Migration Act 1958 (Cth) ss.116, 119, 120, 121

Grollo & Co v Hammond (1997) 16 ALR 123

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Zhang Jia Qing v Minister for Immigration (unreported decision, delivered

Minister for Immigration v Zhang [1999] FCA 84; (1999) 53 ALD 261

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD1

Secretary, Department of Social Security v Alvaro [1994] FCA 1124; (1994) 50 FCR 213

Yilmaz v Minister for Immigration [2000] FCA 906

Minister for Immigration v Li [2000] FCA 1456

Nader v Minister for Immigration [2000] FCA 908

Bal v Minister for Immigration [2001] FCA 991

Bal v Minister for Immigration [2002] FCAFC 189

Nie v Minister for Immigration [2000] FCA 347

James v Minister for Immigration [2002] FCA 1383

Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

(2) Applicant to pay the respondent's costs assessed in the sum of $5,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

1. The applicant, Mr Zubair, seeks judicial review of a decision by the Migration Review Tribunal to uphold a decision of the delegate of the minister to cancel the applicant's sub-class 560 (student) visa which was made by the delegate on 31 May 2002. The MRT decision was made on 2 December 2002.

2. The applicant was represented at the hearing before me and on his behalf there was filed a further amended application. There was also filed submissions and additional submissions on behalf of the applicant and an affidavit of the applicant himself. The respondent filed an affidavit of Ms Kirsty Mattes; both deponents were cross-examined.

3. The applicant first entered Australia as a student on 2 August 2001 on a student (temporary) (Class TU) visa sub class 560 which had been granted on 22 July 2001 and which was due to expire on 5 November 2001. The applicant applied for a sub class 572 visa which was issued on 29 August 2001 and which was due to expire on 22 October 2001. The applicant was granted a further sub class 572 visa on 22 October 2001 that was valid until 10 June 2003. Attached to this visa was condition 8105 (work limitation). The visa was cancelled on 31 May 2002 for not complying with condition 8105.

4. The applicant was enrolled in a Diploma of Business (Administration) course at the Alpha Beta English College of Australia. The course commenced on 5 November 2001 and was due to finish on 10 May 2003. There is no suggestion that the applicant failed to attend the requisite amount of tuition at the College or that his academic progress was unsatisfactory.

5. The applicant was employed by a company known as Su-Shi World at its processing plant in Camperdown. The work consisted of manufacturing sushi rolls for the company's many retail outlets. This work was undertaken at night. The applicant claimed that he worked at Su-Shi World for no more than the 20 hours a week which he was allowed to work under his visa. He appears to have commenced this work on 8 April 2002.

6. On the night of 31 May 2002 the applicant was working at Su-Shi World in Camperdown when the premises were "raided" by ten DIMIA officers and four officers of the New South Wales Police. The officers were in the charge of Ms Mattes. According to the applicant the raid commenced on or about midnight or in the early morning of 31 May 2002 by which time he had been awake for some nineteen hours having risen at 7.00a.m. According to Ms Mattes the raid commenced at 1.50a.m. Whatever time the raid commenced it is agreed between the applicant and Ms Mattes that the workers, including the applicant, were required to remain in the premises until investigations had been carried out. Some people, including the applicant, were then transferred by police wagon to the DIMIA offices for further interview. Ms Mattes says that the applicant would have left the Camperdown site at 3.35a.m. and would have arrived at the DIMIA offices in Lee Street at around 3.50a.m. Ms Mattes deposes to the fact that the applicant was probably told at the Camperdown premises that he was suspected of working in excess of his limited hours and that he would be taken to the DIMIA offices for a further interview. Ms Mattes says:

"We explained to them that they would be coming with us back to DIMIA offices for further interview. We explained at that point that the purpose of the interview will be to consider cancellation of their visa for apparent work breach. ... The records show that the notice of intention to cancel was handed to Mr Zubair at 4.10a.m. This means that Mr Zubair would have been at the DIMIA office for approximately 20 minutes before being given his NOIC. ... Mr Zubair's NOIC stated that the possible grounds for cancellation was "breach of condition 8105 - working in excess of 20 hours per week during course time. The NOIC also advised that the interview would commence in 5 minutes time."

