide the information in writing in all circumstances. However, in the absence of any qualifying terms, the natural meaning of the section is that the Tribunal is compelled in all circumstances to provide the information in writing. This is so, even if the Tribunal puts the information to the applicant at an interview or when the applicant appears before the Tribunal to give evidence and present arguments. Such a construction is consistent with the purpose of the section to accord the applicant procedural fairness in the conduct of the review.
The effect of the failure to comply with s 424A: the jurisdictional error issue
72.Jurisdictional error may arise where a decision-maker fails to discharge "imperative duties" or to observe "inviolable limitations or restraints" found in the Act[46]. To determine whether a decision under the Act involves a jurisdictional error, it is necessary to take two steps. First, it is necessary to determine the limitations and restraints found in the Act. Secondly, it is necessary to attempt, through statutory construction, to reconcile them with s 474 of the Act to ascertain whether failure to observe any particular procedural or other requirement in the Act constitutes an error which has resulted in the decision-maker failing to exercise or exceeding its jurisdiction.
73.Section 424A is a statutory formulation of the obligation to accord procedural fairness in the conduct of a review. The question is whether failure to comply with that section gives rise to jurisdictional error such that the decision of the Tribunal is invalidated. To answer this question, it is necessary to have regard to "the language of the relevant provision and the scope and object of the whole statute" in order to ascertain whether the Parliament intended that an act done in breach of s 424A is invalid[47]. The question is not easy to answer. In the joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority, Gummow, Kirby and Hayne JJ and I said that whether an act done in breach of a condition regulating the exercise of a statutory power is invalid[48]:
‘depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
... A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute'.’ (footnotes omitted)
74.Failure to accord procedural fairness may give rise to jurisdictional error. In NAHV, the Full Federal Court held that failure to observe the requirement in s 424A(2) did not amount to jurisdictional error by the Tribunal (ie, a failure to exercise jurisdiction or an exceeding of jurisdiction), in circumstances where there was no unfairness or failure to accord procedural fairness. That was because the failure to comply with s 424A(2) was not one of substance. It went only to the procedural question of communicating the information referred to in s 424A(1)[49]. The Full Court held that Parliament did not intend that a breach of the condition as to the manner of delivery of the information should necessarily result in the invalidity of the Tribunal's decision even in circumstances where the important substantive requirement of s 424A(1) was otherwise satisfied[50]. Accordingly, the Court held that the failure to convey the information by the correct method did not constitute jurisdictional error[51]. The Full Court said[52]:
‘The 'mandatory' language (the word 'must' is used in s 424A(2)) is relevant to, but not decisive of, this inquiry. In our view, it cannot be concluded that invalidity of the Tribunal's decision is the necessary consequence of any failure to comply with s 424A(2), irrespective of the absence of any unfairness, whether of a substantive or procedural kind.’
75.However, this statement was made in the context where it was common ground that the Tribunal had complied with s 424A(1). The Court acknowledged that "[q]uite different considerations might attend the analysis had there been a breach of s 424A(1)."[53] On this view s 424A operates:
1. when the s 425 procedure has been invoked;
2. when the Tribunal obtains adverse material during a s 425 hearing; and
3. when the Tribunal fails to give to the applicant in writing that information, the explanation of its relevance and the invitation to comment on it.
The failure is a breach of s 424A and may amount to jurisdictional error.
76.In NAHV, the Court accepted that no unfairness or failure to accord procedural fairness had occurred in circumstances where the Tribunal advised the applicant that it had certain information (an anonymous letter) that was potentially adverse to the applicant. The Tribunal conducted an interview with the applicant to discuss the letter. Apparently, it gave the applicant particulars of the adverse material and implicitly invited the applicant to comment on it. But it did not give the applicant those particulars or the invitation to respond in writing. The applicant did not complain about this aspect of the Tribunal's hearing (that is, the applicant did not assert that there was any failure to give him that information or invite his comment), so the Full Court proceeded on the basis that no such failure had occurred.
