Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed

Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed - [2005] FCAFC 58 - FCAFC 2005 case summary — Zoe

[15]

The approach of the Federal Magistrate to the first issue 11 The Federal Magistrate concluded that notification to the first respondent purportedly under s 119 was not in accordance with the section. Thus, he found that the delegate had no authority to exercise the power of cancellation. The Federal Magistrate disagreed with the Tribunal's conclusion that the notification given under s 119 was adequate. The consequential reasoning of the Federal Magistrate is best set out in [27] of his Honour's reasons: [27] However, the MRT, like the AAT, stands in the shoes of the original decision maker. If the original decision maker had no shoes to begin with, the review tribunal cannot go barefoot. To put it another way, the stream cannot rise higher than its source. If the original decision maker had no jurisdiction to make the decision purportedly made, upon review, the tribunal cannot affirm that decision. The only available power under s.349(1) of the Migration Act would be to set the decision aside. However, the MRT could not substitute a new decision if the jurisdictional pre-requisite for the making of a new decision did not exist. In order to have jurisdiction to cancel a visa under s.116 of the Act the Minister, or her delegate, must follow the procedures set out in ss.119 and 120. The procedure set out in s.121 may not be a jurisdictional pre-requisite to the exercise of power: NAHV v Minister for Immigration [2003] FCAFC 102, but the procedure set out in ss.119(1) and 120 is a jurisdictional pre-requisite to the exercise of power: Zubair at [19]. It follows, in my view, that the presiding member was correct in finding that if the procedure in ss.119 and 120 was not followed, there was no power in the MRT to affirm the decision under review. It is probably correct to say that these sections are a statutory expression of procedural fairness. But they are more than that. They are a jurisdictional pre-requisite to the exercise of power. It follows that a breach of these sections is not simply a jurisdictional error in the form of a want of procedural fairness; it is a jurisdictional error removing the very foundation of the decision subject to review.

[52]

(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations. 33 It is to be noted that the notion of "review" is not defined. It is, however, a well known notion in administrative law. Since Brian Lawlor Automotive Pty Limited v Collector of Customs (1978) 1 ALD 167 (Brennan J as the President of the Administrative Appeals Tribunal and (1979) 24 ALR 307 (Bowen CJ, Smithers and Deane JJ on appeal) it has been clear that, subject to a statutory provision stating otherwise, the process of administrative "review" (in that case provided for by the Administrative Appeals Tribunal Act 1976 (Cth) (the AAT Act), here provided for by the Act) is one that operates upon a decision that was not authorised by law or the statute just as much as it does upon an authorised decision. (See the authorities discussed in Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495 at [85]-[88].) 34 The definition of "MRT-reviewable decision" in s 338 of the Act is not limited to decisions made without vitiating jurisdictional error. Thus the "decision" the subject of the "review" is (to use the words of Bowen CJ in Brian Lawlor at 317) a decision in fact, purported to be made under the Act or purported to be made in exercise of the powers conferred by the Act. 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. 36 The review was in respect of the purported decision of the delegate. It is no doubt correct to say that provisions such as ss 348 and 349 do not vest the Tribunal with a wider substantive jurisdiction (in the administrative sense) than the delegate had. The powers conferred on the Tribunal are for the purposes of reviewing the decisions: see s 349. The review is not an exercise in judicial review of the kind contemplated by s 39B(1) of the Judiciary Act 1903 (Cth). The review is of the MRT-reviewable decision of the delegate. The subject matter of that review is to be identified by examining the boundaries of the administrative controversy before the delegate. It may be that one can discern a failure to follow required procedures, such as in ss 119 and 120. That, however, does not affect the question (in substance a factual one, though set in a legal framework) of what were the boundaries of the decision made by the delegate. Once that decision and its boundaries are identified one knows the subject matter of the statutory process of review: Secretary, Department of Social Security v Riley (1987) 17 FCR 99, 105 (per Northrop J); Owen v Repatriation Commission (1995) 59 FCR 93, 99 (per Finn J); Comcare v Burton (1998) 50 ALD 846, 850 (per Finn J). To use the words of Finn J in Owen the decision the subject of review is the response given by the officer to the statutory task required of him or her. To use the words of Bowen CJ in Brian Lawlor it is the decision in fact made by the officer purportedly under or by reference to the enactment. 37 It is unnecessary for us to discuss at what level of generality or specificity one analyses the decision before the delegate for the purpose of identifying the decision in this particular statutory context. It is sufficient to note here that the Tribunal dealt with the breach of condition 8202 (as the delegate had, though the delegate had misquoted the terms of the condition) on grounds substantially the same as dealt with by the delegate (though without the attendant procedural flaws which affected the delegate's decision). 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. 40 It was argued that the absence of an equivalent of s 119 in Division 3, 4 and 5 of Part 5 of the Act, insofar as the procedures of the Tribunal are there set out, reflects a more important place for s 119. In particular, it was said that the absence of the procedural precondition to exercise the power (see s 124) meant that the Tribunal had no power to exercise on review since it only accedes to powers available to the Minister in point of execution. Thus, it was said that the Tribunal acceded only to an absence of power (that is s 116(1)(b) made unavailable by s 124 and the absence of compliance with s 119). 41 We disagree. That is not, in our view, the proper working of the statutory provisions in question. Section 119, as we have earlier said, was enlivened at an earlier stage in the decision-making process. It was enlivened when the Minister was considering an act - the cancellation of the visa. By the time the review process was enlivened, that was a matter of history. The visa was cancelled or purportedly cancelled. Parliament has laid out procedures for the fair conduct of the Tribunal's review. Section 119 is unnecessary to repeat. It is to be recalled, in this context, that under s 349 of the Act the Tribunal accedes to the powers and discretions conferred on the Minister or delegate not the procedures which bind them. The procedures required of the Tribunal are set out in Division 3.4 and 5 of Part 5. 42 We are assisted to the above conclusion by the recognition that the constitution and powers of the Tribunal are appropriate for a body conducting review on the merits rather than making decisions as to compliance with statutory provisions. An application for review to a tribunal is an application for review on the merits. Judgment as to the validity of actions by the Minister is for the courts, not for an administrative body such as the Tribunal. 43 Thus, far from concluding that the decision in Zubair was clearly wrong, we have come to the same conclusion. That there may be different shades of reasoning involved, no doubt reflecting the different arguments advanced, is not to the point. Zubair should be followed. 44 The Federal Magistrate erred in his consideration of the failure to comply with s 119. That failure did not deprive the Tribunal of statutory authority. The conclusion that all the Tribunal could do was recognise the delegate's lack of power and set aside his decision was erroneous. The effect of the failure to comply with s 119 was not that the Tribunal had no power to cancel the visa. The Tribunal was correct to proceed to deal with the review on the merits.

[53]

Tribunal 45 The Tribunal considered the circumstances at the time of the cancellation in accordance with the decision of Katz J in Nong v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 257 at [30], which followed the analysis by Weinberg J in Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513 at [61]-[63]. It appears that there was no challenge to that approach before the Federal Magistrate and there was none on appeal. The Tribunal had regard to the evidence before it. That is permissible within limits that we shall refer to later. The Tribunal held that, although the date of cancellation (26 October 2000) was prior to the scheduled completion of the course in which the first respondent was enrolled (variously said to be 1 December 2000 or 8 December 2000), the first respondent could not satisfy Condition (b). In this regard the Tribunal relied upon the decisions in Ariyagama v Minister for Immigration and Multicultural Affairs [2002] FCAFC 114 and Shrestha v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1607 and distinguished Nong. The Tribunal therefore went on to consider whether the first respondent had satisfied the requirement in Condition 8202(c). The Tribunal concluded that by the time the first respondent's visa was cancelled it was clear that he would be unable to achieve a result which would be certified by the education provider to be at least satisfactory by the end of his scheduled course. It also held that with the benefit of hindsight this ultimately became the case and his academic results for the course as a whole were never certified by the Chalmers Institute to be satisfactory. The Tribunal found that the course for which the first respondent was enrolled was a two-year course spanning 1999 and 2000, that there was no extension of the course, that by the end of the first semester in 2000 he had only successfully completed eight subjects for the course and the Chalmers Institute advised on 8 December 2000 that as at that date the first respondent had completed only 20 per cent of his course subjects and had averaged 50 per cent attendance. The Tribunal held that the first respondent had not complied with Condition 8202(c).

[56]

Decision 49 Condition 8202 in the form relevant to this case is difficult to construe and apply. We agree with Katz J in the view that the words 'for the course' appearing in Condition 8202(b) and (c) most naturally apply where the course has been completed (Nong [38]-[40]). The qualification to that view which is reflected in Ariyagama and Shrestha, namely that (b) is breached once it is impossible for the Condition to be achieved by the end of the course, does not affect the underlying construction of the words 'for the course'. In many cases that would involve, as the Federal Magistrate said, merely a matter of arithmetic. 50 It is not so easy to see how there can be an anticipatory breach of Condition 8202(c). The view that there cannot was clearly taken by Katz J (obiter) in the passages to which we have referred from Nong. As is pointed out in the submissions for the first respondent the clause does not refer to in fact achieving a particular academic result, but to achieving a result that is certified by the education provider. What must be certified is an academic result for the course which is at least satisfactory. No such certificate would normally be available until the completion of the course. It would certainly not be anticipated that the student would be in the possession of such certificate prior to completion of the course. Condition 8202(c) only comes into play in the event that attendance in conformity with (b) cannot be evidenced. That would normally occur after the completion of the course except in those situations where the Ariyagama qualification applies. A failure to comply with Condition 8202(c) is effectively a failure to obtain the certificate. There can be no such failure prior to the time arriving for such a certificate to be supplied, namely after the completion of the course. The words simply do not permit it to be read as contemplating progress certificates of compliance any more than the words of (b) could be construed as providing for a rolling 80 per cent attendance. 51 It follows that the finding by the Tribunal that, by the time of cancellation of the visa it was clear that the first respondent would be unable to achieve a result which would be certified by the education provider to be at least satisfactory by the end of his scheduled course, was not an answer to the correct question. The Tribunal proceeded on the basis that the position was to be judged as at the date of cancellation of the visa, but took into account the facts occurring thereafter in assessing the position. There are many situations in which later events can be taken into account - a number are collected in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 79 ALJR 190; 211 ALR 79 at [38]-[40]. Where the issue to be decided arises under a statute, the relevance of later events will depend upon the proper construction of the statute and the particular factual context. In the present case, we have held that the time for compliance with the condition had not arisen at the time of the cancellation of the visa. That cannot be altered by taking subsequent events into account. The issue to be determined was not whether or not it was likely or probable that the respondent would obtain a certificate. 52 Whilst not every error of law by an administrator is jurisdictional error for the purpose of judicial review of administrative decisions, the error of construction in this case caused the Tribunal to focus on the wrong issue. That is a jurisdictional error (Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476). The Federal Magistrate was right in so finding. 53 We appreciate that the construction which we have given to Condition 8202(c) severely limits the practical application of the condition in the case of a person who was not progressing well from an academic point of view. However, as was pointed out by Katz J in Nong at [41]-[43], the condition still has some utility. In any event, delegated legislation with drastic consequences for the visa holder should not be strained to effect a policy result seen to be more sensible than that reflected by the ordinary meaning of the language chosen. The clause has since been redrafted. 54 The fundamental nature of this error makes it unnecessary to consider the other substantive questions. The Tribunal decision cannot be saved.

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