FEDERAL COURT OF AUSTRALIA

Uddin v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCAFC 218

MIGRATION – cancellation of student visa – notice of proposed cancellation under s 119 of the Migration Act 1958 (Cth) – whether valid s 119 notice.

ADMINISTRATIVE LAW – powers of Tribunal on review – where exercise of power by original decision-maker unauthorised – whether Tribunal limited to recognising that the original decision-maker had no power to cancel the visa – whether Tribunal could rectify a failure to comply with a statutory requirement.

MIGRATION – powers of Migration Review Tribunal on review – where Tribunal provided notice under s 359A of the Migration Act 1958 (Cth) – where no response within specified time period to the s 359A notice – whether s 359C and s 360 empower Tribunal to make a decision on the review without conducting an oral hearing.

Migration Act 1958 (Cth) ss 116, 119, 120, 124, 357A, 359A, 359C and 360.

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 cited

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 cited

Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 cited

Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 followed

Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486cited

Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257cited

Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 cited

Transurban City Link Ltd v Allan (1999) 95 FCR 553 applied

Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 146 referred to

Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 cited

MOHAMMED RAISUL UDDIN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND MIGRATION REVIEW TRIBUNAL

NSD 1276 of 2004

WILCOX, BRANSON & BENNETT JJ

18 OCTOBER 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1276 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	MOHAMMED RAISUL UDDIN APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	WILCOX, BRANSON AND BENNETT JJ
DATE OF ORDER:	18 OCTOBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The parties provide to the Associate to Wilcox J by 8 November 2005 an agreed minute of the order or orders to be made as to costs and if agreement has not by then been reached, the minutes of orders for which they will respectively contend and brief outlines of submissions in support of the orders.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1276 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MOHAMMED RAISUL UDDIN

APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGES:	WILCOX, BRANSON AND BENNETT JJ
DATE:	18 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

wilcox and branson jj

INTRODUCTION

1 This appeal from a judgment of the Federal Magistrates Court has had a troubled history. That history is in part set out in the interlocutory judgment of this Court in Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 146. It is not necessary to set out again the matters of history identified in that judgment which should be read with this judgment.

2 Three principal issues require determination on this appeal. First, whether a notice given to the appellant by a delegate of the respondent (‘the Minister’) pursuant to s 119 of the Migration Act 1958 (Cth) (‘the Act’) was a valid notice under that section. Secondly, whether this Full Court should depart from the decision of the Full Court in Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 (‘Ahmed’) which the appellant contends is plainly wrong or alternatively distinguishable so far as it gives consideration to the extent of the powers of the Tribunal. Thirdly, the proper interpretation of s 359C and s 360 of the Act which together authorise the Migration Review Tribunal (‘the Tribunal’) in certain circumstances to make a decision without giving an appellant an opportunity to attend a hearing before the Tribunal.

background

3 This summary of the factual background to this appeal is drawn largely from the respondent’s written submissions on this appeal. The accuracy of the factual material contained in those written submissions was not challenged by the appellant.

4 On 13 May 2000 the appellant entered Australia as the holder of a subclass 560 (student) visa granted on 19 April 2000. Further subclass 560 visas were granted to the appellant on 29 August 2000 and 11 September 2000. On 10 December 2000 the appellant was granted a subclass 573 (Higher Education Sector) visa. It is this visa with which this appeal is concerned.

5 The visa granted to the appellant on 10 December 2000 was subject to specified conditions including condition 8202, which is concerned with enrolment and course requirements, and condition 8105, which is concerned to limit the amount of time that a student may spend working. It is convenient to set out the terms of condition 8202 to the extent to which they are presently relevant:

‘8202 (1) The holder … 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) …

(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.’

6 By a notice dated 11 April 2003, issued by the University of Ballarat pursuant to s 20 of the Education Services for Overseas Students Act 2000 (Cth), the appellant was advised:

‘… you have breached a condition of your student visa relating to attendance [sic] in the course in which you have been enrolled at this institution.’

The breach was particularised as ‘Student failed to enrol for the current semester’. The notice went on to advise him that his student visa would cease on the 28^th day after the date of the notice unless he reported personally to a compliance officer at a specified office of the Department of Immigration & Multicultural & Indigenous Affairs (‘DIMIA’).

7 On 9 May 2003 the appellant attended an interview at DIMIA and was issued with a notice purportedly issued under s 119 of the Act. The content of this notice is discussed in [37]-[42] below.

8 On 12 May 2003 DIMIA sought further information about the appellant from the University of Ballarat. It asked:

‘1. whether or not the subject [ie the appellant] is making satisfactory academic progress (ie will they complete the course within the normal timeframe?),

2. please advise whether any warning notices have been issued to the student and attach copies of relevant documents.