77.However, because the Act compels the Tribunal in the conduct of the review to take certain steps in order to accord procedural fairness to the applicant for review, before recording a decision, it would be an anomalous result if the Tribunal's decision were found to be valid, notwithstanding that the Tribunal has failed to discharge that obligation. It is not to the point that the Tribunal may have given the applicant particulars of the adverse information orally. It is also not to the point that in some cases it might seem unnecessary to give the applicant written particulars of adverse information (for example, if the applicant is present when the Tribunal receives the adverse information as evidence from another person and the Tribunal there and then invites the applicant orally to comment on it). If the requirement to give written particulars is mandatory, then failure to comply means that the Tribunal has not discharged its statutory function. There can be no "partial compliance" with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not. Given the significance of the obligation in the context of the review process (the obligation is mandated in every case), it is difficult to accept the proposition that a decision made despite the lack of strict compliance is a valid decision under the Act. Any suggestion by the Full Federal Court in NAHV to the contrary should not be accepted. Parliament has made the provisions of s 424A one of the centrepieces of its regime of statutory procedural fairness. Because that is so, the best view of the section is that failure to comply with it goes to the heart of the decision-making process. Consequently, a decision made after a breach of s 424A is invalid.”
per Kirby J:-
“173.Nevertheless, is breach of s 424A sufficient to establish jurisdictional error necessary for relief in this case? Because of the mandatory language of s 424A ("must") and the provisions of Pt 7, Div 4, I agree with Hayne J[129] that the breach is sufficient to constitute jurisdictional error, as that opaque expression has been interpreted. An imperative obligation for the conduct of a review by the Tribunal has not been complied with. The will of the Parliament must be obeyed. The resulting decision of the Tribunal is not, therefore, one protected by the Act from judicial review in the Federal Court.”
per Hayne J:-
“208.Where the Act prescribes steps that the Tribunal must take in conducting its review and those steps are directed to informing the applicant for review (among other things) of the relevance to the review of the information that is conveyed, both the language of the Act and its scope and objects point inexorably to the conclusion that want of compliance with s 424A renders the decision invalid. Whether those steps would be judged to be necessary or even desirable in the circumstances of a particular case, to give procedural fairness to that applicant, is not to the point. The Act prescribes what is to be done in every case.”
Specific reference was also made to the decision of McHugh J at [84] where his Honour states in SAAP:-
“84.If the decision of the Tribunal is invalid for want of procedural fairness, there is no reason to withhold discretionary relief. There is nothing to suggest that the conduct of the appellants warrants the refusal to exercise the discretion. There is no suggestion of delay, waiver, acquiescence or unclean hands. Whether the first appellant was in fact deprived of a relevant opportunity to deal with the adverse material received by the Tribunal from her eldest daughter should not affect the discretion to grant relief.”
Similarly, reliance was placed upon the decision of Hayne J where in SAAP his Honour states the following at [211]:-
“211.For the reasons given earlier, the decision reached by the Tribunal is invalid. There is no basis, in this case, on which the undoubted discretion to refuse the relief sought could be exercised against its grant. There has been no suggestion of delay, waiver, acquiescence or other conduct of the appellants said to stand in their way. As Gaudron J said in Enfield City Corporation v Development Assessment Commission[155]:
‘Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less." (footnote omitted)
Even if the considerations advanced by the Minister were relevant to considering whether relief should go for jurisdictional error constituted by a want of procedural fairness (a question I need not examine) they are not considerations that bear upon whether certiorari should go to quash what is found to be an invalid decision.”
The First Respondent submitted that in this instance there has not been any failure to comply with the requirements of s.359A of the Act by the Tribunal. The First Respondent noted that in the amended application effectively one ground is relied upon in support of the proposition that there is jurisdictional error. Whilst conceding that a Tribunal's decision may involve jurisdictional error as a consequence of denial of procedural fairness, it was submitted in this instance, where there is an obligation to record procedural fairness, what is required to discharge the obligation depends upon the relevant statute, the nature of the inquiry and the subject matter and circumstances of the case (see Kioa v West [1985] 159 CLR 550 at [584-585]).