7. Mr Zubair says that when he received the notice he wasn't told why DIMIA believed he had breached his limited work rights and this was only made clear to him in the interview. He says that he explained to the DIMIA officer that he had not breached and she responded:

"We have evidence that you have worked more than 20 hours per week while your course was in session. Don't make the work harder for me at this time because I am tired and I want to go home."

Mr Zubair deposes to the fact that he was very stressed after being detained and was also very tired and sleepy, he was also hungry because he had not eaten since 6.00p.m. the night before and was cold.

8. At 4.30a.m. Ms Carter on behalf of the Minister, determined to cancel the applicant's temporary visa on the grounds that he had admitted that he had worked more than 20 hours per week during course time but had said that he was required to do training time. The decision record says the following:

"I have considered the claims of the visa holder. However, I give them little weight. By his own admission he has breached condition 8105, while aware of the work restriction on his visa. I hereby cancel the visa under s 166(1)(b) s 116(3) reg 2.43(2)(b) mandatory cancellation."

9. There is annexed to the cancellation document found between

[CB 13-16] a handwritten Su-Shi World work record which indicates the pay given to the applicant for particular days work. The DIMIA officers divided the hourly pay rate into the number of days worked and concluded that this proved that the hours must have exceeded 20. This was denied both by the applicant and by Su-Shi World who provided to the Tribunal details of his pay and performance incentive found at [CB 46] a letter with the same material found at [CB 87] and a letter in response to one written by the Tribunal [CB 88] found at [CB 105-106]. At [CB 121] the Tribunal says:

"The review applicant was paid by Su-Shi World by cheque which were cashed through the ANZ Bank. He was not sure how the performance incentive referred to in the letter of Su-Shi World was calculated. He worked as a food processor. He worked each night from 8.00p.m. to midnight or from 9.00a.m. to 1.00a.m. five nights per week. He made and cut sushi and was involved in cleaning. He explained that the manager calculated the performance incentive if a target that was given had been exceeded. The manager was not good at communication which is why he did not understand very clearly how the performance incentive was calculated. The review applicant had never worked more than 20 hours per week and told the department that."

10. In regard to the annotation on the grounds for revoking his visa the Tribunal says at [CB 122]:

"In relation to the statement attributed to him by the department, the review applicant submitted that he did not read the report of the departmental officer and he had never stated he worked for more than 20 hours per week in a paid job. He was under stress during this time and could not concentrate on the interviewer's questions. He had not changed his position."

"Neither the review applicant nor his employer have been able to adequately explain the workings of the performance incentive which would explain the widely differing payments recorded for the review applicant nor how the performance was calculated. The review applicant appeared to have limited understanding of how his pay was calculated explaining that this was because his manager was not good at communication. On each inquiry for further information, it appears that Su-Shi World have simply produced a further computer chart to attempt to explain payments to the visa applicant which appear to be for work in excess of 20 hours per week. Their attempt to explain the working of the purported performance incentive is unconvincing to the Tribunal."

12. The Tribunal came to the view that the applicant had indeed worked more than 20 hours per week and thus affirmed the decision under review.

13. In the hearing before me the applicant did not seek to attack the Tribunal's finding in this regard although he continued to deny working in excess of the limited hours, rather the applicant sought to argue that the Tribunal had no power to come to a decision which effectively stood in the stead of that of the delegate because the decision of the delegate was an invalid decision. The applicant argued that this being the case all the Tribunal could do was to acknowledge the invalidity of the decision and refer the matter back to the decision-maker so that a valid decision could be made.

