Zubair v Minister for Immigration & Multicultural & Indigenous Affairs

the legislation 6 Section 31 of the Act provides for prescribed classes of visas under the Migration Regulations 1994 (Cth) (the Regulations). Section 41(1) permits the Regulations also to provide that visas, or visas of a specified class, are subject to specified conditions. In particular, s 41(2) provides that the Regulations may provide that a visa, or a visa of a specified class, be subject to a condition imposing restrictions about the work that may be done in Australia by the visa holder. Regulation 2.05 prescribes the conditions applicable to visas or classes of visa in accordance with Sch 2 of the Regulations. 7 Clause 1222 of Sch 1 to Pt 2 of the Schedules to the Regulations creates the class of visa called Student (Temporary) (Class TU) visa. At the time of his initial application for a student visa, there was in force Subclass 560 Student visa. That part of the Regulations was repealed by the Migration Amendment Regulations 2001 (No. 5) (Cth), which came into operation on 1 July 2001. There were very extensive amendments to the Migration Regulations then effected. Subclass 572 Vocational Education and Training Sector was inserted into the Regulations, applicable inter alia to the holder of a Student (Temporary) (Class TU) visa, effectively in substitution for Subclass 560. 8 It is common ground that the visa was subject to Condition 8105. 9 Condition 8105 in respect of visas granted from 1 November 2000 provided: '(1) Subject to subclause (2), the holder must not engage in work in Australia for more than 20 hours a week during any week when the holder's course of study or training is in session. (2) Subclause (1) does not apply to work that was specified as a requirement of the course when the course particulars were entered in the Commonwealth Register of Institutions and Courses for Overseas Students.'

10 It is plain that the appellant would have breached Condition 8105 if he engaged in work in Australia for more than 20 hours per week during any week when his course of study or training was in session. 11 The visa was cancelled by the delegate of the respondent, and affirmed on review by the Tribunal, because the appellant was found to have breached Condition 8105 whilst being aware of that work restriction. He was found to have worked more than 20 hours per week for Su-Shi World Australia Pty Ltd (Su-Shi World) for much of the period between 8 April 2002 and 30 May 2002. That period encompassed a period when the appellant's course of study was in session. 12 The power to cancel the visa is relevantly contained in s 116(1)(b) of the Act. It provides: '(1) Subject to subsections (2) and (3), the Minister my cancel a visa if he or she is satisfied that: (a) … (b) its holder has not complied with a condition of the visa; or (c) …' Section 116(3) provides:

'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.'

13 Regulation 2.43 of the Regulations prescribes the circumstances in which the respondent is given no discretion other than to cancel a visa. It provides:

'(2) For subsection 116(3) of the Act, the circumstances in which the Minister must cancel a visa are: (a) each of the circumstances comprising the grounds set out in paragraphs (1)(a) and (b); and (b) in the case of a Student (Temporary) (Class TU) visa, that the Minister is satisfied that the visa holder has not complied with: (i) condition 8104 or 8105 (if the condition applies to the visa); or (ii) condition 8202.'

14 The procedure by which cancellation is to be effected is that set out in ss 119 - 121 of the Act. They are as follows: '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: (i) those grounds do not exist; or (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 (b) to which Subdivision F applies. 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 (c) was not given by the holder; and (d) was not disclosed to the holder in the notification under section 119. (2) The Minister must: (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 (c) invite the holder to comment on it. (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: (a) in writing; or (b) at an interview between the holder and an officer; or (c) by telephone. (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: (a) a later time within that period; or (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.'

the facts 15 On the early morning of 31 May 2002 the appellant was working at Su-Shi World when the premises were 'raided' by officers of the Department of Immigration & Multicultural & Indigenous Affairs (DIMIA) and police officers. The appellant and others were required to remain in the premises while investigations were carried out. Subsequently, the appellant and others were transferred to the offices of DIMIA for further interview. It is there that the procedures required to be followed for the making of a cancellation decision were, at least in theory, carried out. 16 At 4.10 am the appellant was given a notice of intention to consider cancelling a visa. He was given an opportunity to respond to that notice at 4.15 am. The interviewing officer recorded: 'The visa holder stated that he worked more than 20 hours per week during course time at Su-Shi World because he was required to do training time. The visa holder stated "I agree that I breached but it was not intentional because I was on training."'

17 The officer concerned then recorded that, in the light of that explanation, grounds for cancellation of the visa existed. The officer noted 'that it has been found' that he has worked more than 20 hours per week during course time. The evidence for this is in the worksheet for the visa holder, which was found at Su-Shi World. It appears that the information then available was a pro forma employee worksheet recording the period of wages, the gross wages, the tax, the net pay and a receipt signed by the appellant. It did not record an hourly rate. It may be that the officer had independent information as to the hourly rate which suggested the number of hours worked exceeded 20 hours per week. 18 The decision was recorded in the following terms: '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 116(1)(b), s 116(3), Reg 2.43(2)(b) mandatory cancellation.' That decision was taken at 4.30 am on 31 May 2002. 19 It is now accepted, as the learned Magistrate found, that the delegate's decision was not a valid decision. It was invalid because it did not follow the mandatory requirements of ss 119(1)(a) and 121(2). In particular, the learned Magistrate found that the delegate did not provide the appellant with particulars of the grounds of possible cancellation or of the information because of which the grounds appear to exist, as required by s 119(1)(a) of the Act. The learned Magistrate also found that the delegate had failed to provide the appellant with the procedural fairness which ss 120 and 121 requires, in particular that the delegate had failed to give him a reasonable opportunity to respond to the information (albeit inadequate information) upon which he was entitled to comment. 20 Subsequently, the Tribunal received a typed schedule from Su-Shi World showing the appellant's earnings, his hours worked, his hourly rate, and his 'performance incentive'. His weekly hours worked showed he worked between nine and 20 hours per week over the period in issue, generally towards the upper range. The 'performance incentive' was a significant component of his earnings. No reference was made to any training period, or to the need to have worked longer hours during training. The Tribunal sought details of the performance incentive scheme, including how the incentive is notified to employees and how it is calculated. Su-Shi World responded: 'Our production manager and internal financial manager caculate [sic] performance index recording to employee's additional and better performance compare [sic] to other normal employee [sic] or our standard work performance. Performance Index was calculated depends [sic] on various things such as extra number of sushi trays achieved by employee, extra number of packed big rolls, extra number of tray with cutted [sic] big rolls etc.' It did not identify any document recording the scheme, or any records as to how the performance of individual employees were maintained or the calculation of the incentive payments, or any document provided to employees explaining the system.

Did the Tribunal have power to review the delegate's decision? 21 The conclusions of the learned Magistrate, referred to in [19] above are not challenged by the respondent on this appeal. It is argued (grounds of appeal 2.2 and 2.4) that as the decision of the delegate was 'no decision at all' the Tribunal had no jurisdiction to entertain the review application. It could only do so where there is a valid decision of the delegate of the respondent. In support of that contention, the appellant relies upon the decision of the High Court in Minister of Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 (Bhardwaj). 22 Bhardwaj concerned the validity of a further hearing of a review application by the Tribunal, after it had heard and apparently determined the application for review adversely to the appellant for the visa. The Tribunal apparently accepted that it had erred in proceeding to make its first decision, as it had overlooked or had not had brought to its attention certain information provided to it by the appellant as to his inability to attend a scheduled hearing. The Court by majority (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting) determined that the Tribunal had the power to make the second decision. Gleeson CJ so decided on the basis that the Act manifested an intention to permit reconsideration of the review application in the circumstances, Gaudron and Gummow JJ (with whom McHugh and Hayne JJ agreed) found that the Tribunal's first decision was not a 'decision on review' under the Act because the Tribunal had not conducted the review as required by the Act. It had failed to give the then respondent a reasonable opportunity to present argument and evidence as required by the Act. Consequently, their Honours said at 614, [51]: 'There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitution prohibition.'

23 However, earlier in their reasons, Gaudron and Gummow JJ at 612 - 613, [45] - [46] referred to the tendency to ask whether administrative decisions which involve reviewable error are either void or voidable, the former expression indicating that the decision is 'ineffective for all purposes', and the latter that it is valid and effective unless challenged, but then deemed to have been set aside ab initio. Their Honours said: 'The tendency to conceptualise erroneous administrative decisions as voidable rather than void may be the result of the need to treat a decision as having at least sufficient effect to ground an "appeal" or other legal proceedings.' After referring to the remarks of Lord Wilberforce in Calvin v Carr [1980] AC 574 at 589 - 590, their Honours continued at 613, [46]:

'In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as "void", "voidable", "invalid", "vitiated" or, even, as "nullities". To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made. Further, the use of the term "appeal" and the proposition that an administrative decision must have sufficient vitality to provide the subject matter of such a curial proceeding should not obscure the fundamental proposition that such an "appeal" or other proceeding for judicial review is an exercise of original jurisdiction by the court concerned. It will be necessary to refer further to this consideration later in these reasons.'

24 In the light of those remarks, in our judgment the appropriate starting point is the provisions of the Act itself. In Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55; [2003] FCAFC 288, Gray and Downes JJ at 68, [42] said: 'In our view Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend on the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355 at 388 - 399 "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with a condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."'

25 The Tribunal is given the function, and obligation, of reviewing certain decisions under s 348(1) of the Act. It provides:

'Subject to subsection (2), if an application is properly made under s 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.' It is not suggested that s 348(2) is relevant to the present matter. 26 The expression 'an MRT-reviewable decision' is defined in s 337 to have the meaning given in Div 2 of Pt 5 of the Act. Division 2 principally contains s 338. It relevantly provides: '(1) A decision is an MRT-reviewable decision if this section so provides, unless: (a) the Minister has issued a conclusive certificate under section 339 in relation to the decision; or (b) the decision is an RRT-reviewable decision; or (c) the decision is to refuse to grant, or to cancel, a temporary safe haven visa. … (3) A decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation is a MRT-reviewable decision unless the decision: (a) is covered by subsection (4); or (b) is made at a time when the non-citizen was in immigration clearance; or (c) was made under subsection 134(1), (3A) or (4) or section 501.' It is not suggested that any of the provisos in ss 338(1) or (3) are relevant to the present circumstances. 27 In our view, the clear words of s 338 indicate that the decision of the delegate of the respondent to cancel the visa was an 'MRT-reviewable decision' and the Tribunal was not only entitled to, but obliged to, review it. 28 The expression 'decision' is not otherwise defined in the Act. There is no textual suggestion that the expression 'MRT-reviewable decision' should be restricted in some way so as to refer only to decisions which have been made by a delegate of the respondent after full compliance with the mandatory procedural prescriptions of ss 119 - 121 (in the case of the cancellation of a visa) or other procedural prescriptions applicable to other forms of MRT- reviewable decisions. There is no qualification upon the use of the word 'decision' requiring it to be a 'decision under the Act': cf Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2. In particular, there is nothing in Pt 5 of the Act which would suggest that the Tribunal does not have the power or obligation to review a decision properly brought before it (see s 347) where the delegate of the respondent may, or may arguably, have failed to comply with a procedural requirement imposed by the Act, or in some other way may, or may arguably, have committed an error of law either in determining the applicable law or in applying the law. There is no reason why the Act, which provides for a full merits review by the Tribunal of decisions which may be brought to it, should impose upon the Tribunal the task of culling out those decisions which may involve jurisdictional error on the part of the original decision-maker. That would impose an unnecessary additional complexity upon the merits review process. Moreover, it may expose the Tribunal's decision as to the existence of a valid delegate's decision (a jurisdictional fact on the appellant's argument) to review by a Court even where (as here) the Tribunal has fully reviewed the decision on the merits. Administrative convenience strongly points to an alternative conclusion to that urged by senior counsel for the appellant. The review process applicable to the Tribunal is a full merits review. As with review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act), the Tribunal is given powers under s 349 to exercise all the powers and discretions that are conferred by the Act on the person who made the decision. It may affirm the decision, vary it, or remit the matter for reconsideration with directions or recommendations, or may set aside the decision and substitute a new decision. The only limit upon its power is that it may not, by varying or setting aside a decision and substituting a new decision, make a decision that is not authorised by the Act or the regulations (s 349(4)). That is similar to the review powers of the Administrative Appeals Tribunal (AAT): see AAT Act, s 43. In that context it has been held that the review by the AAT is available even though the decision-maker at first instance may have made a decision which is legally ineffective: see e.g. Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 at [38] - [39]. 29 That approach accords with a line of decisions of this Court beginning with Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 (Lawlor). In that case the Court had to decide whether the AAT had jurisdiction to review the purported revocation of a licence where (the Court held) there was no statutory power to revoke the licence. Bowen CJ at 314 stated that 'decision' in s 25 of the AAT Act refers to 'a decision in fact made, regardless of whether or not it is a legally effective decision'. Smithers J at 337 held that where a decision is made beyond power, even though the legal effect the decision maker sought to achieve is denied, the jurisdiction of a court or appeal tribunal to review the decision is not removed. The jurisdiction of the court or tribunal depends upon the law creating the right to review and conferring jurisdiction. His Honour further pointed out that a 'decision', as used in the relevant statute, relating to the right to apply for review, referred to a decision 'made in fact' and not the legal effect the decision may have had. Although Deane J was in dissent in the result, his Honour recognised at 342 - 343 that the AAT's powers of review would include a decision resulting from a wrong assessment of the content of a power or a mistaken determination that conditions precedent have or have not been fulfilled. 30 Lawlor was applied by the Full Court in Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 (Alvaro). Von Doussa J (with whom Spender and French JJ agreed) held at 219 that the right of the AAT to review a decision of the Social Security Appeals Tribunal (SSAT) existed 'whether or not the decision reviewed by the SSAT, or the decision of the SSAT itself, was legally effective'. 31 In Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; [2000] FCA 906 (Yilmaz) Gyles J (with whom Spender J agreed, Marshall J dissenting) followed the principles as established in Lawlor in holding that an invalid decision (in that case concerning rights of review by the Refugee Review Tribunal (RRT) under ss 411 and 412 of the Act) is a decision capable of being reviewed by the RRT. His Honour, after discussing the relevant authorities including Lawlor and Alvaro stated at 514, [88]: 'In my opinion, these principles are to be applied in the present setting. Brian Lawlor was a landmark decision in the early days of the jurisdiction of the AAT which had been established to conduct review of certain administrative decisions on the merits as part of a comprehensive set of administrative law reforms. The decision has stood now for over 20 years without dissent and has been regularly applied. It must be taken to have been the law when the RRT provisions were framed.' The reasoning of Gyles J in Yilmaz was followed by the Court (Moore, Tamberlin and Goldberg JJ) in Thayananthan v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 297; [2001] FCA 831. 32 It should therefore be concluded that the Tribunal did have power to review the delegate's decision. The Tribunal was, in consequence, able to "cure" the defect in the delegate's decision: see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116. Because of our conclusion it is unnecessary to enter upon the question whether a direct challenge could have been made to the delegate's decision in judicial review proceedings in disregard of the procedure for Tribunal review: cf Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.

Did the Tribunal err in its review of the delegate's decision? 33 There were two aspects of the appellant's attack on the Tribunal's decision. 34 The first can be briefly dealt with. It is contended that the Tribunal misunderstood its function, and so failed to review the delegate's decision on the merits. The contention is based upon the second sentence of an introductory paragraph in the Tribunal's reasons as follows: 'When reviewing a cancellation decision, the Tribunal generally restricts itself to considering the grounds for cancellation raised by the delegate. It also examines the procedures followed by the delegate in cancelling the visa to ensure that the requirements set out in the Act have been met.'

35 In our view, that sentence as a general description of the Tribunal's role is erroneous. The Tribunal reviews MRT-reviewable decisions on the merits: ss 348 and 349. It has a procedural framework within which it must do so: Div 5 of Pt 5 of the Act. However, in this particular matter, the Tribunal was called upon to consider the delegate's compliance with the procedural requirements of ss 119 - 121 because the appellant required it to do so as part of the contention before the Tribunal (and maintained before the learned Magistrate and on this appeal) that the delegate's decision was a nullity. More importantly, however, it is clear that the Tribunal did fulfil its role of reviewing the delegate's decision on the merits. The infelicitously wide expression in the second sentence of the quoted paragraph did not distract the Tribunal from its task under the Act. 36 The second aspect of the attack was that the Tribunal failed to take into account a 'relevant and critical' consideration, namely the explanation provided by Su-Shi World as to the hours the appellant worked and how his pay was determined. Reference is made to the observations of the Tribunal that Su-Shi World simply produced a series of charts to explain the incentive payments. From that reference, it is argued that the Tribunal failed to recognise that an explanation had been provided (referred to in [20] above) and so to have regard to that explanation. 37 The contention must fail because, read in context, the Tribunal did not overlook that explanation. It regarded it as unsatisfactory. It said: '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 enquiry for further information, it appears that the 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. It is also the case that the review applicant did not refer to the supposed performance incentive payments in his interview with the Department. The Departmental file records the applicant as having acknowledged that he had worked in breach of condition 8105 at Su-Shi World, however he had to do this because of training. The review applicant subsequently claimed that this was because he was under stress and confused at the time of this interview. The Tribunal does not accept this explanation given the subsequent claims regarding a performance incentive and the contradictory evidence regarding actual hours worked and believes that the review applicant's admissions regarding working in breach of condition 8105 were accurately recorded at the time of the interview.'

conclusion 38 For the reasons given, the appeal should be dismissed with costs. 39 The Court declined to permit the notice of appeal to be further amended to include a ground that: 'The appellant was and is entitled to prerogative relief because of the unlawful or improper conduct of the delegate and her fellow officers in detaining and purportedly obtaining a "verbal" confession by the appellant'.

40 The contention was not put to the learned Magistrate. It is a new ground. As senior counsel for the respondent pointed out, if the ground had been raised at an appropriate time, it may have resulted in the respondent adducing evidence relating to it. At this point, the issue could not be fairly determined without further evidence. In those circumstances, it was inappropriate that the appellant be given the leave to so amend the notice of appeal: see e.g. NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 79; NAHV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 214; [2003] FCAFC 102; Coulton v Holcombe (1986) 162 CLR 1 at 7 - 8; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at 438 - 440, [34] - [39]. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Finn, Mansfield & Gyles.

Associate: Dated: 3 September 2004 Counsel for the Appellant: S Rares SC with D Knoll (Pro Bono)

Counsel for the Respondent: S Gageler SC with T Reilly

Solicitor for the Respondent: Australian Government Solicitor