It was submitted that whether there has been a breach of the Tribunal's obligations of procedural fairness it should be judged with the Tribunal's overarching objective to provide a review that is "fair, just, economical, informal and quick" (see s.353(1) of the Act).
In this instance it was submitted that Division 5 of Part V of the Act provides an exhaustive statement of the Tribunal's obligations of procedural fairness in conducting its review (see s.357A(1) and see Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [60-70]).
In this instance it was submitted that the division accords the review Applicant the right to file information with the Tribunal and to have that information provided to her and be invited to provide additional information to attend a hearing before the Tribunal and request the Tribunal to call witnesses.
It was noted that the courts have considered the operation of s.359A (and s.424A being the counterpart provision governing the Refugee Review Tribunal) on a number of occasions. It was submitted that that jurisprudence, including SAAP, has not given specific consideration to the matters. It ought in fairness be raised in an invitation to comment made pursuant to either provision.
Accordingly, the First Respondent submitted that in this instance, the issues which have arisen for determination by the court are whether:
·the Tribunal's apparent awareness of the application, that the Applicant had breached condition 8202 of her visa attracted the operation of s.359A;
·if s.359A was attracted, whether the Tribunal's letter of 9 February 2005 conformed with its mandates, and
·relief should otherwise be denied in the exercise of the court's discretion.
It was submitted in relation to those issues that s.359A was not attracted insofar as the Applicant's breach of condition 8202 formed the basis of refusing the application for merits review. Reference was made to Shen v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 408 at [33-34] per Marshall J as follows:-
“33 Consequently there was nothing stopping the Tribunal from relying on grounds other than the attendance record ground. No breach of natural justice arose as a consequence because the facts giving rise to these breaches of condition 8202 were obvious and incontrovertible. This is especially so where, as here, s 357A applied to the application for review such that general procedural fairness grounds of review were not open to the appellant in the Court below. Any allegation that s 359A of the Act was not complied with by the Tribunal, due to an alleged failure to raise with the appellant the College’s lack of certification of satisfactory completion of his course, is met by the fact that the Tribunal had two other independent grounds for cancelling the visa. See, by way of analogy in respect of s 424A, SZEEU v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [160] per Weinberg J and [233] per Allsop J. In other words, the failure of the Tribunal to inform the appellant that the visa could be cancelled as a consequence of a lack of certification of successful completion of his course did not affect the outcome of the review. Furthermore, the lack of certification was something so obvious that it need not have been stated and was a vital requirement for satisfaction of condition 8202.
34 The appeal ground relating to the Tribunal’s consideration of whether the applicant was engaged in study, rather than whether he was enrolled in a course, was not developed further in oral submissions before the Court. The contention of the appellant that he was not so enrolled because the delegate allegedly told him not to enrol does not deny the fact of his non-enrolment. In any event, this ground is, again, independent of the other grounds for cancellation of the visa, that is, failure to achieve satisfactory academic results and failure to meet the attendance requirements.”
It was further submitted that if s.359A was attracted, then the obligation is an obligation to put the Applicant on sufficient notice of a reason or part of a reason for affirming the decision under review. The provision has been interpreted as simply requiring the Tribunal to provide an invitation which focuses the Applicant's attention upon adverse material so as to provide a real, rather than token, opportunity to prepare a response.
It was submitted that in this case the reason for affirming the decision under review was the Applicant's academic performance, that is her failure to achieve a satisfactory result which meant she breached the mandatory condition of her visa. By bringing the issue of academic performance to the Applicant's attention, the Tribunal discharged its obligations of procedural fairness. It was submitted the Tribunal's letter was sufficient to put the Applicant on notice of the reason that her visa might be cancelled, and sufficient to ensure, as far as reasonably practicable, that she understood why academic performance was relevant to the application.
