Wen Bi Dai v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2006-12-22|Before: Bennett J

The applicant's contentions 44 Mr Gormly emphasises the misleading nature of the Notice. Specifically, he contends that the Notice implies that there exists a discretion on the part of the Department, so that an explanation for the breach will be taken into account. It does not, he observes, inform the applicant that her visa will be cancelled if a breach of condition did occur and she attends to "explain" that breach in response to the Notice. The applicant was thereby deprived of the opportunity of not responding to the Notice, awaiting the automatic cancellation of her visa and then applying to the Minister under s 137K of the Act, where exceptional circumstances can be taken into consideration (s 137L(1)(b)). This represents the alleged practical unfairness of the denial of natural justice. 45 According to the Regulations then in force, the reality was that, if the student attended to explain the breach, it was an admission that the breach occurred and there was no discretion for the Minister to do other than cancel the visa (cf reg 2.43(2)(b)(ii)(B) of the Regulations, now in force). The best position for a student who had exceptional circumstances beyond his or her control was not to attend but rather to make an application to the Minister under s 137K and s 137L of the Act for revocation of the cancellation on the basis that the breach was due to exceptional circumstances. The Notice does not inform the student of this potential course of action. 46 Mr Gormly places considerable reliance on Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88 ALD 90 at [22]-[24] where the Full Court observed that a s 20 notice in relevantly indistinguishable terms was, for this reason, misleading. 47 Mr Gormly acknowledges that the Act provides, by s 357A, for its procedures to be an exhaustive statement of the natural justice hearing rule before the Tribunal. He contends that as the Notice was not a notice served under the Act but under the Students Act and, as that notice did not apply to the substantive right considered by the Tribunal and its validity was not part of the hearing before the Tribunal, that section does not apply. 48 Further, in Mr Gormly's submission, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314, Zubair, and Uddin have no application because the Tribunal in this case could not cure the denial of procedural fairness occasioned by the Notice. The Notice was not part of the hearing before the Tribunal. To the extent that existing authority of this Court suggests otherwise, Mr Gormly seeks to distinguish this case which, he says, raises matters not considered by the Full Court in Zhou and Zubair or by Siopis J in Cheng. 49 The Tribunal referred in its decision to the Notice. However, the Tribunal decision was based on the failure to comply with Condition 8202. The Tribunal referred to the applicant's explanation for the breach of that condition but noted that it had no discretion, by reason of s 116(3) of the Act and reg 2.43(2)(b) of the Regulations, to do other than affirm the decision to cancel the applicant's visa.

The respondent's contentions 50 Mr Johnson makes six points in his submissions as to the alleged denial of procedural fairness:

The Court is reviewing the decision of the Tribunal, which has no role to play in the processes of s 20 of the Students Act.
It is now settled by Zhou and Cheng that there is no legal interaction between the processes of s 20 of the Students Act and a cancellation under s 116 of the Act.
It is not contended that the Notice did not comply with s 20 of the Students Act. In any event, Morsed does not say that there is a breach of procedural fairness by the Tribunal where a notice issued pursuant to s 20 of the Students Act is misleading.
Even if it were misleading, the Notice did not affect the power of the Delegate to effect a visa cancellation under s 116 (Humayun at [30]). Further, the Tribunal conducted a merits review and any defects in the decision of the Delegate were cured by that review (Zubair; Cheng at [67]).
The question whether there could be a cure for any deficiency in the Notice that gave rise to a denial of natural justice could not affect the operation of s 116 of the Act. Such a denial could not result in jurisdictional error on the part of the Tribunal.
No denial of natural justice or breach of statutory requirements can be established on the part of the Tribunal.

Consideration 51 I agree, with respect, with the observations of the Full Court in Morsed at [21] that the Notice does not inform the recipient that, where the breach was due to exceptional circumstances beyond her control, the only way that a holder of a student visa who has breached Condition 8202 can avoid having their visa cancelled is not to comply with the Notice. The Notice is misleading for the reasons given in Morsed at [22]-[25]. 52 Mr Gormly adopts the characterisation of the defects in the s 20 notice in Morsed and relies upon the denial of procedural fairness resulting from that notice with its attendant effect on the opportunity for the applicant to rely on exceptional circumstances to avoid cancellation of her visa. He refers to Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 at [34] and submits that, because of the consequences of compliance with the Notice, the contents of the Notice cannot be quarantined from the procedural fairness requirements of a cancellation under s 116(3) of the Act. The failure to accord procedural unfairness cannot, he says, be cured by merits review by the Tribunal because of the lack of discretion on the part of the Delegate and the Tribunal. 53 In Zhou, the applicant's visa was cancelled under s 116 of the Act on the grounds that she had breached Condition 8202 of her visa. The Full Court considered whether alleged defects in a s 20 notice under the Students Act are material to the resolution of an appeal from a decision of the Tribunal to affirm a cancellation decision under s 116 of the Act. The Full Court determined that, even where the s 20 notice and the response to it give rise to the delivery of the notice of intention to cancel the visa under s 119 of the Act (at [41] and [43]), there is no implied limitation on the operation of s 116 (at [42]) and no 'legal interaction' between the s 20 notice under the Students Act and the exercise of power in s 116 of the Act. Invalidity of the s 20 notice can have no invalidating effect on the s 119 procedure (at [40]). 54 In Cheng, Siopis J addressed submissions that the Tribunal fell into jurisdictional error in failing to consider whether the Delegate had denied the applicant procedural fairness by reason of an allegedly misleading s 20 notice. As here, the alleged denial of procedural fairness was relevantly based on 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 where those circumstances could be raised as grounds for reinstating her visa (at [69]). His Honour applied Zhou and observed at [65] that '[i]t 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'. The processes are, as pointed out by his Honour at [72], 'legally separate'. 55 That conclusion follows from Zhou. 56 The decision under review in this case is that of the Tribunal. It is not suggested that the Tribunal failed to accord procedural fairness in its own procedures. Questions of procedural fairness must be considered by reference to the Tribunal's decision to affirm the Delegate's decision made under s 116 of the Act (Cheng at [74]). 57 The Minister submits that, as the hearing before the Tribunal is a merits review, the Tribunal can, in a legal sense, "cure" any defects leading to the decision of the Delegate under review (Zubair; Ahmed; Uddin; Hamayun). Mr Gormly submits, however, that the Tribunal cannot cure any defects in the Notice because it formed no part of the Tribunal's review of the decision to cancel made under s 116. He submits that this was not considered in Cheng and that this inability on the part of the Tribunal to cure the denial of procedural fairness invalidates the Tribunal decision. 58 This submission cannot be correct and ignores the reasoning in Zhou and Cheng. The Full Court in Zhou stated comprehensively at [39] that alleged defects in a s 20 notice are not material to an appeal from a decision of the Tribunal to affirm a cancellation decision under s 116 of the Act. Siopis J in Cheng specifically considered and rejected a submission that the Tribunal fell into jurisdictional error by failing to consider an alleged denial of procedural fairness on the part of the Delegate by reason of a s 20 notice being misleading. The s 20 notice has no role in the Tribunal decision. It is irrelevant to the Tribunal's review of the Minister's decision to cancel the visa under s 116, a decision with a different statutory basis. Once it is irrelevant and the question for this Court is jurisdictional error on the part of the Tribunal, the applicant cannot succeed on the basis of a denial of natural justice concerning the Notice.

Conclusion 59 Condition 8202(3)(b), as set out in Item 8202 of Sch 8 of the Regulations, is not ultra vires by reason of it impermissibly delegating the task of the specification of a visa condition to the educational course provider. 60 Consistent with the decision in Zhou and Cheng, no jurisdictional error has been established on the part of the Tribunal in its review of the Minister's decision to cancel the applicant's visa pursuant to s 116 of the Act. 61 It follows that the application should be dismissed with costs. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Solicitor for the Applicant: Raymond Lee and Co

Solicitor for the First Respondent: DLA Phillips Fox

Date of Hearing: 11 September 2006 and 26 October 2006

Date of Final Submissions 30 October 2006

Date of Judgment: 22 December 2006

Migration Act 1958(Cth)ss 41(1), 137J, 137K, 137L, 116, 504, 505

A further proposed amended application 13 The hearing of the second further amended application took place on 11 September 2006. I reserved my decision. On 26 October 2006, the applicant sought leave to file a third further amended application. By the proposed amendment the applicant sought writs of certiorari directed to the Delegate (in addition to the Tribunal) and orders quashing both the Tribunal and Delegate decisions. 14 There is no basis for permitting the latest amendment and leave to amend should be refused. Apart from the general discretionary factors that would apply to an application to amend after the conclusion of the hearing, the applicant elected to seek merits review in the Tribunal of the Delegate's decision. The fact that such a review cured, in a legal sense, any defect in the hearing before the Delegate attributable to a denial of natural justice is now settled (Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344; Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1 (special leave to appeal refused); Humayun v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 149 FCR 558 at [30]; Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028 at [67]). There is no reason to permit the applicant to amend to seek orders against the Delegate. 15 I will proceed to consider the second further amended application and the two issues that arise: · the validity of Condition 8202; and · whether the applicant was afforded natural justice by the Tribunal.

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