Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Application to declare decision of delegate of respondent null and void and to review decision of Migration Review Tribunal - whether delegate followed procedures for cancellation of visa - whether notice of intention to cancel specified reasonable time for interview, properly specified particulars of grounds and whether provided in advance of interview - effect of non-compliance with notification procedures - whether Tribunal can `cure' a defect in the notification procedures - interpretation of condition 8105 - meaning of `week' when the institution is in session - whether matter should be remitted to Tribunal.

Alam v Minister for Immigration [2004] FMCA 583 (11 October 2004)

Alam v Minister for Immigration [2004] FMCA 583 (11 October 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ALAM v MINISTER FOR IMMIGRATION
[2004] FMCA 583



MIGRATION - Application to declare decision of delegate of respondent null and void and to review decision of Migration Review Tribunal - whether delegate followed procedures for cancellation of visa - whether notice of intention to cancel specified reasonable time for interview, properly specified particulars of grounds and whether provided in advance of interview - effect of non-compliance with notification procedures - whether Tribunal can `cure' a defect in the notification procedures - interpretation of condition 8105 - meaning of `week' when the institution is in session - whether matter should be remitted to Tribunal.



Migration Reform Act 1992 (Cth)

Administrative Decisions (Judicial Review) Act 1977

Judiciary Act 1903

Migration Act 1958 (Cth)

Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 248

Zhang Jia Qing v Minister for Immigration & Multicultural Affairs (1997) 149 ALR 519

Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 440

Tien v Minister for Immigration & Multicultural Affairs (1998) 159 ALR 405

Jones v Dunkel (1959) 101 CLR 298

Noeung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1304

Collector of Customs v Brian Lawler Automotive Pty Limited (1979) 24 ALR 307

Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389

Hope v Bathurst City Council (1980) 144 CLR 1

Dunlop Perdrian Rubber Co Ltd v Federated Rubber Workers Union of Australia (1931) 46 CLR 329

Secretary Department of Social Security v Alvaro (1994) 50 FCR 213

Minister for Immigration & Multicultural Affairs v Sharma (1999) 90 FCR 513 Nong v Minister for Immigration & Multicultural Affairs [2000] FCA 1575 Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342

Calvin v Carr (1979) 1 NSWLR 1

Twist v Randwick Municipal Council (1976) 136 CLR 106

Bal v Minister for Immigration & Multicultural Affairs [2001] FCA 991

Ahmed v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 127

Applicant:
MAHABUB E ALAM



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ907 of 2003



Delivered on:


11 October 2004



Delivered at:


Sydney



Hearing date:


17 February 2004



Judgment of:


Barnes FM



REPRESENTATION

Counsel for the Applicant:


Mr S. Lloyd



Solicitors for the Applicant:


Parish Patience Immigration Lawyers



Counsel for the Respondent:


Mr J. Smith



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) That the Court declares that the decision of the Migration Review Tribunal made on 30 April 2003 is invalid and of no effect.

(2) That a writ of certiorari issue quashing the decision of the Migration Review Tribunal.

(3) That a writ of mandamus issue requiring the Migration Review Tribunal to redetermine the matter according to law.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ907 of 2003

MAHABUB E ALAM


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIFENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In these proceedings the applicant seeks: (1) an order declaring that the decision of a delegate of the respondent made on 18 December 2002 to cancel the applicant's Student (Temporary) (Class TU) visa was null and void; (2) an order setting aside the decision of the Migration Review Tribunal (the Tribunal) dated 30 April 2003 affirming the delegate's decision; and (3), in the alternative to order (1) an order directing the Tribunal to set aside the delegate's decision.

2. The applicant entered Australia on a student visa on 17 April 2001. Further student visas were granted to him on 18 May 2001, 11 September 2001 and 19 September 2002. The Student visa granted on 19 September 2002 was a Subclass 573 (Higher Education Sector) visa granted on the basis of the applicant's enrolment in a Bachelor of Information Technology at Central Queensland University. Attached to this visa was, relevantly, condition 8105 in the following form:

The holder must not engage in work in Australia (other than in relation to the holder's course of study or training) for more than 20 hours a week during any week when the institution at which the holder is studying is in session.

3. On 18 December 2002 the applicant was issued with a written "notice of intention to consider cancellation" under section 116 of the Migration Act 1958 (the Act). The possible of grounds for cancellation of the visa were specified as a breach of condition 8202 and of condition 8105. The notice invited the applicant to comment on the intention to cancel his visa and to give reasons why his visa should not be cancelled at an interview to be held at a Lee Street address in Sydney. It is apparent from the copy of the notice before the Court that an interview date and time of 11:30 on 16/1/2003 were written in the spaces on the form for time and date of interview, crossed out and replaced by 10:30pm on 18/12/2002. This change has been signed although it does not appear that this signature is the same as the signature of the named officer at the end of the notice. The notice was also signed by the applicant and dated 18/12/2002. The space for the time of signature has not been completed either by the Departmental officer or the visa holder.

4. It is apparent from the departmental officer's details on the `Record of Decision Whether to Cancel Visa' that the decision to cancel the visa was made by an officer other than the officer who signed the notice of intention to consider cancellation. The record of decision states that the visa holder received the notice of intention to consider cancellation at 10:30pm on 18 December 2002, that grounds for cancellation existed under s.116(1)(b), s.116(3) and Regulation 2.43(2)(b) of the Migration Act 1958 as the applicant was in breach of condition 8105 as he had `worked in excess of 20 hours/week during course time in first week of October'. The decision is dated 18 December 2002 and the time of 11pm appears on the record of decision.

5. A written notification of decision to cancel the visa under s.116 of the Migration Act 1958 was completed and signed by the officer who made the decision, dated 18/12/2002 at 11.15pm. The applicant has also signed and dated this document but no time of receipt of notification is inserted in the space provided for such information. The delegate's decision and notification of decision do not refer to any possible breach of condition 8202.

6. As a consequence of the cancellation decision the applicant was detained on 18 December 2002 until granted a Bridging visa on

6 January 2003. On 24 December 2002 he applied to the Migration Review Tribunal for a review of the delegate's cancellation decision. On 27 February 2003 the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to comment on information that the Tribunal considered would be the reason or part of the reason for affirming a decision of the delegate namely:

The Department has information from your employer, The 3 Wise Monkeys Pub that indicates you worked in excess of 20 hours per week on 2 occasions. During the week ending on 8 October 2002 you worked 22.15 hours. During the week ending on 5 November 2002 you worked 22 hours.

7. Before the time for response expired the Tribunal invited the applicant to a hearing. The applicant's adviser made a written submission to the Tribunal on 19 March 2003 in response to the invitation to a hearing enclosing a letter from the manager of "The Three Wise Monkeys Pub" stating that the shift manager had required the applicant to work the hours recorded. The applicant attended a Tribunal hearing on 9 April 2003.

8. On 30 April 2003 the Tribunal affirmed the decision to cancel the applicant's Student visa. In its reasons for decision the Tribunal outlined the procedure for cancelling visas specified under the Migration Act. It acknowledged that following the proper procedure was an essential precondition to the exercise of the cancellation power. It stated that:

"As the Tribunal may only exercise the same powers and discretion conferred on the primary decision-maker (subsection 349(1) of the Act) it follows that the Tribunal has no power to affirm a cancellation where the proper cancellation procedure has not been followed. Nor does the legislation allow for the Tribunal to `cure' a defect in the notification procedures".

9. The Tribunal found, without explanation or elaboration, that the delegate had followed the procedure set out in `Subdivision E of the Act' for the cancellation of visas under s.116 (this appears to be a reference to Subdivision E of Division 3 of Part 2 of the Act). The Tribunal stated that the delegate had found that the applicant had breached condition 8105 because he had worked in excess of 20 hours per week during the time his course was in session during the week ending on 8 October 2002 and during the week ending on 5 November 2002. (although in fact the notice of intention to consider cancellation, the record of the decision and the notification by the delegate do not refer to the week ending 5 November 2002). The Tribunal had before it pay advice from the applicant's employer for relevant pay periods including the weeks ending on 8 October 2002 and 5 November 2002 respectively as well as the roster for the week ending 8 October 2002 and an explanation from the applicant's employer that the applicant had been asked to stay on for an additional 2.25 hours beyond his rostered shift in the week ending 8 October 2002. The Tribunal considered the applicant's reasons relating to the pay period ending 8 October 2002. The Tribunal found that the applicant had clearly worked in excess of the allowable 20 hours per week, that he was aware of the conditions attached to his visa and had breached them and that the breach had been confirmed by his employer who had advised that the applicant had worked additional hours after a decision was made by the duty manager based on need. The Tribunal found that the applicant had breached s.116(1)(b) and that cancellation was mandatory in accordance with s.116(3) of the Migration Act.

10. The applicant sought review of the Tribunal decision by proceedings commenced in this Court on 23 May 2003. An amended application was filed on 15 September 2003 and a further amended application, on which the applicant now seeks to rely, was filed on 5 February 2004. The grounds relied on in the further amended application are as follows:

That the Migration Review Tribunal exceeded its jurisdiction or constructively failed to exercise its jurisdiction under the Act.

Particulars:

1. The decision of the delegate was flawed because the notice of intention to cancel provided did not comply with ss119-121 of the Migration Act. In particular, it did not specify a reasonable time and place for the interview; it did not properly or adequately specify the grounds, particulars of grounds and information to be relied upon by the delegate; and it was not provided in advance of the interview.

2. In these circumstances, the Tribunal's jurisdiction was limited to setting aside the decision of the delegate.

3. The Tribunal purported to add an extra particular to the grounds for cancellation, which was beyond its power.

4. The Tribunal misconstrued condition 8105 of the Migration Regulations and, as a consequence, made an error of law. In particular, it incorrectly considered whether the applicant worked for more than 20 hours in a seven day period ending on Tuesday rather than in a calendar week (ending on Sunday).

5. The Tribunal misconstrued condition 8105 of the Migration Regulations and, as a consequence made an error of law. In particular, it considered that the condition applied to weeks other than whole weeks in which the relevant institution was in session.

11. In an accompanying affidavit sworn on 4 February 2004 the applicant stated that Departmental officers came to his house on the evening of 18 December 2002 looking for one of his friends. They searched through his belongings and room without showing him a warrant. They found his pay slips during the search. The applicant claimed that he was kept in his house by the officers for about an hour and was then told to go with them. He was not given the opportunity to put a shirt on top of his singlet. He was taken to the Lee Street offices of the Department and was made to wait in a room with one of his friends. A Departmental officer then took him to a desk. The officer said that he had worked more than 20 hours a week, that he had breached his visa conditions as his pay slip said he worked two hours more than allowed and asked him why he had breached conditions. The applicant claimed that he provided an explanation to the effect that he understood that he was allowed to work as long as he wanted to on a public holiday and that he did not need to work as his father supported him.

12. The applicant claimed "While I asked (sic) being asked those questions by the DIMIA officer, he was filling out a form. I was given some paperwork, which I now know to be a notice to cancel my visa and the decision to cancel my visa. I was not given the notice until after my interview and I signed it when I signed the decision to cancel my visa. I did not even read the notice. If I had, I would have said that I also did not breach my attendance requirements". The applicant also attested that because he was unable to pay a $10,000 bond he was detained in Villawood Detention Centre.

13. In oral evidence the applicant confirmed that when taken to Lee Street and while waiting to be called he had not been given any documents. He was not given any until he was given the two documents to sign after the conversation with the Departmental officer during which time the officer was writing something in the documents.

14. In cross-examination the applicant conceded that while he was in his home, when the departmental officers found his pay slips they had asked him about working more than 20 hours a week and that he had shown them his bank statements. When asked whether he had been told at his home that he could be in breach of the condition on his visa, he indicated that he was not sure whether he had been told there or at Lee Street, that he was not quite sure but he did understand that they told him about the 20 hours after referring to his pay slip. He confirmed that the signatures on the notification of intention to cancel and the notice of decision were his signatures. He was not sure whether the Departmental signature was on the documents when he signed them and was not sure of the time at which he had signed the documents. He confirmed that he signed both the documents after the conversation with the Departmental officer. He also confirmed that he was given the documents at the same time to sign by the same person who was a man who may have been of Indian extraction.

Was the notice of cancellation invalid?

15. The applicant contended that the notice of intention to cancel given by the delegate to the applicant was invalid because it did not comply with ss.119 and 121 of the Migration Act 1958. In particular it did not properly or adequately specify the grounds, particulars of grounds and information to be relied upon and it was not provided in advance of the interview. Further it did not provide a reasonable period for the applicant to prepare a response to the notice for the foreshadowed interview.

16. While, as discussed below, the consequences of any such invalidity must now be seen in light of the recent decision of the Full Court of the Federal Court in Zubair v MIMIA [2004] FCAFC 248 (which held that the Tribunal has the power to review an invalid decision of a delegate of the Minister and to `cure' any defect), in light of the detailed submissions from both parties addressing the decision of the delegate I have considered this issue as well as the alternative arguments about the Tribunal decision.

17. Subdivision D of Division 3 of Part 2 of the Migration Act specifies the circumstances in which the Minister (or delegate) may cancel a visa. Relevantly s.116(1)(b) provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. Section 116(3) provides that 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. Paragraph 2.43(2)(b) of the Migration Regulations provides that for the purposes of s.116(3) the circumstances in which the Minister must cancel a visa include, in the case of a student visa such as that held by the applicant, that the Minister is satisfied that the visa holder has not complied with condition 8104 or 8105 if applicable or condition 8202. In this instance the delegate made a decision to cancel the applicant's visa pursuant to s.116(1)(b) and 116(3) of the Act and paragraph 2.43(2)(b) of the Regulations on the basis of satisfaction that the applicant had not complied with condition 8105.

18. Subdivision E of Division 3 of Part 2 of the Act specifies the procedure for cancelling visas under Subdivision D (subdivision F which deals with cancellation without notice of intention is applicable only where the visa holder is outside Australia: s.128). The applicant contended that there was a failure to comply with sections 119 and 121 of the Act which provide as follows:

SECTION 119

(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 s116 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.

SECTION 121

(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

19. Section 124 is also relevant. It provides:

(1) Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:

(a) the holder responds to the notice;

(b) the holder tells the Minister that the holder does not wish to respond;

(c) (c) the time for responding to the notice passes.

(2) The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first:

(a) the comments are given;

(b) the holder tells the Minister that the holder does not wish to comment;

(c) the time for commenting passes.

20. Section 119 compels the Minister to provide a potential `cancelee' with a particular kind of notice and an opportunity to comment upon it. It has been recognised that this provision (along with ss.120-122) inserts statutory fairness requirements akin to natural justice in the Act but intended to provide greater certainty about procedural requirements: Zhang Jia Qing v MIMA (1997) 149 ALR 519, Burchett J at 532; Tien v MIMA (1998) 159 ALR 405, Goldberg J at 423-424.

21. Relevantly, the notice must indicate (s.119(1):

a) the apparent grounds for cancellation;

b) the particulars of those grounds; and

c) the information because of which those grounds appear to exist.

22. The notice must also invite the holder to show within a specified time either that the grounds do not exist or that there is a reason why the visa should not be cancelled.

23. It is contended that the notice of intention to cancel was deficient because it did not properly or adequately specify the grounds for cancellation and did not give the particulars of the grounds and of the information because of which the grounds appeared to exist as required by s.119(1)(a). The written notice of intention to consider cancellation stated under the heading `possible grounds for cancellation' the following:

"Breach of condition 8202 - you may have failed to achieve 80 per cent attendance and a satisfactory academic progress per term or semester of your course. - Breach of condition 8105 - you may have worked in excess of the permitted 20 hpw whilst your course of study was in session."

24. While the subsequent record of decision whether to cancel stated that in determining that there were grounds for cancellation the delegate had had regard to pay slips from the applicant that were said to indicate that he had worked in excess of 20 hours per week during course time in the first week of October 2002 at "The Three Wise Monkeys Pub". Such particulars were not contained in the written notice of intention to consider cancellation which merely stated the content of conditions 8105 and 8202.

25. In written submissions the respondent contended that the applicant's submission (in this and other respects) proceeded on an unproven assumption that the written notice was the only notice under s.119 received by the applicant and that the onus was on the applicant to prove this and other aspects of his claim about the conduct of the departmental interview. It is the case that notice under s.119 may be given in a way that the Minister considers appropriate and that this may include orally. The applicant admitted that he was aware that his pay slips had been located by the Departmental officers who searched his home and that at the time of the search the Departmental officer told him that he had worked more than 20 hours a week. I accept this evidence and also that during the interview with the Departmental officer at the Lee Street premises of the Department the officer raised with the applicant the issue of his working more than 20 hours a week in the first week of October 2002. Counsel for the respondent asked the applicant in cross-examination if an officer had said at his home that he could be in breach of the condition of the visa and the applicant replied that he was not quite sure whether he was told there or at Lee Street. Where there is evidence before the Court of a written notification of intention to cancel which does not comply with section 119(1)(a), it is not for the applicant to prove that there was no other notification which complied with section 119. There is no evidence before the Court from any of the Departmental officers involved in searching the applicant's premises or in interviewing him or cancelling his visa. No explanation was given for the failure of any such officer to give evidence. In those circumstances I consider that on the basis of Jones v Dunkel (1959) 101 CLR 298 I am entitled to infer that nothing any such officer could have said would have been of any assistance to the respondent in this regard (see Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 440 at [16]).

26. I am not satisfied that the applicant received an oral notification that, either alone or in conjunction with the written notice, met the requirements of s.119 by specifying that there appeared to be grounds for cancellation which were particularised and drew the applicant's attention to the information relied on. The fact that, on the applicant's own evidence, hours of work were discussed at his home and that he was aware that the officers had his pay slips does not establish that he received a notification that there appeared to be grounds for cancellation with the necessary particulars and information. Even if an officer told him at this home that he worked more than 20 hours a week in the first week of October 2002 this does not amount to a notification that meets the requirements of s.119.

27. Nor does it follow that such conversation should be taken together with the written notice to constitute notification under s.119. The nature of the obligation to provide notification under s.119 is to be seen in the context of the statutory framework in which it appears. The notice under s.119 is to inform the visa holder of the substance of the matters identified in that section and to provide an opportunity for him to consider the content of the notice so as to enable him to provide a meaningful response (see Goldberg J in Tien & Ors v MIMA (1998) 159 ALR 405 at [423] and, to the same effect, Allsop J in Noeung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1304 at [71] in relation to the similarly worded s.129). There must be sufficient compliance with the requirements of the section to ensure that such opportunity is provided. It is relevant to have regard to the context in which notice was given and received in determining whether there has been compliance. It is also important that s.119 draws a distinction between the ground for cancellation on the one hand and particulars of the ground on the other hand and also distinguishes the information on which the ground was considered to exist. While at times there may be an overlap between such matters, it is clear that what is required is more than merely stating the grounds for cancellation. The fact that the applicant was aware that the Departmental officers had a concern based on his pay slips about the hours he had worked is not, in the context of all of the circumstances of this case as described above, sufficient to persuade me that that discussion constituted or formed part of the mandatory notification under s.119. The `notice' must be such as to inform the applicant of the substance of matters identified in s.119 and provide him an opportunity to consider the content of the notice so as to enable him to provide a meaningful response (Noeung at [71]). The fact that various pieces of information which might relevantly be included in a s.119 notice may have come to the attention of the applicant over the course of the evening of 16 December 2002 does not satisfy me that there was sufficient or substantial compliance such that the purpose of s.119 was fulfilled. It is the drawing together of the relevant matters and indication in a notice of how it is claimed that grounds for cancellation exist that enables an applicant to provide a meaningful response.

28. In this case the written notification merely described the conditions imposed on the visa as grounds for possible cancellation. There are no particulars of those grounds or of information because of which the grounds appear to exist. There is no reference to any particular time during session in which the applicant was said to have worked more than 20 hours a week, nor to the precise nature of any breach or the information (such as the pay slips) relied on by the delegate. It is notable that the obligation under s.119 in is in addition to the obligation in s.120 to give particulars of relevant information that would be the reason or part of the reason for cancelling the visa which was not given by the visa holder. Thus even if the `information' in the applicant's pay slip was `given' by him and hence outside s.120, s.119 obliged the delegate to notify him of the information if it was material because of which the grounds for cancellation appeared to exist. I am satisfied that the notice of proposed cancellation did not comply with s.119.

29. It was also contended for the applicant that there was a failure to comply with sections 119 and 121 because the invitation was not given to him until after the interview had taken place. In the alternative it was submitted that even on its face the notice of intention to consider cancellation provided that the interview would commence at 10:30pm, the time at which the record of decision to cancel stated that the applicant received the notice. In other words on the documents themselves the applicant was not given any time from the acceptance of the notice to the beginning of the interview in order to prepare a response (although he was given 30 minutes from the start of the interview to provide his comments).

30. The obligation to provide notice of apparent grounds for cancellation, particularisation of the grounds and information relied upon to the applicant and an invitation under s.119(1)(b) is also to be seen in the context of the requirement under s121(3) that, where the applicant is invited to respond under s.119(1)(b) at an interview the interview, is to take place at a reasonable place and within a reasonable period. The requirement of a reasonable place and time for an interview is intended to give the visa holder an opportunity to respond as a matter of substance. Whether such an obligation is met requires a consideration of all the circumstances, including whether the applicant has sufficient time to consider (on the basis of having been provided with all of the information required under s.119) and respond to the invitation in the manner contemplated in s.119(1)(b).

31. The specification of `reasonable' place and time for an interview involves consideration of all the circumstances, including the nature of the grounds for cancellation, the personal attributes of the applicant, the presence of an interpreter or the applicant's facility in the English language, the applicant's familiarity with the matters of concern, the circumstances in which the decision fell to be made and, in light of this, whether it allowed adequate time for the applicant to prepare a response. Zhang at 530, Tien at 424, Zubair v MIMIA[2003] FMCA 440 per Raphael FM at [18], Zhao v MIMIA [2002] FCA 748 per Kenny J at [76] - [80].

32. The applicant claimed, and in the absence of evidence to the contrary from any Departmental officer, I accept, that he was not given an invitation to respond at an interview (or by any other method within s.121) to take place within a reasonable time before his visa was cancelled. He was not provide with an opportunity to respond to the notice after it had been given. Rather his `interview' took place before the notice was given. The notice was given to him at the same time as the decision to cancel. In reaching this conclusion I have had regard to the applicant's evidence and to the contents of the departmental documents. Importantly, no time of signature was inserted on the notice of intention to cancel, either by the Departmental officer who signed the notice or the applicant. It appears that a different officer inserted 10:30pm on 18.12.02 as the time the applicant received the notice even though no details of time were contained in Item 13 Part A of the notice. The applicant's claim that had he received the notice in advance of the interview he would have addressed the suggested breach of condition 8202, is also consistent with his claim.

33. The applicant's affidavit was filed on 5 February 2004. It is not disputed that the affidavit was served on the solicitors for the respondent some time prior to the hearing on 17 February 2004. Despite this there is no evidence before the Court from any of the officers involved to contradict the applicant's claim that he was given the two documents at the end of the interview. Nor is there any evidence of an oral invitation to the applicant to show notified grounds for cancellation did not exist or that there was a reason why the visa should not be cancelled. In these circumstances I consider that I am again entitled to infer that nothing that such officers could have said would have been of any assistance to the respondent in this regard.

I accept the applicant's claim that he was not given the written notice of intention to cancel until the time at which he was given the decision to cancel his visa. The notice contained the invitation to an interview but it was a meaningless invitation as the time for commencement of the interview had passed. In such circumstances the notice did not give the applicant a real invitation to address the s.119(1)(b) matters `within a specified time' as this must clearly be a time in the future. Nor, in such circumstances, can it be said that such invitation was to an interview which was to take place `within a reasonable period'. It cannot be said that specification of an interview time that had passed when the notice is given satisfies the requirement to specify a time within a reasonable period in s.121(3)(b).

34. While an interview was conducted the applicant had not been given the s.119 notice before such interview. In those circumstances, while he could answer questions he did not have an opportunity to give a meaningful response to the substance of the matters in s.119. The purpose of s.119 was not fulfilled. I am satisfied that the procedures required by ss.119 and 121 were not observed, first because of the failure to give adequate particulars and information and secondly because of the failure to give the requisite invitation prior to the interview.

35. In these circumstances it is necessary to consider the consequences of the failure to comply with ss.119 and 121 of the Migration Act. In Tien Goldberg J stated at 423 that the language used in ss.119, 120 and 121 made it clear that the procedure set out was mandatory and that in the context in which the procedures applied the provisions must be the subject of strict compliance. Moreover as Burchett J stated in Zhang Jia Qing v Minister for Immigration (1997) 149 ALR 519 at 532 these provisions were introduced to replace the rules of natural justice with a codified set of procedures affording the same level of protection to individuals but with an added advantage of greater certainty in the decision-making process. Such criteria are clearly intended protect persons to whom they might be applied. The Court "should insist upon the due observance of the law" (per Burchett J at 533 and also see Tien per Goldberg J at 424). As Goldberg J suggested in Tien at 424-5, the cancellation procedures are procedures which the Parliament intended should be the subject of precise compliance. This is apparent from the Explanatory Memorandum which accompanied the Bill which became the Migration Reform Act 1992 (Cth). Part of that memorandum includes the following statement:

The scheme of decision-making under the amendments made in this Bill will set out with greater certainty the procedural requirements to be followed to ensure that applicants are provided with the protection necessary to receive a fair consideration when decisions are made affecting their right to enter or remain in Australia. The procedural requirements under the existing regime have been governed by the common law rules of natural justice and these rules have not provided the certainty needed for effective administration of the migration programme. Accordingly, these common law rules will be replaced by a codified set of procedures which will afford the same level [of] protection to individuals but will have the additional advantage of greater certainty in the decision-making process ... The Bill provides for an application for review of a decision where procedures such as these are not observed.

36. In these circumstances I am satisfied that the strict compliance with the obligations under sections 119 and 121 is required. The notice was not a valid notice. The prerequisites to cancellation in s.124(1) were not met as the applicant had no opportunity to respond after the notice was given. Hence the visa was not to be cancelled by the delegate as none of the events in paragraphs (a) to (c) of section 124(2) had happened after the invitation was given.

37. The Tribunal also took the view that following the proper procedure was an essential precondition to the exercise of the cancellation power. It went on to state that:

As the Tribunal may only exercise the same powers and discretion conferred on the primary decision-maker (ss349(1) of the Act), it follows that the Tribunal has no power to affirm a cancellation where the proper cancellation procedure has not been followed. Nor does the legislation allow for the Tribunal to "cure" a defect in the notification procedures.

38. Counsel for the applicant contended that this was a correct statement by the Tribunal, that the Tribunal was required to make the correct or preferable decision at the time of the cancellation and that if the delegate had not given a valid notice under s.119 or had otherwise failed to comply with the procedural requirements of Subdivision E the only correct decision was not to cancel the visa. Hence the decision to cancel was invalid. It was contended that the Tribunal had no power to begin the process again or to add further particulars to the grounds contained in the original notice. Its jurisdiction was limited to setting aside the purported decision of the delegate. It was required to set aside the delegate's decision if there was a procedural flaw and it had erred in not so doing.

39. The respondent submitted that any failure to meet the requirements of ss.119 to 121 was overcome by the review by the Tribunal. It was contended that not only did the Tribunal have jurisdiction to review the delegate's decision in accordance with the principles in Collector of Customs v Brian Lawler Automotive Pty Limited (1979) 24 ALR 307 but also, and contrary to the contention of the applicant, that the Tribunal had the power to affirm the decision under review so long as the requirements of ss119 to 121 had been complied with at the time of its decision (Yilmaz v MIMA (2000) 100 FCR 495) having regard to the fact that the Tribunal on review had all the powers and discretions that the delegate would have had at the time the Tribunal came to consider the matter. It was contended that s.349, which provides that the Tribunal may, for the purposes of a review, exercise all the powers and discretions conferred by the Act on the person who made the decision has an ambulatory operation. In the alternative it was contended that as the provisions of ss.119 to 121 were in the nature of procedural fairness provisions, and that if the delegate's decision was vitiated by a failure to comply with them, the Tribunal may nonetheless review the decision and arrive at the correct or preferable decision subject to its compliance with the rules of natural justice. In other words, it was argued that while the obligations in ss119 to 121 were obligatory in the sense that a failure to follow them may invalidate the delegate's decision, they were not essential to the existence of the delegate's power to cancel but were similar to the provisions which govern the Tribunal's procedure such as s.359A. A further alternative argument put by the applicant was that in any event the Court ought not to exercise its discretion in favour of the applicant in circumstances where he applied to the Tribunal for merits review rather than approaching the Court for relief directly against the delegate's decision: Twist v Randwick Municipal Council (1976) 136 CLR 106 and Zubair v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FMCA 440.

40. As the applicant conceded, the Tribunal has jurisdiction to undertake a review in relation to purported or invalid decisions as well as valid decisions. (See Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 and Secretary Department of Social Security v Alvaro (1994) 50 FCR 213 at 219-220). Such jurisdiction enables it to receive the application for review and, under s.349, to exercise all the powers and discretions conferred by the Act on the original decision maker. The decision under review was the decision to cancel the applicant's student visa. As Weinberg J said in MIMA v Sharma (1999) 90 FCR 513 at [37] [check] in such a case the Tribunal's power is `restricted to a consideration of whether or not that decision was the correct or preferable decision and nothing more.' (Also see Nong v Minister [2000] FCA 1575 at [29] - [31]). Such consideration is a consideration referable to the time of cancellation. (Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at [344] - [345]). The applicant submitted however that in such circumstances the procedural deficiencies were not `curable' by due process being accorded by the Tribunal as submitted by the respondent. It was contended that decisions such as Yilmaz v MIMA (2000) 100 FCR 495 at [85] per Gyles J related to the validity of applications for visas and were not in point in relation to cancellation. (See Calvin v Carr (1979) 1 NSWLR 1 at 10 - 11). The proposition that the Tribunal has no power to affirm a cancellation decision where the procedure has not been followed was said to be consistent with the suggestion by Goldberg J in Tien at 423 that the ss.119 - 121 procedures are mandatory.

41. There is an established principle that a departure from natural justice or fairness may be `cured' on appeal if the appellate authority `acts fairly and does not depart from natural justice' (Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J) which was been applied in relation to Tribunal review of decisions under the Migration Act (see that aspect of the decision of Madgwick J in Bal v MIMA [2001] FCA 991 - albeit that the decision was reversed on appeal on different grounds). In Zubair v MIMIA [2003] FMCA 440 Raphael FM accepted, in considering a Tribunal review of a cancellation decision, that if an applicant exercises his right to merits review by the Tribunal and the Tribunal carries out that review `properly', an existing invalidity arising out of a lack of procedural fairness can be overcome. However Driver FM suggested in Ahmed v MIMIA [2004] FMCA 127 at [27], that if the original decision-maker had no jurisdiction to make the decision purportedly made, then on review the Tribunal could not affirm that decision.

42. After the hearing in this matter, the Full Court of the Federal Court recently held, in Zubair v MIMIA [2004] FCAFC 248 (on appeal from the decision of Raphael FM that the Tribunal has the power to review an invalid decision of a delegate of the respondent and that the Tribunal is, in consequence, able to `cure' a defect in the delegate's decision (at [32]). This principle was expressed generally in relation to a failure to follow the mandatory procedural requirements of

ss.119-121 of the Act. It was not confined to a lack of procedural fairness (at [28]). The review process is a full merits review and the Full Court held that in exercising its review powers under s.349 the Tribunal 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 on the Tribunal's power was said to be 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)). Hence, even if the breach by the delegate of sections 119 and 121 was not simply a want of procedural fairness but a failure to meet a jurisdictional prerequisite to the exercise of power by the delegate (see Ahmed at [27]), the Tribunal can, on the authority of the Full Court in Zubair (and see Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116), `cure' the defect in the delegate's decision. This makes it critical to consider the applicant's arguments in relation to the Tribunal decision.

The Tribunal decision

43. The applicant contended first that the Tribunal erred in purporting to add an extra particular to the grounds of cancellation and that this was beyond its power in that the Tribunal took into consideration a breach which was not relied upon by the delegate being a failure to comply with condition 8105 during the week ending 5 November 2002. It was intended that not only were particulars of such alleged breach not included in the notice of intention to cancel but, moreover, the delegate did not rely on any breach in November 2002 in the record of decision whether to cancel the visa. Such document refers only to the first week of October 2002. Moreover, contrary to the Tribunal reasons for decision, the delegate did not address the week ending 5 November 2002 (albeit that pay slips for that period may have been before the delegate).

44. The Tribunal invited the applicant under s.359A of the Migration Act to comment on information that he worked in excess of 20 hours per week not only during the week ending 8 October 2002 but also during the week ending 5 November 2002. It incorrectly suggested in its reasons for decision that that the delegate found that the applicant had worked in excess of 20 hours during both these weeks. As set out above the delegate did not make such findings. However factual error in describing the delegate's decision does not of itself constitute a jurisdictional error.

45. The Tribunal's discussion of the circumstances surrounding any non-compliance and of the applicant's explanations, address only those claims made in relation to the period ending on 5 October 2002. It also appears from the Tribunal's discussion of the hearing that only one possible breach was discussed with the applicant as being "the breach that led to the cancellation of his visa" that being in relation to the October 2002 period covering the October long weekend. The `findings and reasons' part of the Tribunal reasons refers only to the circumstances of that period where the applicant was asked by his employer to work additional hours because of a colleague not turning up to work. The Tribunal did not find a breach during the week ending 5 November 2002. Even if it was implicitly making findings in relation to a breach in November 2002 (contrary to what appears on the face of the reasons for decision), the Tribunal clearly did consider whether there was a breach in October 2002 and such finding was decisive of the application. Hence any consideration of a possible second breach (even if it was a breach not considered by the delegate) had no effect on the exercise of power, as there was a separate independent reason for the Tribunal decision based on the finding of a breach in October 2002. Hence it is not necessary to consider whether the Tribunal would have been in error had it found a breach other than the breach considered by the delegate.

46. The next and more substantive argument put by the applicant in relation to the Tribunal decision was that the Tribunal misconstrued condition 8105 of the Migration Regulations and as a consequence made an error of law constituting jurisdictional error. There were two aspects to this contention. First that it was submitted that the Tribunal incorrectly considered whether the applicant worked for more than

20 hours in a seven-day period ending on Tuesday rather than in a calendar week ending on Sunday and, secondly, that it incorrectly considered that the condition applied to weeks other than whole weeks in which the relevant institution was in session.

47. In finding that there was a breach of condition 8105 the Tribunal relied upon the pay slips of the applicant. These pay slips revealed that his pay periods were calculated on a seven-day basis and that he was paid for a weekly pay period that ended on a Tuesday (8 October 2002 being a Tuesday). There was no consideration either by the delegate or by the Tribunal of any other period. Subject to what is said below in relation to the institution being in session, in effect the Tribunal has construed condition 8105 as being breached if, in any seven day period, a visa holder subject to that condition worked more than 20 hours.

48. Condition 8105 in Schedule 8 to the Migration Regulations is to be contrasted with condition 8104 which states baldly that the holder must not engage in work for more than 20 hours a week while the holder is in Australia. In contrast condition 8105 (which is subject to a subclause that has no relevance in the particular circumstances of this case) states that the holder must not engage in work in Australia for more than 20 hours a week "during any week when the institution at which the holder is studying is in session". This is clearly a less onerous condition. It reveals a legislative intention that work is permitted without limitation outside "any week when the relevant institution is in session". In other words, it is permissible to work more than 20 hours a week during weeks when the relevant educational institution is not in session.

49. The first issue that arises for consideration is the meaning of the word `week' in Regulation 8105. The applicant contended that in this context the word `week' meant not simply any seven day period but rather referred to a calendar week, which it was suggested would be Monday to Sunday. The respondent contended that the Tribunal finding that the word `week' meant any period of seven days was a finding of fact and did not give rise to an error justifying judicial intervention.

50. As Collector of Customs v Agfa-Gevaert (1996) 186 CLR 389 illustrates, it is necessary to construe the words in condition 8105 having regard to the subject matter of the condition and context in which the words appear. Even if the starting point is whether a word is used in the Regulations in its ordinary sense (see Hope v Bathurst City Council (1980) 144 CLR 1 at 7-8 per Mason J), as was said in another context in Dunlop Perdrian Rubber Co Ltd v Federated Rubber Workers Union of Australia (1931) 46 CLR 329 at 341 per Dixon J the word `week' ... is `capable of meaning the calendar week commencing on Sunday, any consecutive seven days, the week observed by the particular employer in the calculation of wages, or the five days from Monday to Friday'. The Macquarie Dictionary, Revised Edition, first defines week as `a period of seven successive days, commonly understood as beginning (unless otherwise specified or implied) with Sunday' (emphasis added). In this instance the word appears in the expression `any week when the institution at which the holder is studying is in session' in a condition imposing a restriction on a visa holder. The sense in which is used must be considered in that context.

51. A relevant consideration is the particular educational institution at which the holder is studying. In this instance the applicant was a student at Central Queensland University. The Tribunal had before it a timetable from that University in relation to session times. In its reasons for decision it recorded that the course in which the applicant was enrolled, the Bachelor of Information Technology, ran from

15 July 2002 until 31 December 2003. Clearly this is a reference to the starting and ending times for the course but it is also apparent from this information that the starting date for the session commencing in the second half of 2002 (and including the October period) was Monday

15 July 2002. A letter from Central Queensland University dated

23 December 2002 certifying the applicant's enrolment stated that he commenced the course in July 2002 and based on his results and credit transfers it was anticipated he would satisfy requirements for the award of degree no later than the end of December 2003. More specifically the offer of admission made to the applicant on 2 July 2002 stated that the programme commencement date was 15 July 2002 (a Monday).

I am satisfied that the relevant session commenced on Monday 15 July 2002.

52. In the context of a condition that reveals an intention that at some times (during a Student visa holder's time in Australia) work is permitted beyond 20 hours a week and that refers specifically to the particular educational institution attended by an applicant, the word `week' in condition 8105 must be read in light of the session times of the particular institution. The condition reflects a balance between allowing a person to work an unlimited amount of time when the relevant institution is not in session and imposing a specified limit when it is in session.

53. The most relevant dictionary definition of `session' in the Macquarie Dictionary is `a portion of the year into which instruction is organised at a college or other educational institution'. Similarly the Oxford English Dictionary refers to "portion of the academic year during which instruction is given". Consistent with this, the word `week' in condition 8105 must be used in a sense that relates to the period of `session' in the particular institution. Hence, for the purposes of considering whether a particular applicant complied with the condition when attending an institution, the words `week when the institution is in session' must be intended to refer to the week commencing on the day that each session commences. Each week will, consistent with the language and purpose of the relevant parts of the Migration Act and Regulations, be for a seven day period commencing on the day that is the first day of session. In this instance each week would be from Monday to Sunday during the session. Were it otherwise, and were the word `week' in condition 8105 to mean any period of seven days, there would clearly be considerable uncertainty and difficulty for visa holders in determining when they could work, not only in the periods immediately before and after the session but also where, as here, weekend work was under consideration.

54. As the applicant contended, the condition should be construed in context having regard to the fact that a breach has potentially draconian consequences. Any breach, however minor, results in mandatory cancellation. This can have further consequences of ultimate removal of the person from Australia and a ban on re-entry into Australia for three years.

55. I am satisfied that the Tribunal misconstrued condition 8105 in erroneously considering that the restriction on hours of work in a `week while the institution was in session' applied to any seven day period rather than to a week (a seven day period) commencing on the day of the week on which any particular session commenced in the educational institution attended by the applicant (in this case Monday to Sunday). This error of construction led the Tribunal to misapply the law to the facts before it. In so doing the Tribunal fell into jurisdictional error.

56. If the Tribunal had correctly applied the law it would on this basis have considered the hours worked by the applicant in the weeks ending

6 October 2002 and 13 October 2002. If it accepted that the payslips established that in the calendar week ending Sunday 6 October 2002 he worked 2� hours on Friday 4 October 2002, 7� hours on Saturday

5 October 2002 and 8 hours on Sunday 6 October 2002 this would be less than 20 hours per week. Similarly if it accepted that he worked four hours 15 minutes on Monday 7 October 2002 but that work should be added to the 14� hours he worked on the Friday to Sunday of the calendar week ending 13 October 2002 this would again be less than 20 hours per week. On this basis in neither relevant week in which his institution was in session would the applicant have exceeded the permissible 20 hours work per week. Had the Tribunal correctly construed the condition it would have been open to it to conclude the facts that there was no breach of condition 8105 by the applicant in October 2002. In such circumstances the jurisdictional error is such as to warrant judicial intervention remitting the matter to the Tribunal for reconsideration according to law.

57. The applicant also argued that the Tribunal erred in considering that condition 8105 applied to weeks other than whole weeks in which the relevant institution was in session, on the basis that where a particular week included a public holiday the limitation on work in condition 8105 did not apply. I am not persuaded that this is a proper interpretation of condition 8105, even allowing for a beneficial construction and having regard to the draconian consequences of non-compliance. Condition 8105 refers to `any' week when the institution is in session and the notion of a `session' in this context contemplates that the institution will not necessarily be providing tuition every day of the week. It will be `in session' for a period of several weeks at a time albeit that there may be public holidays (as well as weekends) during that time. Were this to be the sole basis for the applicant's argument it could not succeed.

58. In light of the decision of the Full Court in Zubair I consider that the orders to be made should be confined to orders addressing the decision of the Tribunal. The Tribunal decision should be set aside and the matter remitted for redetermination.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 11 October 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia