Case: Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 125 FCR 115
Outcome: applied
By a further amended application filed in the Federal Magistrates Court under s 39B of the Judiciary Act 1903 (Cth), the applicant sought a declaration that Condition 8202(3)(b) of Sch 8 of the Regulations is invalid and a writ of certiorari to quash the Tribunal decision. This application to review the Tribunal's decision was referred to this Court by Emmett FM. A second further amended application was filed in this Court. The matter was then adjourned pending the anticipated judgment of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Zhou (2006) 125 FCR 115, which concerned one of the issues raised by the applicant in these proceedings. 9 Put shortly, the grounds of the second further amended application are based on the alleged invalidity of condition 8202(3)(b) and a denial of procedural fairness to the applicant. It is not in dispute that, if Condition 8202 is valid and there was no failure to accord procedural fairness, this application must fail. 10 In order to understand the alleged denial of procedural fairness, it is necessary to consider s 20 of the Students Act. Section 20(1) provides that a registered provider of overseas student courses must send the student a written notice if he or she has breached a student visa condition relating to attendance or satisfactory academic performance. That notice must state, inter alia, that the student is required to attend in person before an officer of the Department to explain the breach and set out the effects of s 137J and s 137K of the Act (s 20(4)(b) and (d) of the Students Act). 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. 53 In Zhou , the applicant's visa was cancelled under s 116 of the Act on the grounds that she had breached Condition 8202 of her visa. The Full Court considered whether alleged defects in a s 20 notice under the Students Act are material to the resolution of an appeal from a decision of the Tribunal to affirm a cancellation decision under s 116 of the Act. The Full Court determined that, even where the s 20 notice and the response to it give rise to the delivery of the notice of intention to cancel the visa under s 119 of the Act (at [41] and [43]), there is no implied limitation on the operation of s 116 (at [42]) and no ' legal interaction ' between the s 20 notice under the Students Act and the exercise of power in s 116 of the Act. Invalidity of the s 20 notice can have no invalidating effect on the s 119 procedure (at [40]). 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 '. 55 That conclusion follows from Zhou . 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.