The Tribunal's failure to state explicitly the relevance to the review of the information concerning the respondent's letters of support is of importance because of the opaque nature of the particulars of the information provided to the respondent by the s 424A letter; the use that the Tribunal could make of the information as particularised was not self-evident.
29 It is to be noted that the case involved a breach of both of the subparagraphs, whereas this case involves an alleged breach of subparagraph (b). It is also to be noted that the Court said that the use the Tribunal could make of the information as particularised was not self-evident. In my opinion, there may well be cases where the relevance of the information to the review is self-evident and no letter or explanation is required to satisfy the requirements of s 359A(1)(b). However, in this case I think that the Tribunal was required to do more than it did. The Tribunal should have advised the appellant that the non-certification by the university that her academic results were at least satisfactory would constitute a breach of a condition attached to her student visa. It may not have been necessary for the Tribunal to go on and say that in those circumstances cancellation of the visa was mandatory but, at the very least, the Tribunal should have advised the appellant that the information was relevant because it would constitute a breach of a condition attached to her visa.
30 The first respondent did not submit that a failure to comply with s 359A(1)(b) did not constitute a jurisdictional error (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 ("SAAP")). In my opinion, the Magistrate erred in concluding that there had not been a breach of s 359A(1)(b).
31 The Magistrate held that, in any event, it would be futile to grant relief and, that in those circumstances, he exercised his discretion to decline to grant relief. The Magistrate said that the appellant had not sought to adduce any material to indicate that in any way "the academic performance could or should have been altered". No application was made to the university for special consideration nor any attempt made to alter the academic outcome. The appellant did not point to any material to suggest that these conclusions were wrong. Her submission was that as long as there was a theoretical possibility that relief would not be futile then the discretion should not be exercised to refuse relief.
32 In my opinion, the Magistrate did not err in the way in which he exercised his discretion. As I understand the submissions, the only way in which a cancellation of the appellant's student visa could be avoided is if the university's decision not to certify that the appellant's academic results were satisfactory was altered. The decision by the university to exclude her was taken some two to three years ago. It was not suggested that since the delegate's decision on 7 April 2004 the university had been approached to alter its decision, or that there are any proceedings on foot to achieve that result. In my opinion, there is no reason to interfere with the Magistrate's conclusion that, at a practical level, the inevitable result of a rehearing would be a cancellation of the appellant's student visa. In my opinion, Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ("Aala") and SAAP are authority for the proposition that relief may be refused if, irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse the application: Aala per Gaudron and Gummow JJ at 109 [58]; SAAP per McHugh J at 109 [58]. In this case it is not necessary to consider if futility is to be judged by asking what decision the Tribunal would have made even if it had complied with s 359A(1)(b) or by asking if a decision by the Tribunal in the future refusing the application is inevitable because there has been no relevant change of circumstances (see the discussion in Giretti v Commissioner of Taxation (1996) 70 FCR 151 per Lindgren J at 164-165 and Merkel J at 174-180).
33 The appellant referred to the decision of Rares J in Tran. It is true that his Honour referred to the fact that it was theoretically possible for the Tribunal to reach a different result and that that was sufficient to overcome any objection to the granting of relief, but all of his Honour's observations must be considered and it is clear that, on the ground of futility, the case before him was quite a different one from that before me. In the case before his Honour, it was clear that, although improbable, it was possible that the Tribunal would reach a different result. That is not the case here and no ground for interfering with the Magistrate's exercise of the discretion has been established.