If this person is no longer enrolled with you, please advise the circumstances surrounding their departure.’

The letter also asked the University to specify whether the appellant made satisfactory academic progress for each term of his course by placing ‘yes’ or ‘no’ in boxes identified as being for semester 1 and semester 2 of each of the years 2001, 2002 and 2003.

9 The University of Ballarat responded to the request of 12 May 2003 by placing ‘no’ in the box for semester 2 of 2002 and placing dashes in each of the other boxes. The University provided DIMIA with the appellant’s statement of results. This statement revealed that he was only enrolled in semester 2 of 2002 and either failed, or was not assessed for, all of the subjects for which he enrolled. The University also provided a copy of a letter dated 12 December 2002 that had been sent to the appellant advising him that his progress for Semester 2 of 2002 was unsatisfactory and that poor performance in the consecutive semester may result in his exclusion from the course. By the letter dated 12 December 2002 the appellant was requested, if he wished to continue his studies in the CT5 Bachelor of Information Technology, to make an appointment to discuss his studies. The appellant did not make such an appointment.

10 On 20 May 2003 the appellant again attended a DIMIA interview. During the course of this interview the appellant told the interviewing officer, amongst other things, that he had been excluded from the Central Queensland University for breaching examination regulations and that he had been hospitalised in May 2002 after being seriously assaulted. On the same day (ie 20 May 2003) the appellant was given written notification of a decision to cancel his visa under s 116 of the Act. The reasons for the decision are recorded on the written notification in the following terms:

‘Not enrolled in registered course – 8202 breach – mandatory cancellation applies. I find that Mr Uddin is not a genuine student in Australia.’

11 The appellant applied to the Tribunal for review of the decision to cancel his visa. By letter dated 29 July 2003, the Tribunal invited the appellant to comment in writing on specified information within, in effect, twelve working days from the date of the letter. The appellant did not respond to the letter within that time.

12 The Tribunal’s records include a file note dated 27 October 2003 in the following terms:

‘Mr Uddin came in to the Counter. He completed a change of address form and advised he hadn’t received any mail from us since May as he hadn’t advised us of his change of address.

I spoke to Julie Bail and she advised he has lost his right to a hearing but if he wishes to submit any info, he has a further 2 weeks from today to lodge it.

I told Mr Uddin this and advised him that he wasn’t entitled to a hearing now but he could lodge docs within the next 2 weeks if he wished to. The Member would then be making a decision.’

13 By letter dated 7 November 2003 the appellant made certain submissions to the Tribunal.

14 By letter dated 13 November 2003 the Tribunal advised the appellant that it had made a decision in his case and that the decision would be formally handed down on 3 December 2003. By its decision handed down on 3 December 2003 the Tribunal affirmed the decision to cancel the appellant’s visa.

15 The appellant applied to the Federal Magistrates Court under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Tribunal. His further amended application to that court alleged that the Tribunal:

(a) erred in its understanding or application of s 359C and s 360 of the Act;

(b) had no jurisdiction to affirm the delegate’s decision as the notice given to the appellant on 9 May 2003 was not a notice authorised by the Act for the purposes of a visa cancellation under s 116 of the Act; and

16 By leave of this Court the appellant has now filed a second further amended application to the Federal Magistrates Court which clarifies the relief sought by the appellant. The relief now sought by the appellant is identified in the second further amended application as follows:

‘2. A DECLARATION that the decision made by the Migration Review Tribunal on 3 December 2003 is void and had no effect.

3. A DECLARATION that the decision of the delegate of the Minister made on 20 May 2003 is void and had no effect.

4. A WRIT OF CERTIORARI to quash the decision of the Migration Review Tribunal made on 3 December 2003.

5. A WRIT OF CERTIORARI to quash the decision of the delegate of the Minister made on 20 May 2003.

6. A WRIT OF PROHIBITION directed to the First Respondent preventing her or her agents or delegates from acting upon or giving effect to or enforcing the decisions made by the Migration Review Tribunal and by the delegate of the Minister.

7. Such other relief as the Court considers appropriate.

8. Costs.’

reasons of tribunal

17 The Tribunal at [40] of its written reasons for decision, immediately under the heading ‘FINDINGS’, recorded:

‘These findings are based on material in the Departmental and Tribunal files. In accordance with section 359C of the Act, the Tribunal found that the applicant is no longer entitled to appear before it at a hearing. Accordingly the Tribunal will now proceed to decide this matter on the basis of the papers before it.’

