Uddin v Minister for Immigration & Multicultural & Indigenous Affairs

the court 1 This appeal has had an unhappy history. 2 The notice of appeal stated two grounds of appeal. The first was founded on a contention that the learned Federal Magistrate had erred by finding that the procedure required under s 119 of the Migration Act 1958 (Cth) ('the Act') had been followed by a delegate ('the delegate') of the first respondent ('the Minister') before the delegate cancelled the appellant's student visa. It is this aspect of the appeal which has given rise to problems outlined below. 3 The second ground of appeal concerned the proper interpretation of s 359C of the Act which together with s 360 authorises the second respondent ('the Tribunal'), in certain circumstances, to make a decision without giving an applicant an opportunity to attend a hearing. This ground of appeal may at the moment be disregarded. 4 The relief sought by the appellant in the notice of appeal was an order setting aside the decision of the Federal Magistrate and the issue of constitutional writs setting aside the decision of the Tribunal made on 3 December 2003 and requiring the Tribunal to determine the appellant's application for review of the decision of the delegate according to law. 5 This appeal was listed for hearing, and was indeed heard, on 24 February 2005. The hearing was conducted on the basis that compliance with s 119 of the Act was an essential pre‑condition to the valid exercise of the power to cancel a visa contained in s 116 of the Act. The Federal Magistrate had so held although his Honour found in favour of the Minister on the basis that s 119 of the Act had in fact been complied with (see Uddin v Minister for Immigration [2004] FMCA 493). The Minister did not file a notice of contention seeking to support the judgment of the Federal Magistrates Court on the basis that a breach of s 119 would not invalidate the decision of the Tribunal. 6 We are now required to rule on an application made by the Minister to re‑open the appeal to allow her to file a notice of contention alleging that the Federal Magistrate erred in concluding that the Tribunal had no power to affirm a cancellation decision of a delegate where, prior to the delegate's decision, the proper cancellation procedure had not been followed. By his submissions in opposition to the appeal being re‑opened, the appellant has indicated that the relief that he now seeks if successful on the appeal are orders setting aside the judgment of the Federal Magistrates Court, the decision of the Tribunal and the decision of the delegate with no order of remittal to the Tribunal. 7 It is necessary to set out the circumstances that in large part explain how this position has arisen. 8 The issue of whether the Tribunal could affirm a decision of a delegate made in circumstances in which s 119 of the Act had not been complied with came before the Federal Magistrates Court for determination on a number of occasions in 2003 and 2004. First, in Zubair v Minister for Immigration [2003] FMCA 440 ('Zubair's case') Raphael FM found that there had been a failure to comply with s 119 constituting a denial of procedural fairness but that the merits review before the Tribunal had cured the denial of procedural fairness. However in Ahmed v Minister for Immigration [2004] FMCA 127 ('Ahmed's case'), a judgment delivered on 8 April 2004, Driver FM took a contrary view holding that s 124 of the Act had the effect that, if s 119 had not been complied with, the Tribunal as well as the delegate lacked jurisdiction to cancel the visa. In the meantime Barnes FM had reserved her decision in Alam v Minister for Immigration ('Alam's case') (later handed down as [2004] FMCA 583) in which it had been argued that Zubair's case had been wrongly decided by the Federal Magistrate. 9 Subsequently on 28 July 2004 the present matter was heard by Brown FM. The appellant relied upon the decision of Driver FM in Ahmed's case. The Minister expressly abandoned reliance on the argument that a breach of s 119 could be cured before the Tribunal. The Minister argued, as she has done on this appeal, that the requirements of s 119 had been met. The Federal Magistrate concluded that compliance with s 119 was an essential pre‑condition to the valid exercise of the power to cancel a visa under s 116 but held that s 119 had been complied with. On 31 August 2004 the appellant filed a notice of appeal against the Federal Magistrate's decision. 10 On 2 August 2004 an appeal was heard by the Full Court from the judgment of the Federal Magistrates Court in Zubair's case. On 3 September 2004 the Full Court delivered its judgment (see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 211 ALR 261 ('Zubair v MIMIA')). It concluded that the Tribunal had power to review and affirm a decision of a delegate of the Minister notwithstanding that the decision of the delegate was affected by jurisdictional error. It does not appear that any argument based on s 124 of the Act was advanced before their Honours or that they gave consideration to the reasoning applied by Driver FM in Ahmed's case. 11 Following the Full Court's decision in Zubair v MIMIA, Barnes FM handed down judgment in Alam's case on 11 October 2004. Understandably her Honour felt constrained to follow the decision of the Full Court in Zubair v MIMIA. Nonetheless she found for the applicant for reasons connected with procedures followed by the Tribunal. 12 The Minister filed an appeal in Alam's case. A cross appeal was filed in the Alam appeal but ultimately not relied upon. The Full Court has recently dismissed the Alam appeal on grounds unrelated to any alleged deficiencies in the s 119 notice (see Minister for Immigration & Multicultural & Indigenous Affairs v Alam [2005] FCAFC 132). 13 An appeal was also filed by the Minister from the judgment of the Federal Magistrates Court in Ahmed's case. The Ahmed appeal and this appeal were listed for hearing on consecutive days with this appeal being the first to be heard. Although the same departmental officer was handling the two appeals on behalf of the Minister, the Minister was represented by different counsel in the two appeals. The same counsel appeared for the respective visa holders in the two appeals. 14 At the time of the hearing of this appeal, we were not aware that the view that compliance with s 119 of the Act was an essential pre‑condition to the valid exercise of the power to cancel a visa contained in s 116 of the Act was to be challenged before another Full Court the very next day. Nor was counsel for the Minister on this appeal aware of this fact. The appellant's written submissions on the appeal referred to the Ahmed appeal only in a footnote which did not refer to the date of the appeal hearing. 15 However, the Full Court that heard the Ahmed appeal was aware that this appeal had been argued the preceding day. The transcript of argument on the Ahmed appeal reveals that, during the course of argument on that appeal, counsel for the Minister provided to the Court an explanation for his client's not having asked that the Ahmed appeal and the present appeal be heard by the same Full Court. By that explanation counsel for the Minister made it clear that a decision had deliberately been taken on the Minister's behalf not to file a notice of contention in this appeal. Counsel explained that in this case a submission had not been pressed before the Federal Magistrate (wrongly identified by counsel as Driver FM) that the Tribunal could 'cure' any defect in the s 119 notice. For this reason that issue had not arisen for determination by his Honour and a decision had been taken not to argue on this appeal that the Federal Magistrate had fallen into error in proceeding on the basis that compliance with the procedure mandated by s 119 of the Act was essential to a decision by the Tribunal to uphold a cancellation decision made by a delegate under s 116 of the Act. 16 On 13 April 2005 the Full Court published its judgment in Minister for Immigration & Multicultural & Indigenous Affairs v Ahmed [2005] FCAFC 58 ('MIMIA v Ahmed'). At [44] the Full Court stated: '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.' 17 Following the publication of the judgment of the Full Court in MIMIA v Ahmed a letter was sent by the Associate to Wilcox J to the parties to this appeal in the following terms: 'The members of the Full Court who heard this matter note the Full Court judgment delivered this week: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58. The Full Court in Uddin v Minister for Immigration and Multicultural & Indigenous Affairs were not informed of this other appeal and no reference was made to Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; 211 ALR 561. In view of these omissions, the Court enquiries as to whether either party wishes to say anything about either of the decisions. If so, a written submission should be forwarded to me within the next 7 days.' 18 In response the Minister filed written submissions by which she argued that, should this Court find that the requirements of s 119 were not followed, it should follow the approach of the Full Court in MIMIA v Ahmed as expressed in [44] of the reasons for judgment in that appeal. The appellant filed written submissions in which he contended that it was not open to the Minister to rely upon the decision of the Full Court in MIMIA v Ahmed. Neither party's written submissions commented on the relevance of MIMIA v Ahmed to the relief sought by the appellant in his notice of appeal. 19 A directions hearing was then held. Following the directions hearing the parties filed further written submissions on the following questions: (b) should the Minister be allowed to re‑open her case on the appeal to file and serve a notice of contention; (c) would it be expedient and in the interests of justice to allow the Minister to argue in the alternative that the Tribunal could cancel the appellant's visa notwithstanding that s 119 had not been complied with; (d) whether MIMIA v Ahmed would, in the circumstances of this appeal, render immaterial any deficiencies in the s 119 notice given to the appellant; (e) the appropriate relief to be granted to the appellant should his appeal succeed; and (f) whether a further oral hearing should be scheduled in this appeal. 20 The Minister contended by her further written submissions that her failure to file a notice of contention at the appropriate time ought not to result in this appeal being decided upon a basis that is, if MIMIA v Ahmed is correct law, plainly wrong. She placed reliance upon Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 in arguing that procedural matters should not be permitted to override the desirability of the correct decision being reached so as to do justice to the parties. She acknowledged that the appellant should be recompensed for the additional costs incurred by him because a notice of contention was not filed at an appropriate time. 21 The appellant by his written submissions opposed the Minister being granted leave to re‑open her case on the appeal and to file a notice of contention. He invited the Court to infer that a deliberate decision had been earlier taken by the Minister not to file a notice of contention because the correctness of the decision of the Federal Magistrates Court in Ahmed's case had not been challenged when the present matter was before the Federal Magistrates Court. He contended that a Minister of State should not be allowed to avoid the consequences of a decision of this kind made on her behalf in litigation. He relied upon the decision of the High Court in Piening v Wanless (1967) 117 CLR 498 where a verdict at trial was upheld notwithstanding that the decision upon which the appellant's counsel relied at trial was subsequently overruled. He also placed reliance on Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 646 where Mason P, with whom Gleeson CJ and Priestley JA agreed, concluded that it would not be 'in the interests of justice' to permit a party to repudiate on appeal a stance that it had adopted at all stages in the trial. 22 The appellant also placed reliance on the failure of the Minister to seek leave to re‑open her case on this appeal immediately after the publication of the judgment of the Full Court in MIMIA v Ahmed. He submitted, but did not elaborate on the submission, that the Minister's delay in bringing the applications to re‑open her case on the appeal and to file a notice of contention constituted a waiver of the right to rely on the point not argued before the Federal Magistrate. He cited Commonwealth v Verwayen (1990) 170 CLR 394 ('Verwayen') in support of his submission. 23 The appellant also submitted that we should conclude that MIMIA v Ahmed was wrongly decided and Zubair v MIMIA distinguishable. We do not feel able to accept this submission, if at all, without hearing further from the parties. 24 In our view the present case is distinguishable from Verwayen. Of the four members of the High Court that constituted the majority in Verwayen, Deane and Dawson JJ each considered that the Commonwealth's departure from the stance earlier adopted by it with regard to the defence of limitation was unconscionable (see Deane J at 449 and Dawson J at 460). Toohey and Gaudron JJ concluded that the Commonwealth had unequivocally renounced or abandoned the defence of limitations (Toohey J at 475 and Gaudron J at 482, 485-486). The present case, in our view, is of a different character in that each party must bear some responsibility for the regrettable position that has arisen. 25 The submissions of the appellant in opposition to the orders sought by the Minister would, nonetheless, have considerable merit were it not for the fact that the appellant now seeks somewhat different relief from that claimed by his notice of appeal. To avoid the Tribunal on any remittal from this Court adopting the approach for which MIMIA v Ahmed is now authority, the appellant now submits that this Court should not only set aside the decision of the Tribunal but also set aside the decision of the delegate which was the subject of the review application to the Tribunal. The result of the Court accepting this invitation would be that the appellant would be put in the position that he would have been in had his (now expired) student visa never been cancelled. This is a possible outcome on which the Minister has not had a full opportunity to be heard. 26 In the circumstances we conclude that the Minister should be granted leave to re‑open her case on the appeal for the purpose of filing a notice of contention in the form provided to the Court with her written submissions. The position of the appellant will be protected by an appropriate order as to costs. The parties will be given the opportunity to agree on the terms of the appropriate order. 27 The appellant has indicated that, should the Minister be allowed to re‑open her case on the appeal for the purpose of filing the notice of contention, he wishes to be heard on the notice of contention. This, we think, is his right in the circumstances. 28 It will therefore be ordered that: