58 In Zhou 2004 at 71 Cooper J, referring to the making of a decision to cancel a visa under s 116 of the Act, observed:
'…the time for the decision‑maker to make a decision does not arise until the procedures in subdivision E of Div 3 have been complied with and at that time the decision is made on the whole of the materials then available to the decision‑maker.'
59 In this case by the time that matter came before the Tribunal the procedures in subdiv E of div 3 of the Act had been complied with in that a s 119 Notice had been issued. Before the Tribunal was evidence of the applicant's academic transcript for semesters 1 and 2 of the 2003 academic year. There was also evidence of the applicant's failed efforts to review her six month exclusion by ECU because of her academic results, and of ECU's determination not to alter the academic transcript on the grounds of the applicant's medical and personal circumstances. The applicant did not produce to the Tribunal a certificate from ECU certifying that the applicant's academic result for either the first or second semesters of 2003 was 'at least satisfactory'. The Tribunal did not, in those circumstances, fall into jurisdictional error in upholding the delegate's decision to cancel the applicant's visa on the grounds of breach of Condition 8202.
Ground 2 ‑ Failure to inquire into ECU's internal appeal process
60 The applicant submitted that the Tribunal fell into jurisdictional error by failing to inquire as to whether ECU's appeal process had been lawfully carried out and whether the applicant had exhausted all avenues of appeal.
61 Before the Tribunal, the applicant complained about ECU's appeal process. These complaints were made in her agent's letters to the Tribunal and also, by the applicant's agent at the hearing before the Tribunal. However, neither the applicant nor the applicant's agents advised the Tribunal that the applicant intended to take any further steps directed towards having ECU reconsider its position as expressed by the Committee of Review. In other words, the applicant did not suggest to the Tribunal that the appeal process within ECU had not been exhausted. Nor did the applicant submit that the Tribunal should adjourn the hearing of the review application until such time as an application to ECU was made to extend the time for the applicant to appeal against the decision of the Committee of Review or until the applicant had taken other steps within the decision‑making hierarchy at ECU to remedy the defects of which the applicant complained. Rather, the applicant's submissions were to the effect that the Tribunal should go behind the ECU appeal decisions and come to its own view that the medical and psychological issues which had confronted the applicant during the second semester meant that the academic performance of the applicant was 'at least satisfactory'.
62 These submissions misapprehended the function of the Tribunal and also the basis upon which compliance with Condition 8202 was to be achieved, namely, by obtaining a certificate from ECU that the applicant's academic result was 'at least satisfactory'. For these reasons, the Tribunal was correct in not going behind the ECU's decisions (Tian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 238 at [55]‑[56]).
63 Further, whilst it is accepted that a distinction may be made between a student's academic result and his or her academic status, there was nothing in the facts before the Tribunal to cause it to doubt that the applicant was accorded her academic status as 'excluded for 6 months' by ECU as a result of her poor academic results. This was the obvious inference from the terms of the academic transcript, the correspondence between Mr Mitchell and Ms Bartlett and the Assessment Support department, the submissions made in the applicants' agent's letter to the Tribunal of 29 November 2004 and the s 20 Notice. There was, therefore, no ambiguity on the issue, and, therefore, no reason for the Tribunal to make any inquiries of ECU as to whether the documentation could be construed as certifying that the applicant had achieved an academic result which was 'at least satisfactory'.
Ground 3 ‑ Failure to address procedural defects in the lead up to the cancellation of the visa
64 The applicant said that the s 20 Notice referred to the applicant having an opportunity to 'explain the breach' when she attended the departmental office on 27 April 2004. The applicant submitted on attending the departmental office, the officer had issued the s 119 Notice without receiving evidence as to the applicant's medical and psychological condition during the second semester; and, in so doing, had failed to accord the applicant procedural fairness. The Tribunal, it was submitted, fell into jurisdictional error by not addressing this issue.
65 The applicant's submissions are not accepted. As already mentioned in [56] above, the Full Court in Zhou 2006 has confirmed that there is no legal interaction between the giving of a s 20 Notice and the cancellation of a visa under s 116 of the Act, even where the issue of a s 20 Notice gives rise to the issue of a s 119 Notice. It does not avail the applicant to impugn the procedural fairness of a process which is legally unrelated to the process which led to the impugned decision, namely, the cancellation of the visa under s 116 of the Act.
66 The applicant's visa was cancelled pursuant to s 116 of the Act. In determining to proceed under s 116 of the Act the first respondent came under an obligation to accord the applicant procedural fairness. The purpose of the issue of the s 119 Notice to the applicant was to warn the applicant of the intention to cancel the visa and provide the applicant with the opportunity to make submissions in relation thereto. The first respondent accorded the applicant procedural fairness by issuing the s 119 Notice and considering the applicant's submissions on 31 May 2004 before cancelling the visa.
67 In any event, it was not necessary for the Tribunal to consider the question of whether the applicant had been accorded procedural fairness because the hearing before the Tribunal was itself a merits review and any defects leading to the decision of the delegate were cured by the review undertaken by the Tribunal (Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; Humayun v Minister for Immigration and Multicultural and Indigenous Affairs 149 FCR 558 ('Humayun).
Ground 4 - Breach of procedural fairness because the s 20 Notice was misleading
68 The applicant submitted that she had been denied procedural fairness because of the misleading nature of the s 20 Notice.
69 It was submitted that the first respondent required education providers to issue notices under s 20 of the ESOS Act in a prescribed form, which used language which was misleading. The wording in the s 20 Notice induced the applicant to report to the departmental office within 28 days in the expectation that the department would exercise a discretion whether or not to proceed to the cancellation of her visa. It was further submitted that if the first respondent had not impliedly misrepresented to the applicant that the department had a discretion the 'applicant would have had every reason to decline to attend the departmental office', allow for a cancellation and then apply for revocation of the cancellation, being able to invoke the exceptional circumstances beyond her control. The procedural unfairness relied upon is the failure of the applicant's expectation of being able to raise matters relating to her medical and personal circumstances as a means of preventing the cancellation of her visa when there was an alternative course available to the applicant which would have permitted her to raise her medical and personal circumstances as a means of reinstating her visa.
70 Although not pleaded as a ground of review, the applicant also submitted that the first respondent was estopped from cancelling the applicant's visa by reason of the representation in the s 20 Notice that the applicant's personal circumstances would be considered before the cancellation of the applicant's visa.
71 In my view, the applicant's contentions cannot be accepted. Firstly, there was no evidence before the Tribunal, nor before this Court, that the applicant was actually misled by the s 20 Notice nor that she would have been content to let her visa be cancelled by not responding to the s 20 Notice with the intention of bringing an application for the revocation of the cancellation on the grounds of the exceptional circumstances. In the absence of any such evidence there was no basis upon which a plea of estoppel could be considered. Even if such evidence had been forthcoming, several issues would have arisen, including whether the s 20 Notice which was issued by ECU (albeit in a prescribed form), and not the first respondent, could be said to be a representation binding on the first respondent, whether the s 20 Notice was in fact misleading as alleged, and the effect of the principle in Formosa v Secretary, Department of Social Security (1993) 46 FCR 117.
72 Secondly, the submission of the applicant misapprehends the relevance and function of a s 20 Notice to a cancellation decision made under s 116 of the Act. As previously mentioned, the Full Court in Zhou 2006 held that there is no legal interaction or relationship between the process invoked by a s 20 Notice and the cancellation process under s 116 of the Act, even if the attendance by the visa holder at the departmental office in response to a s 20 Notice led to the issue of a s 119 Notice under the Act. As the impugned decision was made under s 116 of the Act, it does not, therefore, avail the applicant to complain of procedural unfairness in relation to a process which is unrelated to the legally separate process that led to the making of the impugned decision by the first respondent.
73 In the absence of the applicant having advanced an estoppel case based on evidence of the applicant's reliance and detriment, the applicant's arguments based on the misleading nature of the s 20 Notice are, on proper analysis, similar in effect, to the contentions of the applicant before the Full Court in Zhou 2006, namely, that the validity of the decision to cancel the visa under s 116 of the Act could be impugned because that process had been instituted as a consequence of the visa holder being trapped into attending the departmental office pursuant to a misleading s 20 Notice, when there was an alternative course available, which would have permitted the exceptional circumstances to be considered (see Zhou 2006 at [35]).
74 As has already mentioned, the applicant's visa was cancelled under s 116 of the Act for breach of Condition 8202. It is by reference to a cancellation decision made under that section, that the question of whether procedural fairness was accorded to the applicant, must be considered. The applicant was issued with a s 119 Notice and given the opportunity to make submissions to the delegate that the visa should not be cancelled. There was no failure to accord procedural fairness. Further, and in any event, as already mentioned the Tribunal afforded the applicant a merits review and, therefore, any procedural defect in the previous process was cured by the subsequent merits review.
75 The applicant also submitted that the s 20 Notice contained two other defects which were recognised in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193. Firstly it requires the visa holder to report to a 'compliance officer', whereas s 137J(2) of the Act only requires the visa holder to report to 'an officer'. Secondly, the notice requires the visa holder to report to a specific office, whereas s 137J(2) of the Act states that the visa holder is required to report to 'an office of immigration'.
76 This contention must be rejected. A s 20 Notice is not the instrument of cancellation and is not a pre‑condition to cancellation pursuant to s 116 of the Act (Allsop J at 456 in Yu). Any defect in a s 20 Notice does not invalidate a decision to cancel a visa under s 116 of the Act (Humayun at 567).