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.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.