18 The ultimate conclusion of the Tribunal is expressed in the following paragraphs of its reasons for decision:

‘51. Having considered all the information before it, the Tribunal accepts the evidence from the applicant’s education provider UB [University of Ballarat] that the applicant did not achieve an academic result that is certified by UB to be at least satisfactory for Semester 2, 2002.

52. The Tribunal is satisfied that the applicant breached the requirements of condition 8202(3) during Semester 2 2002 of his studies at UB. The Tribunal therefore finds that one of the grounds for cancellation is made out.

53. 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 s 116(3), to affirm the visa cancellation. The Tribunal finds that the applicant’s visa should remain cancelled.

54. 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 s 116(fa). However, given the findings made above, no purpose would be served in this review by pursuing any possible further grounds of cancellation.’

reasons of THE federal magistrates court

19 The learned Federal Magistrate rejected the contention that the decision of the Tribunal was affected by jurisdictional error. His Honour concluded that:

‘The notice given to Mr Uddin on the 9^th 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.’

20 His Honour also rejected the contention that the Tribunal had erred in its understanding of s 359C and s 360 of the Act finding that:

‘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.’

21 The Federal Magistrate dismissed the appellant’s application.

statutory regime

22 It is common ground that the power relied upon for the cancellation of the appellant’s visa was the power contained in subs 116(1) of the Act. Relevantly subs 116(1) provides:

‘(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

…

(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.’

23 Subdivision E of Division 3 of Part 2 of the Act, which consists of s 118A to s 127, governs the procedure for cancelling visas under Subdivision D in or outside Australia. Section 119 of the Act relevantly provides:

‘(1) … 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.’

24 The language of subs 119(1) discloses that the subsection is operative ‘if the Minister is considering cancelling a visa’. These words, in our view, do more than merely indicate that compliance with the subsection is required before the relevant visa may be cancelled; they indicate the circumstance in which a notification under the subsection is to be given.

25 The language of subs 119(1) also discloses that the cancellation of which the subsection speaks is cancellation on a particular ground or grounds, not cancellation on any ground. This conclusion is to be drawn from the requirement of the subsection that the Minister is to notify the visa holder of particulars of the grounds on which the Minister is considering cancelling the visa and of the information (not being non‑disclosable information) because of which the grounds appear to exist. A notification of the particulars of one ground, and of the information because of which that ground appears then to exist, will not satisfy the requirements of the subsection in respect of another ground on which the Minister may later consider cancelling the visa.

26 The language of s 119 makes plain, in our view, that a notification given under s 119 must, amongst other things:

(a) notify the holder of the relevant visa that there appears to be grounds for cancelling it;

(b) give the visa holder particulars of those grounds; and

(c) give the visa holder particulars of the information (not being non‑disclosable information) because of which the grounds appear to exist.

That is, s 119 draws a distinction between grounds of cancellation, particulars of grounds of cancellation and particulars of information because of which grounds of cancellation appear to exist. The purpose of the notification to be given as required by the section is that indicated by par 119(1)(b). It is to provide the visa holder with an opportunity to show, if he or she can, that the identified grounds for cancellation do not exist or that there is a reason why the visa should not be cancelled.

27 Subsection 119(4) indicates that, in the case of a cancellation under s 116, s 120 has application as well as s 119. Section 120 provides:

‘(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

(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

(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.’

28 The effect of s 120 would appear to be to allow the Minister (or his or her delegate) to supplement the information given to a visa holder under s 119 to cover information coming to the attention of the Minister after the notification given to the visa holder under s 119. In contrast to s 119, however, s 120 contains no reference to grounds for cancellation. We conclude that s 120 may not be relied upon by the Minister (or his or her delegate) to give notification to a visa holder that there appear to be grounds for cancelling the visa or to give particulars of those grounds.

29 The critical importance of the notification required by s 119 is revealed by subs 124(1) of the Act which relevantly provides:

‘(1) Subject to section 120 (give information) … 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;

30 Division 5 of Part 5 of the Act, which is constituted by s 357A to s 367, is concerned with the conduct of review by the Tribunal. Section 357A provides:

‘(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 375, 375A and 376 and Division 8A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.’

31 Section 359A is in terms that suggest that its intended role in respect of a Tribunal decision is comparable to the role that s 120 plays in respect of a decision of the Minister. Subsection 359A(1) provides:

‘(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

32 Sections 359C and 360 are concerned to identify the extent of the entitlement of an applicant to the Tribunal to appear before the Tribunal. Subsection 359C(2) provides:

‘(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.’

33 Section 360 provides:

‘(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

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.’

notice of appeal

34 The grounds of appeal contained in the amended notice of appeal to this Court are as follows:

‘1. His Honour erred in his understanding and application of the relevant cancellation provisions in the Migration Act 1958 (Cth) and the Migration Regulations.

Particulars:

(a) The learned Magistrate erred by finding that the procedures required under s119 had been followed by the delegate of the Minister before cancelling the Appellant’s student visa by:

(i) finding that the delegate had provided the pre‑requisite information to the Appellant to accord him procedural fairness.

(ii) finding that the delegate had not acted with recklessness by asserting that the Appellant had breached the work requirements of his visa and that he had failed to achieve satisfactory academic progress in each term of his course.

(b) The learned Magistrate failed to deal with the Appellant’s claim that the notice was defective as a whole because it did not set out the particulars and the pre‑requisite information for each of the grounds in the notice. In the event that the learned Magistrate did impliedly deal with the claim, he erred in finding that one could sever from the notice grounds where there has not been compliance with s119, so as to validate an otherwise invalid notice.

2. His Honour erred in his understanding and application of the operation of s359C in the Migration Act 1958 (Cth).

Particulars:

(a) The learned Magistrate erred by finding that the Migration Review Tribunal was under no obligation to make any decision regarding whether it would or would not allow the Appellant a hearing, once he failed to comply with a notice issue pursuant to s359A of the Act.

(i) Section 359C states that

the Tribunal may make a decision on the review without taking further action to obtain the applicant’s view on that information.’

notice of contention

35 By an order dated 5 August 2005 the Minister was granted leave to reopen her case on this appeal for the purpose of filing a notice of contention and it was ordered that the appeal be relisted for further hearing (see Uddin v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 146). The notice of contention filed by the Minister on 8 August 2005 contends that the Federal Magistrate erred in concluding that the Tribunal had no power to affirm a cancellation decision of a delegate of the Minister where the proper cancellation procedure had not been followed.

consideration

The Section 119 Notice

36 It is necessary to consider the written notice given to the appellant on 9 May 2003 (‘the s 119 notice’) against the requirements of the subs 119(1) of the Act. We turn first to matters of form.

37 Section 116 of the Act empowers the Minister to cancel a visa if he or she is satisfied that its holder has not complied with a condition of the visa (par 116(1)(b)). It was apparently this ground of cancellation that the officer of DIMIA had in mind when he completed the s 119 notice. However, he was hampered in giving the appellant a notice that complied with the requirements of s 119 by the standard form available to him for the giving of such a notice (‘Form 1099’). Form 1099 has not been designed so as to make compliance with the requirements of s 119 easy.

38 The s 119 notice does not recite, or in any other way suggest, that the Minister is giving consideration to cancelling the appellant’s visa. Nor does the s 119 notice notify the appellant that there appear to be grounds for cancelling his visa. Rather par 9 of Form 1099 states that:

‘It has come to the Department’s attention that there may be grounds for cancellation of your visa under section 116 of the Migration Act 1958 for the following reasons …’

39 It is in par 9 of Form 1099 that the requirements of s 119 identified in [26] above are apparently intended to be satisfied. For this reason it is regrettable that par 9 of Form 1099 is drawn in terms of ‘the Department’ rather than ‘the Minister’. The use of the term ‘the Department’ may, as we think it did in this case, distract attention from the obligations imposed on decision‑makers by s 119 and s 124. Further, the expression ‘there may be grounds’ contained in Form 1099 is not the equivalent of the statutory phrase ‘there appear to be grounds’. The first of the two expressions is more speculative in nature. That the statutory expression ‘there appear to be grounds’ is not intended to be speculative is confirmed by the language of par 119(1)(a) which calls for the notification of particulars of the information because of which the grounds appear to exist. The ground will, in our view, ‘appear to exist’ within the meaning of s 119 if the decision-maker is satisfied, albeit on a provisional basis pending any response to the notice from the visa holder, in respect of one of the matters identified in pars (a)‑(g) of subs 116(1).

40 The language of s 119 demonstrates that the section is a procedural provision calculated to satisfy the requirements of natural justice where the Minister is considering cancelling a visa. The language of the section is inconsistent with its being intended to serve the function of a primary investigative tool. Yet the factual circumstances out of which this appeal arises are strongly suggestive of an attempt to use s 119 for the purpose of investigation rather than for the purpose of ensuring procedural fairness to the appellant.

41 We turn now to matters touching on the content of the s 119 notice as opposed to its form. Paragraph 9 of the s 119 notice has inserted below the printed introductory words identified in [38] above, the following information:

Your education provider has advised that you have have [sic] failed to maintain at least 80% attendance & 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 & 8202 of your student visa.’

42 As at the date of the s 119 notice DIMIA had received a copy of the notice dated 11 April 2003 by which the University of Ballarat had advised the appellant that he had breached a condition of his student visa by failing to enrol for the current semester. Assuming, contrary to the inference open to be drawn from the evidence, that the Minister (or her delegate) was considering cancelling the appellant’s visa on the ground that, having regard to that notice, she was satisfied that the appellant had not complied with a condition of his visa, s 119 required that the Minister (or her delegate):

(a) notify the appellant that there appeared to be grounds for cancelling his visa, namely that he had not complied with a condition of his visa (par 116(1)(b) of the Act);

(b) give particulars of the ground, namely that the Minister (or her delegate) was satisfied that the appellant had not complied with condition 8202(2) of his visa; and

(c) give particulars of the information because of which the grounds appears to exist, namely the notice dated 11 April 2003 given to the appellant by the University of Ballarat.

43 As is mentioned above, the s 119 notice did not notify the appellant that there appeared to be grounds for cancelling his visa. It did not notify the appellant that any person was satisfied, even on a provisional basis, that he had not complied with condition 8202(2) of his visa. It did not notify the appellant that reliance was being placed on the notice dated 11 April 2003 given to him by the University of Ballarat.

44 We conclude that, for the purposes of s 124 of the Act, a notice about a cancellation on the ground that the Minister was satisfied, because of the notice dated 11 April 2003 given to the appellant by the University of Ballarat, that the appellant had not complied with condition 8202(2) of his visa, was not given under s 119 by the s 119 notice.

45 Nothing in the bundle of relevant documents collated by the respondent’s legal advisers for the purpose of the hearing before the Federal Magistrates Court suggests that the Minister (or her delegate) had, as at the date of the s 119 notice, received any other formal notification from the University of Ballarat about the appellant’s academic progress. It may be assumed that the advice from the appellant’s education provider referred to in the s 119 notice was informal advice. It seems unlikely that this advice provided grounds for satisfaction, as opposed to suspicion, by the Minister (or her delegate) that the appellant had failed to comply with condition 8202(3) of his visa. That it did not, is confirmed by the fact that DIMIA wrote to the University of Ballarat three days after the date of the s 119 notice asking whether the appellant was making satisfactory academic progress (see [8] above). Whether or not we are right in this regard, it is uncontentious that the s 119 notice does not give particulars of the information because of which the Tribunal was satisfied that the appellant had not complied with condition 8202(3) of his visa. The relevant content of condition 8202(3) was that the appellant receive an academic result for semester 2 of 2002 that was certified by the University of Ballarat to be at least satisfactory. It would seem to be by its response to the letter of 12 May 2003 from DIMIA that the University of Ballarat first indicated that it would not certify that the appellant’s academic results for semester 2 of 2002 were satisfactory (see [8] and [9] above).

46 We conclude that, for the purposes of s 124 of the Act, a notice about a cancellation on the ground that the Minister was satisfied, because of the response by the University of Ballarat to the letter of 12 May 2003 from DIMIA, that the appellant had not complied with condition 8202(3) of his visa, was not given under s 119 by the s 119 notice.

47 The reference in the s 119 notice to condition 8105 of the appellant’s visa is not supported by any particulars. Condition 8105 is concerned to limit the number of hours that a visa holder may work during any week when his or her course of study or training is in session. It is not necessary to give further consideration to this aspect of the s 119 notice as neither the delegate of the Minister nor the Tribunal placed reliance on condition 8105 of the appellant’s visa.

48 The s 119 notice makes no reference to one of the grounds of visa cancellation upon which the appellant’s visa was cancelled by the delegate of the Minister; that is the ground prescribed by par 116(1)(fa) of the Act, namely that in the case of a student visa, the holder is not, or is likely not to be, a genuine student (see [10] above). However, notes apparently made by the delegate of the Minister of an interview with the appellant held on 20 May 2003 record:

‘Notified of Intention to Consider Cancellation under (fa) also at: 4:30.’

It is not necessary to determine whether this notification complied with the requirements of s 119 as the decision of the Tribunal did not place reliance on par 116(1)(fa) of the Act.

