Fang v MIMIA [2005] HCATrans 566 (5 August 2005)

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Fang v MIMIA [2005] HCATrans 566 (5 August 2005)

Last Updated: 15 August 2005

[2005] HCATrans 566

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P78 of 2004

B e t w e e n -

BIN FANG

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

Application for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 AUGUST 2005, AT 11.18 AM

Copyright in the High Court of Australia

MR M.T. RITTER, SC: May it please the Court, I appear for the applicant. (instructed by Summerslegal)

MR J.D. ALLANSON: May it please the Court, I appear for the respondent. (instructed by Australian Government Solicitor)

GUMMOW J: Yes, Mr Ritter.

MR RITTER: Your Honours should have received a supplementary statement of argument which we seek leave to rely on.

GUMMOW J: Yes, there is a summons, is there not?

MR RITTER: There is. There is a summons to join the Migration Review Tribunal as a second respondent to these proceedings.

GUMMOW J: Yes.

MR RITTER: I am advised by the respondent’s solicitor that they have filed a submitting appearance in anticipation of leave being granted and that there is no opposition to leave being granted.

GUMMOW J: Yes, we make that order and note the appearance.

MR RITTER: Yes, thank you, your Honour. There is also an issue as to extension of time which I understand is about eight days.

GUMMOW J: That is right, yes.

MR RITTER: I would seek leave to proceed with the substance of our argument.

GUMMOW J: I will ask if that is opposed. Is the application for extension opposed?

MR ALLANSON: It is not, your Honour.

GUMMOW J: Thank you. Yes, you have that extension so proceed to the merits.

MR RITTER: Yes, thank you. Your Honours, as outlined in the supplementary statement of argument we focus in these submissions on proposed grounds (f) and (g) of the draft notice of appeal. Those grounds deal with the consequences of the failure to comply with section 119 of the Migration Act in the provision of notice of intention to cancel the applicant’s student visa.

Your Honours, we say that there is a special leave application which emerges from those grounds which is what are the consequences of that failure to comply. Is the consequence, as the Federal Court found, that a hearing and decision by the MRT cures any breach of section 119 or is it, as we contend, that the MRT was required to set aside the delegate’s decision because of the breach of section 119? That submission follows from the text of section 119 and what it requires the Minister to do.

If I could turn to the terms of that section , your Honours, and it is conveniently at page 4 of the respondent’s booklet of materials which has been filed. Section 119(1) – and I will read only the relevant parts – refers to where:

the Minister is considering cancelling a visa - - -

GUMMOW J: I am sorry, 119?

MR RITTER: Subsection (1). It commences:

Subject to Subdivision F –

Then it goes on to say:

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:

(a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist –

What we say about that section and emphasise is two things. Firstly, the time that it needs to be complied with, which is clearly prior to the cancellation of a visa because it needs to be complied with when there is consideration of cancelling a visa and secondly, the mandatory terms within which the obligation is expressed in terms of “must notify the holder” of particulars.

What we say in this instance is that obligation was not complied with. That is a matter on which the Federal Court did not descend to an ultimate finding of because it seemed to say that in any event the matter was cured by the application to the MRT and I will come to that part of the Federal Court’s reasons in a moment. In fact, what the notice in this instance simply said was:

notification from Notre Dame International that student not meeting course requirements and enrolment had terminated.

That appears at page 67 of the application book. Now, we say that that statement did not provide the relevant particulars because it did not clearly identify in terms those parts of condition 8202 which relevantly applied. As an example, if the Minister was relying on a failure to obtain a certified, satisfactory result from the education provider, that needed to be referable to a term or a semester according to the condition and in this case, a term because it was the lesser of the two periods of duration of the course that applied.

Could I turn, your Honours, to the Federal Court’s consideration of that matter and where we say the court went wrong.

GUMMOW J: What you have been developing is your written submissions on page 100 “Draft Grounds (f) and (g)” of the notice of appeal.

MR RITTER: That is correct, but as supplemented by the supplementary statement of argument.

GUMMOW J: Yes, now where did the Full Court deal with your point?

MR RITTER: The Full Court in this matter was constituted by a single judge, as can occur under the Federal Magistrates Act and it is at page 73 of the application book, your Honours. The discussion commences on page 72 under the heading “GIVING OF NOTICE AND PARTICULARS” and there is reference - - -

GUMMOW J: The bulk of the consideration appears to have been on the construction of the particular condition 8202, but that is not what you highlighting now.

MR RITTER: No, it is not, but these were clearly matters which were grounds before the court and determined by the Full Court. It is not a new ground.

GUMMOW J: Where do we see the Full Court dealing with it?

MR RITTER: Pages 72 and 73.

GUMMOW J: Whereabouts? Paragraph 32?

MR RITTER: Yes, paragraph 32 refers to the section that I have taken the Court to and then there is some description of what the grounds say and then at paragraph 35 is where the court really deals with the point:

However, as the respondent’s contentions state, all these matters were cured by the nature of the review before the MRT: see s 349 of the Act. The MRT has jurisdiction to review even where the decision of the delegate may be legally ineffective: see Zubair . . . Further, to the extent there may have been a defect in the decision of the delegate, the full merits review in the MRT was able to cure that defect –

citing Zubair which in turn cited Twist v Randwick. Now, we say that there are two issues present in that paragraph.

GUMMOW J: What does section 349 of the Act say?

MR RITTER: Section 349 refers to the powers of the Tribunal under a review decision - - -

GUMMOW J: Page 5 – “exercise all the powers and discretions”.

MR RITTER: Yes, and then the Tribunal may “affirm”, “vary” set aside, et cetera.

GUMMOW J: Yes.

CALLINAN J: The Tribunal has power though, to seek out and rely upon evidence on its own initiative, does it not?

MR RITTER: It does.

CALLINAN J: I have forgotten the section but it is a completely untrammelled proceeding in the Tribunal, is it not?

MR RITTER: If it reviews on the merits, then that is correct. It is an untrammelled proceeding. What we say - - -

GUMMOW J: The consequence of your submission may be that the only avenue to deal with this was in this Court under section 75(v) of the Constitution, that this statutory situation which is designed to alleviate that by channelling these things through the Tribunal was ineffective.

MR RITTER: We say it ought not to be, your Honour. We say that in this sort of situation where the matter does go to the Tribunal its jurisdiction ought to be applied in a particular way and it ought to be applied to set aside a decision where that section and sections of that ilk have not been complied with.

GUMMOW J: But you are really saying it was not within the jurisdiction of the Tribunal and the course of its de novo consideration to look at the matter afresh.

MR RITTER: Yes, that is correct. What we say - the way the Federal Court dealt with it was to look at two issues, one of jurisdiction and the second of the exercise of the jurisdiction - - -

GUMMOW J: Yes, I took you off page 73.

MR RITTER: Yes, we do not disagree with the court’s construction as to the power of the Tribunal to hear the matter, even though there may have been legally ineffective – or there may have been an invalid decision by the Minister, but where we quarrel with is the way in which the Tribunal is to exercise that jurisdiction and, in particular, whether the fact of the application to the MRT cures the defect in the proceedings up to that point, up to cancellation. We say that those proceedings cannot be cured by an application to the MRT and it cannot be cured because the requirements of section 119 are a jurisdictional prerequisite to the cancellation of the visa and once the visa has been cancelled, the point has passed when one could have complied with section 119.

We would also submit, your Honours, that the reliance on Twist v Randwick is inappropriate because it is a very different case. That was not a case where there was a specified - - -

GUMMOW J: That was a Local Government Act, was it not?

MR RITTER: It was, it concerned the demolition of a building and in that case there was no specified statutory procedure to be gone through prior to making a demolition order although after an order had been made there was a right of appeal and the Court held that the right of appeal satisfied the opportunity to be heard but that is, with respect, not this case where there is a specified way in which cancellation of a visa needs to progress and there was not compliance with that procedure.

What we say, in summary, is that there is a mandatory procedure, as I have said, that it is a jurisdictional prerequisite or condition precedent, if you like, to the lawful exercise of the power to cancel a visa, and if it is not complied with that failure cannot be supplanted by an application to the MRT to make the cancellation decision a valid one. The simple reason for that is that this section needed to be complied with at a particular point in time.

CALLINAN J: Yes, but the Tribunal is a very special tribunal. There is no onus on your client before the Tribunal, so that everything is at large again before the Tribunal and that is, indeed, the way in which the Tribunal treated it because if you look at paragraph 42 on page 7:

The Tribunal has considered the totality of the review applicant’s circumstances and finds that the review applicant has not complied –

Now, if in fact it were a different sort of tribunal, it was to be affected in some way by the Minister’s decision and that there was no chance to ventilate everything you wanted to ventilate, your argument might be more persuasive, I think, but I see that as your problem at the moment.

MR RITTER: Yes. What we say is that in circumstances of a case like this, the Tribunal ought not to review all of the merits of the decision but should – and although as your Honour says there is no onus – if the Tribunal ought to have been satisfied that there was a breach of a section like 119, that it ought to set aside the cancellation decision.

GUMMOW J: What do you say about the response on page 109 by your opponent? The last paragraph, 25, there:

There is no complaint that the proceedings before the MRT were deficient in any of these ways. The applicant was invited to comment on his breach of condition 8202 . . . he filed extensive submissions in the MRT dealing with that question . . . and attended a hearing in MRT.

MR RITTER: Those points are factually accurate but they do not disturb the submission that we make. If our submission is good, then none of that matters, with respect.

CALLINAN J: But we must assume that the Tribunal’s decision is right. There is no attack upon the Tribunal’s decision as such, is there?

MR RITTER: There is an attack upon the Tribunal’s decision in the way in which it did not deal with the section 119 point, or the way it concluded the section 119 point.

CALLINAN J: Leaving that aside, that is the issue here. Otherwise, so far as the merits are concerned, there is no suggestion of an absence of natural justice or not pursuing some line that should have been pursued so that we must take the decision of the Tribunal on its merits to be correct and, therefore, any other tribunal’s decision or, indeed, the Minister’s decision, if the matter were recommitted, would be the same.

MR RITTER: With respect, that is not necessarily so because if the Court upholds the procedural point that we make, and it is a procedural point of some substance - - -

CALLINAN J: No, the procedural point just goes away once it gets before the Tribunal, does it not, because there is no particular weight accorded to the Minister’s decision. The matter is completely at large. Once the matter is before the Tribunal really it does not matter what the Minister has done procedurally.

MR RITTER: We say it ought to, your Honour, and it ought to because of the terms of the section itself. This is a situation where, in certain circumstances and this is one of them, it can lead to a mandatory cancellation of a visa and in that context the procedures that the Act obliges the Minister to undertake - - -

CALLINAN J: The Court might take a different view in that case. You need to get special leave. We need to know that in the end, if you were to get special leave and you won and the matter went back and went through all the process again, the result would be different or there would be a real chance, perhaps, that the result would be different.

MR RITTER: The result might have been different in the sense that if notice was given and if a reasonable period of time was given to respond to the notice - - -

GUMMOW J: Everything was kosher in the MRT. That seems to flow from paragraph 25 on page 109. That is the hypothesis.

MR RITTER: That is so, but if our point is good then that does not matter and if we go back to the period of time where if the applicant had been given a notice with proper particulars and given an appropriate period of time to respond to it, then things may have taken a different course.

GUMMOW J: He might never have had to go to the MRT, but he did and it was fixed up.

MR RITTER: Indeed, if the visa had not been cancelled. One needs to bear in mind as well, in the facts of this case he was given a notice and then 20 minutes later his visa was cancelled. There is a separate question under the same grounds that we rely on as to whether that was a reasonable period to respond under section 121(3). The circumstances of this case highlight the point because here there was somebody who was not, in any sense,
evading his study responsibilities, but someone who believed he had been accepted to be enrolled in another course and, therefore, because of that and because of some advice he was given by a ministerial officer, decided not to continue with his studies at Notre Dame International.

In those circumstances, the procedural fairness issues that are set out in the Act become of particular importance, in our submission. Your Honours, I think that is our time.

GUMMOW J: Thank you, Mr Ritter. We do not need to call on you, Mr Allanson.

There are insufficient prospects of success in this matter to warrant a grant of special leave. Accordingly, special leave is refused with costs.

AT 11.37 AM THE MATTER WAS CONCLUDED