14. The applicant argues that the delegate did not follow the procedures set out in ss.116, 119, 120 and 121 of the Migration Act 1958 (Cth). The sections are set out below:

SECT 116- Subdivision D - Visas may be cancelled on certain grounds

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a) any circumstances which permitted the grant of the visa no longer exist; or

(b) its holder has not complied with a condition of the visa; or

(c) another person required to comply with a condition of the visa has not complied with that condition; or

(d) if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C

(incorrect information given by holder) if its holder had so entered and been immigration cleared; or

(e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or

(f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

(i) its holder is not, or is likely not to be, a genuine student; or

(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

(g) a prescribed ground for cancelling a visa applies to the holder.

(1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.

(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

SECT 119 Notice of proposed cancellation

(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and

(b) invite the holder to show within a specified time that:

(ii) there is a reason why it should not be cancelled.

(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.

(4) The other provisions of this Subdivision do not apply to a cancellation:

(a) under a provision other than section 116; or

SECT 120 Certain information must be given to visa holder

(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for cancelling a visa; and

(b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and

(d) was not disclosed to the holder in the notification under section 119.

(a) give particulars of the relevant information to the holder; and

(b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and

(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.

SECT 121 Invitation to give comments etc.

(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:

(b) at an interview between the holder and an officer; or

(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:

(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and

(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.

(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.

(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:

(b) a time within that period as extended by the Minister for a prescribed further period; and then the response is to be given at an interview at the new time.

(6) This section is subject to sections 125 and 126.

15. Section 116 is the section which makes cancellation of a visa mandatory in the case of a breach of condition 8105. The applicant argues that the mandatory requirement contained in s.119 to invite the holder to show within a specified time that there is a reason why his visa should not be cancelled extends to the requirement in s.121 to the interview which would be held in order to enable the applicant to do that. He also argues that the interview must be held at a reasonable place and within a reasonable period. The applicant argues that handing the him a notice at 4.10a.m. and requiring him to respond thereto at 4.15a.m. at the DIMIA offices was not reasonable and thus breached a mandatory condition of the Act. The applicant goes on to argue that by breaching a mandatory condition of the Act the Minister's power was exercised ultra vires. He also argues that he was not provided with particulars of the alleged breach or of information relevant to the breach as required by s.119(1)(a) and 120(2) because all that the document did was to state the grounds of the breach and the grounds are not particularised (see Grollo & Co v Hammond (1997) 16 ALR 123 at [126]).

16. The first matter I have to consider is whether or not there was a breach of mandatory requirements. Dealing first with the alleged failure to provide particulars. The particulars which the applicant could be expected to have been given are the work sheet from Su-Shi World [CB 16] and a calculation of the number of hours he was alleged to have worked during the relevant periods. The applicant denies that he saw this document until after the decision was given to him. The respondent did not give any evidence on the subject. The officer who "breached" the applicant did not give evidence. The officer who did give evidence advised that the decision-maker was still in the department's employ and could have given evidence. I am entitled (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298) to infer that nothing she could have said would have been of any assistance to the respondent in this regard. The only possible excuse the respondent might have for not providing the applicant with the particulars is that he confessed to the breach. This is what appears on the document. But the applicant denies the confession. If the particulars had been provided then the denial would not matter because, prima facie, they might have proved the department's point.

17. I am satisfied that the respondent was in breach of his obligations in providing the applicant with "particulars of the grounds and of the information because of which the grounds appear to exist" as required by s.119(1)(a). I also think that the failure is compounded when one takes into account the time at which all this happened and the time within which the applicant was asked to respond.

18. As Burchett J remarked in Zhang Jia Qing v Minister for Immigration (unreported decision, delivered 5 November 1997) at p.15 "the specification of a reasonable place and a period for a visa holder's response to the invitation referred to in s.121 must take account of the circumstances". His Honour held that in the circumstances of that case, it was not reasonable to require the applicant to respond "when and where he had been kept for so long without eating, and after he indicated ...that he was feeling unwell". The decision was upheld on appeal, although the Full Court did not consider this aspect of His Honour's decision: see Minister for Immigration v Zhang [1999] FCA 84; (1999) 53 ALD 261 at 273-274. I take the view that providing an applicant with five minutes to respond to an allegation that he has breached the terms of his visa when no particulars are provided and the visa holder is in custody at 4.30am in the morning is not just reasonable in the circumstances.