It was noted that condition 8202 is only concerned with academic performance. Further, and in the alternative, it was submitted that in any event relief should be denied in the exercise of the court's discretion in relation to the grant of relief. Discretionary relief, it was submitted, may be refused if the Applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome. Reference was made to the decision of McHugh J in SAAP where His Honour states the following:-
“80.The issuing of writs under s 75(v) of the Constitution and s 39B of the Judiciary Act is discretionary[59]. Discretionary relief may be refused under s 39B if the conduct of the party is inconsistent with the application for relief. It may be inconsistent, for example, if there is delay on the part of the applicant or the applicant has waived or acquiesced in the invalidity of the decision or does not come with clean hands[60]. Discretionary relief may also be refused if the applicant has in fact suffered no injustice, for example, because the statutory law compels a particular outcome[61].
It was submitted in the present case, the breach of condition 8202 was obvious and incontrovertible and its breach mandated cancellation of the visa. Accordingly, the Tribunal had no option but to affirm the delegate's decision. It was submitted that this court, like the High Court, has a discretion as to whether or not to grant relief under s.75(v) of the Constitution or s.39B of the Judiciary Act 1903, and so much is clear from the extract from the decision of McHugh J in SAAP set out above.
Reasoning
In my view, the s.359A letter is not in a form which is completely satisfactory in that the letter, in order to ensure that the Applicant understands the reason why the information is relevant to the review, could more appropriately have referred to the academic performance specifically constituting a breach of condition 8202 and thereby leading to cancellation of the student visa.
However, I am satisfied in the present case that the s.359A letter, referring to the adverse report concerning the academic performance of the student, is sufficient to bring to the student's attention, in this case the Applicant, the possible breach of a condition of her student visa, namely, unsatisfactory academic performance.
In my view, the submissions made for and on behalf of the Applicant impose a far too stringent requirement upon the Tribunal in the discharge of its obligations in forwarding the letter, pursuant to s.359A of the Act.
In the event that I am in error in finding that the Tribunal has discharged its obligations pursuant to s.359A of the Act, or in error in accepting the submissions made for and on behalf of the first respondent, that in this instance the Tribunal has discharged its obligations, then I am further satisfied that in any event, as submitted by the First Respondent, the court does indeed have a discretion to consider whether in the circumstances it will grant the relief sought by the Applicant.
I am satisfied applying the authority of McHugh J in SAAP that there is a discretion to be exercised by the court when considering the issuing of writs under s.75(v) of the Constitution, and s.39B of the Judiciary Act. In the exercise of that discretion, which clearly must be exercised judicially, I am satisfied that in this instance it is clear that as a result of the apparent poor academic performance of the Applicant that the circumstances clearly dictate a mandatory outcome whereby the poor academic performance leads to a breach of condition 8202 in cancellation of the student visa.
During the course of submissions, counsel for the Applicant sought to address the court on possibilities which the Applicant may have pursued had the link between the information sought and breach of condition 8202 been more precisely set out in the s.359A letter. However, in this instance, the reality of the material before the court and before the Tribunal is that the Applicant has not sought to adduce any material to indicate that in any way the academic performance could or should have been altered. No application was made for special consideration to the university, nor any attempt made to alter the academic outcome.
It is difficult to conceive, therefore, of any practical outcome which would have altered the reality in these circumstances and, accordingly, it is difficult to see that any injustice has arisen as a result of the application of the law that is relevant where a student breaches condition 8202 of a student visa. For those reasons, in the exercise of the court's discretion, in the event that I am in error in my decision concerning the issue of whether the Tribunal has discharged its obligations under s.359A, I would in any event refuse to exercise my discretion in favour of the Applicant to grant the writs sought by the Applicant in her amended application.
Conclusion
It follows therefore for the reasons given that the application as amended should be dismissed with costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 27 July 2006
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