FEDERAL COURT OF AUSTRALIA

Bao v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 270

MIGRATION – cancellation of student visa – application for adjournment pending reconsideration by Full Court of Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 248 – application for adjournment refused – claim that Tribunal failed to follow the procedures imposed by statute on Minister and Tribunal – Tribunal not bound by the procedures imposed on Minister – no evidence that Tribunal failed to provide academic transcript to appellant prior to hearing – issue not raised before the Magistrate – appeal dismissed with costs

Migration Act (1958) (Cth) s 116, ss 118A-127, s 357A

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 248 applied

Tien v The Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80 referred to

Twist v Randwick Municipal Council (1976) 136 CLR 106 followed

Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 referred to

BAO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD8 of 2005

TAMBERLIN J

SYDNEY

18 MARCH 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Federal Magistrate Smith dismissing an application for review of a decision of the Migration Review Tribunal (“the Tribunal”) handed down on 21 April 2004, which affirmed a decision of a delegate of the Minister to cancel the appellant’s Student (Temporary) (Class TU) Visa.

2                     When the matter came on for hearing before me on 15 March 2005, it was submitted on behalf of the appellant that the proceeding should be adjourned pending the determination of two Full Court cases, which have been heard and judgment reserved.  It is said that those decisions will involve consideration and possible modification or disapproval of the decision of the Full Court in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 248 (Zubair).  It is conceded that the circumstances in Zubair are substantially the same as those in the present case and that if that case correctly represents the state of the law the primary submission for the appellant cannot succeed.

3                     The judgment in Zubair is a joint judgment of Finn, Mansfield and Gyles JJ.  Essentially, the point in that case which, on its face, is relevant and applicable to the present case, is the determination by their Honours that not only is review by the Tribunal available where the delegate has made a decision which is legally ineffective, but also an invalid decision by the delegate can be remedied by the Tribunal giving a full hearing de novo and the Tribunal can “cure” any defect in the delegate’s decision in relation to non-compliance with the Migration Act (1958) (Cth) (“the Act”).

4                     In Zubair,the decision of the delegate was found to be invalid because the Minister did not follow the mandatory requirements of the Act in not providing the appellant with sufficient particulars of the grounds of possible cancellation, or of information on which the ground existed, as required by s 119(1)(a).  The Magistrate, in that case, had also found that the delegate failed to provide the appellant with the procedural fairness required by ss 120 and 121 of the Act, in particular, because the delegate failed to give the appellant a reasonable opportunity to respond to information upon which he was entitled to comment.

5                     I decided to refuse the application for an adjournment on the basis that the decision in Zubair is a relatively recent and unanimous decision of the Full Court.  There is no decision which relevantly casts doubt on the reasons of the Court in that case.  It is not a sufficient basis for an adjournment to assert that later Full Courts may consider the same or a similar question with a possibly different outcome so thatthe decision in the present case should be deferred pending the publication of judgments in the later cases.  I must apply the law as it presently stands unless Zubair is relevantly distinguished or is clearly wrong.  I am not persuaded that these requirements are met in this case.  I proceed now to deal with the appeal on the substantive matters raised.

tribunal decision

6                     The Tribunal found that the delegate had followed the procedures set out under the Act for the cancelling of visas under s 116.  The delegate’s decision to cancel the appellant’s visa was based on the finding that the appellant had not complied with condition 8202 of his visa because he had not met the attendance requirements for term two of 2003 and did not meet the academic requirements in terms two to term seven of 2003.  The Tribunal observed that the appellant was required to achieve an academic result certified by the education provider to be at least satisfactory for each term of the course.

7                     The appellant was granted a Sub-Class 572 (Vocational Education and Training Sector) Visa on 31 January 2003.  He undertook a Diploma of Business Management course which was divided into terms, numbered 1 to 10.  The education provider indicated to the Department that the appellant did not achieve an academic result that was at least satisfactory in specified respects.  The Tribunal reasons refer to the fact that an official academic transcript, dated 8 October 2003, indicated that the appellant had undertaken four subjects from 24 March 2003 to 8 August 2003 and that the grade achieved in each was indicated to be unsatisfactory.

8                     Before the Tribunal, the appellant contended that he did not breach condition 8202 because he provided medical certificates to the education provider, some of which were not taken into account.  He said that he was asked to stay at home by the education provider after he returned from Hong Kong with a cough and, therefore, his commencement was deferred.  The Tribunal noted that the appellant also stated that he had to devote some time to an ongoing claim against an insurance fund for recovery of student fees, that he broke up with his girl friend and that he suffered from severe levels of depression.  There does not appear to have been any challenge made by the appellant in relation to the official academic transcript referred to above or to the fact that his results were unsatisfactory.  Rather, his case was that he had a reasonable excuse for not achieving the required results.  It is a “confession and avoidance” type of response.

9                     The Tribunal also observed that there were medical certificates showing that the appellant was unfit for study over certain parts of the period.  It accepted that the appellant had several medical conditions during 2003 and that he had obtained medical certificates for his absences.  However, it did not accept that he was unable to study because of his ongoing claim against another college.  The Tribunal noted that the appellant did not complete any subject at the College between 24 March 2003 and 8 August 2003, including term 6 when he had a substantial attendance.  The appellant agreed he did not complete any subject in 2003.

10                  The Tribunal stated that at the hearing it was explained to the appellant that in order to satisfy condition 8202 it was necessary for him to achieve an academic result that was certified to be at least satisfactory for each term or semester, whereupon, the appellant sought and was provided with further time in which to provide any further evidence.  He provided some evidence on 30 March 2004, which was three weeks before the date of the decision, to the effect that he had approached the education provider on 22 March 2004 with information about his medical condition in 2003.

11                  The Tribunal referred to correspondence from the education provider dated 26 March 2004 which indicated that whilst the appellant was enrolled at the College, he did not make satisfactory academic progress and that he failed or received grades of not yet competent in all four subjects that he studied.  The appellant was sent warning letters but did not respond.  The policies of the College were explained to students before the commencement of the course.  The appellant requested that the Tribunal call a further hearing and seek oral evidence from the education provider concerning its procedures.  The Tribunal noted that the appellant had presented the education provider with evidence concerning his problems in the relevant terms in 2003 and the education provider did not issue a fresh certification.  Accordingly, the Tribunal decided to proceed with the review and concluded, after considering the legislation, policy considerations, and available evidence, that the appellant did not achieve an academic result certified to be at least satisfactory for each term or semester.  It then proceeded to find that he had not complied with condition 8202 of his visa and that the visa should be cancelled pursuant to s 116(1)(b) of the Act.

magistrate’s decision

12                  An application was then made for review in the Federal Magistrates Court.  This was heard and the Court delivered its judgment on 14 December 2005.  In the hearing before the Federal Magistrate, the appellant contended that the decision of the delegate was ineffective because of its failure to provide proper particulars and information pursuant to s 119 of the Act and that this failure had not been cured as a result of the hearing before the Tribunal.  The judgment at [31]-[39] deals as follows with the issue presently before me:

“31.     For the purposes of dealing with this argument and subject to what I have said above at [11], I accept on the above evidence that the delegate in fact did not provide sufficient particulars of the allegation that the applicant was in breach of conditions at 8202 and 8105 at a time which allowed the applicant an appropriate period to respond.  The delegate’s cancellation decision was then taken on 13 October 2003, apparently at the end of the interview with the applicant, and was explained with these reasons:

‘I am satisfied that the visa holder has breached condition 8202 of his student visa as his attendance was below 80% in particular term 2 of 2003, and his academic performance is unsatisfactory in term 2, 3, 4, 5, 6 and 7 of 2003.  Therefore cancellation is mandatory pursuant to s 116(1)(3) and s 116(1)(b) and regulation 2.43(2)(b).’

32.       I am also prepared to assume the correctness of the submission of counsel for the applicant, based on Tien v Minister for Immigration (1998) 89 FCR 80 and other cases, that a failure to give s.119 (1)(a) particulars of the alleged breaches of conditions results in the invalidity of a consequential cancellation decision, at least where that failure was material to the grounds on which the cancellation was subsequently based. That is, where the ground upheld in the cancellation decision was not properly particularised prior to the decision.

33.       On these factual and legal assumptions, the delegate’s cancellation decision in the present case was invalid by reason of the failure to particularise the breaches of condition 8202 upon which the decision was based.  Counsel for the applicant then submitted that this invalidity meant that the primary decision was a legal nullity, so that it was not legally open to the Tribunal to affirm that decision.

34.       However, the difficulty facing the submission is that the Full Court judgment in Zubair (supra) is, in my opinion, authority which decides squarely that, even if an applicant can make out an invalidity of the delegate's decision making based on a failure to give particulars during the show cause procedure prior to cancellation, such an invalidity neither deprives the Tribunal of jurisdiction to review the cancellation decision nor obliges the Tribunal to set aside that decision on the ground of the defect in procedure prior to the primary decision.  

35.       As I understand their Honours’ reasoning in paragraphs [19], [27-28] and [32] of their judgment, the merits review jurisdiction of the Tribunal, in the course of which it arrives at its own view as to what the correct or preferable decision on the exercise of a s.116 power based on the evidence presented to the Tribunal and after affording procedural fairness to the applicant, will cure the procedural irregularities of the delegate. 

36.       The effect of Zubair was summarised by Nicholson J in Fang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1387 as follows:

35        However, as the respondent’s contentions state, all these matters were cured by the nature of the review before the MRT: see s 349 of the Act. The MRT has jurisdiction to review even where the decision of the delegate may be legally ineffective: see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248, at [28]-[32], and the cases therein cited. Further, to the extent there may have been a defect in the decision of the delegate, the full merits review in the MRT was able to cure that defect: Zubair at [32], citing Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116.

36        I agree with the respondent’s submission that in exercising its review, however, the MRT was not required to consider whether the delegate had erred. Rather it was required to determine whether the appellant had not complied with condition 8202. The question for the MRT was whether the appellant had achieved 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.

37.       As I understand the effect of Zubair and the basis for its reasoning, it is that the procedural provisions of subdivision E, including s.119 and the specification in s.124 that “the Minister may cancel a visa at any time after notice about the cancellation has been given over s.119” impose procedural requirements on a delegate whose non-observance may give rise to invalidity of a delegate's decision, but are not substantive preconditions to the power to cancel under s.116 which would bind a merits review tribunal reviewing the exercise of a s.116 power. 

38.       Whether their Honours are correct in that opinion is of course not a matter for me to address.  I am bound to apply their Honours reasoning.  In my opinion, on their Honours reasoning, the present ground under particular (c) must fail. 

39.       Even on a narrow application of Zubair to cases which are factually indistinguishable, the present ground as particularised would fail.   This is because in Zubair their Honours reasoning proceeds on the basis that the delegate's decision was invalid:

‘because it did not follow the mandatory requirements of s 119 (1) (a) and s 121 (2). In particular… the delegate did not provide the appellant with the particulars of the grounds of possible cancellation or of the information because of which the grounds appear to exist as required by s 119(1)(a) of the Act. (see [19] of the judgment)’” (Emphasis added)

THE APPEAL

13                  Contrary to the submissions advanced for the appellant, I consider that his Honour, in the present case, made a finding that there was a breach of ss 119 and that it therefore followed that the decision of the delegate is ineffective.  It is apparent from the language in para 31, “I accept on the above evidence that the delegate in fact did not provide sufficient particulars” that the Magistrate made a finding of breach and did not simply make an assumption.  Moreover, it is apparent that the appellant submitted that such breaches resulted in invalidity on the authority of Tien v The Minister for Immigration and Multicultural Affairs (1998) 89 FCR 80.

14                  On the authority of Zubair,the position therefore is that the Tribunal had jurisdiction and the availability and fact of a rehearing of the matter before the Tribunal was sufficient to “cure” any breach of s 119 by the Tribunal consistently with the principles applied in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116.

15                  The appellant sought to raise on the present appeal an argument to the effect that the decision of the Tribunal was ineffective because the Tribunal was bound to follow the requirements of ss 119, 120 and 121 and failed to do so by only providing the academic record at the hearing.  The failure was said to be constituted by the Tribunal failing to provide, at a reasonable time before the hearing of the appeal from the delegate’s decision, a further opportunity to the appellant to make representations.  This argument was based on the premise that the Tribunal was obliged to follow the procedures imposed on the Minister under ss 118A-127 of the Act.  It was also based on the assumption that the particulars as to the transcript of the appellant’s academic record were only furnished at the hearing before the Tribunal.  This latter fact, which underpins the argument sought to be raised, lacks an evidentiary basis.  The submission must therefore fail. 

16                  There is another reason why the further submission should be rejected, namely, that the submission was not raised in the Notice of Appeal and it raises for the first time a matter on which further evidence might have been led by the respondent had such an argument been raised before the Magistrate.  In any event, the authorities are to the effect that, on a hearing, the Tribunal is not subject to the requirements of ss 118A –127, which determine the procedure to be followed by the Minister or his delegate, because the Act, in ss 357A and the following provisions, specifically provides for the way in which the Tribunal hearing is to be conducted.  There is, therefore, no room for a contention that the Tribunal is obliged to comply with both sets of procedural requirements.  The Tribunal is only bound by those exhaustive requirements set out in the provisions which specifically bear on the Tribunal’s own procedures: see Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 at [23] and [53].

17                  A further argument submitted for the appellant was to the effect that the Tribunal had failed to comply with the requirements of s 357A and the following provisions of the Act by not permitting the appellant to have an adjournment within which to consider the transcript of evidence.  Again, this submission fails in that there is no sufficient factual basis to establish that the transcript was not provided to the appellant prior to the hearing.  Furthermore, this was not a matter which was raised or argued before the Magistrate and again was a matter which, had it been raised, may have entitled the respondent to investigate and adduce further material.  I am assured by counsel for the respondent that such a course would have been considered and at least an investigation made as to the timing of, and circumstances surrounding, the making available to the appellant of the details of his academic record.  This is not an area of dispute that the appellant should now be permitted to raise having regard to the way in which the matter was argued below and in view of the effect that it was not foreshadowed on the appeal.

18                  For the above reasons, the additional submissions which fall outside the terms of the Notice of Appeal should not be permitted, because they were not advanced before the Magistrate and also because it would now be unfair to allow these matters to be raised in the absence of an opportunity by the Minister to meet the factual basis on which they depend.

19                  Accordingly, the order I make is that the appeal in this case is dismissed with costs.

Associate:

Dated:              18 March 2005