19. There is no doubt that the failure to provide particulars was a failure to comply with the mandatory requirement of the Act. In contrast to s.119 and to s.120 in both of which the word "must" is used, s.121 uses the present imperative of the verb "to be". It states that an invitation "is to specify" and the interview "is to take place". I am of the view that these sections all complement one another and are all mandatory. In order to give the sections their effectiveness the obligation on the Tribunal would seem to be to do all the things required by the sections. The sections are placed into the Act in order to provide a form of procedural fairness to an applicant. How fair is it if part of the process is mandatory but the other part is not? What avails the applicant if the information with which he is provided is not capable of being considered by him for sufficient time in order to respond? It seems to me that in this case that the lack of response time was so unreasonable, particularly bearing in mind the time of night at which the information was provided, that it would amount in any event to a failure to provide the applicant with procedural fairness.

The effect of the failure to comply with the provisions of the Act or the requirement to give procedural fairness on the decision of the delegate

20. Having come to the view that the decision of the delegate was not a valid decision I have to consider whether or not the Tribunal was entitled to treat it as if it was and deal with it pursuant to s.349 of the Act as apposed to reviewing it under s.348, finding that it was invalid and referring it back to the delegate to make the decision again.

21. The power of an administrative tribunal to exercise its jurisdiction in a case where the decision under review is defective was considered authoritatively by the Full Bench of the Federal Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) [1979] FCA 21; 2 ALD 1. All the members of the court held that it would not be compatible with the objectives of the Administrative Appeals Tribunal Act if the only administrative decisions which were to be subject to review were those decisions which were legally effective. As Smithers J said at 25:

" ...it is my view that the fact that a decision is made by an administrator to take action which he has no power to take in a legally effective way does not exclude that decision from review by the Tribunal."

22. The learned Chief Justice at 6 found that a decision made in the intended exercise of power will generally constitute a purported exercise of power.

23. The ability of an administrative review Tribunal to deal with an invalid decision was further considered in Secretary, Department of Social Security v Alvaro [1994] FCA 1124; (1994) 50 FCR 213 where von Doussa J gave a judgment of the court. At 219 His Honour said:

"In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338 it was held that a decision made by an administrator in purported or assumed pursuance of a relevant statutory provision is reviewable under the AAT Act even if the administrative decision is legally ineffective or void: see Bowen CJ at 314-315, Smithers J at 339. That decision has been applied by another Full Court of this Court in Hospital Benefit Fund (WA) Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225 at 232."

"In the hierarchy of reviews from original decision-maker to the AAT it was not necessary that there be at the outset an original decision that was in all respects validly made, and at each level of review thereafter another decision that was in or respects validly made. The person or tribunal to whom application for each of the reviews was made had jurisdiction to undertake that review so long as the preceding decision-maker had made what was purported to be a decision in exercise of powers conferred by the Act affecting the interests of the person seeking review. It mattered not whether the ground of complaint made about the preceding decision was merely that it is wrong on the merits, or that in law it was not an effective decision because it was made by someone without authority, or in excess of authority, or for improper purposes, or was vitiated through procedural irregularity such as a failure to accord natural justice.

The purpose of a review provided for by the Act is to allow the reviewing authority to correct error and substitute a new decision where error is detected."

