Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 (13 April 2005)

Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58

MIGRATION – Migration Review Tribunal – powers on review – where exercise of power by original decision-maker unauthorised – where Tribunal accedes to powers and discretions conferred on Minister – whether Tribunal bound by procedures which bound Minister – whether Tribunal limited to setting aside decision

MIGRATION – Student Visa – Condition 8202(c) – satisfactory academic performance – whether Minister may act when breach likely or probable or only after completion of course – whether later events may be taken into account

Administrative Appeals Tribunal Act 1976 (Cth)
Judiciary Act 1903 (Cth), s 39B(1)
Migration Act 1958 (Cth), ss 116, 117, 118, 119, 120, 121, 122, 123, 124, 348, 349, 359A, 424A

Ahmed v Minister for Immigration [2004] FMCA 127, reversed in part
Ariyagama v Minister for Immigration and Multicultural Affairs [2002] FCAFC 114, cited
Brian Lawlor Automotive Pty Limited v Collector of Customs [1979] FCA 21; (1978) 1 ALD 167, cited
Brian Lawlor Automotive Pty Limited v Collector of Customs [1979] FCA 21; (1979) 24 ALR 307, cited
Comcare v Burton (1998) 50 ALD 846, cited
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 79 ALJR 190; 211 ALR 79, referred to
Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513, cited
Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575; (2000) 106 FCR 257, applied
Owen v Repatriation Commission (1995) 59 FCR 93, cited
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396, cited
Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476, applied
Secretary, Department of Social Security v Riley (1987) 17 FCR 99, cited
Shrestha v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1607, cited
Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495, cited
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; 211 ALR 561, followed

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v SHAHID AHMED AND MIGRATION REVIEW TRIBUNAL
N 616 OF 2004

HELY, GYLES AND ALLSOP JJ
13 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 616 OF 2004

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	SHAHID AHMED FIRST RESPONDENT MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT
JUDGES:	HELY, GYLES AND ALLSOP JJ
DATE OF ORDER:	13 APRIL 2005
WHERE MADE:	SYDNEY

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 616 OF 2004

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT
AND:	SHAHID AHMED FIRST RESPONDENT MIGRATION REVIEW TRIBUNAL SECOND RESPONDENT

JUDGES:	HELY, GYLES AND ALLSOP JJ
DATE:	13 APRIL 2005
PLACE:	SYDNEY

1 This appeal from orders made by a Federal Magistrate (Ahmed v Minister for Immigration [2004] FMCA 127) raises important questions of statutory construction of provisions of the Migration Act 1958 (Cth) (the Act) and, in particular, the powers of the Tribunal on merits review (in this case the Migration Review Tribunal, to which we will refer as the "Tribunal") in circumstances where the original decision of a delegate of the Minister was flawed.

3 The first respondent entered Australia on 10 July 1998 on a student visa. He was granted a further student visa on 11 December 1998 which was to expire on 15 March 2001. A condition of the visa was condition 8202, the relevant form of which was:

4 On 19 October 2000 an officer of the Department of Immigration and Multicultural Affairs (the Department) sent a letter to the first respondent stating that it had come to the attention of the Department that there might be grounds for cancelling the first respondent’s visa. The letter stated, amongst other things, the following:

5 The letter also set out the text of condition 8202 which was not the correct text of condition 8202 attached to the visa. The terms of the cited condition were as follows:

(ii) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student – be enrolled in a full-time course of study; or

6 The first respondent attended an office of the Department on 26 October 2000. This appointment had been made upon the first respondent ringing the Department to discuss his circumstances. Upon his arrival, the first respondent was handed a document entitled: "Cancellation of a temporary visa under section 116 of the Migration Act 1958". In the body of the document adjacent to the side heading, "Possible grounds for cancellation", the following appeared in handwriting:

7 No further particularisation was given before the interview took place. This apparently commenced about five minutes after the first respondent was given the document referred to above.

8 The Federal Magistrate adopted the submissions put on behalf of the first respondent that no further particularisation was given. Though, it should be noted that in a later page of the document, one copy of which was handed to the first respondent before the interview, the delegate appears to have written certain things after receiving information from the first respondent at the interview. This part of the document was as follows:

9 It is not clear what part, if any, of this material was given to the first respondent. The Federal Magistrate appears to have found that none of it was.

10 The visa was cancelled by the delegate later that afternoon, after the interview.

11 The Federal Magistrate concluded that notification to the first respondent purportedly under s 119 was not in accordance with the section. Thus, he found that the delegate had no authority to exercise the power of cancellation. The Federal Magistrate disagreed with the Tribunal’s conclusion that the notification given under s 119 was adequate. The consequential reasoning of the Federal Magistrate is best set out in [27] of his Honour’s reasons:

[27] However, the MRT, like the AAT, stands in the shoes of the original decision maker. If the original decision maker had no shoes to begin with, the review tribunal cannot go barefoot. To put it another way, the stream cannot rise higher than its source. If the original decision maker had no jurisdiction to make the decision purportedly made, upon review, the tribunal cannot affirm that decision. The only available power under s.349(1) of the Migration Act would be to set the decision aside. However, the MRT could not substitute a new decision if the jurisdictional pre-requisite for the making of a new decision did not exist. In order to have jurisdiction to cancel a visa under s.116 of the Act the Minister, or her delegate, must follow the procedures set out in ss.119 and 120. The procedure set out in s.121 may not be a jurisdictional pre-requisite to the exercise of power: NAHV v Minister for Immigration [2003] FCAFC 102, but the procedure set out in ss.119(1) and 120 is a jurisdictional pre-requisite to the exercise of power: Zubair at [19]. It follows, in my view, that the presiding member was correct in finding that if the procedure in ss.119 and 120 was not followed, there was no power in the MRT to affirm the decision under review. It is probably correct to say that these sections are a statutory expression of procedural fairness. But they are more than that. They are a jurisdictional pre-requisite to the exercise of power. It follows that a breach of these sections is not simply a jurisdictional error in the form of a want of procedural fairness; it is a jurisdictional error removing the very foundation of the decision subject to review.

The appellant’s criticism of the Federal Magistrate’s approach and the first respondent’s answer

12 The complaint of the Minister was that the approach of the Federal Magistrate misconceived the role of the Tribunal in rehearing afresh the decision in question and was contrary to established authority viz Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248; 211 ALR 561 and the authorities referred to therein. The defects in the notification under s 119 (now accepted) were said to be flaws in following the statutory procedure required of the delegate. Whilst this was sufficiently serious to vitiate, by jurisdictional error, the delegate’s decision, the Tribunal’s statutory function of review operates on both valid and invalid decisions. The defects in the s 119 notice became, it was said, a matter of administrative history as part of the procedure of the delegate. Upon review, the Tribunal was bound to follow the procedure laid down in the Act and Regulations. If it did so, and if it committed no other relevant error it could reach its own decision and if it reached the same result as the delegate, the decision would be affirmed.

13 The first respondent submitted that the approach of the Federal Magistrate was correct and that Zubair was wrong and should not be followed.

14 The facts in Zubair are indistinguishable from those in this case and so the decision is directly in point and should be followed unless clearly wrong. Out of deference to the submission that it ought not be followed it is appropriate to consider the question from first principles.

The relevant provisions of the Migration Act and the resolution of the first issue on appeal

15 It is first necessary to understand the relevant powers and procedures of the Minister and her delegate. As at the time of the cancellation decision Subdivision D of Division 3 of Part 2 of the Act contained ss 116, 117 and 118 dealing with visa cancellation. Section 116(1) was in the following terms:

(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

16 The relevant power purported to be exercised by the delegate here was s 116(1)(b).

(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

19 Thus, if the Minister or delegate was satisfied of a breach of condition 8202 she or he was required by law to cancel the visa.

20 Subdivision E of Division 3 of Part 2 provides for a procedure for cancelling visas. Section 119 was in the following terms:

(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.

21 Section 119 is a provision which is enlivened when the Minister is considering cancelling a visa because there appear to be grounds for cancellation. It marks out the first procedural stage in the statutory process, arising, as it does, at the stage of consideration by the Minister of a possible course of action.

22 Section 120 also provides for information to be given to the visa holder. Section 120 was in the following terms:

(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.

23 There are apparent similarities between ss 119 and 120. Each provides for the provision of information to the visa holder. They operate, however, at different points in the statutory process; though, what is provided for under one may be relevant to the operation of the other. Section 119 is enlivened, as referred to above, at the time of consideration of cancellation. Section 120 operates closer to the point of decision making: Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396, 427-28 [94]-[96]. The terms of s 120 (mirrored in procedures of the Tribunal and the Refugee Review Tribunal: ss 359A and 424A of the Act, respectively) provide for the provision of information directly related to what would be the reasons for the decision that is contemplated. Section 119 provides for notification at the commencement of the process of the grounds and particulars considered to be the subject of a possible decision.

24 Section 121 provides for how invitations contemplated by ss 119(1)(b) and 120(2)(c) are to be given and what they are to specify.

26 Section 123 empowers the Minister to make the decision without further steps if the visa holder does not respond to an invitation under s 119(1)(b) or 120(2)(c).

27 Importantly, s 124 limits the circumstances in which the Minister may cancel the visa. Section 124 was in the following terms:

(1) Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:

(2) The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first:

28 It appears clear from s 124 that if notification has not been given under s 119, that is, notification which satisfied s 119, the occasion for the exercise of the power contemplated by s 124 has not arisen. Put another way, reading ss 116, 119 and 124 together, the statute does not authorise the Minister or her delegate to exercise the power under ss 116(1)(b) and 124 if the notification contemplated by s 119 has not been given.

29 That does not, however, mean that the power itself (found in s 116(1)(b) here) has been affected. Rather, on the proper construction of the Act, the procedures required to be undertaken before the exercise of the power was authorised, had not been executed.

30 In a similar respect, if the Act has not removed the operation of the law concerning the affording of procedural fairness and if a decision maker has not, as yet, afforded the visa holder procedural fairness, the decision maker has no authority under the Act to make the decision. The power to act is available, but procedural steps have not been taken such that the exercise of the power can be seen as authorised.

31 Division 3 of Part 5 of the Act provided for review by the Tribunal. Section 348 provided for the process of review in the following terms:

(1) Subject to subsection (2), if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.

(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339

(1) The Tribunal may, for the purposes of the review of an MRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

(c) if the decision relates to a prescribed matter--remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

33 It is to be noted that the notion of "review" is not defined. It is, however, a well known notion in administrative law. Since Brian Lawlor Automotive Pty Limited v Collector of Customs [1979] FCA 21; (1978) 1 ALD 167 (Brennan J as the President of the Administrative Appeals Tribunal and [1979] FCA 21; (1979) 24 ALR 307 (Bowen CJ, Smithers and Deane JJ on appeal) it has been clear that, subject to a statutory provision stating otherwise, the process of administrative "review" (in that case provided for by the Administrative Appeals Tribunal Act 1976 (Cth) (the AAT Act), here provided for by the Act) is one that operates upon a decision that was not authorised by law or the statute just as much as it does upon an authorised decision. (See the authorities discussed in Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; (2000) 100 FCR 495 at [85]–[88].)

34 The definition of "MRT-reviewable decision" in s 338 of the Act is not limited to decisions made without vitiating jurisdictional error. Thus the "decision" the subject of the "review" is (to use the words of Bowen CJ in Brian Lawlor at 317) a decision in fact, purported to be made under the Act or purported to be made in exercise of the powers conferred by the Act.

35 The delegate here had an available power to exercise: ss 116(1)(b). However, as is now common ground, the procedural steps under s 119 provided for by the statute had not been completed. In that sense, the exercise of power by the delegate was unauthorised: there was "jurisdictional" error. It does not follow, however, that in exercising the statutory power of review that the Tribunal did not accede to the power that was before the delegate for the purposes of s 349 of the Act. That power was in s 116(1)(b) of the Act.

36 The review was in respect of the purported decision of the delegate. It is no doubt correct to say that provisions such as ss 348 and 349 do not vest the Tribunal with a wider substantive jurisdiction (in the administrative sense) than the delegate had. The powers conferred on the Tribunal are for the purposes of reviewing the decisions: see s 349. The review is not an exercise in judicial review of the kind contemplated by s 39B(1) of the Judiciary Act 1903 (Cth). The review is of the MRT-reviewable decision of the delegate. The subject matter of that review is to be identified by examining the boundaries of the administrative controversy before the delegate. It may be that one can discern a failure to follow required procedures, such as in ss 119 and 120. That, however, does not affect the question (in substance a factual one, though set in a legal framework) of what were the boundaries of the decision made by the delegate. Once that decision and its boundaries are identified one knows the subject matter of the statutory process of review: Secretary, Department of Social Security v Riley (1987) 17 FCR 99, 105 (per Northrop J); Owen v Repatriation Commission (1995) 59 FCR 93, 99 (per Finn J); Comcare v Burton (1998) 50 ALD 846, 850 (per Finn J). To use the words of Finn J in Owen the decision the subject of review is the response given by the officer to the statutory task required of him or her. To use the words of Bowen CJ in Brian Lawlor it is the decision in fact made by the officer purportedly under or by reference to the enactment.

37 It is unnecessary for us to discuss at what level of generality or specificity one analyses the decision before the delegate for the purpose of identifying the decision in this particular statutory context. It is sufficient to note here that the Tribunal dealt with the breach of condition 8202 (as the delegate had, though the delegate had misquoted the terms of the condition) on grounds substantially the same as dealt with by the delegate (though without the attendant procedural flaws which affected the delegate’s decision).

38 The identification of what is the MRT-reviewable decision by the delegate is not determined by a conclusion that s 119 was not complied with. What was done under s 119, or what should have been done under s 119 may affect the assessment of the boundaries of the decision of the delegate, by assisting an understanding as to the subject matter of the MRT-reviewable decision that the Tribunal is reviewing. However, the fact of a lack of compliance with s 119 neither destroys the power under s 116(1)(b), nor governs the identification of the context of the decision. What the decision was is to be found by examining the terms of the power purportedly exercised, its statutory context, the terms of the reasons, the form of the decision and the material before the decision-maker.

39 If s 119 has not been satisfied, that is no more a reason to deny the Tribunal the task of exercising a full review of the MRT-reviewable decision, than would be an asserted failure of the delegate to afford procedural fairness or otherwise to comply with requirements failure to undertake which leads to the conclusion that jurisdictional error has occurred.

40 It was argued that the absence of an equivalent of s 119 in Division 3, 4 and 5 of Part 5 of the Act, insofar as the procedures of the Tribunal are there set out, reflects a more important place for s 119. In particular, it was said that the absence of the procedural precondition to exercise the power (see s 124) meant that the Tribunal had no power to exercise on review since it only accedes to powers available to the Minister in point of execution. Thus, it was said that the Tribunal acceded only to an absence of power (that is s 116(1)(b) made unavailable by s 124 and the absence of compliance with s 119).

41 We disagree. That is not, in our view, the proper working of the statutory provisions in question. Section 119, as we have earlier said, was enlivened at an earlier stage in the decision-making process. It was enlivened when the Minister was considering an act – the cancellation of the visa. By the time the review process was enlivened, that was a matter of history. The visa was cancelled or purportedly cancelled. Parliament has laid out procedures for the fair conduct of the Tribunal’s review. Section 119 is unnecessary to repeat. It is to be recalled, in this context, that under s 349 of the Act the Tribunal accedes to the powers and discretions conferred on the Minister or delegate not the procedures which bind them. The procedures required of the Tribunal are set out in Division 3.4 and 5 of Part 5.

42 We are assisted to the above conclusion by the recognition that the constitution and powers of the Tribunal are appropriate for a body conducting review on the merits rather than making decisions as to compliance with statutory provisions. An application for review to a tribunal is an application for review on the merits. Judgment as to the validity of actions by the Minister is for the courts, not for an administrative body such as the Tribunal.

43 Thus, far from concluding that the decision in Zubair was clearly wrong, we have come to the same conclusion. That there may be different shades of reasoning involved, no doubt reflecting the different arguments advanced, is not to the point. Zubair should be followed.

44 The Federal Magistrate erred in his consideration of the failure to comply with s 119. That failure did not deprive the Tribunal of statutory authority. The conclusion that all the Tribunal could do was recognise the delegate’s lack of power and set aside his decision was erroneous. The effect of the failure to comply with s 119 was not that the Tribunal had no power to cancel the visa. The Tribunal was correct to proceed to deal with the review on the merits.

45 The Tribunal considered the circumstances at the time of the cancellation in accordance with the decision of Katz J in Nong v Minister for Immigration and Multicultural Affairs [2000] FCA 1575; (2000) 106 FCR 257 at [30], which followed the analysis by Weinberg J in Minister for Immigration and Multicultural Affairs v Sharma [1999] FCA 31; (1999) 90 FCR 513 at [61]–[63]. It appears that there was no challenge to that approach before the Federal Magistrate and there was none on appeal. The Tribunal had regard to the evidence before it. That is permissible within limits that we shall refer to later. The Tribunal held that, although the date of cancellation (26 October 2000) was prior to the scheduled completion of the course in which the first respondent was enrolled (variously said to be 1 December 2000 or 8 December 2000), the first respondent could not satisfy Condition (b). In this regard the Tribunal relied upon the decisions in Ariyagama v Minister for Immigration and Multicultural Affairs [2002] FCAFC 114 and Shrestha v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1607 and distinguished Nong. The Tribunal therefore went on to consider whether the first respondent had satisfied the requirement in Condition 8202(c). The Tribunal concluded that by the time the first respondent’s visa was cancelled it was clear that he would be unable to achieve a result which would be certified by the education provider to be at least satisfactory by the end of his scheduled course. It also held that with the benefit of hindsight this ultimately became the case and his academic results for the course as a whole were never certified by the Chalmers Institute to be satisfactory. The Tribunal found that the course for which the first respondent was enrolled was a two-year course spanning 1999 and 2000, that there was no extension of the course, that by the end of the first semester in 2000 he had only successfully completed eight subjects for the course and the Chalmers Institute advised on 8 December 2000 that as at that date the first respondent had completed only 20 per cent of his course subjects and had averaged 50 per cent attendance. The Tribunal held that the first respondent had not complied with Condition 8202(c).

46 The Federal Magistrate held that the Tribunal had misconstrued Condition 8202(c) on the following basis:

47 It is submitted for the appellant that the Tribunal did not misconstrue Condition 8202(c), that the finding it made was clearly open to it on the evidence and that the Federal Magistrate should not have found jurisdictional error by the Tribunal in that respect. It is submitted that the reasoning in the cases referred to by the Tribunal in assessing compliance with Condition 8202(b) is equally applicable to (c), depending upon the facts of the individual case.

48 The first respondent submitted that it was not possible to determine that a person had breached Condition 8202(c) until the relevant course had been completed. It was not open to the Tribunal to infer that the first respondent’s academic performance could not be certified as being at least satisfactory at the time of the original cancellation decision. The course had not ended. The first respondent could always have sought an extension to complete it. It is a matter for the educational institution and not the Tribunal to assess. The Tribunal wrongly usurped this function and erred in doing so. The Tribunal erred in placing reliance upon the fact that the institution had not extended the time for the first respondent to complete his course. A cancellation of the visa affected the capacity of the first respondent to continue with the course. The Federal Magistrate was correct in finding the Tribunal to be in error.

49 Condition 8202 in the form relevant to this case is difficult to construe and apply. We agree with Katz J in the view that the words ‘for the course’ appearing in Condition 8202(b) and (c) most naturally apply where the course has been completed (Nong [38]–[40]). The qualification to that view which is reflected in Ariyagama and Shrestha, namely that (b) is breached once it is impossible for the Condition to be achieved by the end of the course, does not affect the underlying construction of the words ‘for the course’. In many cases that would involve, as the Federal Magistrate said, merely a matter of arithmetic.

50 It is not so easy to see how there can be an anticipatory breach of Condition 8202(c). The view that there cannot was clearly taken by Katz J (obiter) in the passages to which we have referred from Nong. As is pointed out in the submissions for the first respondent the clause does not refer to in fact achieving a particular academic result, but to achieving a result that is certified by the education provider. What must be certified is an academic result for the course which is at least satisfactory. No such certificate would normally be available until the completion of the course. It would certainly not be anticipated that the student would be in the possession of such certificate prior to completion of the course. Condition 8202(c) only comes into play in the event that attendance in conformity with (b) cannot be evidenced. That would normally occur after the completion of the course except in those situations where the Ariyagama qualification applies. A failure to comply with Condition 8202(c) is effectively a failure to obtain the certificate. There can be no such failure prior to the time arriving for such a certificate to be supplied, namely after the completion of the course. The words simply do not permit it to be read as contemplating progress certificates of compliance any more than the words of (b) could be construed as providing for a rolling 80 per cent attendance.

51 It follows that the finding by the Tribunal that, by the time of cancellation of the visa it was clear that the first respondent would be unable to achieve a result which would be certified by the education provider to be at least satisfactory by the end of his scheduled course, was not an answer to the correct question. The Tribunal proceeded on the basis that the position was to be judged as at the date of cancellation of the visa, but took into account the facts occurring thereafter in assessing the position. There are many situations in which later events can be taken into account – a number are collected in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 79 ALJR 190; 211 ALR 79 at [38]–[40]. Where the issue to be decided arises under a statute, the relevance of later events will depend upon the proper construction of the statute and the particular factual context. In the present case, we have held that the time for compliance with the condition had not arisen at the time of the cancellation of the visa. That cannot be altered by taking subsequent events into account. The issue to be determined was not whether or not it was likely or probable that the respondent would obtain a certificate.

52 Whilst not every error of law by an administrator is jurisdictional error for the purpose of judicial review of administrative decisions, the error of construction in this case caused the Tribunal to focus on the wrong issue. That is a jurisdictional error (Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; (2003) 211 CLR 476). The Federal Magistrate was right in so finding.

53 We appreciate that the construction which we have given to Condition 8202(c) severely limits the practical application of the condition in the case of a person who was not progressing well from an academic point of view. However, as was pointed out by Katz J in Nong at [41]–[43], the condition still has some utility. In any event, delegated legislation with drastic consequences for the visa holder should not be strained to effect a policy result seen to be more sensible than that reflected by the ordinary meaning of the language chosen. The clause has since been redrafted.

54 The fundamental nature of this error makes it unnecessary to consider the other substantive questions. The Tribunal decision cannot be saved.

55 The remaining issue relates to relief. The Federal Magistrate made declarations of invalidity as to both the decision of the Tribunal and that of the delegate of the Minster together with a writ of certiorari quashing the decision of the Tribunal. Those declarations and orders were premised upon the invalidity of each decision by reason of failure to comply with s 119. We have upheld the appeal in relation to that ground. The application to the Federal Magistrates Court did not seek any direct relief in relation to the delegate’s decision. It is a consequence of this judgment that the Tribunal had jurisdiction to review the decision of the delegate but that its decision on that question was flawed by jurisdictional error. It is a further consequence of this judgment that, bearing in mind the undoubted facts, a tribunal properly directing itself as to the meaning of Condition 8202(c) would necessarily have to set aside the delegate’s decision on the merits. The Federal Magistrate should have quashed the Tribunal decision and ordered that the matter be remitted to the Tribunal to be dealt with according to law. The appeal is allowed in part. The declarations of the Federal Magistrates Court are set aside. The order quashing the decision of the Tribunal and the costs order made by the Federal Magistrate will stand. The matter is remitted to the Tribunal to be dealt with according to law. The appellant should pay the first respondent’s costs of the appeal as the first respondent has succeeded on the substance of the matter.

I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Applicant:	NJ Williams SC

Solicitor for the Applicant:	Blake Dawson Waldron

Counsel for the Respondent:	SB Lloyd

Solicitor for the Respondent:	Parish Patience Immigration, Lawyers

Date of Hearing:	25 February 2005

Date of Judgment:	13 April 2005

1.	Appeal allowed in part.
2.	The declarations made by the Federal Magistrates Court are set aside.
3.	The matter is remitted to the Tribunal to be dealt with according to law.
4.	The appellant is to pay the first respondent’s costs of the appeal.

8202	The holder must
(a)	be enrolled in a registered course; and
(b)	attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and
(c)	if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and
(d)	comply with any requirement of the education provider in relation to payment of fees for the course.

(b)	must ...
(i)	attend at leat 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider; or
(ii)	if attendance cannot be evidenced, achieve an academic result that is certified by the education provider to be at least satisfactory; and
(c)	must ... comply with any requirement of the education provider in relation to payment of fees for the course.

(a)	any circumstances which permitted the grant of the visa no longer exist; or
(b)	its holder has not complied with a condition of the visa; or
(c)	another person required to comply with a condition of the visa has not complied with that condition; or
(d)	if its holder has not entered Australia or has so entered but has not been immigration cleared--it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e)	the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or
(f)	the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

(i)	its holder is not, or is likely not to be, a genuine student; or
(ii)	its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

(a)	give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b)	invite the holder to show within a specified time that:

(a)	under a provision other than section 116; or
(b)	to which Subdivision F applies.

(a)	would be the reason, or a part of the reason, for cancelling a visa; and
(b)	is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c)	was not given by the holder; and
(d)	was not disclosed to the holder in the notification under section 119.

(a)	give particulars of the relevant information to the holder; and
(b)	ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and

(a)	the holder responds to the notice;
(b)	the holder tells the Minister that the holder does not wish to respond;
(c)	the time for responding to the notice passes.

(a)	the comments are given;
(b)	the holder tells the Minister that the holder does not wish to comment;
(c)	the time for commenting passes.

Federal Court of Australia - Full Court Decisions

Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 (13 April 2005)