Case: Uddin v Minister for Immigration [2005] FMCA 841
Outcome: applied
On 17 August 2005 the delegate made an entry in the applicant's file: '17 August 2005 reversed cancelled Uddin v MIMIA'. The respondent's solicitor has deposed that the respondent accepted the correctness of a decision of Scarlett FM in Uddin v Minister for Immigration [2005] FMCA 841 (' Uddin '). 18 On 7 June 2005 Scarlett FM had held in identical factual circumstances that a notice given purportedly pursuant to s 20 of the ESOS Act, did not comply with s 20(4) of that Act: Uddin . The Federal Magistrate held that because s 20(4) of the ESOS Act had not been complied with, s 137J of the Migration Act was not invoked and therefore the applicant's visa was not cancelled by operation of that section. 19 The notice given in Uddin was in the same form as the notice given in this matter. It did not advise the applicant that he was required to attend in person before an officer within the meaning of the Migration Act but, instead, advised him that he had to report personally to a compliance officer. It did not set out the effect of s 137J and s 137K of the Migration Act in that it did not inform the applicant that the applicant could avoid the consequences of s 137J by making himself available to an officer for the purpose of explaining the breach alleged in the notice. The notice did not bring to the applicant's attention the provisions of s 137K(2) and, in particular, advise the applicant that because of the provisions s 82 an applicant cannot apply for revocation when the visa would no longer have been in effect in any event had the visa not been cancelled under s 137J. Lastly, it did not bring to the applicant's attention the provisions of s 82 so as to allow the applicant to understand the provisions of s 137K(2). 20 Scarlett FM found that s 20(4) of the ESOS Act was mandatory in its terms. The notice did not comply strictly with the requirements in s 20(4) of the ESOS Act and, as I understand his reasons, s 137J(2) of the Migration Act therefore was not invoked and the Student visa was therefore never cancelled. 21 The Federal Magistrate made two declarations: '(1) That the Applicant's student visa was not cancelled by operation of law under section 137J of the Migration Act 1958. (2) That the Applicant was not an unlawful non-citizen at any stage.' He ordered that the constitutional writs issue to give effect to those declarations. 23 After Scarlett FM's decision, the Department identified visas which were purportedly cancelled pursuant to s 137J of the Migration Act where the purported cancellation was affected by the same error as identified in Uddin . The applicant was one of those visa holders. 24 On 18 August 2005 the same delegate notified the applicant of an intention to consider cancelling the applicant's visa under s 116 of the Migration Act notwithstanding that the delegate had previously assumed that the visa had already been cancelled by operation of s 137J of the Migration Act on 8 July 2005. 25 Section 116 of the Migration Act empowers the Minister to cancel a visa if the Minister is satisfied that any of the circumstances in s 116(1) have occurred. If the Minister is satisfied that the holder has not complied with a condition of a visa, the Minister may cancel a visa: s 116(1)(b) of the Migration Act . In the notice given the applicant by the delegate, the delegate identified the ground for cancelling the applicant's visa as being a 'possible breach of condition 8202(3)(b) for failing to achieve satisfactory academic results in school years 2003 and 2004', and 'Education Provider has reported visa holder as failing 14 courses out of 17 during 2003 and 2004'. 38 Both parties have asked me to assume that Uddin was correctly decided. I think that assumption can be made because if Uddin was incorrectly decided then the applicant's visa was cancelled by operation of s 137J on 8 July 2005 and that would be an end to the matter. To assume that Uddin was correctly decided is to make an assumption most favourable to the applicant. Therefore I will assume that Uddin was correctly decided. 39 It is necessary to determine the effect of the decision in Uddin . Uddin stands for the proposition that unless the notice given by the registered provider under s 20 of the ESOS Act complies strictly with subsection (4) (or at least paragraphs (b) and (d) of that subsection), the notice given is not a notice under s 20 of the ESOS Act and the automatic cancellation provisions of s 137J never apply. That is clear from the Federal Magistrate's reasons but made even clearer by the declarations which the Federal Magistrate made. The first declaration is that the applicant's visa was not cancelled by operation of law under s 137J. The second declaration, which is consistent with the first, is that the applicant was not an unlawful citizen at any stage. 40 If Uddin was correctly decided and the effect of the decision is as I have described it, then the applicant's argument fails at its first premise. The applicant's visa was never cancelled by operation of s 137J and it did not cease to have effect. It follows that the applicant was the holder of a visa as at 30 August 2005 and the delegate was empowered to cancel that visa. 41 I pointed out in argument that if Uddin is correct then the applicant's visa was not cancelled by operation of s 137J and, therefore, there was a valid visa in existence at the time the Minister's delegate made his decision on 30 August 2005. 42 The applicant's counsel argued, contrary to the decision in Uddin , that because the Migration Act provides for a procedure to review the cancellation (s 137K) and revoke that cancellation (s 137L and s 137N) , and because that decision is itself subject to a merits review by the MRT (s 338(3A)) 'in the context of the Act , the automatic cancellation is valid unless and until it is revoked by an administrative decision maker under s 137L , or otherwise subject to orders by a court of competent jurisdiction'. 43 There are difficulties with that argument. First, it is contrary to the decision in Uddin which I have been asked to assume is correct. Secondly, and more importantly, the argument is contrary to the provisions of the Migration Act . Section 137J applies if a notice is sent to a non-citizen under s 20 of the ESOS Act . Uddin , and the applicant's argument, assumes that no notice has been sent under s 20 of the ESOS Act . Therefore, it must follow that s 137J does not apply. Therefore, if no notice is sent to a non-citizen under s 20 of the ESOS Act , the non-citizen's visa is never cancelled under s 137J of the Migration Act . There can be no automatic cancellation. That is because the condition precedent for the operation of s 137J(2) has not been satisfied. No notice was given under s 20 of the ESOS Act . 44 It is true that the Migration Act allows for an applicant to apply to the Minister for revocation of the cancellation: s 137K of the Migration Act . However, the Minister may on such an application only revoke the cancellation for the reasons in s 137L(1). The Minister cannot revoke the cancellation because no notice was given under s 20 of the ESOS Act . Of course, one would not think that would be a reason for revocation of cancellation. If no notice is given, there could be no cancellation. 45 That procedure and the fact that that process is subject to merits review by the MRT does not support the proposition that where no notice is given under s 20 of the ESOS Act the visa holder's visa is automatically cancelled under s 137J and remains cancelled until revoked by an administrative decision maker or a court of competent jurisdiction. 55 There is nothing, in my opinion, in the Act or in Uddin which would support the applicant's contention that any administrative decision of any kind is made when s 137J applies by reason of a notice having been given under s 20 of the ESOS Act to a non-citizen. There is no administrative decision to be made. Section 137J(2) operates to cancel the non-citizen's visa. The only decisions which have to be made relate to the Minister's power to revoke the cancellation effected by s 137J(2). 56 Section 137K allow a non-citizen 'where visa has been cancelled under s 137J ' to apply to the Minister for revocation of the cancellation. That section also recognises that the cancellation is effected by s 137J not by any administrative decision. The Minister may revoke the cancellation for any of the reasons in s 137L(1) of the Migration Act . The Minister may also revoke cancellation on her or his own initiative: s 137N of the Migration Act . If the Minister does revoke the cancellation under s 137L or s 137N 'the visa is taken never to have been cancelled under section 137J ': s 137P(1) of the Migration Act . 57 The whole scheme of this subdivision of the Migration Act is to provide for a statutory form of cancellation of visas which does not require any administrative decision. The scheme is designed to avoid the requirement for any administrative decision and thereby any review of that decision. The Minister's decision making only extends to considering whether the statutory cancellation should be revoked. 58 It follows that the applicant's visa was either cancelled or not cancelled on 8 July 2005 depending upon whether s 137J operated. No administrative decision was made on or after that date to cancel the applicant's visas. It follows that because there was no decision the question of whether it was void or voidable does not arise. 59 For those reasons, that further argument must be rejected. 61 For the reasons I have given it follows that if, contrary to Uddin , s 137J operated to cancel the applicant's visa then the applicant has become an unlawful non-citizen. On the other hand, if Uddin is correctly decided, then the applicant was the holder of a visa as at 30 August 2005 when that visa was cancelled pursuant to s 116 of the Migration Act . Either way the applicant's visa has been cancelled and she has become an unlawful non-citizen. 62 It follows that the application must be dismissed. I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 24 January 2007 Counsel for the Applicant: Mr S D Ower Solicitor for the Applicant McDonald Steed McGrath Counsel for the Respondent: Dr C Bleby Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 October 2006 Date of Judgment: 24 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/18.html