24. The issue of validity of applications and their treatment by the Refugee Review Tribunal has been considered in a number of cases: see Yilmaz v Minister for Immigration [2000] FCA 906, Minister for Immigration v Li [2000] FCA 1456, Nader v Minister for Immigration [2000] FCA 908, Bal v Minister for Immigration [2001] FCA 991 and Bal v Minister for Immigration [2002] FCAFC 189, Nie v Minister for Immigration [2000] FCA 347 and James v Minister for Immigration [2002] FCA 1383. These cases all deal with the validity of applications for protection visas. There is a divergence of opinion in the Federal Court but the Full Bench majorities clearly state that an inchoate application can be made cohate by the later provision of information provided that information arrives prior to the time the application is considered by the delegate. But where no such information is provided and the application is clearly invalid it cannot be considered by the RRT (Minister for Immigration v Li supra).

25. But this is not the case before me. There is no question of an invalid application. There is only a question of a possibly invalid decision. In Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106 at 116 Mason J said:

"...the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have "cured" a defect in natural justice or fairness which occurred at first instance. Certainly this view has been taken in a number of cases -- notably by the Privy Council in De Verteuil v Knaggs [1918] AC 557; Pillai v Singapore City Council [1968] 1 WLR 1278 at 1286; and by the Supreme Court of Canada in Re Clark and Ontario Securities Commission (1966) 56 DLR (2d) 585 and King v University of Saskatchewan (1969) 6 DLR (3d) 120; cf Denton v Auckland City [1969] NZLR 256 and Leary v National Union of Vehicle Builders [1970] 3 WLR 434; [1970] 2 All ER 713, where the contrary view was taken. In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt dispatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing - in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal."

26. In Bal supra at first instance Madgwick J whilst finding that an application was invalid declined to exercise his discretion to grant review of the Tribunal's decision. At [23] and [24] His Honour said:

"Once the applicant knew of the delegate's premature rejection of his claim, he chose not to press his right to ask an appropriate court to correct the delegate, but rather to invoke the investigative obligations and powers of the Tribunal. Thereby he obliged the Tribunal to expend much official time and public money on his case. He also thereby obtained a very full investigation of his claims, the capacity to support them with anything he chose to place before the Tribunal and the right to approach this Court and/or the High Court, to correct any legal error by the Tribunal. In every practical sense, the delegate's overreaching was thereby remedied. Had the applicant originally approached this Court to remedy the undue haste of the delegate of which he now complains, he could have obtained, in the result, in substance no more than what he has already had, a fair and full investigation of his claims to Australia's protection of him as a refugee. Nor did the applicant put to the Tribunal that it had no jurisdiction, because he had not completed his initial application. He waited to see how he fared at the Tribunal's hands.

It offends common sense and justice that the applicant should now be able to avoid the consequences, which have turned out to be adverse to him, of the very process that he chose to invoke and to continue, because of the already substantially remedied error of the delegate."

27. Although Bal was reversed on appeal the Full Bench decided the matter on its consideration of the validity of the application. The Full Bench came to the view that the application was valid. The court did not upset the findings of Madgwick J in relation to the exercise of his discretion had they found the application to have been invalid.

28. Whilst I would not be quite as critical of this applicant as Madgwick J was of Mr Bal because I do not believe that he had any understanding of his rights to impugn the delegate's findings or want of procedural fairness until he obtained legal advice. I do not think this detracts from the force of His Honour's arguments based upon the decision in Twist supra that if an applicant does exercise his right to merits review by a Tribunal and the Tribunal carries out that review properly, as the Tribunal here did, an existing invalidity, which arises out of a lack of procedural fairness, can be overcome. In this case the lack of procedural fairness that I have identified is a failure to give the applicant sufficient opportunity to deal with the allegation that he had been working for more than 20 hours per week. This was the very matter upon which considerable time was spent at the Tribunal. Once the applicant got his case into the Tribunal he could have established to the Tribunal's satisfaction that he had not been working more than 20 hours per week and if he had done so then the Tribunal could set aside the delegate's decision and restore his visa. The applicant was unable to satisfy the Tribunal. This is a finding of fact by the Tribunal with which this court cannot interfere.

29. The application to review must fail. I dismiss it. I order that the applicant pay the respondent's costs which, because of the complexity of this matter I assess in the sum of $5,000.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Raphael FM