49 The notes of the interview held on 20 May 2003 do not suggest that the interview was used as an occasion to give notice of any ground of visa cancellation other than the par 116(1)(fa) ground, or to supplement the information given to the appellant by the s 119 notice. That this is so is confirmed by the terms of the written notification of the decision to cancel his visa given to the appellant. This written notification records:

‘On 09/05/03 and 20/05/03

you were notified of the Department’s intention to consider cancelling your visa under section 116 of the Migration Act 1958 on the grounds at:

(Tick appropriate box and complete details)

s116(1)

verbally notified 20/05/03

s116(1)(g) and Reg 2.43(1)

b	s116(1)(b) and s116(3) and Reg 2.43(2)(b)*

(Student breach of condition 8104, 8105 and 8202)

s116(1)(g) and s116(3) and Reg 2.43(1)

and Reg 2.43(2)(a)*

(*If either of these grounds are made out, the visa holder’s visa must be cancelled because prescribed circumstances exist – refer to reverse of page 1)

for the following reasons

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 on your student visa. You have failed to enrol for the current semester. It appears you have breached condition 8202 and 8105 on your visa. [You may not be a genuine student in Australia.]’

The Power of the Tribunal

50 In Ahmed a Full Court was required to determine whether accepted inadequacies in a notification given to a visa holder under s 119 of the Act meant that the function of the Tribunal on review was limited to recognising that the delegate had no power to cancel the visa. Their Honours held that the Tribunal’s powers were not so limited. Their Honours’ reasons for reaching this conclusion can be identified from the following paragraphs of the reasons for judgment of the Court in Ahmed:

‘35. The delegate here had an available power to exercise: ss 116(1)(b). However, as is now common ground, the procedural steps under s 119 provided for by the statute had not been completed. In that sense, the exercise of power by the delegate was unauthorised: there was “jurisdictional” error. It does not follow, however, that in exercising the statutory power of review that the Tribunal did not accede to the power that was before the delegate for the purposes of s 349 of the Act. That power was in s 116(1)(b) of the Act …

38. The identification of what is the MRT-reviewable decision by the delegate is not determined by a conclusion that s 119 was not complied with. What was done under s 119, or what should have been done under s 119 may affect the assessment of the boundaries of the decision of the delegate, by assisting an understanding as to the subject matter of the MRT-reviewable decision that the Tribunal is reviewing. However, the fact of a lack of compliance with s 119 neither destroys the power under s 116(1)(b), nor governs the identification of the context of the decision. What the decision was is to be found by examining the terms of the power purportedly exercised, its statutory context, the terms of the reasons, the form of the decision and the material before the decision-maker.

39. If s 119 has not been satisfied, that is no more a reason to deny the Tribunal the task of exercising a full review of the MRT-reviewable decision, than would be an asserted failure of the delegate to afford procedural fairness or otherwise to comply with requirements failure to undertake which leads to the conclusion that jurisdictional error has occurred.’

51 The appellant has urged on this Court that the reasoning summarised in the above paragraphs from Ahmed is plainly wrong. He contended that while a review tribunal is able to correct a range of legal or procedural errors, it is still limited by the constraints on power imposed on the primary decision maker (Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 176 per Brennan J; Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486). He pointed out that the task of the Tribunal in this case was to determine whether the decision to cancel the appellant’s visa was the correct or preferable decision and then either affirm the decision or set it aside. The focus of the Tribunal, he argued, was required to be on the day when the decision under review was made (Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 per Katz J at 264). The appellant contended that while the Tribunal could cure any problem that the delegate could have avoided on that day (for example, by providing an opportunity to comment on adverse material) it could not cure a failure to comply with a statutory requirement that the delegate could not have met on that day (for example, something required to be done, not necessarily by the delegate, a period of time ahead of the making of the decision by the delegate such as the giving of a notice under s 119).

52 The appellant placed reliance on authorities which have held that decisions of the Tribunal affirming decisions of a delegate of the Minister are not themselves decisions made under the provisions of the Act, such as s 116, which grant authority to the Minister. These authorities are referred to in Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at 346 where the Full Court observed:

‘By virtue of s 43 of the Administrative Appeals Tribunal Act 1975 empowering it to “exercise all the powers and discretions that are conferred by the relevant enactment on the person who made the decision”, the AAT stands in place of the primary decision-maker: Otter Gold Mines Ltd v Australian Securities Commission (1997) 26 AAR 99; Liedig v Commissioner of Taxation (Cth) (1994) 50 FCR 461; 121 ALR 561; Commissioner of Taxation (Cth) v Swift (1989) 20 ATR 1434; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. However, as was pointed out in Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 at 12 (French J) the source of the AAT’s power is s 43 of the AAT Act. It does not exercise afresh the power conferred by the enactment under which the decision was made. A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision …’

53 The appellant also drew attention to Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660 at 666 where the majority judgment of the High Court proceeded on the basis that the Refugee Review Tribunal could exercise, by reason of s 415 of the Act, powers specifically conferred on the Minister by s 56 of the Act. He argued that when the Refugee Review Tribunal (and by analogy, the Tribunal) exercised powers conferred on the Minister, those powers must be understood to include the same procedural restraints that bound the Minister.

54 Were the issue free of Full Court authority, the submissions advanced on behalf of the appellant that the Tribunal was not empowered in the circumstances of this case to affirm the cancellation of the appellant’s visa might have been found to be persuasive. However, having regard to the decision in Ahmed, the appropriate approach is that identified by the five member Full Court in Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560:

‘It is not in doubt that a Full Court of this Court has power to decline to follow the previous decision of a differently constituted Full Court. The Court is not bound to perpetuate error if error there be. Nor is it in doubt that while the Court has that power, it is a power which should be exercised with great care. The doctrine of precedent, which is fundamental to the common law, brings with it the consequence that decisions of an intermediate court of appeal will be binding on single judges within the same court hierarchy. They will be relied upon by the broader community and the profession. Decisions of a Full Court of this Court are entitled to due respect and will not be lightly departed from.

A differently constituted Full Court would, of course, decline to follow the decision of another Full Court if it concluded that the previous decision was clearly erroneous. It would be wrong to do this merely because the matter was one on which minds might differ: cf Magman International v Westpac Banking Corporation (1991) 32 FCR 1 at 20 per Hill J.’

55 We do not think that the debate before this Court with respect to the correctness of Ahmed on the issue that is critical in this case has demonstrated that the decision is clearly erroneous. Thus, while we conclude that the question is one on which minds might differ, we consider that we should follow the approach adopted in Ahmed.

Decision of the Tribunal

56 By letter dated 29 July 2003 the Tribunal provided the appellant with particulars of certain information that the Tribunal considered would be the reason, or part of the reason, for affirming the decision of the delegate (see s 359A of the Act). As mentioned above, the appellant did not reply to the letter within the period specified in the letter (see s 359B of the Act).

57 Understandably no complaint has been made by the appellant concerning the adequacy of the content of the letter of 29 July 2003. The decision of the Tribunal to affirm the delegate’s decision to cancel the appellant’s visa was made on the basis that the Tribunal was satisfied that the appellant had breached the requirements of a condition of his visa, namely condition 8202(3) in that he did not achieve an academic result for Semester 2 of 2002 that was certified by the University of Ballarat to be at least satisfactory. The letter of 29 July 2003 plainly notified the appellant of the ground of review relied upon by the Tribunal and of particulars of that ground. It also gave the appellant particulars of the information because of which that ground appeared to exist, namely the letter from the University of Ballarat dated 12 December 2002.

58 For the above reasons we conclude that the Federal Magistrate erred in concluding that the s 119 notice given to the appellant satisfied the requirements of the section under which it was given. However, constrained as we consider that we are by Ahmed, we find that his Honour also erred in concluding that the Tribunal could not rectify the position. We find that the Tribunal did rectify the inadequacies in the s 119 notice by its letter of 29 July 2003.

59 The appellant contended that the Tribunal made its decision to affirm the cancellation of the appellant’s visa on the false assumption that since he was not entitled to a hearing before the Tribunal, the Tribunal could not afford him a hearing. Reliance was placed on [40] of the Tribunal’s reasons for decision which is reproduced in [17] above.

60 The papers before the Tribunal included the letter from the appellant in which he commented on the material contained in the Tribunal’s letter of 29 July 2003. The Tribunal’s reasons for decision make reference to the content of the appellant’s letter.

61 We accept that the Tribunal was free, had it wished to do so, to accord the appellant an oral hearing. We see no reason to conclude that the Tribunal thought otherwise. The reference in its reasons for decision to the appellant being ‘no longer entitled’ to a hearing suggests a correct understanding of the legal position. Nothing in the reasons for decision of the Tribunal suggest that it proceeded on an assumption that it was not empowered to grant the appellant a hearing. In the circumstances that happened the Tribunal was entitled to decide the matter before it in the way that it did.

62 For the above reasons the ground of appeal that alleges that the Federal Magistrate erred in his understanding and application of s 359C of the Act fails.

conclusion

63 For the above reasons the appeal will be dismissed. The parties will be given an opportunity to make submissions in writing as to the appropriate order or orders as to costs.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox and Branson.

Associate:

Dated: 18 October 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1276 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MOHAMMED RAISUL UDDIN

APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

FIRST RESPONDENT

MIGRATION REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGES:	WILCOX, BRANSON AND BENNETT JJ
DATE:	18 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Bennett j

64 I have had the benefit of reading in draft the reasons of Wilcox and Branson JJ. I agree with their Honours that the appeal should be dismissed and, subject to what appears below, with their Honours’ analysis of the statutory regime. I am grateful to their Honours for the description of the statutory and factual background, which I gratefully adopt.

65 However, I am unable to agree with Wilcox and Branson JJ that the notice of intention to consider cancelling the visa failed to comply with s 119 of the Act. In my view, the s 119 notice did sufficiently notify the appellant that there appeared to be grounds for cancelling his visa for failure to comply with condition 8202. That was a ground for cancellation under subs 116(1) of the Act.

The section 119 notice (‘the notice’)

66 As their Honours observed, it is not necessary to consider the reference to condition 8105 or par 116(1)(fa). The question is whether the notice complied with the requirements of s 119 with respect to reliance on condition 8202. I agree, for the reasons advanced at [37]‑[39], that it is unfortunate that the words of s 119 are not mirrored in the notice.

As an investigative tool

67 To the extent that a s 119 notice is used to inform the visa holder that there appear to be grounds for cancelling the visa and to invite the holder to show that the grounds do not exist or that there is a reason why the visa should not be cancelled, it can be said that the notice serves as an investigatory tool. It is intended to elicit a response which may provide information, for example, to explain or amplify information referred to in the notice or to establish that the ground, the particulars or the information in the notice are misconceived.

68 The primary purpose of the notice is to provide procedural fairness to the visa holder, to enable him or her to be aware of the possibility of cancellation of the visa, together with sufficient notification of the ground/s and information to enable an understanding of the reasons for possible cancellation and an opportunity for a response to be given.

69 In my view, the deficiencies in the notice in the reference to ‘the Department’ rather than ‘the Minister’ and the statement that ‘there may be grounds’ for cancellation rather than that ‘there appear to be grounds’, do not invalidate the notice. The notice did sufficiently notify the appellant that the circumstance had arisen that his visa might be cancelled.

The content of the s 119 notice

70 The notice should have:

(a) notified the appellant that there appeared to be grounds that he had not complied with a condition of his visa (par 116(1)(b));

(b) given particulars of the ground; and

71 The notice was headed ‘Notice of Intention to Consider Cancelling a Visa’ and included the following:

‘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 grounds for cancellation of your visa under section 116 of the Migration Act 1958 for the following reasons…

Your education provider has advised that you have have [sic] 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 ...

If this is the case, your visa may be cancelled under:

…

s116(1)(b) and s116(3) and Reg 2.43(2)(b)*

…

(Student breach of condition 8104, 8105 or 8202)

(*if either of these grounds apply, the visa holder’s visa must be cancelled because prescribed circumstances exist – refer to reverse of this page)’

72 The notice gave the source of the information as the education provider, the information that he had failed to maintain 80% attendance and make satisfactory academic progress for each term of the course of study and that he had failed to enrol for the current semester. It is reasonable to assume that the appellant would have been aware that the ‘education provider’ referred, in this case, to the University of Ballarat.

73 The particulars were given that he had not complied with condition 8202 of his visa. At this stage, there was no requirement that the Minister or her delegate were satisfied of the absence of compliance.

74 That was sufficient compliance with subs 119(1). Section 120 provides for the provision of further information that would be the reason or part of the reason for cancellation. It was not necessary for the notice to contain all of the information that might ultimately be sufficient for the Minister actually to cancel the visa.

75 The notification of the decision to cancel the visa (‘the cancellation notice’) referred to two bases for the cancellation of which the appellant was said to have been notified. They were par 116(1)(fa), which was said to have been verbally notified on 20 May 2003, and par 116(1)(b), subs 116(3) and Reg 2.43(2)(b) (student breach of condition 8104, 8105 or 8202).

76 The reasons in the cancellation notice repeated the failure to maintain 80% attendance and the apparent breach of condition 8202. The reason given in the cancellation notice for the application of par 116(1)(fa) and par 116(1)(b) was ‘not enrolled in registered course – 8202 breach – mandatory cancellation applies. I find that Mr Uddin is not a genuine student in Australia’.

77 The breach of condition 8202, the ground in par 116(1)(b), is a common thread in the s 119 notice and the reasons in the cancellation notice. The cancellation of the appellant’s visa for failure to comply with condition 8202, specifically condition 8202(3), was affirmed by the Tribunal and formed the basis for the Tribunal’s decision.

78 If the notice did fail to comply with s 119, then I agree with Wilcox and Branson JJ that the approach adopted in Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 should be followed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 18 October 2005

Counsel for the Appellant:	S Lloyd

Solicitor for the Appellant:	Parish Patience Immigration Lawyers

Counsel for the First Respondent:	R Bromwich

Solicitor for the First Respondent:	Clayton Utz

Dates of Hearing:	24 February 2005 and 5 September 2005

Date of Judgment:	18 October 2005

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