Case: Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558
Outcome: followed
The appellant lodged an application for review of the decision of the Tribunal with the Federal Magistrates Court on 23 November 2005. Originally he did so on the basis that the s 20 notice was invalid. However, a Full Court of this Court had subsequently held that a cancellation under s 116 of the Migration Act was not dependant on the validity or otherwise of a s 20 notice: see Humayun v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 35 ; (2006) 149 FCR 558. 37 The appellant then submitted an amended application on 23 February 2006. The appellant submitted that even though the decision in question had been made prior to the 8 October 2005 amendments, a requirement for the Tribunal to provide natural justice applied. In his reasons for judgment, Federal Magistrate Phipps found, however, that the cases the appellant relied on in that regard were of no assistance. 38 His Honour also held that even if the appellant had been misled by the warnings given by the Institute, that did not effect the validity of the Tribunal's decision affirming the cancellation of the visa. His Honour held that once the Tribunal came to the conclusion that the appellant had failed to attend 80% of contact hours in term 2, the Tribunal was obliged to affirm the cancellation. 39 The appellant also submitted that the Tribunal had erred in the way it had dealt with the evidence that the education provider's policy was to mark students absent if 15 minutes late. He referred to the Tribunal noting that the Institute had confirmed the policy in a letter and advised that he had been late in June but not marked as absent. He argued that this did not exclude the possibility that he had been marked as absent on other occasions. He contended that there were two points of significance arising from this. First, that the Tribunal had misled itself and, second, that it should have waited for further comments from the Institute or sought further information about attendance. 40 The Federal Magistrate rejected both of these contentions. His Honour held that the Tribunal had been entitled to conclude that the letter meant that the appellant had not been late in April or May. He further held that there was no legal obligation on the Tribunal to make inquiries and that the Tribunal had not breached any requirements for procedural fairness. 41 The appellant has appealed to this Court from the whole of the judgment of the Federal Magistrate on the basis that his Honour: &#8226; failed to find that the Tribunal identified the wrong issue, asked the wrong question, relied on irrelevant material or ignored relevant material, and therefore acted without jurisdiction; &#8226; failed to find that the s 20 notice was defective and invalid as it did not accurately reflect the situation of the appellant at all material times; &#8226; failed to find that the Tribunal misconstrued and misapplied the operation of condition 8202; &#8226; failed to find that the Tribunal denied the appellant procedural fairness; &#8226; erred in concluding that the errors of law committed by the Tribunal were validated by s 474 of the Migration Act and did not constitute jurisdictional errors warranting review or the grant of prerogative writs; and &#8226; erred in dismissing the application. 42 The Minister has conceded that the notice issued by the Institute did not comply with the requirements of s 20 of the ESOS Act and was therefore invalid. However, she has also correctly submitted that the invalidity of a s 20 notice does not lead to the invalidity of a subsequent decision of a delegate of the Minister, or the Tribunal, to cancel a visa pursuant to s 116 of the Migration Act : see Humayun and Minister for Immigration and Multicultural and Indigenous Affairs v Zhou [2006] FCAFC 96 ; (2006) 152 FCR 115. In any event, the Tribunal did not rely on the information contained in the s 20 notice when satisfying itself that the breach of condition 8202 had occurred. Accordingly, for both of those reasons, the appellant's submission that the s 20 notice was defective and invalid is of no consequence in the present appeal.