Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: cited
It follows that the Tribunal failed to comply with s 359A(1) of the Act. This constitutes jurisdictional error ( SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162). Even if it could be said that the test applied by the Tribunal assumed the lack of certification and hence failure to comply with Condition 8202, so that the application of the incorrect test did not matter, s 359A(1) of the Act required that the appellant be invited to comment on information that did form the reason or part of the reason for the Tribunal's decision. That did not happen. 17 The Federal Magistrate concluded at [29] that it was not necessary for the Tribunal to advise the appellant in the s 359A letter that the University had not provided a certificate. To the extent that the Tribunal decision was not based upon the absence of a certificate simpliciter , his Honour was not in error. However, I cannot agree with his Honour that the s 359A letter clearly set out particulars of the information which formed the reason or part of the reason for the Tribunal's decision (s 359A(1)(a)) or that it ensured, as far as was reasonably practicable, that the appellant understood why it was relevant to the review (s 359A(1)(b)). I also do not, with respect, agree with the learned Federal Magistrate that the reason for the affirmation by the Tribunal of the Delegate's decision was ' ultimately ' the absence of certification of a satisfactory academic result (at [30]). While the absence of certification was a fact before the Tribunal, the decision was not based upon that fact, nor did it form the basis for the s 359A letter. 18 Accordingly, in failing to apply the correct test and in failing to comply with s 359A of the Act, the Tribunal committed jurisdictional error. 19 The following facts are not in dispute: &#8226; At no relevant time was there a certificate issued by the education provider that the appellant had achieved an academic result that was "at least satisfactory". &#8226; The appellant had failed 22 out of 27 subjects in 2001, 2002 and 2003. &#8226; The appellant had been excluded from the course that he had been studying. &#8226; The reason for the exclusion was that he failed to meet course requirements. &#8226; The University described his academic performance in terms of it being certified as not satisfactory. &#8226; The appellant had exhausted the University's appeal mechanisms without success. &#8226; The University had informed the Department that, as at 7 July 2004, the appellant was no longer enrolled at the University. &#8226; The University also informed the Department that the appellant was not permitted to re-enrol for a period of two years. &#8226; The Tribunal decision is dated 9 May 2005. 22 The requirement of procedural fairness is concerned with ' observance of fair decision -making procedures rather than with the character of the decision which emerges from the observance of those procedures ' ( Aala at [59]). Where there is a failure to observe fair decision-making procedures and the decision is invalid for want of procedural fairness, there is no reason to withhold discretionary relief in the absence of conduct on the part of the appellant warranting the refusal to exercise discretion ( SAAP at [83] [84] per McHugh J). There is no such conduct in this case. 24 However, relief may be withheld if there is a basis, otherwise unimpeached, upon which the decision was reached, unaffected by the failure to accord procedural fairness or to comply with the required statutory procedure. Aala and SAAP leave open a refusal of relief if it is shown that the decision-maker was bound by the governing statute to refuse the application ( SZEEU at [232] per Allsop J). In those circumstances, the grant of relief would lack utility.