Case: Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028
Outcome: followed
There is no basis for permitting the latest amendment and leave to amend should be refused. Apart from the general discretionary factors that would apply to an application to amend after the conclusion of the hearing, the applicant elected to seek merits review in the Tribunal of the Delegate's decision. The fact that such a review cured, in a legal sense, any defect in the hearing before the Delegate attributable to a denial of natural justice is now settled ( Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344; Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218 ; (2005) 149 FCR 1 (special leave to appeal refused); Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558 at [30] ; Cheng v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1028 at [67] ). There is no reason to permit the applicant to amend to seek orders against the Delegate. 48 Further, in Mr Gormly's submission, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314, Zubair , and Uddin have no application because the Tribunal in this case could not cure the denial of procedural fairness occasioned by the Notice. The Notice was not part of the hearing before the Tribunal. To the extent that existing authority of this Court suggests otherwise, Mr Gormly seeks to distinguish this case which, he says, raises matters not considered by the Full Court in Zhou and Zubair or by Siopis J in Cheng. 50 Mr Johnson makes six points in his submissions as to the alleged denial of procedural fairness: 1. The Court is reviewing the decision of the Tribunal, which has no role to play in the processes of s 20 of the Students Act. 2. It is now settled by Zhou and Cheng that there is no legal interaction between the processes of s 20 of the Students Act and a cancellation under s 116 of the Act. 3. It is not contended that the Notice did not comply with s 20 of the Students Act. In any event, Morsed does not say that there is a breach of procedural fairness by the Tribunal where a notice issued pursuant to s 20 of the Students Act is misleading. 4. Even if it were misleading, the Notice did not affect the power of the Delegate to effect a visa cancellation under s 116 ( Humayun at [30]). Further, the Tribunal conducted a merits review and any defects in the decision of the Delegate were cured by that review ( Zubair ; Cheng at [67]). 5. The question whether there could be a cure for any deficiency in the Notice that gave rise to a denial of natural justice could not affect the operation of s 116 of the Act. Such a denial could not result in jurisdictional error on the part of the Tribunal. 6. No denial of natural justice or breach of statutory requirements can be established on the part of the Tribunal. 54 In Cheng , Siopis J addressed submissions that the Tribunal fell into jurisdictional error in failing to consider whether the Delegate had denied the applicant procedural fairness by reason of an allegedly misleading s 20 notice. As here, the alleged denial of procedural fairness was relevantly based on the failure of the applicant's expectation of being able to raise matters relating to her medical and personal circumstances as a means of preventing the cancellation of her visa, when there was an alternative course available where those circumstances could be raised as grounds for reinstating her visa (at [69]). His Honour applied Zhou and observed at [65] that '[i] t does not avail the applicant to impugn the procedural fairness of a process which is legally unrelated to the process which led to the impugned decision, namely, the cancellation of the visa under s 116 of the Act '. The processes are, as pointed out by his Honour at [72], ' legally separate '. 56 The decision under review in this case is that of the Tribunal. It is not suggested that the Tribunal failed to accord procedural fairness in its own procedures. Questions of procedural fairness must be considered by reference to the Tribunal's decision to affirm the Delegate's decision made under s 116 of the Act ( Cheng at [74]). 57 The Minister submits that, as the hearing before the Tribunal is a merits review, the Tribunal can, in a legal sense, "cure" any defects leading to the decision of the Delegate under review ( Zubair ; Ahmed ; Uddin ; Hamayun ). Mr Gormly submits, however, that the Tribunal cannot cure any defects in the Notice because it formed no part of the Tribunal's review of the decision to cancel made under s 116. He submits that this was not considered in Cheng and that this inability on the part of the Tribunal to cure the denial of procedural fairness invalidates the Tribunal decision. 58 This submission cannot be correct and ignores the reasoning in Zhou and Cheng . The Full Court in Zhou stated comprehensively at [39] that alleged defects in a s 20 notice are not material to an appeal from a decision of the Tribunal to affirm a cancellation decision under s 116 of the Act. Siopis J in Cheng specifically considered and rejected a submission that the Tribunal fell into jurisdictional error by failing to consider an alleged denial of procedural fairness on the part of the Delegate by reason of a s 20 notice being misleading. The s 20 notice has no role in the Tribunal decision. It is irrelevant to the Tribunal's review of the Minister's decision to cancel the visa under s 116, a decision with a different statutory basis. Once it is irrelevant and the question for this Court is jurisdictional error on the part of the Tribunal, the applicant cannot succeed on the basis of a denial of natural justice concerning the Notice. 60 Consistent with the decision in Zhou and Cheng , no jurisdictional error has been established on the part of the Tribunal in its review of the Minister's decision to cancel the applicant's visa pursuant to s 116 of the Act.