FEDERAL COURT OF AUSTRALIA

 

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 228

CONSTITUTIONAL LAW – validity of privative clause enacted by s 474 of the Migration Act 1958 (Cth) – whether privative clause is inconsistent with s 71, or s 75(iii) and (v) of the Constitution.

ADMINISTRATIVE LAW – operation of privative clause – application of Hickman principle of statutory interpretation to privative clauses – application of Hickman principle of construction to s 474 of Migration Act 1958 (Cth).

MIGRATION – power to grant protection visas – whether use of undisclosed independent information by Refugee Review Tribunal in a manner adverse to appellant, and contrary to assurances, constituted breach of rules of natural justice – whether s 474 applies to protect the decision to affirm the Minister’s decision to refuse the application for a protection visa from review.

MIGRATION – power to grant protection visas – where Refugee Review Tribunal misidentified the persons by whom the appellant claimed to have been persecuted – whether s 474 applies to protect the decision to affirm the Minister’s decision to refuse the application for a protection visa from review.

MIGRATION – power to grant Family (Residence) visas – where alleged that Migration Review Tribunal failed to consider that appellant provided financial or emotional assistance to a ‘special need relative’ so as to entitle appellant to visa – whether s 474 applied so as to protect the decision to affirm the Minister’s decision to refuse the application for a Family (Residence) visa from review.

MIGRATION – power to cancel permanent spouse visa – where visa cancelled while holder outside Australia, and holder detained as an unlawful non-citizen on return to Australia – where Minister’s delegate cancelled visa under s 128 because she was satisfied that the grant of the visa was in contravention of the Act, but that satisfaction was affected by an error of law – whether s 474 applied so as to protect the cancellation decision (and consequent decision to detain) from review.

MIGRATION – power to revoke cancellation of Business Entry visa – where visa cancelled while holder outside Australia, and decision to refuse to revoke the cancellation pursuant to s 131 made in absence of the notice of cancellation with content required by s 129 – whether s 474 applied so as to protect the decision to refuse to revoke the cancellation from judicial review.

Constitution, ss 71, 75(iii), 75(v)

Judiciary Act 1903 (Cth), s 39B, s 44

Acts Interpretation Act 1901 (Cth) ss 15, 15A, 15AA

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 8

Federal Court of Australia Act 1976 (Cth) s 23

Migration Act 1958 (Cth), ss 3A, 36, 65, 116, 128, 129, 131, 424A, 474, 475, 475A, 476

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, followed

R v Drake-Brockman; Ex parte Northern Colliery Proprietors' Association [1946] ALR 106, followed

R v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361, followed

R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123, followed

R v Murray; Ex parte Proctor (1949) 77 CLR 387, followed

R v The Commonwealth Court of Conciliation & Arbitration; Ex parte Grant (1950) 81 CLR 27, followed

R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208, followed

R v Kelly; Ex parte Berman (1953) 89 CLR 608, followed

R v The Members of the Central Sugar Cane Prices Board; Ex parte The Maryborough Sugar Factory Ltd (1959) 101 CLR 246, followed

The Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437, followed

R v The Commonwealth Conciliation & Arbitration Commission; Ex parte The Amalgamated Engineering Union (Australian Section) (1968) 118 CLR 219, followed

R v Judges of the Commonwealth Industrial Court; Ex parte Cocks [1969] ALR 161, cited

R v Coldham; Ex parte The Australian Workers’ Union (1983) 153 CLR 415, followed

O’Toole v Charles David Pty Ltd (1991) 171 CLR 232, followed

Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317, cited

Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing & Engineering Employees (1994) 181 CLR 96, applied

Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602, considered

Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Ltd (1995) 183 CLR 168, considered

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611, applied

Corporation of the City of Enfield v City Development Assessment Commission (2000) 199 CLR 135, applied

R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, applied

Craig v South Australia (1995) 184 CLR 163, distinguished

Abebe v The Commonwealth (1999) 197 CLR 170, considered

Attorney General (Commonwealth) v Breckler (1999) 197 CLR 83, followed

SZ v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 342, followed

Kioa v West (1985) 159 CLR 550, considered

Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238, considered

The Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, followed

Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114, followed

Wall v The King; Ex parte King Won and Mah On (No 1) (1927) 39 CLR 245, cited

The Australian Coal & Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161, cited

Houssein v The Under Secretary, Department of Industrial Relations & Technology (NSW) (1981-2) 148 CLR 88, cited

Hoare Bros Pty Ltd v Commissioner of Taxation (1996) 62 FCR 302, cited

Sunrise Auto Ltd v Commissioner of Taxation (1995) 61 FCR 446, cited

Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175, cited

San Remo Macaroni Company Pty Ltd v Federal Commissioner of Taxation 1999 ATC 5138, cited

Briglia v Federal Commissioner of Taxation 2000 ATC 4247, cited

Kordan Pty Ltd v Commissioner of Taxation 2000 ATC 4812, cited

Diahatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576, cited

Meredith v Commissioner of Taxation of the Commonwealth of Australia 2001 ATC 4595, cited

Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, cited

NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713, approved

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1, distinguished

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, followed

Re Bolton; Ex parte Beane (1987) 162 CLR 514, considered

Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353, cited

Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1, distinguished

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, distinguished

Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438, not approved

Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319, considered

Mills v Meeking (1990) 169 CLR 214, considered

Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, cited

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, considered

CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384, considered

R v L (1994) 49 FCR 534, considered

Gardner Smith Pty Ltd v Collector of Customs (Vic) (1986) 66 ALR 377, considered

Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112, considered

Catlow v Accident Compensation Commission (1989) 167 CLR 543, considered

Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309, considered

Minister for Foreign Affairs & Trade v Magno (1992) 37 FCR 298, considered

Queensland v The Commonwealth (1989) 167 CLR 232, considered

Koowarta v Bjelke-Petersen (1982) 153 CLR 168, considered

Yager v The Queen (1977) 139 CLR 28, considered

Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104, considered

Australian Communist Party v The Commonwealth (1951) 83 CLR 1, considered

R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539, cited

Potter v Minahan (1908) 7 CLR 277, considered

Bropho v State of Western Australia (1990) 171 CLR 1, considered

Coco v The Queen (1994) 179 CLR 427, considered

Shergold v Tanner (2002) 188 ALR 302, followed

R v Lord Chancellor; Ex parte Witham [1998] QB 575, referred to

R v Secretary of State for the Home Department; Ex parte Simms [2002] 2 AC 115, cited

Water Conservation and Irrigation Commissioner (NSW) v Browning (1947) 74 CLR 492, cited

R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, cited

FAI Insurances Ltd v Winneke (1982) 151 CLR 342, cited

Minister for Aboriginal Affairs v Peko- Wallsend Ltd (1986) 162 CLR 24, considered

O’Sullivan v Farrer (1989) 168 CLR 210, cited

Oshlack v Richmond River Council (1998) 193 CLR 72, cited

WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559, referred to

Nakkuda Ali v Jayaratne [1951] AC 66, referred to

Bradley v The Commonwealth (1973) 128 CLR 557, referred to

Goldie v Minister for Immigration & Multicultural Affairs (2002) 188 ALR 708, referred to

Buck v Bavone (1976) 135 CLR 110, cited

Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, cited

Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421, cited

Re Patterson; Ex parte Taylor (2001) 182 ALR 657, cited

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, distinguished

Anisminic Ltd v Foreign Compensation Commission [1968] 2 QB 862, cited

R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Limited [1924] 1 KB 171, cited

R v Commissioner of Patents; Ex parte Weiss (1939) 61 CLR 240, cited

Ridge v Baldwin [1964] AC 40, cited

R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, cited

Re Racal Communications Ltd [1981] AC 374, cited

O’Reilly v Mackman [1982] 2 AC 237, cited

Cabal v Attorney-General (Cth) (2001) 188 ALR 77, considered

Timbarri Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, considered

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, followed

Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117, considered

Twist v Randwick Municipal Council (1976) 136 CLR 106, cited

Salemi v Mackellar (No 2) (1977) 137 CLR 396, cited

Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487, cited

Haoucher v Minister of State for Immigration & Ethnic Affairs (1990) 169 CLR 648, cited

Annetts v McCann (1990) 170 CLR 596, cited

Muin v Refugee Review Tribunal [2002] HCA 30, cited

Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, cited

Country Roads

National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296, cited

Mobil Oil Australia Pty Ltd v Commissioner of Taxation (1963) 113 CLR 475, cited

Barratt v Howard (2000) FCR 428, cited

R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators Association [1972] 2 QB 299, cited

Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629, cited

Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited

Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132, considered

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, considered

Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498, not approved

SBBK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 265, not approved

 

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Bennion, Statutory Interpretation a Code, 3^rd Edition, Butterworths, London, 1997

Pearce and Geddes, Statutory Interpretation in Australia 4^th Edition, Butterworths, 1996

M Gleeson, The Rule of Law and the Constitution Boyer Lectures 2000, ABC Books

Windeyer, Lectures on Legal History, 2^nd Edition (Rev), Law Book Co, 1957

De Smith Woolf and Jowell, Judicial Review of Administrative Action, 5^th Edition, Sweet & Maxwell

Wade and Forsyth, Administrative Law, 8^th Edition, Oxford, 2000

Elliott, The Constitutional Foundations of Judicial Review, Hart Publishing, 2001

La Nauze, The Making of the Australian Constitution (1972) 233-4

Kinley, “Constitutional Brokerage in Australia: Constitutions and the Doctrines of Parliamentary Supremacy and the Rule of Law” 22 Federal Law Review, 1994,194

Hutchison, “The Rise and Ruse of Administrative Law and Scholarship”, 48 Modern Law Review, 1985,293-324

Fallon, “ ‘The Rule of Law’ as a Concept in Constitutional Discourse” 97 Columbia Law Review, 1997,1

Dyzenhaus, Hart and Taggart, “The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation”, 1 Oxford University Commonwealth Law Journal, 2001, 5-34

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Craig, “Competing Models of Judicial Review” Public Law (Autumn), 1999, 428

Mason, “Developments in Australian Administrative Law” 28 Hong Kong Law Journal, 1998, 379

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NAAV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

N 265 of 2002

 

NABE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 282 of 2002

 

ANARE SUA RATUMAIWAI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 399 of 2002

 

AUREL TURCAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 225 of 2002

 

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v JIAN ZHONG WANG

S 84 of 2002

 

 

 

BLACK CJ, BEAUMONT, WILCOX, FRENCH and von DOUSSA JJ

15 AUGUST 2002

MELBOURNE

 

 

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 265 OF 2002

 

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	NAAV APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT   THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT

 

THE COURT ORDERS THAT:

 

1.                  The appeal be dismissed, with costs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 282 OF 2002

 

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	NABE APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

 

THE COURT ORDERS THAT:

 

1.                  The appeal be dismissed, with costs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 399 OF 2002

 

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	ANARE SUA RATUMAIWAI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

 

THE COURT ORDERS THAT:

 

 

1. The appeal be dismissed, with costs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

 

 

 

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 225 OF 2002

 

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	AUREL TURCAN APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

 

JUDGES:	BLACK CJ, BEAUMONT, WILCOX, FRENCH and von DOUSSA JJ
DATE:	15 AUGUST 2002
PLACE:	MELBOURNE

 

THE COURT ORDERS THAT:

 

1.                  The appeal is allowed.

 

2.                  The decision of the learned primary judge is set aside.

 

3.                  Certiorari is granted to quash the delegate’s decision of 6 July 2002 to cancel the appellant’s visa.

 

4.                  Prohibition is issued to prevent the respondent, his delegate and officers from acting upon or giving effect to or proceeding further upon the cancellation decision.

 

5.                  There be liberty to apply within seven days for any necessary consequential orders in relation to the release of the appellant from detention.

 

6.                  The respondent pay the appellant’s costs of the appeal and the application for review.

 

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

 

 

 

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 84 OF 2002

 

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS APPELLANT
AND:	JIAN ZHONG WANG RESPONDENT

 

THE COURT ORDERS THAT:

 

1.      The appeal be dismissed, with costs.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

IN THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN	NAAV N 265 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT   THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
BETWEEN	NABE N 282 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	ANARE SUA RATUMAIWAI N 399 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	AUREL TURCAN V 225 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	S 84 OF 2002 MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS APPELLANT
AND	JIAN ZHONG WANG RESPONDENT

 

JUDGES:	BLACK CJ, BEAUMONT, WILCOX, FRENCH and von DOUSSA JJ
DATE:	15 AUGUST 2002
PLACE:	MELBOURNE

 

REASONS FOR JUDGMENT

BLACK CJ:

1                     These five appeals have been heard together. They raise a common question concerning the extent to which judicial review of privative clause decisions, as defined by s 474(2) of the Migration Act 1958 (Cth) (the Act), is available in this Court.

2                     The appeals involve the construction of the Act as amended last year by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (Judicial Review Amendment Act) and by seven other Acts passed at the same time (the 2001 Amendments). Central to the operation of the Judicial Review Amendment Act is s 474(1) which provides:

“(1) A privative clause decision: 

(a) is final and conclusive; and 

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and 

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

3                     It is important to understand the legislative history of the Act and the nature of the amendments made to it over recent years, including the nature of the 2001 Amendments. These matters are discussed and explained comprehensively in the reasons for judgment of French J at [386] - [429]. The facts of the five matters on appeal are set out in the reasons of the other members of the Court.

4                     I have had the advantage of reading in draft the reasons for judgment of the other members of the Court and, except in two cases, I have reached the same conclusions as to the outcomes of these appeals as Beaumont and von Doussa JJ. I would dismiss the appeals in NAAV, NABE and Ratumaiwai. I would do so essentially for the reasons given by von Doussa J and, subject to what follows, I agree with what his Honour has said about the construction of s 474 and its effect in these appeals. I agree also with the reasons of von Doussa J for rejecting the submissions that s 474 is invalid as being offensive to Chapter III of the Constitution.

5                     I differ however from von Doussa J on a point that is determinative of two of the appeals. The first is the appeal of Mr Turcan against the decision of the primary Judge rejecting an application for judicial review of the decision to cancel his visa, and the consequential decision to place him in immigration detention as an unlawful non-citizen. The point in Turcan is whether s 474(1) has the effect that s 128 of the Act is to be construed as extending authority to the Minister, or the Minister’s delegate, to reach an unchallengeable state of satisfaction about the particular legal question as to the meaning of the Act or another law of the Commonwealth specified in s 116(1)(f) – “contravention of [the] Act or of another law of the Commonwealth” - provided that what are known as the three Hickman provisos are fulfilled. (The so-called Hickman provisos are set out later in these reasons at [11].)

6                     The second is the Minister’s appeal in Wang against the declaration by the primary Judge that a decision of the Minister’s delegate refusing to revoke the cancellation of Mr Wang’s visa was invalid and of no effect. The question in Wang is whether s 474(1) has the effect that failure to provide the notice that is required by s 129 of the Act does not invalidate a decision, under s 131, to refuse to revoke a visa cancellation, provided that the three Hickman provisos are fulfilled.

APPROACH TO INTERPRETATION OF S 474(1)

7                     The starting point must be that s 474(1) is in substantially the same terms as a provision in World-War II national security regulations considered by the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (“Hickman”), R v Drake-Brockman; Ex parte Northern Colliery Proprietors’ Association [1946] ALR 106 (“Drake-Brockman”); R v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 (“Rent Controller”), R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (“Thiess”) (1948) 77 CLR 123, and R v Murray; Ex parte Proctor (1949) 77 CLR 387 (“Murray”). Section 474(1) is also in substantially the same terms as the privative clause in the industrial legislation considered by the High Court in R v The Commonwealth Court of Conciliation & Arbitration; Ex parte Grant (1950) 81 CLR 27; R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208, R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; R v Kelly; Ex parte Berman (1953) 89 CLR 608, R v The Members of the Central Sugar Cane Prices Board; Ex parte The Maryborough Sugar Factory Ltd (1959) 101 CLR 246, The Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia (1960) 104 CLR 437, R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219, R v Judges of the Commonwealth Industrial Court; Ex parte Cocks [1969] ALR 161, North West County Council v Dunn (1971) 126 CLR 247, R v Coldham; Ex parte The Australian Workers Union (1983) 153 CLR 415 (“Coldham”), Re The Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 520, O’Toole v Charles David Pty Ltd (1991) 171 CLR 232, and by this Court in matters remitted by the High Court, such as Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317. Consistently with common practice, I will refer to s 474(1), and to clauses in substantially the same terms as s 474(1), as Hickman clauses.

8                     When the Parliament uses the same words as it has used in previous enactments that have been the subject of judicial consideration and interpretation, it is taken that the intention of the Parliament is that the words be given their judicially established meaning: Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing & Engineering Employees (1994) 181 CLR 96 at 106. That it was the Parliament’s intention in enacting s 474(1) to adopt the interpretation that the High Court has previously given to Hickman clauses is confirmed by the Minister’s Second Reading Speech on the Bill for the Judicial Review Amendment Act. After describing the difficulties that the Government perceived with judicial review under Part 8 of the Act in the form it then was, the Minister said:

“Faced with the problem I have outlined, I asked the Department of Immigration and Multicultural Affairs in early 1996 to explore options for best achieving the government’s policy objective of restricting access to judicial review. This was done in conjunction with the Attorney-General’s Department, the Department of the Prime Minister and Cabinet and eminent legal counsel.

The advice received from legal counsel was that the only workable option was a privative clause.

As members are probably aware, section 75 of the Commonwealth Constitution gives the High Court original jurisdiction to consider challenges to the actions and decisions of Commonwealth officers. As a result, access to the High Court cannot be legislatively restricted without a constitutional amendment.

However, access to the Federal Court, and the scope of judicial review it can exercise, can be changed by legislation. To simply restrict access to the Federal Court in migration legislation matters, would in practice deflect many cases to the High Court under section 75 of the Constitution. This has the potential to erode the proper role and purpose of the High Court.

Counsel’s advice was that a privative clause would have the effect of narrowing the scope of judicial review by the High Court and of course the Federal Court. That advice was largely based on the High Court’s own interpretation of such clauses in cases following the seminal High Court case of Hickman in 1945. The privative clause in the bill is based on a very similar clause in Hickman’s case.

The High Court has not since, despite opportunities to do so, repudiated the Hickman principle, as formulated by Justice Dixon in Hickman’s case. Indeed, that principle was described as ‘classical’ in a later High Court case.

Members may be aware that the effect of a privative clause such as that used in Hickman’s case is to expand the legal validity of the acts done and the decisions made by decision makers. The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently.”

-         Australia, Parliamentary Debates, House of Representatives, 26 September 2001, p.31559 - 61

The Minister’s speech is set out more fully in the reasons for judgment of von Doussa J.

9                     Because the Parliament has enacted s 474(1) in substantially the same terms as earlier Hickman clauses, the operation of which has been explained by the High Court in the cases to which I have referred, and because the Second Reading Speech confirms that the Parliament’s intention was that s 474(1) should be interpreted consistently with the High Court’s treatment of those previously-enacted clauses, it is clear that the Act as now amended must be interpreted in accordance with the principles that emerge from those cases.

10                  The cases in which Hickman clauses in federal legislation have been considered by the High Court have usually arisen in connection with industrial legislation in which the Hickman clause has operated to protect an award once made, but has not purported to affect proceedings before an award is made: see Coldham at 418-9 per Mason ACJ and Brennan J. For example mandamus was granted, notwithstanding the presence of a Hickman clause, in R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Australia) Limited (1949) 78 CLR 389 at 399-400 to require the Court of Conciliation & Arbitration to hear and determine an application for an award; mandamus was granted in Re The Australian Bank Employees Union; Ex parte Citicorp Australia Limited (1989) 167 CLR 513 at 520 to require the Conciliation & Arbitration Commission to hear and determine the issue whether it was appropriate to hear and determine an application without a dispute finding being made; and prohibition was granted in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100 against the respondent industry board, to prevent it from proceeding to cancel or suspend the prosecutor’s registration as an employer under the Act in pursuance of the pending inquiry before a delegate of the board. In contrast, the definition of a privative clause decision in ss 474(2) and (3) is very wide in its scope and extends to a decision proposed to be made (s 474(2)), and to conduct preparatory to the making of a decision (s 474(3)(h)). Although the Parliament has here given a Hickman clause a wider operation within a statutory scheme than it has ever had before - the clear intention of the Parliament being that the clause should operate here to the widest degree, the interpretation of s 474(1) is not to be restricted by its uncommon reach. There may be questions about the precise extent of the reach given to s 474(1) by the definition of privative clause decision in ss 474(2), (3), (4) and (5), but nothing turns on those questions in these appeals.

THE PROPER CONSTRUCTION OF HICKMAN CLAUSES

11                  A long line of High Court authority establishes how a Hickman clause operates. Essentially what is involved is the reconciliation of apparently inconsistent statutory provisions. The operation of the Hickman clause in federal industrial legislation was described by Mason ACJ and Brennan J in Coldham at 418:

“… a [Hickman clause] will validate an award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled ‘... namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power) ...’ [references omitted]

As Dixon J. explained in Murray, and in other cases, it is a matter of reconciling the prima facie inconsistency between one statutory provision which seems to limit the powers of the Tribunal and another provision, the privative clause, which seems to contemplate that the Tribunal's order shall operate free from any restriction. The inconsistency is resolved by reading the two provisions together and giving effect to each. The [Hickman clause] is taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which prohibition lies.”

Their Honours went on to say at 419:

“But a [Hickman clause] cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal. In the face of such a provision, a [Hickman clause] is ineffective to prevent prohibition going when the Tribunal transgresses those limitations or restraints [references omitted]. The present is just such a case.”

12                  This explanation of the operation of a Hickman clause so as to include a consideration of “inviolable limitations or restraints” is consistent with what Dixon J said in Murray at 399 – 400. His Honour said:

“We are familiar with the distinction between provisions that are directory and those that are mandatory. The distinction supplies an analogy which may help to explain the effect of [the Hickman clause]. For construed in the traditional manner it must be taken to mean that strict compliance with at least some of the provisions of Part III. is not an indispensable condition to the jurisdiction of the Board and to its authority to make a valid and binding award order or determination. There is necessarily an appearance of inconsistency between a provision which defines and restricts the power of a tribunal and prescribes the course it must pursue and a provision which says that the validity of its decrees shall not be challenged or called in question on any account whatever.

The apparent inconsistency should be resolved by an attempt to arrive at the true intention of the legislative document containing the two provisions considered as a whole. The first step in such a process of interpretation is to apply to a [Hickman clause] the traditional or established interpretation which makes the protection it purports to afford inapplicable unless there has been an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province. There is nothing artificial in such an interpretation. For it could hardly be supposed, to take perhaps an extreme example, that it was intended that [a Hickman clause] should give validity and protection to the awards of a tribunal established in relation to one industry when the tribunal intentionally stepped outside its allotted industrial field and proceeded to regulate an entirely different industry. A second step in interpreting the whole legislative instrument must be to consider whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action. For a clearly expressed specific intention of this kind can hardly give way to the general intention indicated by such a provision as [a Hickman clause].”

13                  The second step referred to in the judgment of Dixon J in Murray also explains the actual decisions in Hickman, Drake-Brockman, Rent Controller, Thiess, Metal Trades, and Coldham, where the presence of a Hickman clause did not prevent constitutional writs issuing.

14                  More recently, the operation of a Hickman clause was described in similar terms by Deane and Gaudron JJ in Darling Casino Ltd v New South Wales Casino Control Authority (1996-7) 191 CLR 602. Their Honours summarised the passages from the judgment of Dixon J in Hickman at 630, and continued at 632:

“The various legislative powers conferred by s 51 of the Constitution are all expressed as being “subject to” the Constitution and thus to the provisions of s 75. Thus, it has been said that a [Hickman clause] cannot prevent this Court from reviewing decisions which involve the refusal by officers of the Commonwealth to discharge “imperative duties” or which go beyond “inviolable limitations or restraints”. On the other hand, it has been acknowledged that such a clause can protect against “a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order”, or “some procedural defect which would otherwise result in invalidity”.”

15                  It is difficult to formulate a precise principle for determining exactly when a provision in an Act containing a Hickman clause may be said to be outside the operation of such aclause and to have the character of an “inviolable limitation”. Constitutional considerations aside, the cases where “inviolable limitations” have been identified by the High Court can be seen, however, as cases in which, if the legislation were interpreted in a particular way, essential structural elements created by the legislation would be violated, or else some other quite fundamental aspect of the legislation would change its character in a way and to an extent that the Parliament could not be taken to have intended.

16                  To my mind, the task of identifying any “inviolable limitations” in an Act containing a Hickman clause is not greatly assisted by distinctions such as those between ‘procedural’ and ‘substantive’ provisions, or between express and implied statutory conditions on power.

17                  Although the Parliament’s intention was to give validity to private clause decisions to the greatest extent that can be achieved consistently with the High Court’s interpretation of clauses in similar terms, the effect of the clause, and more particularly the question whether there are “inviolable limitations” in the statute upon which the clause does not operate, has to be considered in the context of the particular statute in which it is found. The fact that there are no “inviolable limitations” in the context of one statute containing a privative clause does not mean that they will be absent in the context of another statute containing such a clause. This may be illustrated by reference to the conclusive evidence provision in s 177(1) of the Income Tax Assessment Act 1936 (Cth), which reads:

"The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct."

18                  In the High Court and this Court, s 177 has been attributed with having a generally conclusive effect in relation to assessments, at least where the Hickman provisos are met: see, for example, Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Ltd (1995) 183 CLR 168 (“Richard Walter”) at 195 per Brennan J, 211 per Deane and Gaudron JJ; Hoare Bros Pty Ltd v Commissioner of Taxation (1996) 62 FCR 302 at 312-5. But it is not surprising that there is no emphasis placed on any “inviolable limitations” exception in the context of the Income Tax Assessment Act. In Richard Walter, Brennan J summarised the framework within which s 177 operates at 196 as follows:

“The service of a notice of assessment would fail in its purpose if the assessment were open to challenge for non-compliance with the general and often complex provisions of the Act governing the calculation of taxable income and the liability to pay tax. The application of the general provisions to the particular facts of a taxpayer's case is and must be expected to be a matter of frequent controversy between the taxpayer and the Commissioner. Although the Commissioner's exercise of power to assess a taxpayer to tax is governed by provisions of the Act which prescribe the components of a taxpayer's taxable income and the manner in which those components and the taxable income are to be ascertained, it is inevitable that on occasions the process of assessment will fail to comply with those provisions. However, if s 175 confers validity on assessments made in a bona fide attempt to exercise the power to make them, it authorises the Commissioner to determine in good faith, rightly or wrongly, the application of the general provisions of the Act to the facts of the particular case subject to correction by the objection, review and appeal procedures. That accords with the policy of the Act which most clearly appears from the text of s 177(1).”

19                  Mason CJ at 181-2 also drew attention to the framework within which s 177 operates. That framework includes a general validating provision at s 175, which reads:

“The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with.”

 

The congruence that must exist between s 175 and s 177 helps to explains why the Hickman provisos continue apply to s 177 but the “inviolable limitations” exception does not: see Richard Walter at 188 per Mason CJ, 193-7 per Brennan J, 210-211 per Deane and Gaudron JJ, and 240-242 per McHugh J; see to slightly different effect Toohey J at 222 - 223. So does the fact that s 177 protects procedural steps which are part of “the due making of the assessment”, and not the substantive liability of the tax-payer: see Richard Walter at 182 per Mason CJ, and the cases his Honour cites at footnote 54.

CONSTITUTIONAL VALIDITY OF S 474(1)

20                  A Hickman clause is saved from constitutional invalidity in two ways. First, it cannot expand the decision-maker’s power unless a law giving antecedent authority to the decision-maker would have been within the scope of the legislative power which supports the grant of power in fact made: R v Kelly; Ex parte Berman (1953) 89 CLR 608 at 631 per Kitto J; see also Hickman at 616 per Dixon J. Moreover, and importantly, the fidelity required of courts to the Constitution by its covering clause 5 means that a privative clause does not prevent review for excess of legislative power: O’Toole at 251 per Mason CJ, 271-3 per Brennan J, and 308 per Dawson J. Accordingly, in cases involving the application of a Hickman clause that protects awards of the Australian Industrial Relations Commission and its predecessors, the availability of challenge on constitutional grounds has been demonstrated in many cases. Because the power of the Commission to make an award must be within the scope of the legislative power conferred by s 51(xxxv) of the Constitution to make laws for the peace, order and good government of the Commonwealth with respect to the conciliation and arbitration of interstate industrial disputes, a Hickman clause cannot protect an award from challenge on the ground that it was not made in settlement of dispute of an industrial or interstate character: R v Kirby; Ex parte The Transport Workers Union of Australia (1954) 91 CLR 159 at 173-4; O’Toole. Nor can a privative clause protect an award made in breach of the requirement, inherent in the concept of arbitration, that the parties be afforded a proper opportunity to be heard before an order is made that effects them: R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 552, R v Moore; Ex parte State of Victoria (1977) 140 CLR 92 at 101-102 per Gibbs J.

21                  A Hickman clause is also saved from constitutional invalidity because it is treated as having an implicit effect on the substantive law that is to be applied by a statutory decision-maker whose decision is protected by the clause (with the result that, where certain provisos are met, the area of valid decision-making is expanded) rather than as withdrawing or ousting the jurisdiction conferred on the High Court by s 75(v) of the Constitution. This operation of a Hickman clause was explained by Brennan J in O’Toole at 275:

“When the Hickman-Coldham conditions are fulfilled, [the Hickman clause] will ‘validate’ the purported award in the sense that [it] will shield it from direct or collateral attack and require the court before which the validity of the purported award is in question to exercise its jurisdiction on the footing that the purported award is not invalid merely on the ground that it was in truth made in excess of the statutory powers conferred on the Commission. Although [the Hickman clause] does not deem an award made outside the powers of the Commission to be an award within those powers, [it] has the effect of giving a protected award an operation as if it were valid. Since [the Hickman clause] attributes to some invalid awards the same operation as valid awards would have, it may be said that [it] ‘validates’ an invalid award … In that sense, [it] expands the powers conferred on the Commission by other provisions of the Act.”

See to the same effect Gaudron and Gummow JJ in Darling Casino at 630-1.

22                  Apart from these two constitutional limitations on the operation of a Hickman clause, the remaining limitations have emerged from decisions of the High Court reconciling the prima facie inconsistency between statutory provisions which seem to limit the powers of a decision-maker, and the privative clause which seems to contemplate that the order or decision in question will operate free from any restriction: R v Coldham at 418. In Darling Casino, Gaudron and Gummow JJ expressed it this way at 631:

“It is to be remembered that the Hickmanprinciple is a rule of construction. … Accordingly, the question in this case is not one of the meaning and effect of the Hickmanprinciple which seeks to reconcile ‘the prima facie inconsistency between one statutory provision which seems to limit the powers of the [decision-maker] and another provision, the privative clause, which seems to contemplate that the [decision] shall operate free from any restriction’. Rather, it is one of the meaning and effect of the statutory provisions in question. If there is an inconsistency, the Hickmanprinciple requires that it be ‘resolved by reading the ... provisions together and giving effect to each’. However, there are anterior questions: the extent to which the relevant statutory provisions, when properly construed, give rise to an inconsistency to be resolved in that way; and whether the decision in question is one that falls within the area of that inconsistency.”

23                  In the light of these principles, I turn to the disposition of Mr Turcan’s appeal.

mr turcan’S APPEAL

24                  Mr Turcan held a permanent Subclass 801 Onshore Visa which was cancelled because the Minister’s delegate was satisfied that it had been granted in contravention of the Act. In truth, however, as Wilcox, French and von Doussa JJ have all concluded, the delegate misconceived that the visa had been granted in contravention of the Act. This is because, given that the delegate who granted Mr Turcan’s visa was satisfied that the criteria for the grant of the visa were met (and there being no relevant vitiating legal error of construction involved in that assessment), s 65 required the grant of the visa, and there was no contravention of the Act involved in its grant. (On the legal point in question, I would add a reference to the power to cancel in s 109 of the Act, which needs to be read in conjunction with ss 104, 107 and 108.)

25                  It is well-settled that where a statutory power is expressed to arise where the decision-maker is satisfied that statutory criteria are met, a determination that the decision-maker is not “satisfied” goes to the jurisdiction of the decision-maker and is reviewable under s 75(v): Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651 per Gummow J and the cases there cited. That proposition was not challenged by any of the parties in these appeals.

26                  It is also well-settled that, at least in the absence of a Hickman clause, “the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker”: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 150. Moreover, as Latham CJ said in R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430:

"[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist."

 

The Chief Justice continued at 432:

“It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.”

27                  The principle expressed in these passages has been approved on many occasions. See, for example, Foley v Padley (1984) 154 CLR 349 at 353 per Gibbs CJ and 370 per Brennan J.

28                  It follows that I agree with Wilcox, French and von Doussa JJ that, at least absent s 474(1), the misconstruction of s 116(1)(f) by Ms Faulkner would constitute an error of law that would invalidate an exercise of power conditioned on her state of satisfaction under s 128 that there was a ground for cancelling the visa under s 116.

29                  The Parliament must however be taken, by enacting s 474(1), to have implicitly changed the substantive law governing the Minister’s power and jurisdiction under the Act, so that decisions that may otherwise have been invalid may, by reason of the intention implicitly expressed in s 474(1) (interpreted according to the Hickman principle), now be “validated”. It must also be accepted that there is no constitutional reason why s 474(1) could not have the effect that the substantive law of the Act is altered so that the Minister has the power to determine questions of law (other than matters going to constitutional limits) conclusively and finally.

30                  I agree that the enactment of s 474(1) has the consequence that an error of law on the part of the Minister or delegate in reaching the satisfaction that operates as a precondition to power to grant and cancel visas under the Act does not result in every case in the decision being invalid. I accept that s 474(1) may be taken to provide the “contrary intent”, which gives the administrative decision-maker authority to make a decision otherwise than in accordance with law, referred to in Craig v South Australia (1995) 184 CLR 163at 179. For this reason, I take s 474(1) to express the Parliament’s intention that the Minister’s satisfaction is to be taken to exist even if the Minister (or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material. But here the question as to “contravention of [the] Act or any other law of the Commonwealth” raised by s 116(1)(f) is so centrally definitional to “satisfaction” that is required by s 128, and is posed so directly as a legal question about the operation of the Act itself, that a line might have been crossed, in that it would seem inherently unlikely that the Parliament intended that the Minister be given a power to decide that question in a way that is wrong as a matter of law. Not only is the ultimate question to which s 116(1)(f) requires an answer posed, in terms, as a question of law, but part of that question relates back to the equally fundamental question of the validity of the application for the visa (see s 46).

31                  In these circumstances, I conclude that s 474(1) does not have the effect that the substantive law of the Act is altered to the extent that the courts must now proceed on the footing that the “satisfaction” required as a precondition to the Minister’s power to cancel a visa exists in a case where the Minister’s satisfaction is founded upon an erroneous answer to the legal question posed by s 116(1)(f). To do so would, in my opinion, be to take a step appreciably beyond concluding that the satisfaction of the Minister or delegate must be taken to exist notwithstanding an error in law in determining a factual question posed by the provision giving him or her power to cancel or grant the visa. It would also be to take a step beyond concluding that the satisfaction of the Minister or delegate must be taken to exist notwithstanding an error in determining the meaning of a term or expression used in the Act which in the sense it would have in ordinary speech: see generally Collector of Customs v Agfa-Gevaert Ltd (1996) 141 ALR 59. An example of this distinction is provided by Mr Ratumawai’s appeal, to which I refer later.

32                  Other textual considerations support this view. First, s 4(2) provides that, in order to advance the object of the Act (set out at s 4(1)), the Act:

“… provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain. [Emphasis supplied]”

33                  The statement concerning the way in which the object of the Act is to be advanced strongly suggests that the Parliament did not intend to provide for the removal of an existing visa-based right to remain in Australia upon the basis of an incorrect answer to the legal question specifically posed by s 116(1)(f). The qualification on the power to grant a visa “subject to the Act” found in s 29(1) offers some support for that conclusion, as does the fact that s 474 (2) defines a privative clause decision as one made “under this Act”. Of course, in relation to s 474(2) it must immediately be said that the evident intent of s 474(1) is not to be undone by reliance merely upon the presence of the words “under this Act” in the definition provision. But the words are of significance when considering whether the “satisfaction” required as a condition on the power to cancel a visa exists where the Minister or delegate has incorrectly answered the legal question posed directly by s 116(1)(f). Accordingly, I consider that a correct answer to the legal question about contravention posed by s 116(1)(f) is in the nature of an “inviolable limitation” upon the power to cancel a visa on that ground. The decision is therefore reviewable, notwithstanding s 474(1).

34                  The decision of the High Court in The Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437 does not, in my view, stand in the way of this conclusion. In that case, the High Court considered that the particular State legislation there in question committed to the Western Australian arbitration court the power to determine the very question that was said to be a jurisdictional fact. The question about which the court had to be satisfied was essentially one of fact, and was posed in terms that were taken to bear their ordinary, non-technical meaning. Section 116(1)(f), with its expression of a particular question of law, is a very different provision and is found in a very different statutory context. To my mind there is a clear distinction to be drawn between a provision conferring jurisdiction upon an arbitration court conditioned upon the court’s conclusion about the reasonable likelihood of a lockout occurring and a provision that speaks expressly in terms of a contravention of a particular Act “or any other law of the Commonwealth”. The basis on which Connell was explained and distinguished by Menzies J at 453 is not inconsistent with this approach. (It should not be forgotten that Connell was a case in which prohibition went against an award to which a Hickman clause applied). See also the recent example of Re Churchill (2001) 109 FCR 104 at 110.

35                  For these reasons, I conclude that the decision of the Minister’s delegate to cancel Mr Turcan’s visa, being based on a wrong answer to the legal question posed by s 116(1)(f), was a decision that, notwithstanding the expansionary effect of s 474(1), she did not have power to make. I agree with the orders proposed by Wilcox and French JJ in this appeal.

36                  I should add that Regulation 1.03 and the phrase “special need-relative” considered in the case of Mr Ratumaiwai, does not raise the issue that emerges in Mr Turcan’s case. Even if the Migration Review Tribunal did err in law in construing that phrase, it was an error of law that the Tribunal now has jurisdiction to make. The term “special need relative” was defined at the relevant time by Regulation 1.03 in non-technical, or “ordinary” language, and did not in terms pose a legal question as the basis of the Minister’s satisfaction. Section 474(1) operated to enlarge the Tribunal’s jurisdiction in this respect.

mR wANG’S APPEAL

37                  It will be apparent from what I have written concerning Mr Turcan’s appeal, that there are some fundamentals in the way the Act operates, to which s 474(1) has no application. The judgment of von Doussa J at [625] identifies fundamentals of such a character. (I have described the fundamentals primarily as “structural”, whilst von Doussa J uses the term “jurisdictional factor”.) I agree with von Doussa J that these elements are few in number, and that once they are satisfied the decision-maker’s power is greatly expanded by s 474(1). In Wang, the primary Judge held that the power to decide to revoke a visa cancellation, under s 131, is not enlivened unless the Minister (or delegate) has taken a particular step, namely the provision of proper notice as required by s 129. I agree with what von Doussa J has written about the operation of s 474(1) on procedural steps in a validly-attracted area of decision-making. The distinction I would draw, however, is that, although Beaumont and von Doussa JJ see s 128 as the single gateway to decision-making under s 131, I would see the two provisions as directed to quite separate areas of decision-making. The learned primary Judge did so too; see Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 at [31]. When visa cancellation and revocation of visa cancellation are seen as separate areas of decision-making, the fundamental structure – now revealed - of the s 131 scheme for revocation of a visa cancellation is that it is enlivened, and enlivened only, by a notice having a particular quality. The learned primary Judge found that the notice provided to Mr Wang did not have that quality, and the contrary was not argued before us. Viewed in that light, an “inviolable limitation” on the power to revoke a cancellation under s 131 is that the fundamental requirement, the notice mandated by s 129, must have been satisfied: see Rent Controller. The learned primary Judge correctly held that the requirement was not satisfied in the case of Mr Wang. Accordingly, the power to refuse to revoke the cancellation of his visa was not enlivened. It follows that I would dismiss the Minister’s appeal.

38                  I should add that I do not see this result as having the logical consequence of opening the door to successful applications for judicial review in respect of the various procedural requirements within the Act, for the reason that other requirements may quite readily be seen as merely directory in character when the required reconciliation process with s 474(1) takes place. The requirement of the section in question in Mr Wang’s case, s 131, is anterior to that. It involves, to my mind, one of the very few procedural requirements in the Act that have to be satisfied before the decision-maker’s power is attracted, and the expansive effect of s 474(1) is activated. Thus I would add to the key requirements outlined by von Doussa J at [625] the requirement, in respect of a revocation decision under s 131, of proper notice under s 129.

other appeals

39                  The appeals in NAAV, NABE, and Ratumaiwai should be dismissed with costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable the Chief Justice.

Associate:

Dated: 15 August 2002

 

IN THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN	NAAV N 265 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT   THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
BETWEEN	NABE N 282 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	ANARE SUA RATUMAIWAI N 399 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	AUREL TURCAN V 225 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	S 84 OF 2002 MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS APPELLANT
AND	JIAN ZHONG WANG RESPONDENT

 

JUDGES:	BLACK CJ, BEAUMONT, WILCOX, FRENCH and von DOUSSA JJ
DATE:	15 AUGUST 2002
PLACE:	MELBOURNE

 

REASONS FOR JUDGMENT

BEAUMONT J:

NAAV OF 2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

INTRODUCTION

40                  Before this Full Court are five appeals from single Judges of the Court in matters arising under the Migration Act 1958 (Cth) (“the Act”). In each appeal, the operation of a privative clause, s 474(1) of the Act, arises for consideration, albeit in different contexts.

41                  Section 474(1) provides:

“(1) A privative clause decision :

(a) is final and conclusive; and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

42                  In s 474 a “privative clause decision” includes (relevantly) a decision of an administrative character made under the Act, and specifically includes a decision granting, revoking or refusing to give, a visa (s 474(2) and (3)).

43                  The appellant in this appeal is a Burmese national, who applied for a protection visa soon after his arrival in Australia in 1995, claiming refugee status on the ground that he feared persecution in Burma because of his political opinions. Specifically, he claimed to have been a political activist in Burma since 1988.

44                  This is an appeal from a decision of Gyles J, dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”), affirming a decision of the delegate of the Minister, not to grant the appellant a protection visa.

THE PROCEEDINGS IN THE TRIBUNAL

45                  In support of his application for a protection visa, the appellant made these claims:

·                    His father had been arrested, in 1984, by Burmese intelligence police, as a political suspect, and held in Insein gaol for thirteen months.

·                    He himself had been a political activist in Burma from 1988. He had been arrested on three occasions, interrogated, and subsequently incarcerated for two years.

·                    If he returned to Burma, he would be arrested at the airport and his passport would be confiscated. Given that he was a political offender, he could not afford to be arrested one more time as this would be “the end of me”.

·                    He had also been active in anti-government circles whilst in Australia.

46                  Although the Tribunal accepted some of the appellant’s claims, it did not accept his claim to be a political activist of some profile who had suffered persecution. In forming an unfavourable opinion of the appellant’s credibility, and so rejecting his version of events, the Tribunal took into account, adversely to the appellant, (amongst other things) the following:

1.                  Information gathered from sources other than the appellant and contained in a number of documents (“country information”).

2.                  A particular map of the region.

3.                  The military experience of the Tribunal member.

47                  However, none of this was disclosed by the Tribunal to the appellant or to his migration agent, and, as will appear, the failure to disclose such matters was the basis of the appellant’s application to the primary Judge for judicial review.

48                  At this stage, however, some explanation should be given of the way the proceedings before the Tribunal were conducted.

49                  Early in the Tribunal hearing (at which both the appellant and his migration agent were present), the Tribunal member said:

“Now, you have both provided an account of your situation on a number of occasions already, so I have a reasonable idea of what you claim your problems are. I invited you to this hearing, because I was unable to make a favourable decision on the information before me. I will not be discussing everything at the hearing today but I will be asking you a number of questions and trying to get as clear a picture of your circumstances as I possibly can.

I may also talk to you about information that I have concerning your country which is independent information. This is information that comes from various sources and from people who are not at the hearing today. These people may be experts on or in your country, from the Australian Government and your country, and there may be other information about your country, information from document examiners, cables, articles, experts and that sort of thing. It may also be information from other governments, and from human rights organisations.

Now, I will be telling you what that information may mean in your case, and giving you an opportunity to make comments about it. …”

50                  Later in the hearing, the following exchange took place between the migration agent (Mr McDonnell) and the Tribunal member (Mr Gibson):

“MR McDONNELL

One other little thing was that you mentioned earlier some independent country information, that could have a bearing on the case, I would ask that that be made available, if it will be taken into consideration.

MR GIBSON

Yes, in fact I should have corrected myself. In fact, it doesn’t have any, I read it during one of the breaks, that is why I stopped actually, because I thought that it did and when I started reading down I found out that the dates were disparate from the dates that I thought that they were, so no, it has no bearing at all.

MR McDONNELL

No problem then, thank you.

MR GIBSON

It was back in 1988, and I had misconceived that with 1998, so do not worry about it. It is not germane to the – to any of their claims. Okay. Anything else?

…

I think we can take it that the Department’s decision is on the file, I have read it, I am not interested in that decision. I am interested only in the statements and evidence given by the appellants to the Tribunal. I do not pay any attention to the Department’s form of reasoning, or for that matter, their finding on fact, but the form of the Tribunal’s inquiry is to consider the case all over again, and that is what I will be doing, so you can take it that the submissions you have on the veracity or otherwise of the Department’s decision, will have had no bearing on the decision that I make.

MR McDONNELL

I appreciate that.

MR GIBSON

I will go wholly on matters and fact that I through my own inquiries and through the information and evidence given by the appellants and yourself.

Does that make that easier?

MR McDONNELL

Thank you.

MR GIBSON

That is my job anyway, that is what it says in the Act …

MR McDONNELL

Yes.

MR GIBSON

… and that is how I conduct my inquiries.

MR McDONNELL

Okay.”

51                  At the completion of the hearing, the following exchange took place:

“MR GIBSON

Okay. Now, submissions. Do you wish to make any further written submissions in this matter – in these matters, I should say.

MR McDONNELL

I would like to ask if the Tribunal considers there are any issues which it would – it considers problematic or would like to see …

MR GIBSON

No, not this time, no. but if you wish to make submissions, maybe we can say, fourteen days?

MR McDONNELL

Yes, fine. Thank you.

MR GIBSON

To be perfectly honest, even fourteen days, I’m not going to get around to making my decisions in these cases in the next fourteen days, in any case, because of my hearing schedule, so what is the date today – the date is – today is the 9^th of August – the end of August would be about the earliest that I – I know that exceeds the fourteen days that we normally give, but that is the practicality, so if you wish to make written submissions, then let’s say the 30^th of August, is the closing date for those.

MR McDONNELL

Thank you.

MR GIBSON

That goes for the appellants of course too, if there is any other materials that they wish considered, yes and there is that document there too.

Now, I have asked for the visa application file in Rangoon to be sent to the Tribunal, although I suspect from materials on the file, on the DIMA file, that that has already been asked for, in both their cases, and it’s a matter of tracking that down.

Now, it would be incumbent upon me that if there is any materials there which is inconsistent with any of the evidence given by the appellants, that I would put that to them, in the form of a section 424A letter, so if that comes out then, then that will be forthcoming as well.

I do not know what is on those files. It has not been alluded to at all by the delegate so, mind you, then, the delegate hasn’t made much referral to any materials, actually.

MR McDONNELL

Well, at that time, I don’t know if it was the practice then to look for the …

MR GIBSON

If that material becomes available before I make my decision, and it’s inconsistent or contradicts evidence given by the appellants, then I will write a section 424A letter.

MR McDONNELL

Thank you.

MR GIBSON

That is about all I can think of at the moment. As I said, I will not be getting around to making a decision before the end of the month, because of my hearing schedule.

MR McDONNELL

Thank you for [letting] us know that.

MR GIBSON

I also have several detention cases which I have to deal with too, so, obviously they take priority at this stage. Okay. Do you understand all of that? We’ve been discussing written submissions and when I will be able to make my decision so, I can’t make a decision before the end of the month, so if you wish to make any submissions, you have until the end of the month to do so.

Okay, then based on any written submissions that you might make or any other materials that I might receive in the meantime, I will go from there, so, okay? You understand?

APPELLANT

[Through interpreter]

The form are filled out in Rangoon, are usually filled out by the agent.

MR GIBSON

Yes, I appreciate that but if they become available there is no guarantee that we can get them of course. They may become available, and I will certainly give them the appropriate weight to anything that is said there.

Now, in coming to my decision in both your cases, please understand that I will take into account all the various forms of information and evidence that I have. Now, this includes the materials contained within the Department’s file. The information and material in the Tribunal’s files. Your written submissions, any additional written materials which is forwarded, your oral evidence at the hearing, independent information, a little bit which I put to you during the oral evidence, and of course the [definition] of a refugee contained in the Refugee’s Convention.

Now, in coming to my decision, no one piece of information or evidence is more important than any other, but you must realise that I may give different weight to different pieces of information and evidence. Do you understand that? Yeah? So, that is the process that I go through in coming to my decision.

I am also constrained by what the Australian courts have had to say about refugee matters as well and that gets mixed into the decision making as well.” (Emphasis added)

52                  In a letter written to the Tribunal shortly after the hearing, the migration agent made a submission which included the following:

“4. At the hearing, the Tribunal conducted a very thorough enquiry into [the appellant’s] …histor[y]. This involved a detailed probing of [the appellant’s] … memor[y] on events that occurred many years back. In our submission [this] testimony was coherent, plausible, and essentially consistent in all respects with available country information and with the details given in [his] prior claims.”

FINDINGS OF THE TRIBUNAL

53                  After making some general findings regarding the activities of the appellant prior to 1988, the Tribunal made a number of findings adverse to the appellant, including the following:

“120. I am unable to accept that the applicant was detained in Insein Jail. I have read reports compiled from first hand accounts of prisoners in Insein jail (see Amnesty International, Myanmar Conditions in persons and labour camps, September 1995; and ABSDF, Cries From Insein, 1996). I can find no reference to prisoners being hooded whilst being interrogated over the time as the applicant claims he was. Indeed given the nature of the regime then operating in Burma, it is difficult to understand the purpose of hooding prisoners like the applicant. The applicant’s lack of knowledge about the prison, inconsistent information and his lack of information in relation to matters of prison life confirmed my view that he was not arrested and then detained in Insein prison as he claimed. He knew little about the prison routine or the jail in general, and avoided having to give such information by claiming solitary confinement and having been hooded by a blanket. I am not satisfied he was ever detained in Insein Prison.

121.          In light of the inconsistencies in his evidence, I am unable to accept that the applicant was arrested and incarcerated as he claims, whether in the local jail or in Insein Jail. Further, I am reluctant to accept that the applicant was in fact in Rangoon at this time. There is the difficulty with regard to which year of school he was in and there is no mention of the applicant having been resident in Rangoon in 1987 and 1988 in the applicant’s protection visa application. However, the independent information indicates that hundreds of thousands of Burmese took part in such demonstrations, including members of the police and the armed forces. I can give the benefit of the doubt to the applicant and accept that he participated in the demonstration in March 1988, but I am not satisfied that his involvement had any immediate or long term implications for the applicant, including being arrested, being detained in a local or Insein Jail or being denied enrolment in school.

122.          In this regard I note and accept that independent information that in regard to persons who were involved in the 1988 demonstrations in Burma, DFAT [Department of Foreign Affairs and Trade] advice (from the Australian Embassy In Rangoon in 1992) is that it is:

Important to remember that in 1988 many millions of Burmese were involved in the uprisings and it would be unlikely that such participation would lead to any adverse consequences. It is all a matter of degree and perceived hostility toward the government. (DFAT, 1992, CX8570).

A later DFAT Cable from Rangoon (1995) states that after the 1988 riots in Burma:

Many people were interrogated and presumably are on file with the intelligence agencies, but this has rarely been the basis for further harassment unless the person continues to participate on anti-government activities (you will be aware that the definition of anti-government activities can be very broad). Records appear to be kept in case further evidence against the person in question arises. (DFAT, 1995, CX9957).

A record of a telephone conversation on 14 November 1994 between Amanda Zappia of the Australia-Burma Council and the Research Unit of the RRT [Refugee Review Tribunal] quotes Ms Zappia as saying that:

If a person was in Burma for 15 months after the demonstrations it is unlikely that the authorities have any interest in them over their participation in the demonstrations. (A Zappia, 1994, Record of Telephone conversation between Amanda Zappia, Coordinator of Australia-Burma Council and RRT, 24 February 1994, RRT Library).

123.          The applicant claims that he was denied enrolment in school for his year 10 in Rangoon because of his claimed political activities. As I have found that he was not arrested and imprisoned, I am unable to accept that the applicant was denied enrolment for his political beliefs. He was just one of many who were involved in the protests at that time. In any case, schools would have been in recess at that time, as the applicant himself gave evidence that he had completed his exams on 16 March, and that the academic year runs from June until March. Independent information indicates that all schools were closed by the authorities at that time, including primary, middle and high schools, colleges and universities, because of the political unrest in June 1988. Only some high schools were reopened in September 1989. It is my view that the applicant has put a political gloss on the fact that he could not have been enrolled at that time, because all the schools were closed at that time.

Activities in Tanggok (also called Taungok, Taungup) in 1988

124.          The applicant claimed that he participated in the protests commencing on 8 August 1988, after joining the democratic group Ye Ye Taught or ‘Burning Fire’. In one account he claimed that that group included police and government officers, and that the group had to administer the town for the period 3 to 18 September 1988. The applicant claimed that there were only 12 soldiers in his town and his group surrounded them in their camp. Because there were over 1000 soldiers in the nearby town of Thandway (or Sandoway), he and his group destroyed three bridges between the towns to prevent the soldiers from coming to their town. The applicant, the chairman and 37 others of his group then left Taungok and crossed into Bangladesh by boat, taking protection with and helping to organise the Arakan Liberation Party/Arakan National Democratic Front there. The applicant claimed to have returned one month later under the general amnesty.

125.          At the hearing, the applicant gave a slightly different account of events. He claimed that after 8/8/88 the student union formed the group Ye Ye Taught or Burning Fire in Taungok, that the students took over the administration of the town, and that the army was surrounded in their hill top barracks by 3000 to 4000 towns people. He claimed that troops from Sandoway were sent after the military coup to kill or arrest the active members of the Burning Fire group and the administration group in Taungok. Although he claimed that he was not one of the student leaders or part of the group who administrated the town or burnt down the 100 metre long bridge to prevent the troops form coming to Taungok, he claimed that he was one of 30 people who left Taungok on a big motorised boat that night for Bangladesh, and joined the Arakan Liberation Party in Bangladesh for one month, before returning to Bangladesh because of health problems and because there were no arms in Bangladesh.

126.          The applicant’s story of his participation in the events in Taungok during August and September are inherently implausible and his accounts inconsistent. The applicant was 15 years old, when he claimed he participated. In his first account, although general and missing specific details, the inference is that he was a student leader, and active organiser and participant in the demonstration, subsequent administration of the town, the destruction of the three bridges, and as such, was included in the 39 who ‘escaped’ to Bangladesh on the boat, then to have helped organise the Arakan Liberation Party there.

127.          At the hearing, the applicant resiled from the inference of influence and leadership claimed in his statement. He admitted that he was not a student leader or organiser of the demonstration on 8 August 1988, saying that he had joined a group and handed out leaflets. When asked, he stated that he was not a part of the administration group in the town during September. When he was asked how the 100m long bridge was destroyed, he claimed it was not big, it was destroyed by fire, and that he was not part of the group who destroyed the bridge, and could not therefore provide any details of its destruction. From my own military experience, the applicant’s account of the bridge being small at 100 metres long and being destroyed by fire is a nonsense. In any case, his previous evidence was that three bridges between Taungok and Sandoway were destroyed by his group.

128.          A detailed examination of Taungok in the Microsoft Encarta Interactive World Atlas 2000, indicates that Taungok [is] not on the coast but some 10 kms or so inland on a small river. It is surrounded by saline marshes and salt deserts, and the nearby coast is salt lakes and lagoons. Taungup is some 300 kms from the Bangladesh border as the crow flies, and some 400 to 500 kms at least by boat, including the navigation of rivers, swamps, the islands off the coast of that part of Burma, and an open ocean crossing. He claimed that it took 15 hours to make the crossing to Bangladesh, but that he did not know how far it was. It is implausible that the journey took just 15 hours.

129.          The applicant did not say where in Bangladesh they made landfall, but claimed that they went to the Arakanese village of Nyitnaywa in the Chowdhury Bara area in Bangladesh. There is no record of any such village in the Microsoft Encarta Interactive World Atlas 2000. A variety of spellings were used, but no record exists of such a village. There are several towns or villages called Myitna in Burma, one of which is 50 kms east of Sittwe, north of Taungup. The applicant claimed that he spent a month in the village before returning to Burma through Maungdaw on 20 October 1988, where he was registered. He claimed that he returned under the general amnesty which was declared in the first week of October 1988. According to the wife’s evidence, the amnesty was declared in early December 1988. He claimed that he met his future wife in the village in Bangladesh.

130.          In the light of the applicant’s inconsistent and implausible evidence, I am unable to accept that after the demonstrations of August 1988, the applicant was involved, in whatever capacity, with the administration of his town, that he was involved in the destruction of a bridge or bridges, or that he ‘escaped’ from Burma to Bangladesh by boat and spent a month in Bangladesh. As to the claim to have participated in the demonstrations in August 1988, I have some doubts about the account the applicant gave about this activity. The detail he provided was scant and general, the sort of information that would come from newspapers and magazine articles, rather than from being a participant in the event. However, despite this, I give the applicant the benefit of the doubt and accept that he was a participant in the 8/8/88 demonstrations in Taungup.

131.          I am satisfied that the applicant took part in demonstrations in Taungup in August 1988. However, hundreds and thousands of Burmese took part in such demonstrations, including members of the police and the armed forces. In light of this, I am unable to accept that the applicant left Burma and stayed in Bangladesh for one month after the September 1988 military coup. I am not satisfied that his involvement in the protests had any immediate or long term implications for the applicant. In this regard I note and accept the independent information that in regard to persons who were involved in the 1988 demonstrations in Burma, DFAT advice (from the Australian Embassy in Rangoon in 1992) is that it is:

Important to remember that in 1988 many millions of Burmese were involved in the uprisings and it would be unlikely that such participation would lead to any adverse consequences. It is all a matter of degree and perceived hostility toward the government. (DFAT, 1992, CX8570).

A later DFAT Cable from Rangoon (1995) states that after the 1988 riots in Burma:

Many people were interrogated and presumably are on file with the intelligence agencies, but this has rarely been the basis for further harassment unless the person continues to participate on anti-government activities (you will be aware that the definition of anti-government activities can be very broad). Records appear to be kept in case further evidence against the person in question arises. (DFAT, 1995, CX9957).

A record of a telephone conversation on 14 November 1994 between Amanda Zappia of the Australia-Burma Council and the Research Unit of the RRT quotes Ms Zappia as saying that:

If a person was in Burma for 15 months after the demonstrations it is unlikely that the authorities have any interest in them over their participation in the demonstrations. (A Zappia, 1994, Record of Telephone conversation between Amanda Zappia, Coordinator of Australia-Burma Council and RRT, 24 February 1994, RRT Library).

132. The applicant claimed that he was detailed for two days and mistreated by the military intelligence in October 1988 when he visited his grandfather in Yambe without informing the authorities. I accept that the applicant may have been detained for unauthorised travel to Yambe, although I note that there is no record of a Yambe in Burma in the Microsoft Encarta Interactive World Atlas 2000. The independent information indicates that Burma continues to have a pervasive security apparatus which intrudes generally on all civilian life. All persons are required to report to the local authority when staying overnight in other than their permanent residence, even for example if only one night visiting relatives. While this requirement is ‘often ignored’, the extent of monitoring, reporting and ‘dobbing’ would make it extremely difficult to be able to continually avoid the attention of the authorities. However, I am unable to accept that the applicant was detailed and interrogated about contacts in Bangladesh. I am of the view that the applicant was putting a political gloss on what was a normal procedure by the military authorities, as intrusive and discriminatory as it was.

…

138.          After one month the applicant claimed that he returned to Rangoon in the company of smugglers. On approaching Rangoon, he claimed that he was arrested and detained at a check point by the authorities, and conveyed to Insein Jail. He claimed that he was imprisoned for two years there. He claimed that he did not know that he was in Insein Jail for six months because he was in solitary confinement. Afterwards, he claimed to have been incarcerated in special hall number 4 with two others in a room ‘8 x 10’. He claimed that he met only two other people while in the jail, and that when they opened the cells, they did so one at a time so that no one else was encountered. The applicant was quick to gloss over his time in jail, avoiding giving any details of the routine, procedures or how the jail was organised, information which an inmate of two years would readily know. It was obvious that the applicant knew nothing other than a few general things about Insein Jail.

139.          I am unable to accept that the applicant was detained in Insein Jail. As I have indicated above, I have read reports compiled from first hand accounts of prisoners in Insein jail (see Amnesty International, Myanmar Conditions in prisons and labour camps, September 1995; and ABSDF, Cries from Insein, 1996). There is nothing that indicates that inmates are put immediately into solitary confinement or that they could not know that they are in Insein Jail. The applicant’s lack of knowledge about the prison, inconsistent information and his lack of information in relation to matters of prison life confirmed my view that he was not arrested and then detained in Insein prison as he claimed. He knew little about the prison routine or the jail in general, and avoided having to give such information by claiming solitary confinement and incarceration in a cell with two others. I am not satisfied he was ever detained in Insein Prison.

140.          After his return to Taungup from Rangoon, the applicant claimed that he was involved with his father’s business, but because of harassment by the military intelligence, he moved from village to village because he felt threatened. He claimed that his father sent him to Rangoon in June 1991 to help with the business, and in December 1991 or 1992 (depending on which account is taken) he was married. He claimed that he was periodically questioned by military intelligence. I am unable to accept the veracity of the applicant’s evidence that he was harassed and questioned periodically by military intelligence in this regard, as I was unable to accept that the applicant had been incarcerated for two years as he claims. In any case, as previously mentioned, the general pervasiveness of the authorities monitoring of the general population would preclude moving from place to place as claimed by the applicant.”

THE APPLICATION FOR JUDICIAL REVIEW

54                  As mentioned, the case for the appellant advanced at first instance was that the use by the Tribunal of the undisclosed material mentioned in a manner which was adverse to the appellant, was a breach of the rules of natural justice, in that procedural fairness was not afforded; that this was a jurisdictional error; and, that relief by way of certiorari, mandamus, prohibition and injunction should be granted pursuant to s 39B of the Judiciary Act. Further, it was contended that the privative clause did not preclude the grant of this relief, because jurisdictional error of this kind was within the exceptions to the operation of such a clause. In any event, it was said, it should be declared that s 474 is invalid, as impermissibly attempting to confer judicial power upon the Tribunal, contrary to Chapter III of the Constitution; or, if s 474 is to be construed so as to exclude relief where there has been a breach of natural justice, it is invalid as inconsistent with s 75 of the Constitution.

55                  It was contended that a denial of natural justice, being a kind of jurisdictional error which had not been validly excluded from judicial review by “plain words of necessary intendment”, was not immune from review by virtue of s 474. It was submitted that the provision of natural justice, or procedural fairness, was a fetter on the lawful exercise of a power, and, unless it was expressly excluded by the legislature, obedience to its requirements was a necessary and indispensable prerequisite to the making of a valid decision. It was thus submitted that a denial of procedural fairness is an error going to jurisdiction, for which prohibition will be granted.

56                  On behalf of the Minister, the Solicitor-General, on the other hand, submitted that s 474(1) is in substantially similar form to the privative clause considered in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598, where Dixon J, in a “classic” passage, said (at 614 – 615):

“The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of [the privative clause] is will established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.” (Emphasis added)

57                  The Solicitor-General contended that Dixon J thus identified, in this connection, three pre-conditions to the valid exercise of decision-making powers, that is to say, a decision (1) which is “a bona fide attempt to exercise … power”; (2) which “relates to the subject matter of the legislation”; and (3) which “is reasonably capable of reference to the power …”.

58                  It was submitted for the Minister that the effect of a privative clause is not to oust the jurisdiction of the courts, but to broaden the lawful authority of decision-makers protected by such a clause, so that their jurisdiction is defined only by the Hickman conditions, with any other apparent restrictions on the exercise of power being construed as directory in nature.

59                  The Solicitor-General accepted that, since the operation of a privative clause is a rule of construction only, it remains possible, in an appropriate case, where the parliamentary intent is clear, to establish that a particular restraint expressed in the relevant legislation is also a pre-condition to the valid exercise of power. In such cases, constitutional writs will be available in the event of infringement of such an “inviolable” restraint.

60                  The Solicitor-General referred to par 16 of the Revised Explanatory Memorandum relating to s 474(1) in these terms:

“The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful.”

61                  The Solicitor-General also referred to the following explanation in the Second Reading Speech by the Minister:

“The bill gives legislative effect to the government’s long-standing commitment to introduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances. This commitment was made in light of the extensive merits review rights in the migration legislation and concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia … .

… The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently.

In practice, the decision is lawful provided:

·                   The decision maker is acting in good faith;

·                   The decision is reasonably capable of reference to the power given to the decision maker – that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member;

·                   The decision relates to the subject matter of the legislation – it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and

·                   Constitutional limits are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise.”

62                  It was submitted by the Solicitor-General that, given the clear statement of the object and desired effect of the legislation in the Explanatory Memorandum and Second Reading Speech, and given that the privative clause was inserted as an amendment to an existing Act, there was no real scope to contend that any of the express limitations previously existing in the Act were “inviolable” and thus not intended to be overridden by the privative clause.

63                  Further, it was submitted for the Minister that, in context of the Act, Parliament had indicated that the rules concerning natural justice (except to the extent, if at all, that they fell within the “Hickman conditions”) do not go to the jurisdiction of the Tribunal, in the sense of what is necessary if judicial review may be granted despite the language of s 474(1).

THE PRIMARY JUDGE’S REASONS

Construction of s 474

64                  Gyles J said (at [29] – [30]):

“Something of a conundrum lies at the heart of the debate. Prohibition does not lie save for jurisdictional error. Anything less than jurisdictional error will not found prohibition. On the other hand, it is clear that if Hickman is correct, then there are jurisdictional errors and jurisdictional errors, in the sense that some will, whilst others will not, be affected by a privative clause. The work which Hickman does is to define those jurisdictional errors which will found the prerogative writs notwithstanding the privative clause. It is not as if Hickman had been decided before the application of the prerogative writs to administrative bodies for what might be called constructive failure to exercise jurisdiction … .

…

Merely because if a privative provision is ignored there would be jurisdictional error such as to ground entitlement to prohibition it does not follow that the privative provision may be ignored and prohibition granted despite it. To conclude that prohibition will go in all cases of jurisdictional error of the type identified in Craig v South Australia (1995) 184 CLR 163 particularly at 179 and all cases of breach of the rules of natural justice would be to ignore the clear distinction drawn in Hickman and render s 474 and like privative clauses virtually devoid of content (see Zines, Constitutional Aspects of Judicial Review of Administrative Action, (1998) 1 Constitutional Law and Policy Review 50 at footnote 41).”

 

(It should be explained that in the citation by Gyles J, Leslie Zines had said:

 

“It is not clear whether [Gaudron and Gummow JJ in obiter observations in Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 631] were using ‘jurisdiction’ in the narrower or broader sense discussed in Craig. If the latter, there would be few if any non-jurisdictional errors for the privative clause to protect.”)

65                  Gyles J observed (at [32]):

“The recognition that Hickman is, at heart, a rule of statutory construction (see Darling … Casino per Gaudron and Gummow JJ at 631) is of no assistance to the applicants in the present case. There is no express provision of the Act inconsistent with s 474(1) which arises in the present case.”

66                  Gyles J concluded (at [34] – [35]):

“…It should be clear that I am considering only that kind of procedural fairness (or lack thereof) which may be involved in the use of the kind of information in question here by the Tribunal. I am not intending to answer an abstract question as to whether a privative clause can exclude natural justice. The Act must be construed as it now stands, including s 474 and including the express prescriptive provisions governing the procedure of the Tribunal in Div 3, Div 4 and Div 5 of Pt 7. In the case of a breach of any of those express provisions, a question of statutory construction would arise as to reconciliation of that provision with s 474. A good example would be if the facts in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 arose now. The process of construction would include application of the principles enunciated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. This was the approach in principle taken by Mansfield J in Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167. The particular result in that case is of no consequence to the argument in this case.

I accept the substance of the submissions of the Solicitor General. In my opinion, s 474 operates according to its terms, which are inconsistent with the existence of implied duty to afford procedural fairness by supplying information going beyond the requirements of Div 4 of Pt 7 of the Act, no matter upon which theory any such implication would be drawn.”

67                  His Honour went on to say (at [35] – [36]):

“This conclusion [that s 474 operates according to its terms] is reinforced by the passages from the Explanatory Memorandum and Second Reading Speech to which I have referred. In my opinion, it is not legitimate to construe the Act on the basis that s 474 did not exist, particularly in relation to a version of the Act which had radically different judicial review provisions, conclude that a duty to afford natural justice existed and then ask whether s 474 takes away the corresponding right.

The course of High Court decisions has established the Hickman exceptions as authoritative and exhaustive. The principles have been referred to very recently by Gaudron and Gummow JJ in Minister for Immigration & Multicultural Affairs v Bhardwaj at [47], with whose reasons in this respect McHugh J agreed, and by Gaudron J in Miah at [102]. Even if teased out in the manner favoured by the authors of Aronson & Dyer, Judicial Review of Administrative Action, 2^nd Ed, at p 691, the exceptions do not include breach of an implied duty to accord procedural fairness of the type that is alleged here. The remark by Dawson J in O’Toole most naturally relates to bias, as at least some, and perhaps all, examples of bias would negate the bona fides of the decision and so fall within the first Hickman exception.”

(In O’Toole v Charles David Pty Ltd (1991) 171 CLR 232, Dawson J had remarked (at 305):

“Whilst it must be possible to call evidence in support of a contention that an award has not been made bona fide (I would take the requirement of bona fides to embrace at least some aspects of natural justice) or in support of a contention that does not relate to the subject matter of the legislation, this does not open an award to attack upon the basis of some mere defect or irregularity which is not such as to deny the power to make it.” (Emphasis added))

Constitutional validity

68                  On the question of the constitutional validity of s 474, it was submitted on behalf of the appellant that s 474 invalidly purports to vest part of the judicial power of the Commonwealth in the Tribunal, that is, in persons who are not judges appointed in the terms of s 71 of the Constitution, and in bodies which are not courts in terms of s 71 and Chapter III. Yet, the argument went, a decision of the Tribunal is a decision as to whether a person satisfies the definition of a refugee. Thus, it is a determination of an existing right or status, not the creation of a new right or a new status. But the conclusive determination of current rights is the province of the judiciary. Yet the application of the Minister’s interpretation of the Hickman doctrine puts the administrator in a position of final arbiter, not only on questions of procedure but on questions involving the interpretation of an international Convention (the Refugees Convention) and the domestic law governing the administrator’s decision-making power. The effect of s 474 is thus to make the Tribunal the final arbiter on questions of law. It is, emphatically, the province and duty of the legal department to say what the law is. On the Minister’s interpretation of s 474, that duty, reserved under Chapter III of the Constitution to courts, has been given to an administrative decision-maker. It was submitted that the provision is thus inconsistent with Chapter III.

69                  The Solicitor-General, on the other hand, submitted that it was a common, if not essential, characteristic of judicial power that it involves the making of a binding, authoritative and enforceable decision as to existing legal rights, citing Abebe v Commonwealth (1999) 197 CLR 510 at [164] and Attorney General (Commonwealth) v Breckler (1999) 197 CLR 83 at [41]. The Solicitor-General then submitted that this characteristic is not present in the decision to grant or refuse a protection visa under the Act, as the determination is only upon a question whether a new right should be granted. He submitted that this is established by the decision of the Full Federal Court in SZ v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 342.

70                  Gyles J held that the submissions of the Solicitor-General were “plainly correct”, citing SZ,per Branson J at [37] – [41].

71                  Counsel for the appellant accepted that Gyles J was bound by the decision of the Full Federal Court in SZ, but submitted, formally, that it was incorrectly decided. However, Gyles J held that SZ remained authoritative on the point. In relation to the question of suggested inconsistency with s 75(iii) & (v) of the Constitution, it was submitted on behalf of the appellant that, if s 474 were to be construed as contended by the Solicitor-General, then it narrows the scope of the constitutional writs contemplated by s 75(v), to the point where s 75(v) has no practical application; and this amounts to a de facto withdrawal of jurisdiction from the High Court, contrary to the Constitution.

72                  Gyles J said (at [44] – [45]):

“The fallacy inherent in this submission has been explained in the High Court decisions to which I have referred, from Hickman on, when dealing with the operation of s 474. See also Zines (above) and Kirk, ‘Administrative Justice and the Australian Constitution’ in Creyke and McMillan (eds) Administrative Justice – the Core and the Fringe (AIAL) 2000. So far as the present case is concerned, there is no constitutional inhibition upon the legislature defining the procedure of a tribunal so as to exclude all the rules of natural justice that might otherwise be implied. As Hayne J put it recently in Aala [Re Refugee Tribunal and another; Ex parte Aala (2000) 204 CLR 82] at [166]:

‘… the Parliament may lawfully prescribe the kind of duty to which an officer of the Commonwealth is subject and may lawfully prescribe the way in which that duty shall be performed.’

As a postscript, it is not clear to me how that success on this aspect would lead to this Court having jurisdiction under s 39B of the Judiciary Act.”

Common law rules of natural justice

73                  Although not strictly necessary for him to do so, Gyles J proceeded to consider whether, absent the privative provision, relief would have been granted pursuant to s 39B of the Judiciary Act.

74                  His Honour noted that the reasons of the Tribunal identified twenty-one sources of country information which were regarded as inconsistent with, or adverse to, the claims of the appellant, although the Tribunal did not inform the appellant or his migration agent of them. The information set out in those documents (which documents are described in the annexure to these reasons) came from a range of sources, some in the public domain and some from the Department of Foreign Affairs and Trade (“DFAT”).

75                  Gyles J said (at [48]):

“It is obvious that the Tribunal member regarded himself as free to consult whatever sources, either public or private, were available to him as to the situation in Burma in the years that the applicant lived there and subsequently. It is also a fair inference that the documents actually referred to in the detailed reasons of the member of the Tribunal could not have been the totality of sources consulted by him, but, rather, were a selection which were regarded as of relevance to the reasoning of the Tribunal member. I may be permitted to say that it is obvious, both from many reported cases concerning proceedings of the Tribunal and from the dozens (or hundreds) of such cases that I have seen, that this process is commonplace. Indeed, this type of material has become known by the generic name ‘country information’.”

76                  His Honour considered an example of the reasoning of the Tribunal which was complained of by the appellant (at [49] – [51]):

“The applicant had given an account of having been imprisoned in Insein Prison, where he was interrogated and mistreated for two weeks, then put into a small cell for two months until being released. He claimed that when he was taken out of his cell he was hooded with a blanket, this accounting for his inability to remember detail about the prison. The Tribunal member said:

‘I am unable to accept that the applicant was detained in Insein Jail. I have read reports compiled from first hand accounts of prisoners in Insein jail (see Amnesty International, Myanmar Conditions in prisons and labour camps, September 1995; and ABSDF, Cries from Insein, 1996). I can find no reference to prisoners being hooded whilst being interrogated over the time as the applicant claims he was. Indeed given the nature of the regime then operating in Burma, it is difficult to understand the purpose of hooding prisoners like the applicant. The applicant’s lack of knowledge about the prison, inconsistent information and his lack of information in relation to matters of prison life confirmed my view that he was not arrested and then detained in Insein prison as he claimed. He knew little about the prison routine or the jail in general, and avoided having to give such information by claiming solitary confinement and having been hooded by a blanket. I am not satisfied he was ever detained in Insein Prison.’

…

The applicant NAAV has given evidence that, if he had known that the Tribunal was to refer to those sources, he could have referred the Tribunal to references to prisoners being hooded in Insein Prison in a book entitled ‘Tortured Voices – a Personal Account of Burma’s Interrogation Centres’, published by the All Burma Students Democratic Front in July 1998 – the same organisation that apparently published ‘Cries from Insein’ referred to by the Tribunal member. The publication to which the applicant NAAV refers does have a reference to prisoners in Insein Prison being hooded.”

77                  However, Gyles J found that, although this example illustrated that the appellant might have been able to refer to credible countervailing material which would support his claims in relation to an important aspect of his account, “there are difficulties both in principle and in practice in having the duty to afford natural justice descend to such a level of detail in this statutory context”. The difficulty in principle, his Honour said, was that an applicant for protection does not have any case to meet.

78                  Gyles J said (at [52]):

“The statutory process in Div 4 of Pt 7 of the Act is designed to afford an opportunity to the applicant to produce his or her case, with supporting material, in writing and in person. The case is then considered behind closed doors by the member of the Tribunal performing the function of an administrator. The member of such a tribunal is, or becomes, by way of being an expert in the circumstances of various countries, and must assess what is claimed by the applicant in the light of that knowledge. As such knowledge cannot all be carried in the head, a library of it must be available. Evaluation of the credibility of an account given by an applicant is subjective and depends upon many factors, including observations of an applicant at the hearing, in circumstances where the Tribunal member will usually have considered other cases with a similar claimed history and patterns will often have emerged. There is obviously always a mass of country information available. Much would be taken for granted. Much would be debatable. A selection of that which is relevant to the particular case depends upon the way in which the member views the case. The judgment as to the issues upon which external country information will be relevant is entirely a matter for the Tribunal member. There is no obligation to consider any or any particular country information. Disclosure of particular country information to an applicant is, in essence, to reveal the process of reasoning of the Tribunal.”

79                  In relation to the practical difficulties in imposing such a duty on the Tribunal, Gyles J said (at [53]):

“The problems in practice are formidable. The Tribunal is obliged by the Act to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420). There has been much emphasis in the cases upon the elements ‘fair’ and ‘just’, but little upon the elements ‘economical’, ‘informal’ and ‘quick’. The code of procedure which governs the Minister is also designed for dealing ‘fairly, efficiently and quickly’ with visa applications (s 52). The role of a court is not to prefer one objective over another. To do so is to subvert the will of the legislature. Achieving all of these objectives in a high volume jurisdiction necessarily requires balance and compromise. As this, and many other cases, show, the system has failed lamentably in relation to speed and economy, and perhaps in informality. Delays and cost in finalising applications for visas, including, and perhaps in particular, protection visas, may be assumed to have pernicious effects which courts are ill-equipped to understand.”

80                  After reviewing the provisions of the Act relating to the requirements of procedural fairness and the several judgments in the High Court in Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889, his Honour said (at [79]):

“The differences in expression in the judgments, and the bland nature of the orders made, leave some room for doubt as to precisely what was decided in Miah. It was certainly decided that what the statute described as a code of procedure [see below], and was described by successive Ministers as a code intended to replace the uncertain common law requirements of natural justice, was not such a code. In my opinion, the gravamen of the decisionis that the delegate should have informed the applicant that he was proposing to take into account the new circumstances constituted by the election results and the effect of the change of government upon the current security situation in Bangladesh in considering whether protection would be afforded if the applicant returned to Bangladesh, and given the applicant the opportunity of commenting upon that and providing such information as he wished in relation to that matter. Put shortly, the applicants should have been advised of the substance of the possibly adverse (and critical) issue. I do not regard the decision as requiring production of the country information which the delegate had bearing upon that issue to the applicant. Apart from the fact that this is what I deduce from a fair reading of the critical portions of the judgments, this understanding best fits with the express provisions of subdiv AB. A distinction can be drawn between appraising an applicant of the substance of the case which has to be met, on the one hand, and the provision of ‘information’ on the other, the latter being dealt with by s 57 (particularly s 57(1)(b))[see below] but also by ss 54, 55, 56 and 58.”

81                  (Subdivision AB of Div 3 of Part 2 of the Act (ss 52 – 64) is entitled “Code of procedure for dealing fairly, efficiently and quickly with visa applications”.)

82                  Section 57 imposes upon the Minister (and, accordingly the Tribunal) the following requirement:

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

(a)                would be the reason, or a part of the reason, for refusing to grant a visa; and

(b)                is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c)                 was not given by the applicant for the purpose of the application.

(2)               Subject to subsection (3), the Minister must:

(a)               give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)               ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)                invite the applicant to comment on it.

(3)               This section does not apply in relation to an application for a visa unless:

(a)               the visa can be granted when the applicant is in the migration zone; and

(b)               this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.” (Emphasis added))

83                  Gyles J added (at [79]):

“It is not possible to ignore those express provisions or obliterate the distinction which they draw between personal and general information, particularly as that distinction echoes that drawn by Mason J in the passage from Kioa I have set out above. This would also give some effect to the clear legislative intent reflected in the Second Reading Speeches of Ministers in successive governments. In my opinion, the decision in Miah does not travel beyond the facts of the case before the Court – a new event or circumstance which arose after the last communication between the delegate and the applicant.”

84                  (The passage from Kioa v West (1985) 159 CLR 550 from the judgment of Mason J (at 587) was this:

“In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: In re HK (An Infant) [[1967] 2 QB 617].” (Emphasis added))

85                  For the appellant, it was also submitted that the Tribunal misled the appellant by what it said in relation to country information, leading the appellant to believe that no country information would be utilised. However, Gyles J found (at [83]) that “[w]hilst there may have been room for misunderstanding at an earlier stage, by the completion of the hearing I think it is clear that the Tribunal member was intending to refer to country information in accordance with well-established practice”.

86                  In relation to the appellant’s complaint that in the course of his reasons, the Tribunal member referred to his own military experience in assessing some evidence, Gyles J (at [84]) saw –

“…no difficulty in such a person using his or her knowledge and experience to assess the credibility of what is put before them. It is not realistic to expect compartmentalisation of knowledge. It is not feasible to disclose all such knowledge or experience. It may be different if, for example, due to involvement in some particular experiment or incident out of the ordinary course, a particular fact was known.”

87                  For the appellant, it was also argued that the Tribunal’s use of a particular map to check the appellants’ version of events, which caused the Tribunal to doubt the veracity of those events, could have been remedied if the appellant had known that it was to use the map in this way, as he could have tendered other material which would have corrected “misconceptions” of the Tribunal. However, his Honour found he could not, in principle, distinguish the use of the map from the use of the other “country information”.

the grounds of the appeal

88                  By the grounds of his appeal, the appellant raises the following questions:

(1) Whether the Court should have found that the Tribual failed to comply with the rules of natural justice by (a) misleading the appellant by telling him that it would advise him of any “independent information” in its possession and that it would give the appellant an opportunity to comment on those documents, but then utilising twenty-one undisclosed documents; (b) failing to disclose to the appellant, or his advisor, any of the documentary information upon which it relied in making adverse findings as to the appellant’s credit; and (c) failing to disclose to the appellant that the member would use his own military experience in assessing the veracity of the appellant’s claims.

(2) Whether the Court erred in finding that s 474 operates to exclude any implied duty on the part of the Tribunal to afford procedural fairness by supplying information going beyond that required to be disclosed pursuant to Div 4 of Part 7 of the Act.

(3) Whether the Court should have found that, in the absence of clear words of necessary intendment, s 474 does not operate to exclude any duty on the Tribunal to afford procedural fairness.

(4) Whether the Court should have held that s 474 was beyond constitutional power in that it (a) reserves to administrative decision makers and others who are not Chapter III judges a part of the judicial power of the Commonwealth; and (b) is inconsistent with pars 75(iii) and 75(v) of the Constitution.

89                  The appellant now seeks orders allowing the appeal, and, in lieu of the dismissal of his application, an order under s 39B of the Judiciary Act setting aside the Tribunal’s decision and remitting the matter to the Tribunal for a fresh hearing.

CONCLUSIONS ON THE APPEAL

90                  It will be convenient to turn first to the construction of s 474(1) in order then to consider the challenge to its constitutional validity.

The operation of s 474(1)

91                  Provisions, such as s 474(1), which purport to “oust” the jurisdiction of the courts to exercise their ordinary powers of judicial review of administrative action, have been enacted in a wide range of contexts, and have received a settled interpretation.

92                  An early illustration is the decision of the Privy Council, on appeal from the Supreme Court of Victoria, in The Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 where the Privy Council considered the operation of a statutory provision taking away, in the case of the Court of Mines, the Supreme Court’s general inherent power to issue a writ of certiorari to an inferior court or tribunal. The Court of Mines had, ex parte, ordered the winding up of a registered mining company on the ground of non-compliance with a statutory demand by a party claiming to be a creditor. The Supreme Court had quashed the winding up order on the grounds that the company had not been given sufficient notice of the hearing of the petition, and that the creditors had facts in their possession which they were bound to disclose to the Court, but which they did not, including the fact that, in truth, there was no debt.

93                  In holding that the privative clause operated to deprive the Supreme Court of its power to issue certiorari in these circumstances, and accordingly allowing the appeal, the Privy Council (Sir James W Colvile) said (at 442):

“There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen’s Bench will grant a certiorari; but some of those authorities establish, and none are inconsistent with, the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it.”

94                  (There is no suggestion of fraud, or lack of good faith in any of the appeals before us.)

95                  Their Lordships went on to say (at 442 – 443):

“In order to determine [whether there was a want of jurisdiction in the Court of Mines] it is necessary to have a clear apprehension of what is meant by the term ‘want of jurisdiction.’ There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal, or upon the nature of the subject-matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry. It is obvious that conditions of the last differ materially from those of the three other classes. Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which, whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that the Judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject-matter, he properly entered upon the inquiry, but miscarried in the course of it. The superior Court cannot quash an adjudication upon such an objection without assuming the functions of a Court of appeal, and the power to re-try, a question which the Judge was competent to decide.”

96                  Willan was cited by Isaacs J in the early High Court case of Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114 at 157, where a similar approach was taken to the operation of a privative clause in industrial arbitration legislation (per Griffith CJ at 131 – 132; per Barton J at 139 – 140; per O’Connor J at 148 – 149; per Isaacs J at 162).

97                  Isaacs J also applied Willan in a broader context in Wall v The King; Ex parte King Won and Wah On (No. 1) (1927) 39 CLR 245 at 256.

98                  Willan was also cited by Starke J in considering an industrial arbitration privative clause in Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161. Starke J said (at 183):

“In my opinion, reg. 17 excludes any appeal whatever from any award or order of the Conciliation Commissioner in relation to industrial disputes referred to him under sec. 16 of the Industrial Peace Regulations. Effect can only be given to reg. 17 by treating the words, award, order or determination, as meaning acts in fact done by the tribunal in the supposed exercise of the powers entrusted to it. To confine the meaning of those words to acts done lawfully and within the jurisdiction of the tribunal ignores the clear, distinct and unmistakable intent of the regulation. Prohibition at common law was the appropriate remedy for restraining inferior Courts from exceeding their jurisdiction, and yet this remedy is withdrawn by the regulation: See Baxter’s Case; Morgan and Australian Workers’ Union v. Rylands Bros. (Australia) Ltd.; Clancy v Butchers’ Shop Employees Union; Colonial Bank of Australasia v Willan.” (Footnotes omitted)

99                  In Hickman, above, Dixon J (at 615) cited both Baxter and Aberfield Coal. The Willan doctrine, it seems, is the source of what is now referred to as the “Hickman principle”, as has been noticed by H W R Wade & C F Forsyth in their work Administrative Law,8^th ed. 2000 at pp 712 – 713. Noting that Australian legislation has made “free use” of ouster clauses, and that “[p]articularly drastic formulae” have been employed in the attempt to prevent the courts interfering with bodies administering industrial legislation, the authors state, correctly in my view, that the High Court’s solution to the problem has been as follows:

·                    However strong (as here) the ouster clause, to retain power to quash “for plain excess of jurisdiction”, but not for “mere error of law”, citing Houssein v The Under Secretary, Department of Industrial Relations and Technology (NSW) (1981 – 1982) 148 CLR 88. There, Stephen and Brennan JJ said (at 95):

“[The privative clause] reflects the determination of the legislature to prevent the important work of the Arbitration Court, later the Commission, in the field of industrial matters from being impeded by constant resort to the Supreme Court for the issue of prerogative writs, and to do so by allowing some excess of jurisdiction to pass without exposure to judicial review.”

·                    Not to intervene “where the tribunal has made a bona-fide attempt to exercise its authority in a matter relating to the subject with which the legislation deals and capable reasonably of being referred to the power possessed by the tribunal”. Citing Dixon J in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 398, Wade and Forsyth observe that “this doctrine appears to derive from the reference to ‘manifest defect of jurisdiction’ in … Willan…”.

·                    On this principle, the High Court has refused relief where a tribunal was said to have exceeded its jurisdiction by misconstruing “lock-out” (citing Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437). But it has granted prohibition, despite express ouster of that remedy, where a board sat without the statutory quorum required for it to function validly (citing Proctor, above); and where a board made an error of jurisdictional fact in finding that workers were eligible for membership of a particular union (citing R v Coldham; Ex parte Australian Workers Union (1982 – 1983) 153 CLR 415) (the authors observing also that Hickman was “similar[ ]”).

100               As Wade and Forsyth observed (at 713 – 714), accurately in my view, this distinction is “plainly difficult to apply in borderline cases”; but the High Court’s “compromise” is a “brave endeavour” to strike “some sort of balance between legislative intention and constitutional logic”.

101               Many other illustrations of the validating operation of privative clauses in cases in the High Court and this Court may be given; and it would be wrong to suggest that the Hickman principle is “out of date”, or has somehow “served its purpose” in war-time conditions. For instance in the High Court:-

·                    In R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Amalgamated Engineering Union (Australian Section) (1968) 118 CLR 219, on an application for prohibition and mandamus, although Kitto J was of the opinion that the Commission had erred in law making an award settling a dispute as to wages, a privative provision validated the award since the three Hickman provisos were satisfied in the circumstances of that case (at 252 – 254). Although Menzies J was of the view that the Commission had not erred, if he had been of the contrary opinion, he would have held that the privative clause protected the award from interference by the Court (at 264 – 265).

·                    In O’Toole, above, the Full High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) held that although a privative provision cannot preclude a constitutional challenge, a purported award will attract the protection of the provision if the three Hickman provisos are satisfied.

·                    In Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1994 – 1995) 183 CLR 168, the High Court considered the application of the Hickman principle to a privative clause (s 177) in income tax legislation (at 179 – 180, 193 – 194, 205, 210 – 211, 222, 233 and 240).

102               In this Court, reference may be made to the following cases where the Hickman principle has been applied, without any reservation (in chronological order):-

·                    In Sunrise Auto Limited v Commissioner of Taxation (1995) 61 FCR 446, Beaumont and Beazley JJ (at 467 – 470, 472) applied Hickman and Walter.

·                    In Hoare Bros Pty Ltd v Commissioner of Taxation (1996) 62 FCR 302, Black CJ, Einfeld and Sackville JJ (at 312 – 314) applied Walter (and thus Hickman). In Hoare, the Full Court said (at 314 – 315):

“In Richard Walter at 186, Mason CJ repeated the substance of the analysis that had been put forward in F J Bloemen. Brennan J (at 197) considered that an assessment made in bad faith could be challenged, despite the terms of s 175:

‘It is conceivable that a purported assessment could be made in bad faith so as to forfeit the protection which s 175 would otherwise confer on the assessment. If such a case were to occur, neither s 175 nor s 177(1) would transform the purported but invalid assessment into a source of liability. The purported assessment would be a nullity. But an assessment which has been made on a bona fide attempt to exercise the power to make it is not invalid merely on account of a disconformity between the amounts assessed and the amounts properly assessable under the general provisions of the Act.’

Deane and Gaudron JJ (at 211) expressed the scope for challenge somewhat more broadly:

‘….[Section] 175’s protection from invalidity is applicable only if the purported ‘assessment’ (i) is a ‘bona fide attempt’ by the Commissioner or other authorised officer to exercise powers conferred by the Act; (ii) ‘relates to the subject matter’ of the Act and (iii) ‘is reasonably capable of reference to’ those powers. If a purported ‘assessment’ does not satisfy those three requirements, the protection of s 175 will be unavailable and the purported ‘assessment’ will be invalid.’ [Footnotes omitted.]”

·                    In Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175, Spender, Burchett and Hill JJ (at 185 – 186) applied Hickman and Walter in considering whether a privative clause “rendered [an] assessment immune from attack as to its validity”:

“This principle of construction is set out in the judgment of Dixon J in R v Hickman; Ex parte Fox (1945) 70 CLR 598 at 614. The decision of the High Court in Richard Walter confirms that the Hickman principle of construction applies equally to the privative provisions of s 167 and it must follow would equally apply to the provisions of s 67 of the No 1 Assessment Act.

Section 67 will therefore operate to preclude a court from examining the validity of an assessment once a notice of assessment is tendered, provided always:

(1)               that there has been a bona fide attempt to exercise the power of assessment;

(2)               that that attempt to exercise the power of assessment relates to the subject matter of the legislation, in the present case the sales tax legislation; and

(3)               that the exercise of the power of assessment is reasonably capable of reference to the power given to the Commissioner.

The fact that an assessment may be wrong could never enliven the Hickman principle. Provided that in making the assessment the Commissioner made a bona fide attempt to assess the relevant tax or (in the case of sales tax having regard to the definition of ‘assessment’ in s 3(1) of the No 1 Assessment Act) to ascertain the sale value of relevant goods and the sales tax payable on that sale value, that notice of assessment will be immune from attack.”

·                    In Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317, Wilcox and Madgwick JJ (Moore J agreeing) held that a decision of the AIRC was not only erroneous in law, but the error was jurisdictional, and would, absent the privative clause, have attracted prerogative relief. However, the Court applied the Hickman principle (at [90]):

“90 In the application of these principles to the present case, it is necessary to ascertain whether the error of the Full Bench, although jurisdictional, led to the making of an award of the type that s 150 would not protect because it fell outside the category of orders or awards described by Dixon J in the passage quoted by Gaudron and Gummow JJ [in Darling Casino]. There is here no question of constitutional invalidity. Nor is there any suggestion that the decision of the majority, resulting in the Full Bench’s award, was not a bona fide attempt to exercise the powers conferred on the Full Bench of the Commission by s 45. The award clearly relates to the subject matter of the legislation. The only basis on which counsel suggested s 150 would not protect the Full Bench’s award was that its making was not reasonably capable of reference to the power conferred by s 45. However, while the majority of the Full Bench misunderstood or overlooked the differences between the Commission’s relevant powers, and thereby fell into jurisdictional error in exercising the Full Bench’s powers under s 45(7), the actual exercise of power is capable of reference to the powers conferred on a Full Bench. It involves, on its face, an exercise of the power conferred by s 45(7): see R v Hickman: Ex parte Fox & Clinton at 617. Thus s 150 operates to protect the award from prerogative relief.” (Emphasis added)

·                    In San Remo Macaroni Company Pty Ltd v Federal Commissioner of Taxation 1999 ATC 5138, Hill J (at [51] – [57]) applied Hickman and Walter.

·                    In Briglia v Federal Commissioner of Taxation 2000 ATC 4247 Kenny J (at [6] – [9]) applied, inter alia, Hickman and Walter.

·                    In Kordan Pty Ltd v Commissioner of Taxation 2000 ATC 4812, Hill, Dowsett and Hely JJ (at [2] – [4]) applied, inter alia, Hickman and Walter.

·                    In Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576, Finn J (at [29] – [30]) applied, inter alia, Hickman and Walter.

·                    In Meredith v Commissioner of Taxation of the Commonwealth of Australia 2001 ATC 4595, French J (at [29] – [30]) applied, inter alia, Hickman and Walter.

103               Hickman has likewise been regarded as good law by the Industrial Relations Court of Australia. In Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, Wilcox CJ and Keely J (Moore J agreeing) said (at 686):

“The High Court continues to regard Hickman as good law: see O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 248-9, 274-5, 286-7 and 304; 96 ALR 1; 99 ALR 415 and DCT v Richard Walter Pty Ltd (1995) 127 ALR 21 at 25-6, 36-7, 50, 59, 68 and 73.”

104               It must, in my view, follow that it is settled law in this country that a provision such as s 474 should be interpreted in the light of the Hickman principle, notwithstanding that, as Wade and Forsyth observe, in some “borderline” cases, its application may be “difficult”.

Constitutional validity of s 474

105               When so construed (and thus read down) the constitutional validity of s 474 is, in my opinion, beyond argument in this Court. In any event, there is nothing which I can usefully add to the reasons of the other members of the Court in rejecting the constitutional challenge. It is sufficient, for my purposes, to note that there is nothing in the Hickman principle which suggests that the decision under review is unexaminable by the Court. What this principle teaches is that the examination is directed to certain areas, essentially of characterisation of aspects of the decision in the light of the three provisos. Nothing in Chapter III holds that such a statutory direction is beyond power.

The application of the Hickman principle in the present circumstances

106               It will be convenient to consider the application of each proviso of the principle separately.

Was the Tribunal’s decision made bona fide?

107               In NAAG of 2002 v MIMIA [2002] FCA 713, Allsop J said (at [24]):

“Dixon J in R v Murray; Ex parte Proctor, supra at 400, made it clear that the phrase involves an ‘honest’ attempt to deal with the subject matter conferred to the executive. Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question. Finn J in Daihatsu Australia v Federal Commissioner of Taxation (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with duty. Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590 at [47] said that the phrase ‘bona fide’ involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved. I agree. I also agree with the statements of principle made by Mansfield J in SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 at [34] to [36].”

108               I agree with this explanation.

109               In the present case, in my view, there is no evidence of any lack of an honest or genuine attempt to undertake the task at hand. It follows, in my opinion, that this proviso was satisfied here.

Was the Tribunal’s decision in a matter relating to the subject with which the Act deals?

110               Plainly, this proviso was satisfied here.

Was the Tribunal’s decision reasonably capable of reference to the power possessed by the Tribunal?

111               In NAAG, Allsop J said (at [26] – [28]):

“26 In the context of the Act and a decision of the Tribunal, as referred to in [22] above, this requires some degree of connection between the decision and the power. Kitto J in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 252-53, in terms approved by Mason ACJ and Brennan J in R v Coldham, supra at 418, paraphrased this requirement as not on its face going beyond the power. Dixon J, in R v Metal Trades Employers’ Association, supra at 249, in connection with this requirement in that case said that the award must not on its face exceed the express authority of the Arbitration Court. See also R v Murray; Ex parte Proctor, supra at 400 (see [23] above). In one sense, this requirement is no more than ascertaining whether, on the face of what was done, the executive act was within the power given. In Hickman the act was in point of fact not within the coal mining industry and so what was done was not protected by the privative clause.

27 I do not read this third requirement as intended to mean that the limits of the power in question, absent the privative clause, are analysed (including notions of jurisdictional error of the kind discussed earlier) so as to find ‘jurisdictional error’ and so to find an absence of ‘reasonable capacity of reference’ to the power. To do so would be to drain the privative clause of all intended content and effect.

28    Thus, using the language of Dixon J in R v Murray; Ex parte Proctor, supra at 399-400, in discussing the ‘first step’, one needs to find an honest attempt to deal with the subject matter confided to the Tribunal (being the review under ss 414 and 415 of the Act and the question of its state, or lack, of satisfaction as to Australia’s obligations) and an honest attempt to act in pursuance of the powers of the Tribunal (being those thrown up by ss 414 and 415 of the Act) in relation to something that might reasonably be regarded as falling within its province (being the questions thrown up by ss 65 and 36).”

112               I agree.

113               Again, this proviso is plainly satisfied in the present case. Whether or not (and I need not, and do not express a view on the point) there was a breach of the common law rules of procedural fairness arising out of the informal discussion at the Tribunal’s hearing, it is clear that, since none of the information now complained about specifically concerned the appellant, there was no breach of any statutory requirement. The Tribunal’s process, its decision and its reasons for decision all purported to address the factual issues which the Tribunal was charged by the Act to address. The complaint made is solely directed to the way in which that process was in fact carried out. Even if the complaint were justified, it cannot follow, as a matter of characterisation of the Tribunal’s decision to refuse the visa, that the decision was not reasonably capable of reference to the power given to the Tribunal.

114               Whether an aspect of the procedure was unfair (but, on any view, not in breach of any statutory prescription (whether “inviolable” or not (cf. O’Toole, above at 274)) is beside the point. Here the observations of Latham CJ and Dixon J in R v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 (at 369), as follows, are squarely applicable:

“Such a [privative] provision will operate to prevent prohibition going in cases of procedural deficiencies where the authority … is in substance dealing with the matter in respect of which power is conferred upon it.” (Emphasis added)

 

115               It is, in my view, beyond argument that the tribunal was in substance dealing with this matter.

116               For completeness, reference should also be made, if it were thought necessary, to the provisions of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), enacted recently. Its provisions and its explanatory Memorandum make it clear that Subdivision E of Div 3 of Part 2 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. But it is not necessary that I pursue its significance here. (Cf. Pearce and Geddes, Statutory Interpretation in Australia 5^th ed. 2001 at pp 74 – 76).

117               Since writing the above, Kiefel J has dealt with a question similar to the main point agitated in this appeal: Hashimi v MIMA [2002] FCA 988. Her Honour said (at [16] – [17]):

“Fundamentally the question would seem to be what the principles expressed in Hickman require. His Honour in Awan accepted that it remained authoritative (at [166]). In my respectful view Hickman requires that the provisions of s 474(1) be read with s 359A(1). It is not sufficient to consider only how important the latter provision might be. To do so would be to ignore s 474(1), the operation of which is confirmed by the materials referred to at [12] above.

In my view the only way in which the provisions can be reconciled is to read s 359A as imposing an obligation upon the Tribunal with respect to the provision of information during the course of the review proceedings; but that a breach of it was not intended to invalidate the decision, so far as this Court is concerned. No provision is made in s 359A(1) or elsewhere for the consequences of a breach. None of the conditions referred to in Hickman are present. Section 474(1) operates in its terms.”

118               Kiefel J added (at [20]):

“The applicant also submitted, in reliance upon observations made by Gaudron and Gummow JJ in Darling Casino Ltd v NSW Casino Control Authority (1997] 191 CLR 602, that the decision is not one made ‘under this Act’, as s 474(2) defines a privative clause decision. The argument requires one to read s 359A(1) as a condition necessary to be fulfilled before the Tribunal’s power was enlivened. In my view no warrant has been shown for reading the subsection as conditioning the exercise of the Tribunal’s decision-making power in this way.”

119               I agree.

DISPOSITION OF THE APPEAL

120               Accordingly, I would dismiss the appeal, with costs.

 

NABE OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

INTRODUCTION

121               This is an appeal from a decision of Tamberlin J, dismissing an application for judicial review of a decision of the Tribunal, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the appellant a protection visa. Before the Tribunal, the appellant, a national of Sri Lanka, who arrived in Australia in April 2001, claimed that he had a well-founded fear of persecution by reason of his suspected involvement with the Liberation Tigers of Tamil Eelam (“the LTTE”), the People’s Liberation Organisation of Tamil Eelam (“the PLOTE”) and the Sri Lankan Army.

BACKGROUND AND CLAIMS

122               In support of his visa application, the appellant made a number of claims, which can be summarised as follows.

123               The appellant claimed that he was of Sri Lankan nationality, and a Tamil from Jaffna of Roman Catholic faith. He claimed that he had completed secondary school education in Sri Lanka and later completed a computer course. He claimed that he had worked in Sri Lanka as a computer instructor and did occasional unpaid work in a relative’s grocery business.

124               In support of his claim that he was from Jaffna, the appellant submitted an ID card issued to him in 1992. He said that he was never required to renew that card.

125               Apart from the oral evidence of the appellant at the hearing, the Tribunal had available to it material contained on the Departmental and Tribunal files, including a taped interview between the appellant and a Departmental officer, and certain “country information” (some of which is referred to below). The appellant was assisted at the hearing by an interpreter in the Tamil language.

126               The appellant claimed that in 1984, while at school, a fellow pupil was killed in an army attack when several bullets struck the school. He said that occasional attacks continued as part of the general conflict in his area, and that his school was often closed as a consequence of the surrounding violence.

127               The appellant also claimed that the Indian Peace Keeping Force (“the IPKF”) arrived in 1987, and that his house was attacked and damaged in shelling on several occasions. He said that he was often suspected of being a member of the LTTE. He also claimed that he was detained at an LTTE camp for several days, until his mother successfully intervened on his behalf. He claimed that, on a later occasion, while engaged in choir practice at his church, he was beaten by the authorities and taken to a camp, where a friend was killed. He claimed that he was sometimes required to dig bunkers for the LTTE, and that he was detained on suspicion of involvement with groups such as the Eelam People’s Revolutionary Liberation Front (“the EPRLF”).

128               The appellant further claimed that, in October 1995, he went to a refugee camp in Pallai, to avoid the intense fighting in Jaffna. He said that he remained there for three months, but when the fighting became intense he moved to Mullaithivu. He claimed that, while there, he was forced to joint the LTTE, for which he served as a cook for two and a half years in a camp used by LTTE cadres. He said that he supported the aims of the LTTE, but not its killings.

129               The appellant claimed that when he was prevailed upon to undertake military training, he escaped from the LTTE camp along a jungle route to Vavuniya, in January 1999, and remained there for three months. He claimed that he was interrogated, beaten and otherwise mistreated by the authorities, while detained for two weeks on suspicion of involvement with the LTTE or with the PLOTE. He claimed that, at this time, the authorities learned of his connections with the LTTE.

130               The appellant also claimed that he had escaped from detention with the assistance of a friend, who obtained all necessary documentation, such as a permit from the army to enable travel to Colombo. He claimed that he had travelled to Colombo by train and remained there for three months. He said that the person who assisted him in Vavuniya also arranged for his registration with the police in Colombo. He claimed that, nevertheless, he was detained for three days and beaten simply for being Tamil. In addition, he claimed that his documentation was not accepted.

131               He further claimed that, in April 1999, he returned to Vavuniya due to his treatment in Colombo. He claimed that he was, essentially, in hiding in Vavuniya, where he remained for almost a year before again returning to Colombo, in May 2000, with his sister. He claimed that, for the next ten months in Colombo, he never went outside and that he lived there only on money sent by his family.

132               The appellant claimed that, on his second trip out of Vavuniya, he again obtained all necessary documents from an agent. He claimed that he was arrested on two occasions during his second period in Vavuniya and released after his sister paid bribes. He claimed that his sister is now in Vavuniya, or perhaps Mullaithivu.

133               Finally, the appellant claimed that he eventually left Sri Lanka on a passport that contained his own name and photograph. He claimed that it was improperly obtained by an agent, who also paid bribes to enable him to depart the country. He said that he gave his passport to another agent in Thailand, who gave him a false Canadian passport that he used to enter Australia. He also carried other Canadian documentation with him, some Canadian money and correspondence from his girlfriend. He claimed that his girlfriend lives in Mullaithivu and that they last met some time in 1999.

THE TRIBUNAL’S REASONS

134               The Tribunal accepted some of the appellant’s claims, but rejected others.

135               The Tribunal accepted that the appellant was born in Jaffa, that a fellow school pupil had been killed by gunfire, and that the appellant’s family home was damaged during the time that the IPKF had a presence in the north of the country.

136               The Tribunal also accepted that, as a teenager living on the Jaffna Peninsula, the appellant was sometimes regarded with suspicion. The Tribunal noted that, on one occasion, the appellant had been released, without charge, after allegedly being investigated at an army camp. The Tribunal did not, however, accept that the appellant would have been released at the request of his mother if he was of on-going interest to the authorities, or if he was seriously thought to be an active supporter of the LTTE or any other allied group.

137               Further, the Tribunal found that, even if it accepted that the appellant, a Roman Catholic, had been beaten by the authorities while engaged in choir practice at his church and removed to a camp, this had occurred several years ago, while he resided in the vicinity of the main trouble spot in Sri Lanka. The fact that he was released from custody, and was later able to travel to Colombo, indicated, in the Tribunal’s view, that he was not of any continuing interest to the authorities. The Tribunal found that, since the EPRLF then operated as a pro-government force with parliamentary representation, any perceived association between the appellant and the EPRLF would not indicate a real chance of persecution, in the present or foreseeable future, for any Convention reason.

138               In relation to the appellant’s claim that he had worked as a cook for the LTTE for two and a half years, the Tribunal observed that, because he did not embrace the violent tactics used by the LTTE, it seemed improbable that the appellant would have remained with the LTTE for so long, given that he did not support its methods, and given also the apparent ease of his escape when he was, ultimately, required to undergo military training.

139               In relation to the appellant’s claim that the authorities came to know of his alleged association with the LTTE and had detained and beat him, the Tribunal found that this was at odds with his capacity to travel, on two separate occasions, from Vavuniya to Colombo. The Tribunal did not accept that, if the authorities had discovered that the appellant had had a significant role with the LTTE over a substantial period of time, they would release him after a few weeks of detention and then allow him to travel to Colombo.

140               The Tribunal remarked that the former militant group, PLOTE, then operated solely as a pro-government force. The Tribunal found that it was “implausible” that, in 1999, the appellant would have been detained for involvement with an organisation such as PLOTE. It concluded that, in weighing all the relevant evidence, the appellant had fabricated his claims of his involvement with the LTTE and of continuing problems with the authorities due to his association with either the LTTE or PLOTE. The fact that the appellant was able to depart from Sri Lanka using a passport in his own name indicated that he was not wanted by authorities and therefore had no actual need to retain a low profile while residing in Colombo. The Tribunal did not accept that he departed on an illegally obtained passport.

141               The Tribunal concluded:

“There is no doubt that Tamils have often been at risk of persecution in Colombo and elsewhere in recent years. The evidence also indicates, however, that almost half the population of Colombo is Tamil and that the risk of persecution is very far from universal. Aforementioned information indicates that, apart from those who have fled the authorities in the north, those most at risk are recently arrived young people without established links to Colombo.

In the present case the applicant has a history of residence in Colombo of at least a year and no credible claims of harm there for any Convention reason. His sister resided there with him, at least for a time. The applicant registered with the authorities, thus indicating he established a valid purpose for residing in Colombo, as well as indicating he was not regarded as a security risk. The Tribunal is not satisfied that he has no work history or significant family or personal contacts still in Colombo. In all the circumstances the Tribunal finds it would be reasonable for the applicant to again take up residence in the capital where he does not face any real chance of persecution for any Convention reason.

In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason.”

THE APPELLANT’S CLAIM FOR JUDICIAL REVIEW

142               Before Tamberlin J, the appellant’s claim for judicial review was principally put on the basis that the Tribunal had misunderstood certain of the claims made by the appellant and, therefore, did not address these claims, thus giving rise to a constructive failure to exercise jurisdiction.

143               It was also contended for the appellant that the Tribunal had acted on irrelevant material, or, alternatively, that the Tribunal had not given genuine and realistic consideration to the appellant’s claims.

144               It was said that these were errors which went to the jurisdiction of the Minister (and thus the Tribunal) to refuse a visa under s 65 of the Act since the grant of a visa was conditional on the Minister being properly satisfied of the requisite matters. Where there is an error of this type, it was said, the Minister could not be properly satisfied, the material jurisdictional fact being the proper satisfaction of the Minister. Thus, it was claimed, in reaching its decision, the Tribunal had committed an error in concluding that the required satisfaction did not exist. Therefore, the argument went, the power to make the decision refusing a protection visa could not be exercised and such an error could not be protected by the privative clause.

THE judgment AT FIRST INSTANCE

145               His Honour turned first to consider the meaning and operation of s 474(1). He said (at [27]; [30] – [31]):

“As a consequence of the 2001 amendments to the Act, in particular s 474, it can no longer be said that nothing in the Act suggests that the RRT is given authority to determine questions of law or make a decision otherwise than in accordance with law.

…

Section 474 in terms makes it evident that the decision of the RRT is intended to authoritatively resolve questions of fact and law before it. That principle is qualified by the authorities to the effect that a privative clause will not apply to prevent judicial review where the decision is unconstitutional or in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, or where the empowering statute makes it clear that compliance with a condition is essential to the exercise of jurisdiction. Indeed, Hickman itself is an example of the latter situation in so far as the Court held that the privative clause did not operate to protect the Board’s decision because the activity was not ‘in the mining industry’, an expression which delineated the area of jurisdiction conferred. Accordingly, in this case, as a consequence of the 2001 amendments, the generalised statements as to jurisdictional error enunciated in Craig, are not determinative of the present proceedings.

In this case it is important to keep in mind that the power in s 65 is conditioned on the satisfaction of the Minister and not that of the Court.”

146               His Honour noted that the first alleged error was expressed in the Tribunal’s reasons as follows (at [27]):

“‘He claims that he was interrogated, beaten, and otherwise mistreated by the authorities while detained for two weeks on suspicion of involvement with the LTTE or with the People’s Liberation Organization of Tamil Eelam (PLOTE). He claims that the authorities learned of his connections with the LTTE.’ (Emphasis added)”

147               The appellant submitted to the primary Judge that the error evident in this passage of the Tribunal’s reasons, was that the claim made by him was that he was detained by the PLOTE for involvement with the LTTE, not by the authorities. This statement, it was said, pointed to jurisdictional error because the claim for protection was dealt with on an erroneous basis and the error was an important consideration which affected the decision.

148               In this connection, Tamberlin J noted that, in the appellant’s original statement to the Department, he had stated that, in January 1999, he went to a place called Vavuniya and remained there for some months; this was said to be an army-controlled area where there were other groups favouring the government. The appellant had then stated (at [29]):

“‘They took me for interrogation and questioned me inhumanely. They beat me. they [sic] heated iron bar [sic] and burnt my arms. … I screamed, they [sic] continued to torture me.’ (Emphasis added)”

149               Tamberlin J observed that this statement did not specify who it was that detained the appellant and interrogated him. However, in the decision record of the delegate, dated 9 August 2001, the following appeared (at [36]):

“‘The applicant claims that Vavuniya was under Sri Lankan Army control and that whilst in Vavuniya he was arrested by PLOTE people. The applicant claims that he was arrested by PLOTE because persons who came from Mullaitivu were suspected of being LTTE supporters. The applicant claims that the PLOTE also knew he had worked for the Tigers. The applicant claims that he was detained and tortured during the interrogation by the PLOTE. The applicant claims during the interrogation he admitted that he had been forced to work for the Tigers.’ (Emphasis added)”

150               His Honour observed that this statement in the delegate’s decision clearly indicated the delegate’s understanding that the appellant’s claim was not one of detention and torture by the authorities, but by the PLOTE. The decision of the delegate was the subject of review by the Tribunal; and, this statement as to the nature of the claim was before the Tribunal when considering the decision. (Other material before the Tribunal did not specify clearly who was said to have detained and tortured the applicant.)

151               Tamberlin J said (at [37]):

“On the material I have referred to, other statements by the applicant and the relevant part of the transcript of the hearing before the RRT which was tendered in evidence, I am satisfied that there was an error by the RRT which could have affected the outcome because it bears directly on the question whether there were grounds, based on past persecution, for the applicant believing there is a real risk of persecution if returned.”

152               The primary Judge went on to consider the application of s 474 in this connection (at [38]):

“The task is then to apply s 474 to the present case. There is nothing in this case to indicate that the decision to refuse a visa was not made bona fide in an attempt to exercise the power conferred, namely to decide whether the applicant had the necessary requirements to be granted a protection visa. The decision relates to the subject matter of the legislation, namely the refusal of a protection visa. The determination is reasonably referable to the function assigned to the RRT and there is no suggestion of any constitutional invalidity in the decision of the RRT. Nor is there any basis to suggest that the RRT was not in fact satisfied that the applicant was not a refugee, nor was there any inviolable provision or essential condition going to jurisdiction which was breached by the RRT in reaching its conclusion. I therefore consider that the error which I have found in the RRT decision is within the protection afforded to the RRT decision by s 474.”

153               It was also submitted for the appellant that the Tribunal did not give any realistic or genuine consideration to his claims. However, his Honour found that this was not an available ground of review in the light of the reasoning of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at 435 – 442. Tamberlin J was not, in any event, persuaded that there was such a failure, since the detail of the reasons indicated that there had been a genuine and realistic consideration of the claims.

THE GROUNDS OF THE APPEAL

154               The appeal is grounded on the appellant’s contention that the primary Judge erred in finding that, although there was an error by the Tribunal which could have affected the outcome, the error was protected by s 474.

CONCLUSIONS ON THE APPEAL

155               In NAAV, I considered the operation of s 474 and will not repeat that consideration here. In these circumstances I will deal directly with the question whether or not the Hickman provisos were satisfied here.

156               Did the Tribunal act bona fide? Lack of bona fides is not, and could not be, suggested here.

157               Did the Tribunal’s decision relate to the subject matter of the legislation? Plainly it did.

158               Was the Tribunal’s decision reasonably capable of reference to the power given to the Tribunal by the Act? Again, this proviso was plainly satisfied here. At its highest, this was no more than a case of an apparent error made within jurisdiction.

DISPOSITION OF THE APPEAL

159               I would accordingly, dismiss the appeal.

 

ANARE SUA RATUMAIWAI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

INTRODUCTION

160               This is an appeal from a judgment of Hill J, dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Migration Tribunal”), whereby the Migration Tribunal affirmed a decision of the delegate of the Minister not to grant the appellant a Family (Residence) visa on the basis of his claim to be a “special need relative” within the meaning of the Migration Regulations 1994 (Cth) (“the Regulations”), made under the Act.

161               The appellant, Anare Sua Ratumaiwai, is a resident of Fiji. He applied for a Family (Residence) (Class AO) visa, claiming to be a “special need relative” in relation to his brother, Jolame Takona Ratumaiwai (“the brother”), a resident of Australia. His application was refused by a delegate of the Minister. He then sought review by the Migration Tribunal of the delegate’s decision. However, the Migration Tribunal affirmed the delegate’s decision. The appellant then applied to the Court, seeking to invoke s 39B of the Judiciary Act 1903 (Cth) in his application for the grant of a writ of certiorari, a writ of mandamus or a writ of prohibition for relief, upon the ground that the Migration Tribunal had committed an error which went to its jurisdiction, in failing to take into account a relevant consideration; that is, that the appellant provided financial assistance, or alternatively, emotional support, to the brother. The Minister opposed the grant of any writ on the basis that s 474(1) of the Act applied here.

162               The criteria which an applicant for a Family (Residence) (Class AO) visa (the relevant subclass is subclass 806) must satisfy are stated in cl 806.213 of Schedule 2 to the Regulations; that is, that at the time of application and at the time of decision, an applicant for a visa must be a “special need relative” of a person who has nominated the visa applicant for the grant of the visa. “Special need relative” was relevantly defined in reg 1.03, at the relevant time, as follows:

“‘special need relative’ in relation to an Australian citizen usually resident in Australia, and Australian permanent resident usually resident in Australia … means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b) the assistance cannot reasonably be obtained from:

(i) any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or…

(ii)               welfare, hospital, nursing or community services in Australia;” (Emphasis added)

THE TRIBUNAL’S REASONS

163               The Tribunal found that the brother had a disability, in the form of bilateral osteo-arthritis of the knees, but that he did not have a permanent or long-term need for assistance because of this disability, because the brother was at home during the day for long periods, when the appellant was at work, and there was no evidence of anything which the brother could not do while he was alone.

164               According to the evidence of the brother, because he had pain and loss of mobility due to the osteo-arthritis, he needed assistance with cooking, laundry and other household chores. But the Migration Tribunal found that the brother had made no effort to ameliorate his condition by the use of physical aids such as a stool (to sit on while making meals) or a walking frame.

165               The Tribunal also found that alternative assistance was available to the brother to enable him to attend church, attend medical appointments and do shopping – activities which the brother’s lack of mobility would render difficult, and in which the appellant provided assistance to the brother.

166               The Migration Tribunal found that the brother had no need for long-term assistance “because of death, disability, prolonged illness or other serious circumstances”. Accordingly, the Migration Tribunal was of the view that the appellant was not a “special need relative” at the time of the visa application. Given this finding, it was unnecessary for the Migration Tribunal to consider whether this was also the case at the time of the Migration Tribunal’s hearing.

THE APPELLANT’S CONDUCT OF HIS CASE BEFORE THE MIGRATION TRIBUNAL

167               Before the primary Judge, the appellant sought to tender the transcript to the proceedings before the Migration Tribunal, in aid of a submission that the appellant requested the Migration Tribunal to take into account financial and emotional assistance, assistance of a kind mentioned in the evidence of the appellant to the Migration Tribunal, where the appellant said that he was prepared to provide this type of assistance to the brother.

168               In connection with this tender, it was submitted on behalf of the appellant that the Migration Tribunal had not addressed the question whether the appellant had, as the appellant claimed, provided financial and emotional assistance to the brother. By failing to consider these alternative forms of assistance, and confining itself solely to the physical assistance which the appellant provided (i.e. help with preparing meals, the laundry and housework, and transporting the appellant to church, to shop and for medical appointments), the Migration Tribunal had, it was submitted, made a jurisdictional error. (In his reasons, Hill J was to observe that the jurisdictional error allegedly committed by the Migration Tribunal might be characterised as a constructive failure to exercise jurisdiction, an error of law, or as a failure to take into account relevant considerations, referring to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21 – 22.)

169               Before the primary Judge, counsel for the Minister did not dispute that a failure to take into account a relevant consideration might constitute “jurisdictional error”, but submitted that “jurisdictional error” could not be shown in this case; or, alternatively, was not shown here, for the following reasons:

(1)               The Court should not receive the transcript into evidence on the question whether the appellant asked the Tribunal to take into account financial and emotional assistance, and whether the appellant in fact gave evidence that he was prepared to provide assistance of that kind to his brother.

(2)               As a matter of construction of the Regulations, “financial support” did not constitute “assistance”, as that term was used in Schedule 2 so that the Migration Tribunal was correct to exclude it from consideration.

(3)               A matter could only be a relevant consideration so as to found “jurisdictional error” if the matter was one the decision-maker was bound to take into account; yet the decision-maker was not, in the present case, bound to take into account either financial or emotional assistance.

(4)               The Migration Tribunal made no “jurisdictional error” when the appellant did not, at the hearing before the Migration Tribunal, seek to make a case involving financial or emotional assistance, and did not ask the Migration Tribunal to rule on that case.

170               Hill J ruled that, since mandamus and prohibition were sought, the transcript should be received into evidence, subject to the Minister’s objection, and subject to its relevance on the issue of “jurisdictional error” being later demonstrated.

171               The transcript records the following:

·                    The Migration Tribunal member asked the appellant in what ways he provided assistance to the brother. After stating that he did the cooking because the brother could not stand, as well as the washing and cleaning, the appellant said that he paid for food and also paid the electricity bill each month. He said “looking at the moneywise, he usually hasn’t got the money”.

·                    In response, the Migration Tribunal member said:

“Well, I’m afraid money is not going to make any difference to this application. Giving financial assistance wouldn’t qualify you as a special need relative, so I’m just focusing on the type of assistance that would be recognised as suggesting that you might be a special need relative.”

·                    Noting that, in the papers before it, it was stated that the appellant gave emotional support to the brother, the Migration Tribunal member asked: “…but we don’t actually have any evidence that he has got anything wrong mentally. Is that correct?”. The appellant replied affirmatively.

·                    The Migration Tribunal member then repeated, by way of a question, that “there’s no evidence to suggest that the brother had any sort of mental illness or disability?”. The appellant again replied that the brother had no mental illness.

·                    Later, the Migration Tribunal member questioned the brother, asking him what things the appellant did for him that the brother believed he could not do for himself. After detailing cooking, shopping (etc), the brother said that the appellant also helped financially. The Member said:

“But that doesn’t qualify. If you look at the decision it says that you need assistance because of death, disability, prolonged illness or other serious circumstances, so financial help is not relevant to the application. Is there anything else you would like to tell me?”

The brother made no reference to emotional support.

·                    Later in the interview, the Migration Tribunal recalled the appellant. A translator is reported as saying: “He’s [referring to the appellant] asking about the financial condition”. The Migration Tribunal Member said:

“That’s irrelevant. I can’t take that into account. I have to follow the law just as the first person who made a decision did and if you read it, it says that the person has to have a long-term need for assistance because of death, disability, prolonged illness or other serious circumstance. Now, I have been through the evidence with you and with the nominator and the only evidence that I can find is that he has got severe arthritis of his knees and that is it. There is no evidence to support anything else other than the arthritis as at that date in July.”

172               The Migration Tribunal’s reasons made no reference to the question whether financial or emotional assistance may or should be taken into account.

THE PRIMARY JUDGE’S REASONING

173               It was common ground before Hill J that the Migration Tribunal’s decision to affirm the decision of the delegate, was a decision of an administrative character made, or at least purporting to have been made, under the Act. It was also common ground that the Migration Tribunal’s decision did not fall within subsections (4) or (5) of s 474, so as to fall outside the definition of a “privative clause” decision. The question for the Court was the effect of s 474(1) in the present circumstances and, in particular, whether it operated to require the Court to dismiss the application, as was contended by the Minister.

174               Hill J identified the issue for his determination as being whether the Migration Tribunal made a “jurisdictional error” in the manner in which it dealt with the review before it; if this was found to be the case, then it would be necessary to consider the operation of s 474(1) of the Act.

Did the Migration Tribunal make a jurisdictional error?

175               Hill J said (at [18]):

“… not all decisions involving legal error are decisions made in excess of jurisdiction. That this is so is clear from Craig v South Australia (1995) 184 CLR 163 at 176. It follows from this that a privative clause will, subject to the three exceptions in Hickman clearly preclude a Court in proceedings initiated by certiorari, mandamus or prohibition from setting aside a decision where there is legal error which does not go to jurisdiction.”

176               His Honour identified the issue in this way (at [26]):

“The reasons of the Tribunal make no reference either to the question whether financial assistance may be taken into account or whether the brother had the need for and was supplied by the applicant with emotional support. The question is thus whether the Tribunal made a jurisdictional error by not dealing, so it is said, with either financial or emotional assistance.”

177               Hill J went on to say (at [27] – [28]):

“It is clear from the transcript that the Tribunal considered, and rejected, the claim of the applicant that the giving of financial assistance qualified him as a ‘special need relative’ within the meaning of that expression. Even although the Tribunal Member did not deal with the issue of financial assistance in the reasons for decision, as he was obliged to do under s 430(1)(b) of the Act, it is clear that the Member did not fail to consider the question. He did consider it and rejected it. So, it cannot be said that the Tribunal Member failed to take into account financial assistance as a relevant consideration. If it be assumed that the Tribunal Member was wrong in the view he took that financial assistance fell outside the kind of assistance which the definition of ‘special need relative’ was concerned with, it may be argued, as indeed it was by counsel on behalf of the Minister, that the Tribunal made a factual error in ascertaining the meaning of the ordinary English word ‘assistance’. In my view there is a difficulty in the present case in characterising the error which the Tribunal made (if indeed it made an error at all) as being simply a question of the meaning of an ordinary English word. Indeed, in my view, the present case is distinguishable from Ex parte Cohen [(2001) 173 ALR 473, [where McHugh J held that a mistake of fact in the meaning of an ordinary English word is not a jurisdictional error].

 

The distinction between error of fact and error of law is a fine one. While it is true that the ordinary English meaning of a word is a question of fact, so that a Tribunal which defines the word wrongly does not make an error of law, what was involved in the present case was whether it was open to the Tribunal to find that a person who gave financial assistance to a nominator came within the expression ‘special need relative’. In accordance with propositions 4 and 5 set out in the judgment of the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, as approved by the Full High Court in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395-6 the question involves the meaning of the word, but in the context in which the word appears. What is involved then is really a question of construction of the definition, rather than a mere question of the meaning of the word ‘assistance’. In so saying I am conscious of the difficulty that arises in differentiating between a question of construction and the meaning of a word, see Agfa-Gevaert at 396.”

 

178               In relation to the question of financial assistance, Hill J held (at [29]) that once it is seen that the Migration Tribunal has addressed the issue of financial assistance, even if, in so doing, it has made an error of law, that error is not a “jurisdictional error”.

179               His Honour went on to say that “there is no particular reason why financial assistance could not fall within the kind of assistance with which the definition of ‘special need relative’ is concerned” (emphasis added) (at [30]). However, it was not necessary to decide the question, because it sufficed, for present purposes, that the Migration Tribunal did not commit a jurisdictional error in refusing to grant the appellant a visa applied for on the ground that the appellant gave his brother financial assistance.

180               On the question of emotional support, Hill J held (at [31]):

“To the extent that the applicant claimed as well to rely on emotional support as qualifying as assistance it is likewise clear that the Tribunal considered and rejected the claim. As presently advised I can see no reason why, in a particular case, emotional support could not relevantly be assistance which is both substantial and continuing. Unlike the Tribunal Member I see no reason why emotional support could be relevant only where the nominator is suffering a mental illness, although that might turn on just what one means by ‘mental illness’. In a particular case, a person who is disabled or has a prolonged illness, not being a mental illness, may very well be unable to cope without emotional support and thus have a long-term need for assistance in that form. The relative who is willing and able to offer that support might then qualify as a special need relative, assuming it to be the case that such support was not reasonably able to be obtained from one of the sources referred to in paragraph (b). It seems to me that in deciding otherwise the Tribunal erred in law. But that is not the end of the problem.”

181               However, Hill J went on to say that there was “a real question whether the applicant ever really made a claim based upon emotional support” (at [32]). This was because there was “no evidence, whether directly from the brother or otherwise, from which this need could be inferred”. Accordingly, the Judge concluded that in relation to the question of emotional support, even if the Migration Tribunal made an error of law, this could not affect the ultimate result, since, in any event, for the reasons given for finding that the error of law made in holding that financial assistance could not be “assistance” in a relevant sense did not involve jurisdictional error, so too the Tribunal’s error in holding that emotional support could only be relevant where the nominator had a mental illness, did not involve jurisdictional error (at [32]).

182               It followed, in his Honour’s opinion, that the appellant could not succeed, whether or not this Court had, despite s 474, jurisdiction to grant prohibition, manadamus or certiorari. But, although not strictly necessary to do so, on the view thus expressed, his Honour went on to make the following observations on the operation of s 474.

Operation of s 474

183               Hill J said (at [50]):

“In my view, the question of construction which is raised by s 474 requires the Court to reconcile the broad language of the privative clause with the specific language of the Act, particularly the conferral of jurisdiction (and the imposition of a duty) upon the Tribunal to review a decision. The obvious legislative purpose (and the Court is required to give effect to the legislative purpose, at least so long as in the present context it is express or arises by necessary implication from the language used), is to expand the validity of decisions made in purported exercise of jurisdiction, so that they are to be treated as validly made, notwithstanding that there may be some error which would otherwise justify the decision being set aside. On the other hand, the privative clause is not to be interpreted so that a real failure to exercise jurisdiction nevertheless permits the decision to be validated. The clearest example of such a real failure to exercise jurisdiction is the case where a Tribunal simply fails to address the issue it is required to address, or, while purporting to do so, takes into account some quite irrelevant matter. In my view, however, the privative clause is not to be ignored so as to permit this Court to treat the decision as invalid merely because the Tribunal has made a wrong finding of fact (that would not be judicial review in any case) or even had proceeded upon a wrong basis in law. In particular, prohibition may only be invoked where there is jurisdictional error. Neither error of law, or error of fact are, of themselves, necessarily jurisdictional error.”

184               The Judge proceeded to say (at [51]):

“For my part I am inclined to agree with Gyles J [in NAAV] that s 474 would preclude the Court (the question may be different where the High Court is involved, for this would raise the constitutional question) from making an order for prohibition absolute where there had been a denial of natural justice. In addition to the matters to which his Honour refers in reaching this conclusion there is the fact that the jurisdiction of this Court is limited under s 476 in such a way as to preclude from judicial review the denial of natural justice.”

185               In dismissing the application, his Honour remarked (at [52]) that jurisdictional error had not been made out because –

“The Tribunal addressed the issues presented to it. If, in so doing, the Tribunal made an error of law, so be it. That error of law does not amount to jurisdictional error of the kind which would enliven the power of the Court to grant a writ of prohibition in the face of s 474 … .”

The grounds of appeal

186               By his grounds of appeal, the appellant raises the following appellate issues:

(1)                                       Whether the primary Judge should have held that the Migration Tribunal erred in not taking into account the financial assistance and emotional assistance said to have been provided by the appellant to his brother, as considerations relevant to the issue of whether the appellant was a “special needs relative” of that brother.

(2)                                       Whether the Migration Tribunal’s statements to the effect that financial assistance would not qualify the appellant as a “special need relative”, together with the Migration Tribunal’s failure to mention the issue in its reasons for decision, meant that the Migration Tribunal did not take account of financial assistance as a consideration relevant to the issue of whether the appellant was a “special need relative” of that brother.

(3)                                       Whether the Migration Tribunal’s statements to the effect that, absent a mental illness, emotional assistance would not qualify the appellant as a “special need relative”, together with the Migration Tribunal’s failure to mention the issue in its reasons for decision, meant that the Migration Tribunal did not take account of emotional assistance as a consideration relevant to the issue of whether the appellant was a “special need relative” of that brother.

(4)                                       Whether, on the proper construction of s 474, the Migration Tribunal committed jurisdictional error of law, such error being a failure of the Migration Tribunal (a) to take account of considerations going to the existence of a jurisdictional fact, being whether the appellant was a “special need relative” in terms of the Regulations; or (b) to appreciate the extent of its power in relation to the definition of a “special need relative” in the Regulations.

(5) Whether the appellant was entitled to a writ of prohibition to prevent the Minister from acting upon or giving effect to or enforcing the Migration Tribunal’s purported decision.

CONCLUSIONS ON THE APPEAL

187               I need not repeat what I said in NAAV on the operation of s 474.

188               In my opinion, in the absence of any arguable basis for the operation of any of the Hickman provisos, this is a plain case for the application of s 474(1). As Menzies J observed in the WA Coal Miners’ Case (at 452): “[t]o show that the [decision-maker] made a mistake of law is not of itself sufficient to show that the [decision] which followed that error was made without jurisdiction [for the purposes of a privative clause]”. This decision, which may or may not, have contained an error of law in the interpretation of the Regulations, clearly satisfied those provisos. The Migration Tribunal’s decision can, without doubt I think, be characterised as a bona fide attempt to exercise its authority in a matter relating to the particular subject with which the Act deals; and as a decision which is capable, on any reasonable approach, of being referred to the power possessed by the Migration Tribunal.

189               I would dismiss the appeal, with costs.

AUREL TURCAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

INTRODUCTION

190               This is an appeal from a decision of Heerey J, dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of two decisions of the Minister’s delegate made on 6 July 2001 and 23 February 2002, respectively.

191               The first (“the July 01 decision”) was a decision made on 6 July 2001, under s 128 of the the Act, to cancel a “permanent spouse class 801” visa held by the appellant, Aurel Turcan. The second (“the February 02 decision”) was a decision made on 23 February 2002, under s 189(1) of the Act, to detain the appellant as “an unlawful non-citizen”.

192               The proceedings before Heerey J were commenced on 27 February 2002. The Minister filed an objection to competency in relation to the challenge to the July 01 decision, contending that the application was not made within the time fixed by s 477(1) of the Act. Since the proceedings were commenced after the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) came into effect on 2 October 2001, it was accepted that both the July 01 decision and the February 02 decision were “privative clause decisions” within the meaning of s 474(2).

The grant of the appellant’s visas

193               The appellant is a citizen of Moldova who arrived in Australia in March 1998, on a three month visa for the purpose of participating in a sporting competition at Coffs Harbour. In April 1998, the appellant moved to Melbourne, where he met Ms Elena Mamara. On 17 July 1998, they announced their engagement and on 28 August 1998 they were married. On 4 September 1998, the appellant applied for a “TK extended eligibility (temporary) subclause 820” visa, as the spouse of an Australian citizen. This was granted on 11 November 1998. This visa entitled the appellant to remain in Australia for two years, at which time the Migration Regulations 1994(Cth) (“the Regulations”) would require the circumstances of the marriage to be reviewed prior to the granting of a permanent visa.

194               On 20 July 2000, the Department of Immigration and Multicultural Affairs (“the Department”) received information from an anonymous source, alleging that the appellant had entered into a contrived marriage with his wife “whereby he paid her money in instalments and she agreed to go along with his story for Immigration purposes”. The informer claimed that the appellant had set up a tiling business and expected permanent residence to be granted in one month’s time. The informer also claimed that the appellant later intended to separate from, and divorce, his wife and to sponsor various members of his family to Australia. In addition, the informer claimed that the appellant had fought for the Russians in Chechnya and had committed war crimes there.

195               The appellant did not become aware of these allegations until February 2002. He disputed their truth in his evidence before Heerey J.

196               Meanwhile, on 15 November 2000, the appellant had been granted a permanent spouse class 801 onshore visa (hereafter “the permanent visa”). The officer who granted the permanent visa did not sight the file containing the note of the informer’s allegations, as it had been mislaid.

The CIRCUMSTANCES OF THE cancellation of the permanent visa

197               According to the appellant’s evidence before Heerey J, after some months living with his wife’s parents, and then in a friend’s house, the couple moved into an apartment at 8/33 Rathmines Street, Fairfield in about May 1999. By the following year, the appellant had established his own tiling business called “Turcan Tiling”. His wife undertook all the administrative tasks associated with the running of this business. For the next eighteen months the appellant and his wife lived together. They shared household duties, paid bills out of their joint savings, engaged in sexual intercourse and attended social functions. However, on or about 12 or 13 November 2000, his wife, who was studying and doing some casual work at the time, asked the appellant to move out of their home because she said she needed some peace and quiet. The appellant moved to his wife’s parents’ house. The appellant and his wife did not live together at the Fairfield apartment thereafter. In December 2000, the appellant’s wife moved out of the Fairfield apartment, taking all of the furniture. She told the appellant that he could move back in, but he declined. In December 2000, the appellant went to Moldova for a holiday. He returned to Australia on 20 January 2001 and attempted a reconciliation with his wife, but without success. On 3 May 2001, he again travelled to Moldova and did not return to Australia until 22 February 2002.

198               Meanwhile, the file containing a note of the informer’s allegations had been located within the Department. The matter was reconsidered and various enquiries made. A friend of the appellant’s wife’s family informed the Department that he was aware that the appellant had recently returned to Moldova, but was not able to say for how long. The appellant’s wife’s father told an officer in the Department that she had told him that her relationship with the appellant had ceased prior to the date on which the appellant had gone to the Department to obtain the permanent visa; and that she had not told her father this because the appellant had threatened to harm her and her family if she revealed the break-up.

199               By letter dated 5 July 2001, the appellant’s wife informed the Department that her marriage to the appellant was over as from 13 February 2000. She mentioned that they were having many arguments. She said that, on 14 February 2000, she had returned from New South Wales and found that he had left the home to live elsewhere. During the middle of 2000, she told him that she was going to inform the Department about their separation. She said that he had come that night to her house, broken in through the window, and broken her laptop computer, television set and video. He took her by force out of the apartment, put a screwdriver in front of her and told her that he was going to kill her if she let the Department know of their separation. He had gone on to threaten to blackmail her and said that he would disgrace her before her family and the whole Romanian community. She said that she had not contacted him and did not know where he was.

200               On 6 July 2001, a delegate of the Minister completed a Form 1144 Notification of Cancellation under s 128 of the Act, stating that the appellant’s visa was cancelled on 6 July 2001, under s 116(1)(f) of the Act, on the ground that the visa “should not have been granted because its grant was in contravention of this Act”.

201               Section 128 of the Act provides:

“If:

(a)               the Minister is satisfied that:

(i) there is a ground for cancelling a visa under section 116; and

(ii)                it is appropriate to cancel in accordance with this Subdivision; and

(b)               the non-citizen is outside Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.”

202               Section 116(1) provides, relevantly, that the Minister may cancel a visa if he or she is satisfied that:

“(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;”

203               Another ground is:

“(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;”

204               The particulars given in the notice of cancellation were that:

“The relationship that you claimed to have on 17 Nov 2000 in the presence of a departmental officer for the purposes of your application for permanent residence on spouse grounds, was in fact no longer in place. This was known to you prior to the grant of residency.”

205               A duplicate of the notification was sent by the Department to the appellant at the address in Fairfield, which had been provided by the appellant as his residential address in a statutory declaration made on 21 September 2000, submitted in support of his permanent visa application. This was the address of the appellant appearing in the Department’s computer records in July 2001. (At that time, reg 5.02A(2) provided that a document relating to the cancellation of a visa must be given to the holder by one of three methods, one of which was “(b) by sending it to the person’s residential or business address last known to the Minister”.) However, Departmental records indicate that the delegate was aware that the appellant was outside Australia at the time.

The INFORMATION IN THE translating and interpreting service application

206               By Form 377, dated 4 March 2001, the appellant had made an application to the Department’s Translating and Interpreting Service (TIS) for the translation of two documents from Romanian into English. The form, as completed, gave the appellant’s surname and given name. The form asked for “Your mailing address” and the appellant stated “35 Lois Street, St Albans VIC 3021”. The form also asked for telephone numbers for home and work and the appellant gave numbers 03 9367 4493 and 0411 040 668 respectively. Under the heading “Office use only” there are a number of questions on the form with provisions for “yes” or “no” answers to be marked. They were ticked as follows:

“Originals retained? No a Yes

Visa sighted? No Yes a

Permanent resident? No Yes a

Eligible for free service? No Yes a

Copy of passport? Yes a No

Payment made? No a Yes”

207               Opposite the question “Permanent resident?” the form asked for “Arrival date/Grant of permanent residence”. “Arrival date” was deleted and the figures inserted “15/11/00”. Opposite the question “Copy of Passport?” the form asked for “Passport number”. There appeared “AO184890” and “VISA:- 8032651629/S”.

208               As of 4 March 2001, the Lois Street address was, in fact, the appellant’s residential address.

209               TIS is part of the Citizenship and Languages Services Branch of the Multicultural Affairs and Citizenship Division of the Department. TIS provides translating services to the general public for a fee, but the Directions for Completion, issued with the Form 377, indicate that permanent residents may be entitled to free translation of “settlement related documents”, if they first arrived in Australia within the last two years. The Directions for Completion ask “Please provide certified copies of appropriate pages in your passport with your personal details, permanent residence visa and date of arrival”.

210               TIS operates a computer system which is known as JES (Job Entry System), and it is usual practice to enter the details of each request for service into that system. JES is only used by TIS for its own work, and is not linked to the centralised computer data system operated by the Department (known as the ICSE system). This is consistent with the general practice in the Department, whereby each section operates its own computer system as well as accessing ICSE to the extent necessary for their functions. Generally, officers in parts of the Department other than TIS do not have access to JES and people in TIS do not generally have access to the ICSE system, and, in this case, did not enter details of requests for translation services into that system. In the usual course, an application to TIS for translating or interpreting services would never come to the attention of a decision-making delegate of the Minister.

The internal review of the visa cancellation

211               In October 2001, the cancellation of the appellant’s visa was internally reviewed by the Department. A recommendation was made that the matter should be referred to the Residence Section which should:

“be made aware of what appears to be a legally flawed cancellation decision in relation to Mr Turcan and decide whether the cancelling officer wishes to revoke the cancellation and consider cancellation under 116(1)(d) or referral to Investigations Melbourne.”

212               The basis for this view was that s 116(1)(f) does not allow for substantive visas to be cancelled where the delegate was satisfied at the time that the criteria were met, even if it later appears that those criteria were not in fact met. This is because the substantive visas are granted under s 65 which depends upon the Minister or the Minister’s delegate being “satisfied” as to the relevant criteria. This may be contrasted with s 73, which allows a grant to occur only where the appellant actually meets the criteria. In the present case, the delegate had in fact been satisfied as to the criteria and thus, according to the Departmental view, the appropriate ground for cancellation was s 116(1)(d). This view was confirmed by a minute, dated 29 January 2002, from the Investigations Section to the Manager, Residence Section, Melbourne, seeking consideration of the question whether the cancellation decision should be set aside.

THE Detention

213               However, before any action could be taken, the appellant returned to Australia. He arrived at Melbourne Airport late in the evening of 22 February 2002. The computer records at Immigration Control showed that the appellant’s visa had been cancelled on 6 July 2001. The appellant was detained. He was handed a letter in these terms:

“Mr Aurel Turcan

By Hand

Dear Mr Turcan

This letter is to confirm advice given to you at the time of your arrival at Melbourne Airport on 23 February 2002.

On 6 July 2001, your Class AS, Subclass 801 Resident visa was cancelled under section 128 of the Migration Act 1958, on the grounds set out at paragraph 116(1)(f) of the Act.

Paragraph 116(1)(f) states:

‘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;’

Our records show that a letter notifying you that your visa had been cancelled was sent to you on 6 July 2001 at your last known address.

As you do not have a visa for Australia, you are unable to satisfy section 166 of the Act and must be Refused Immigration Clearance under subsection 172(3) of the Act.

You are being detained under s.189 of the Act and will be removed from Australia as soon as reasonably practicable.

F. Andrew

Duty Manager

Melbourne Airport

23 February 2002.”

214               The decision to detain was made under s 189(1) of the Act which provides:

“(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.”

215               The appellant has remained in immigration detention.

The July 01 decision – the appellant’s case at first instance

216               By his further amended application the appellant sought an order in the nature of certiorari to quash the July 01 decision on the ground of “jurisdictional error” being:

“(a) the person who made the decision could not lawfully have been satisfied that there was a ground for cancelling the visa under s.116(1)(f) of the Migration Act within s.128(a)(i) of that Act without giving the applicant an opportunity to be heard on the question;

(aa) The decision involved an error of law in that the person who made the decision erroneously construed s.116(1)(f) as authorising the cancellation of a substantive visa where the person granting the visa was satisfied at the time of grant that the criteria for the visa were met but it was later suspected the criteria were not met.

(b) The person who made the decision could not be satisfied that it was ‘appropriate’ for the purposes of s.128(a)(ii) of the Migration Act to cancel the Spouse visa in accordance with Sub-division F of Part 2 Division 3 of the Migration Act where:

(i) the [appellant] had had no opportunity to respond to the allegations made by his wife as to the state of their marriage as at November 2001 or at any other time;

(ii) the [appellant] had had no opportunity to respond to the allegation that he had been involved in ‘atrocities’;

(iii) the [Minister] knew that the [appellant] had departed Australia in June 2001 and there was no urgency or question of national importance which required the protection given to the [appellant] by ss.117(2), 119-127 and 338(3) of the Migration Act to be removed;

(iv) the [Minister] failed to take into account a relevant matter being that the [appellant] had a permanent visa and had been lawfully resident in Australia for at least 3 years;

(v) the [Minister] failed to take into account a relevant matter being that the [effect] of the decision in the circumstances was to cause the [appellant] to return to Australia where he would not be able to pass through Immigration Clearance and thus would be required to be detained;

(vi) the [Minister] concluded it was ‘appropriate’ to cancel the visa to reverse an administrative error whereby not all of the file concerning the [appellant] had been before, or seen by, the officer who granted the [appellant] his visa of 15 November 2000.

(vii) the provisions of Sub-division F of Part 2 of Division 3 of the Migration Act would not be complied with.

(c) The July 2001 decision did not represent a bona fide attempt to exercise the power given by s.128 the Migration Act because the decision maker exercised the power in circumstances where:

(i) the [appellant] was deprived without reason of an opportunity to respond to the allegations made against him;

(ii) the decision was made by accepting the uncontroverted statements of a disaffected spouse;

(iii) the decision was made to exercise the power to make the decision without giving the [appellant] notice of intention to do so when the [Minister] knew that the [appellant] had departed Australia and had elected to wait until he had done so before considering to exercise the power being an unconscionable exercise of the power to make the decision;

(iv) the decision was made in circumstances where the [Minister] had no intention of informing the [appellant] that his visa had been cancelled so that on the return of the [appellant] to Australia he would not be able to pass through immigration clearance and thus never be an ‘an eligible non-citizen’ within s.72(1) of the Migration Act able to obtain a Bridging Visa with the consequence that the decision was made to ensure the [appellant] would be detained;

(v)                 the duty imposed by s.129(1)(b) of the Migration Act on the Respondent to give a notice giving particulars of the grounds and of the information on which the ground was considered to exist was not complied with.”

The February 02 decision – the appELlant’s case AT FIRST INSTANCE

217               By his further amended application the appellant sought an order prohibiting the Minister from acting on the “purported performance” by the Departmental officer at Melbourne Airport, on 23 February 2002, of his duty under s 189(1) to detain the appellant as an unlawful non-citizen on the ground of “jurisdictional error” being:

“(aa) The officer erred in law in concluding that the July 2001 decision operated at law to cancel the visa granted to the [appellant] on 15 November 2000;

(a) The officer erred in law in concluding that he could ‘know or reasonably suspect’ within s.189(1) that the [appellant] was an unlawful non-citizen when the July 2001 decision to cancel the Class 801 Spouse visa held by the [appellant] was null and void;

(b) The finding that the officer ‘knew or reasonably suspected’ that the [appellant] did not hold a visa in circumstances where the material before the officer revealed the previous visa held by the [appellant] had been purportedly cancelled covertly in his absence and notification of it sent by officers of the [Minister] to an address in Australia when it was at all times known that the applicant was not in Australia so that the applicant had been denied the opportunity provided by ss.129, 130, 131 of the Migration Act to seek revocation of the cancellation purportedly effected by the July 2001 decision was, in all the circumstances, so unreasonable that no reasonable officer could have reached the conclusion;

(c) The finding that the officer ‘knew or reasonably suspected’ that the [appellant] was ‘a non-citizen’ involved an error [of] law being a construction of s.129(3) of the Migration Act which failed to distinguish between the validity of the July 2001 decision and the consequence on that decision of a failure by the respondent to give the notice of the decision required by s.129(1) of the Migration Act;

(d) Alternatively the performance of the duty involved an error of law in that the officer erred in construing the term ‘failure to give notification’ in s.129(3) of the Migration Act as including the giving of misleading notification;

(e) Alternatively the performance of the duty involved an error of law in that the officer failed to construe the term ‘evidence … of a visa that is in effect and held by the person …’ in s.166(1)(a)(ii) as being satisfied where a non-citizen whose visa has been cancelled without the non-citizen having any means of knowing this produces the visa in question.”

The REASONS OF the PRIMARY JUDGE

The Minister’s objection to competency

218               In dismissing the objection to competency, his Honour said (at [31] – [34]):

“In the present case… the Form 377 is an official Departmental document which in part contemplates information, including a name and address, being provided by a person in his or her capacity as a visa holder, or by a person having the characteristic of being a visa holder. The information provided by the Form 377 is in permanent form. That information goes into the custody of the Department where it can be stored in a way that would enable easy retrieval by reference to the name of the visa holder, should an appropriate system be put in place. The evidence on behalf of the Minister did not attempt to show it would be impossible or unreasonable to establish such a system. The Minister’s case was confined to what in fact were the internal administrative procedures in existence. This cannot be determinative of the statutory criterion. At the relevant time s 53(2) of the Act (repealed as from 10 August 2001) required a visa applicant to tell the Minister of a change of address. There was, however, no obligation on the holder of a visa, whether temporary or permanent, to notify a change of address. So there would be utility in a system whereby the information provided in a Form 377 would be readily available for an officer of the Department for whom the address of a visa holder became relevant.

In the circumstances I would hold that the St Albans address of the applicant was known to the Minister in July 2001 in the sense that it was information available within the Department and could have in fact come to the attention of the relevant decision maker had an appropriate administrative system been in place.

I do not accept the argument that in the Form 377 as completed by the applicant there is any relevant difference between a ‘mailing address’ and a ‘residential or business address’. Theoretically there could be such a difference, for example if the address … stated was a post office box. However, the address on its face looks like an actual physical location. It is easily verifiable as being at an existing street in a residential area of Melbourne. A “home” telephone number is given.

I therefore find that notification of the July 01 decision did not occur before the applicant was detained at Melbourne Airport on 23 February 2002.”

219               The Minister has not appealed against the dismissal of the objection to competency.

The operation of s 474

220               However, the Minister did rely upon the provisions of s 474(1) in answer to the appellant’s claim for relief under s 39B of the Judiciary Act.

221               On the operation of s 474, Heerey J said (at [41]):

“There seems to me significance in the fact that s 474 was introduced by way of amendment. It was inserted into an existing legislative scheme containing an extremely complex and highly structured decision making apparatus. The Act and the Regulations provide for hundreds, if not thousands, of discrete migration decisions. Many of these decisions have detailed substantive criteria and procedural requirements. It would be obvious to Parliament that, decision makers being human, errors of fact and law, whether or not capable of being characterised as ‘jurisdictional’, are likely to be made in such a setting. Where complaint is made of error, the Act provides for recourse to merits review by the Migration Review Tribunal, the Refugee Review Tribunal or the Administrative Appeals Tribunal. It seems, therefore, difficult to impute to Parliament an intention to limit the protection of s 474 so that it permits judicial review beyond the Hickman grounds. In particular, it is unlikely that Parliament intended that a defect in some element of a decision-making process would render the decision one not made ‘under the Act’ and therefore outside s 474, or that some particular features of this detailed legislative scheme were intended to be ‘inviolable’ by the application of some (unstated) test.”

222               His Honour noted the implications of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, given shortly before the introduction of s 474, and said (at [43]):

“The Minister succeeded on both issues, but the victory was a somewhat Pyrrhic one. Observations of four members of the majority suggest that the doctrine of jurisdictional error would support judicial review of decisions of the Tribunal on grounds little, if any, different from what would be available at common law. The recent restatement of that law in Craig v South Australia (1995) 184 CLR 163 at 179 was treated as applicable: see per Gaudron J at [39] - [44] and per McHugh, Gummow and Hayne JJ at [82] - [83].”

223               Heerey J went on to say (at [44]):

“The operation and effect of a privative clause such as s 474 is a question of construction (no question of constitutional validity is raised in the present case). What is the extent of the protection that Parliament intended to provide? The plain words of s 474, read in the light of the large gap in the 1992 restrictions recently revealed in Yusuf, point against the existence of a Parliamentary intention to leave untouched large, judicially developed areas of review.”

224               The Judge also found support for this view in the Minister’s Second Reading Speech on the amendments, which, Heerey J said, “confirms a Parliamentary intention that judicial review is to be confined strictly to Hickman grounds” (at [45]).

Application of s 474 to the July 01 decision

225               Heerey J said (at [46]):

“In my view, the correct approach is to first consider whether s 474 applies. If it does, the Court need not, indeed should not, go any further. The Court should not assess the case as if s 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the Court’s jurisdiction and is to be applied at the threshold.”

226               His Honour went on to say (at [47] – [50]):

“First, the allegations in par 2(c) of the further amended application do not make out a case that there was something other than a bona fide attempt by Ms Faulkner to exercise her power of visa cancellation. Mistake of fact or law does not constitute bad faith. There is no suggestion that Ms Faulkner was animated by some personal bias against the applicant or had in mind some purpose other than the purpose of cancelling a visa when a ground for doing so appeared to her to exist. The fact that the applicant was, to Ms Faulkner’s knowledge, outside Australia and that it was at least possible that he might not receive the notification of cancellation can hardly constitute bad faith on the part of Ms Faulkner, given that these were express criteria of s 128.

To the extent that the allegations of bad faith assert a breach of natural justice, I would hold that such a ground is not available for the reasons given by Gyles J in [NAAX and NAAV v MIMA [2002] FCA 263] at [35].

Secondly, the July 01 decision relates to subject matter of the legislation, namely cancellation of a visa on a ground stated in s 116.

Thirdly, the decision is reasonably referrable to the function assigned to the decision maker. Ms Faulkner was exercising a delegated power.

I conclude therefore that s 474 prevents review of the July 01 decision and the grant of any of the relief sought by the applicant.”

Application of s 474 to the February 02 decision

227               In relation to the question of the application of s 474 to the February 02 decision, Heerey J said (at [53]-[57]):

“The grounds in the further amended application do not in terms allege lack of bona fides in relation to the February 02 decision and counsel for the applicant did not advance such a case in his written or oral submissions.

The February 2002 decision relates to subject matter of the legislation, namely detention of a non-citizen who does not have a valid visa.

The decision is reasonably referable to the function assigned to the decision maker. It is not in dispute that the decision maker, the officer at Melbourne Airport, had authority to make a decision under s 189(1). This power, and corresponding duty, are conferred on all officers of the Department – see the definition of ‘officer’ in s 5 – and not just delegates of the Minister. Since the officer at the airport saw on the computer records an indication that the applicant’s visa had been cancelled (as was in fact the case), it was open to him to reasonably suspect that the applicant was an unlawful non-citizen. Once the officer had reached this state of mind, his obligation to detain the applicant was mandatory. The act of the officer was an act in fact done by him in (at least) supposed exercise of the powers entrusted to him: Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 182, cited with approval by Dixon J in Hickman at 615.

It is not clear whether counsel for the applicant relied on breach of natural justice as a separate ground in relation to the February 02 decision. Perhaps grounds (b) or (e) in the further amended application might involve elements of natural justice. In any event, I would, as already mentioned, hold that such a ground is not available. Section 474 is conclusive against review of the February 02 decision.”

THE GROUNDS OF THE APPEAL

228               By his grounds of appeal, the appellant raises the following appellate issues:

(1)               Whether s 474 of the Act was to be applied at the threshold of proceedings, preventing the Court considering whether an applicant for a constitutional writ under s 39B of the Judiciary Act had otherwise established an entitlement to grant relief.

(2)               Whether a mistake of fact or law can constitute “bad faith” for the purposes of the application of the principle in Hickman.

(3)               Whether “bad faith”, for the purposes of the application of Hickman, could be established without a finding that the officer of the Commonwealth had engaged in reprehensible or contumelious conduct in exercising the power in question, such as being animated by personal bias, or having in mind an ulterior purpose.

(4)               Whether the exercise on 6 July 2001 of the power given by s 128 of the Act to cancel the visa then held by the appellant was at law an exercise of the power in “bad faith”, or otherwise not protected by s 474 of the Act.

(5)               Whether NAAV was correctly decided.

(6)               Whether the exercise on the 6 July 2001 of the power conferred by s 128 of the Act to cancel the visa then held by the appellant was reasonably referable to the power to cancel visas in accordance with Sub-Division F of Division 3 of Part 2 of the Act.

CONCLUSIONS ON THE APPEAL

229               In my opinion, the present case is, in principle, indistinguishable from the reasoning and approach taken, correctly I think, in NAAV, NABE, Ratumaiwai andby Allsop J in NAAG. In short, even if the Minister’s delegate made an error of law in being satisfied that a ground for cancellation existed, this should, for present purposes, in the words of Wade and Forsyth, be characterised as a “mere error of law”, and not as a “plain excess of jurisdiction”. The present case is, upon analysis, no different from the WA Coal Miners’ Case.

230               I agree with Heerey J that, given the character of the allegations relied on by the appellant, the real question in this litigation is whether the three Hickman provisos were satisfied in respect of the July 01 Decision. In my opinion, they were.

231               In the first place, there could be no serious suggestion of any absence of good faith on the part of the decision-maker.

232               Secondly, the decision to cancel was, in my view, within the Hickman requirement that it be in a matter relating to a relevant subject with which the Act deals; that is to say, the decision “relates to [a] subject matter of the legislation”.

233               Thirdly, in my opinion, the decision to cancel is “reasonably capable of reference to the power [to cancel]”. It is true that doubts were expressed within the Department as to which of the several grounds available under s 116 might be available in the complicated circumstances that had arisen. But, unlike the facts in Bhardwaj, above, no formal action to re-open the matter had been taken. That being so, the complaints now made, whether of lack of procedural fairness, or of a possible legal error, are submerged by the operation of s 474.

234               For completeness, I should refer to a submission advanced on behalf of the appellant that a decision (as here) as to “satisfaction” is “reviewable, where the decision-maker has misdirected himself at law”. Reliance is placed on observations in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 275 – 276; and in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [131].

235               It is true, as their Honours observed in Wu (at 275), that a decision as to “satisfaction” used not to be examinable, but as Sir Owen Dixon’s “classic dictum” in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 (at 360) demonstrated, this is no longer so.

236               Indeed, earlier, in R v Connell; Ex parte Hetton Bellbird Collieries Pty Ltd (1944) 69 CLR 407, judicial review was granted where, as Gummow J noted in Eshetu (at [135]), it was held that the decision-maker could not, in law, have been properly satisfied that certain rates of remuneration were “anomalous”. In the WA Coal Miners’ Case, Menzies J (at 453) explained, and distinguished Connell:

“The distinction that I draw between that case and this is that there the grant of power was construed as not extending to the formation of an unchallengeable opinion unless and until a correct interpretation had been put upon the word ‘anomalous’, whereas here, as I construe s. 137, the matter upon which the Court must itself form an opinion includes the meaning of the word ‘lock-out’. In like fashion, it seems to me that the decision of the Privy Council in Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust [(1937) AC 898] is to be distinguished. In this case it cannot be said that the Court of Arbitration did not form an opinion upon the matters, including the possibility of a lock-out, which had to appear to it to be ‘reasonably likely’; the most that can be said is that it formed a wrong opinion.”

237               Significantly for present purposes, Menzies J went on (at 454) to hold that –

“In any event, I consider that, even if there were an excess of jurisdiction, the proceedings of the Court of Arbitration and its order are protected by s. 108 of the Industrial Arbitration Act, which provides that ‘proceedings in the Court … shall not be impeached … nor shall the same be removable to any Court by certiorari or otherwise; and no … order, or proceeding of the Court … shall be liable to be challenged … or called in question by any Court of judicature on any account whatsoever.’”

238               His Honour, however, went on to note (at 454 – 455) that –

“… it is well established that an inferior court which manifestly disregards limits upon its jurisdiction and undertakes to do something that is altogether outside the sphere of the jurisdiction conferred upon it, is subject to control by means of the prerogative writs, notwithstanding a protective section which, according to its terms and taken by itself, would deny any such control: The Colonial Bank of Australasia v. Willan [(1874) LR 5 PC 417 at 442]. The basis of this rule is that two conflicting provisions of the legislature, one imposing obviously fundamental restrictions upon an inferior court or tribunal and the other protecting the proceedings of that inferior court or tribunal from examination, have, as a matter of construction, to be reconciled. The position that has been reached in this Court was expressed by Dixon J. in R. v. Hickman; Ex parte Fox and Clinton in a passage relating to sections of this character which has come to be regarded as classical ….”

239               After citing the passage at 615, Menzies J said (at 455):

“It seems to me that the decision of the Court of Arbitration here is clearly within this proposition, and because this is so, s. 108 protects the order that was made from being challenged or called into question either by certiorari or by prohibition.”

240               In other words, cases such as Connell (for instance, R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 per Rich, Dixon and McTiernan JJ at 242) were concerned only with the position absent a privative clause, and cannot deprive a provision such as s 474 of its settled operation.

241               As Willan and the Amalgamated Engineering Union and the WA Coal Miners’ Case, for instance, teach, even if an error of law might be thought to be central or fundamental to the Tribunal’s process of reasoning, once the Tribunal has properly entered upon its enquiry, any such error will not result in invalidity because the privative clause will protect the decision from forensic challenge.

242               As has been said, the real question in the litigation was whether the July 01 decision could stand. Accordingly, the challenge to that decision having failed, it must follow that the challenge to the February 02 decision must also fail.

243               The appeal should be dismissed with costs.

 

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V JIAN ZHONG WANG

INTRODUCTION

244               This is an appeal by the Minister from a judgment and orders of a Judge of the Court (Mansfield J), made pursuant to s 39B of the Judiciary Act 1903 (Cth), granting judicial review of a decision of a delegate of the appellant Minister, made under s 131 of the Migration Act. His Honour held that the delegate’s decision, refusing to revoke the cancellation of the respondent’s visa, was invalid and of no effect.

THE FACTUAL AND LEGISLATIVE CONTEXT

245               The respondent, Jian Zhong Wang, a national of China, was granted a Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) Visa on 1 March 2001, on the basis that he was a person sponsored by an Australian business, the Marden Basketball Centre Pty Ltd, to establish a China Shao Lin Kung Fu Academy and to teach martial arts classes at its Mars Sporting Complex. The visa entitled the respondent to work for that business as a sporting coach and to make multiple entries to Australia until 1 March 2002. Marden Basketball Centre Pty Ltd was approved for a Standard Business Sponsorship and for a Nomination by a Business Sponsor in respect of the respondent, also on 1 March 2001.

246               The application for the visa had been made on 26 February 2001. (Essential criteria for the grant of a subclass 457 visa are (1) that the applicant “has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed”; and (2) that the applicant “demonstrates, if so required by the Minister, that he or she has the skills necessary to perform the activity”.) The application was accompanied by twenty-three documents, or categories of documents, in general attesting to the respondent’s professional skills, qualifications and experience as a martial arts instructor.

247               On 13 July 2001, the respondent departed Australia. On 18 July 2001, a delegate of the Minister cancelled the respondent’s visa, acting under s 128 of the Act. (It was common ground that it was appropriate for this cancellation decision to be made under s 128 of the Act because, at the time, the respondent was no longer in Australia, and it was therefore not necessary for the respondent to be given notice of the intention to cancel the visa prior to its cancellation. It was also common ground that, unless cancelled, the visa entitled the respondent to enter Australia from time to time.)

248               Section 116 (in Subdivision D of Part 2 Division 3 of the Act) empowered the Minister to cancel a visa in certain circumstances (see below). Subdivision F (ss 128 – 133) prescribed the relevant procedures when the visa holder is outside Australia. Section 128 provided:

“128 Cancellation of visas of people outside Australia

If:

(a) the Minister is satisfied that:

(i) there is a ground for cancelling a visa under section 116; and

(ii) it is appropriate to cancel in accordance with this Subdivision; and

(b) the non-citizen is outside Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.”

249               The ground of cancellation relied on was that stated in s 116(1)(d). It provided, relevantly, that the Minister may cancel a visa (if its holder has not entered Australia) if the Minister is satisfied that:

“– [the visa] would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared;”

250               The term “enter” includes “re-enter” (see definition of “entry”, s 5 of the Act).

251               The respondent was notified of the cancellation of the visa, by letter dated 18 July 2001, as follows:

“I wish to advise that the visa granted to you on 01 March 2001 has been cancelled under section 128 of the Migration Act 1958 (“the Act”). Grounds for cancellation of that visa exist under S116(1)(d) of the Act which states that “the Minister may cancel a visa if he … is satisfied that 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”.

Your visa was cancelled on 18 July 2001 because documents attesting to your skills, qualifications and experience as a martial arts instructor have been found to be bogus.

The “Act” gives you the opportunity to comment on the ground for cancellation and to give reasons why your visa should not have been cancelled.

If you are able to show that the ground for cancellation does/did not exist, the cancellation of your visa will be revoked. It [sic] you cannot show that the ground for cancellation does not exist, but there is a reason why your visa should not have been cancelled, the cancellation of your visa may be revoked.

You should respond to this Notice by 22 August 2001. There is no provision for this time frame to be extended. If you do not respond by that date, the revocation of the cancellation of your visa will not be considered. …” (Emphasis added)

252               Section 129 of the Act provides:

“(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:

(a)   stating the ground on which it was cancelled; and

(b)   giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and

(c)    inviting the former holder to show, within a specified time, being a prescribed time, that:

(i)                 that ground does not exist; or

(ii)               there is a reason why the visa should not have been cancelled; and

(d)   stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and

(e)    stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.

(2)               The notice is to be given in the prescribed way.

(3)               Failure to give notification of a decision does not affect the validity of the decision.” (Emphasis added)

253               The delegate, by memorandum dated 18 July 2001, had recorded the basis upon which the respondent’s visa had been cancelled and, before the primary Judge, the parties referred to that document as the delegate’s “Reasons for Decision” (hereafter “Reasons”). After referring to the grant of the visa, and the basis upon which that visa had been granted, the Reasons stated:

“These documents [the documents provided in support of his skills or attesting to his skills] included what purported to be a certificate of award from a Hong Kong martial arts tournament, a certificate as a Kung Fu instructor for the police and a reference from the Shaolin Temple.

These documents have now been established as bogus and the Guangzhiu office of DIMA has advised that they hold written confirmation of this.”

254               The Reasons then referred to the provisions of s 103 of the Act (that “a non-citizen must not give an officer, the Minister or a tribunal …, a bogus document”) and to s 116(1)(d) of the Act, and concluded that a ground for cancellation existed under s 116(1)(d); that the visa holder was outside Australia; and that it was appropriate to cancel the visa without notice under s 128 of the Act because giving notice of intention to cancel might “cause the visa holder to travel to Australia”. (If, on the other hand, the respondent had been in Australia at the time of the decision to cancel his visa, he would have been entitled to the benefit of different procedures prescribed under Subdivision E of Division 3 before the visa could be cancelled.)

255               If a response is made to a notice under s 129, s 131 then obliges the Minister to consider whether to revoke the cancellation. Section 131(1) provides:

“(1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:

(a)               if not satisfied that there was a ground for the cancellation; or

(b)               if satisfied that there is another reason why the cancellation should be revoked;

is to revoke the cancellation.”

256               (As will be seen, before the primary Judge, the respondent successfully contended that s 129(1) was not complied with in the circumstances because he was not informed of the information about which documents were found to have been bogus, and also not informed why those documents were considered to be bogus, notwithstanding that the delegate in the Reasons identified three specific documents which he considered to be bogus, and there stated the foundation for that view.)

257               The respondent, through his migration agent, responded to the letter of 18 July 2001 on 21 August 2001, within the period prescribed. The letter stated that the respondent had been unable to identify which of the documents attesting to his skills qualifications and experience as a martial arts instructor had been found to be bogus, so that the respondent was unable to respond specifically in relation to the three documents about which the delegate of the appellant had in fact made such a finding.

258               The Minister’s delegate then purportedly made a decision, under s 131 of the Act, declining to revoke the cancellation of the visa. The respondent was notified of that decision by letter, dated 2 October 2001, in these terms:

“On 18 July 2001 you were notified that your visa was cancelled under section 128 of the Migration Act 1958. Your agent responded in a letter dated 21 August 2001 and also provided a number of further letters and documents.

After considering your response, the Department has decided not to revoke the cancellation of your visa under s 131 because of the reasons set out in the attachment. ….”

259               The respondent’s migration agent (who had received the letter dated 18 July 2001, giving notice of the cancellation of the visa) claimed, and for present purposes the Minister accepted, that he did not receive the Reasons for cancelling the visa, but only the letter of 18 July 2001 itself. (As has been seen, the letter of 18 July 2001 did not expressly refer to any enclosure).

THE RESPONDENT’S APPLICATION FOR JUDICIAL REVIEW

260               By his application filed on 22 October 2002 (as subsequently amended), the respondent applied, pursuant to s 39B of the Judiciary Act, for judicial review of the decision, under s 131 of the Act, not to revoke the cancellation.

261               The grounds of the application were that the decision “involved a failure to observe procedure laid down in Section 129(b) of the Act in that the notice pursuant to Section 129 did not give particulars of information because of which the ground was considered to exist.” Particulars of this ground were that the respondent “had submitted 23 documents attesting to his skill qualifications and experience as a martial arts instructor. The [Minister’s] notice pursuant to Section 129 of the Act did not give particular[s] of document or documents which were bogus.”

262               The respondent sought an order setting aside the decision made on 2 October 2001.

THE MINISTER’S OBJECTION TO COMPETENCY

263               By his notice of objection to competency filed on 17 December 2001, the Minister objected to the competence of the Court to try the application on, relevantly, the following grounds:

“2. The decision sought to be challenged is a ‘privative clause decision’ as that term is defined in s. 474(2) of the Act.

3.       Section 474 of the Act provides, inter alia, that a privative clause decision is final and conclusive; and must not be challenged, appealed against, reviewed, quashed or called into question in any court.”

THE REASONS OF the PRIMARY JUDGE

264               Mansfield J held that the Minister had not complied with the requirements of s 129 of the Act, by failing to give the respondent notice of the cancellation of the visa, the ground of cancellation, and the particulars of that ground, and the information by reason of which that ground was considered to exist.

265               Mansfield J said (at [18]) that “[this] deficiency in the notification of the cancellation of the visa is a significant one, as it impaired the [respondent’s] ability to respond as s 129(1)(c) contemplates”.

266               His Honour, however, noted that the Minister had submitted that the decision of 2 October 2001 was a “privative clause” decision so that, notwithstanding s 129(1) of the Act, the Court had no power to grant the relief claimed. (The respondent accepted that the relevant decision fell within the extended statutory definition of a “privative clause” decision, but denied that s 474(1) could apply in the present circumstances.)

267               Mansfield J said (at [27]):

“In discerning the legislative intention as to the proper relationship between a decision purportedly made under s 131 where the notice required by s 129(1) of the Act has not been given and the terms of s 474(1), I observe first that s 474 must be intended to operate in the face of certain departures from procedural prescriptions in relation to decisions under the Act, and adopting the ‘interpretation’ qualification in Murray [a reference to R v Murray; Ex parte Proctor (1949) 77 CLR 387 per Dixon J at 399 – 400], in respect of all but ‘inviolable limitations or restraints’ imposed by the Act itself. Brennan J in O’Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 274 (O’Toole) used that question as a ‘fourth condition’, a question also so described in Coldham at 419. I note that in the passage cited above from Darling Casino, Gaudron and Gummow JJ referred to the decision maker acting in excess of jurisdiction, inter alia, by reason of ‘the limited terms of a valid law’.”

268               His Honour turned to analyse the statutory scheme enacted in Subdivision F, as follows (at [31]):

“As a starting point, it can be seen that the very purpose of the decision under s 131 is to reconsider the cancellation of a visa in the light of the response of the person whose visa has been cancelled. Section 129(1) directs that person be given certain notice, and requires that person be given the opportunity to respond to the reasons for cancellation within the specified time: s 129(1)(c). Absent any such response, the [Minister] does not have to proceed to any reconsideration under s 131 of the Act. It is only by reason of that response to the notice that the [Minister] is obliged by s 131 to reconsider his decision. Although s 131 does not expressly oblige the [Minister] to consider the response, in my view it is clear that that is what it provides for. Accordingly, the jurisdictional fact which s 131 prescribes, and upon which the decision under s 131 is to be made, is the response of the [respondent] to the notice under s 129(1). It is only upon the response that the [Minister] can then address whether he is satisfied that a ground existed for the cancellation of the visa (s 131(1)(a)) or whether he is satisfied that there is another reason why the cancellation of the visa should be revoked (s 131(1)(b)). The material that s 131 requires the [Minister] to address in making that decision is the ‘response to a notice under s 129 of the cancellation of a visa’.”

269               His Honour held (at [32]) that “[i]t is the scheme of subdivision F of Div 3 of Pt 2 of the Act that it is only by consideration of a response to a notice under s 129 that a valid decision may be made …” (emphasis added).

270               Mansfield J continued (at [33] – [34]):

“In this matter, the precondition to the entitlement to making a decision under s 131 did not exist. There was no response to a notice under s 129 because no proper notice under s 129 was given. There is no contention that the letter given on 18 July 2001 constituted substantial compliance with that section, as the Reasons for Decision which would have provided the information required by s 129(1)(c) were not enclosed. As the [respondent’s] response of 21 August 2001 shows, the absence of that information meant that the [respondent’s] response was not a response to a notice under s 129. It did not properly engage the issue whether the ground for cancellation of the visa did not exist because the [respondent] was not given the information required so as to enable him to do so.

In my judgment, the circumstance is not simply one where a procedural prescription imposed as part of the process of decision-making has not been complied with. It is one where the jurisdictional fact prescribed by the Act, and one which is also the essence of the material upon which the Minister is entitled and obliged to make a decision, has been shown not to exist. The purpose of the decision-making process under s 131 has been frustrated. If I may paraphrase Stephen J in Green v Daniels (1977) 51 ALJR 463 at 465, the [Minister] has wrongly precluded himself from attaining the requisite state of satisfaction.”

271               Mansfield J concluded (at [35]):

“In view of my characterisation of the nature of the decision to be made under s 131, and my view that the existence of a response to a valid notice under s 129(1), or at least to a notice which is adequate to elicit a meaningful response to the reasons for the cancellation of the visa, is an essential pre-condition to a valid decision under s 131, I consider that it is not intended by the Act that s 474(1) should preclude the grant of appropriate relief under s 39B of the Judiciary Act in the present circumstances. The decision under challenge is really no decision at all, because the respondent was not empowered in the circumstances to form any satisfaction in terms of s 131(1)(a) or (b). He did not have before him to enliven that power, and to impose the obligation to exercise it, a response to a notice under s 129(1). The absence of such a response is not ‘a mere defect or irregularity which does not deprive [him] of the power’ to make the decision: Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Mason CJ at 180.”

272               Mansfield J then made a declaratory order that the decision refusing to revoke the cancellation was “invalid and of no effect”. His Honour further ordered that leave be given to the respondent “to apply for such further orders in the light of the reasons for decision as he may be advised.”

THE MINISTER’S GROUNDS OF APPEAL

273               By the grounds of his notice of appeal, the Minister raises the following appellate issues:

(1) Whether

(a)                a decision to reconsider the cancellation of a visa, pursuant to s 131 of the Act can only be made “after considering any response to a notice under s 129”; and

(b)                no such response can be given until a proper notice has been given complying with the requirements of s 129(1).

(2) The correct construction of s 131 apart, whether a decision made pursuant to s 131(1), being a privative clause decision for the purposes of s 474 of the Act, could be the subject of a declaration as to invalidity.

(3) Whether compliance with s 129(1) was an essential precondition to the exercise of power under s 131.

(4) Whether a declaration that the Minister’s refusal to revoke the cancellation of the respondent’s visa was invalid and of no effect should have been made.

CONCLUSIONS ON THE APPEAL

274               Again, in my view, the present case is indistinguishable in principle, from NAAV (and Hashimi, above) notwithstanding that the lack of fairness here arose out of failure to comply with a procedure for the provision of information prescribed by the Act.

275               I agree with von Doussa J that the relevant subject matter here is the visa cancellation decision-making power. When considered in the light of the Hickman principle, it appears clearly enough that each of the provisos were satisfied here.

276               It must follow, in my view, that the appeal should be allowed, with consequential orders as proposed by von Doussa J.

 

all appeals – gENERAL AGREEMENT WITH VON DOUSSA J

277               For completeness, and in order to avoid any possible doubt, I should say that I agree entirely with the reasons of von Doussa J in each of these appeals.

I certify that the preceding two hundred and thirty eight (238) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated: 15 August 2002

ANNEXURE TO REASONS FOR JUDGMENT OF BEAUMONT J (ref: par 74)

 

SOURCES OF INFORMATION

 

(a)                The document numbered CX 8570 referred to at paragraphs 122 and 131 of the Tribunal’s reasons.

(b)                The document numbered CX 9957 referred to at paragraph 94, where it is identified as “DFAT [Department of Foreign Affairs and Trade], ‘Myanmar; Request for Information: Refugees: Burma Profile’, cable RA 1782, 1 Feb 1995” and at paragraphs 122 and 131 of the Tribunal’s reasons, where it is identified as “DFAT, 1995, CX 9957”.

(c)                Record of a telephone conversation between Amanda Zappia, co-ordinator of Australia-Burma Council and the Tribunal, 24 February 1994, referred to at paragraphs 122 and 131 of the Tribunal’s reasons.

(d)                Amnesty International, “Myanmar Conditions in prisons and labour camps” September 1995, referred to at paragraph 139 of the Tribunal’s reasons.

(e)                ABSDF, Cries from Insein, 1996, referred to at paragraph 139 of the Tribunal’s reasons.

(f)                 An article by McPhedran in The Canberra Times, 19 August 1997, CX 25011, referred to at paragraph 88 of the Tribunal’s reasons.

(g)                DFAT cable RA 7682, dated 23 June 1995, CX 9489 referred to at paragraph 89 of the Tribunal’s reasons.

(h)                DFAT, Human Rights Update, 28 January 2000, CX 39784, referred to at paragraph 90 of the Tribunal’s reasons.

(i)                  An otherwise unidentified DFAT report to the effect referred to at paragraph 95 of the Tribunal’s reasons in relation to the issue of Burmese passports.

(j)                  DFAT, 1996 Country Profile referred to at paragraph 96 of the Tribunal’s reasons in relation to immigration controls in Burma.

(k)                DFAT cable RA 7927 referred to at paragraphs 97 and 98 of the Tribunal’s reasons in relation to the issue and non issue of passports to various Burmese citizens.

(l)                  DFAT report 094, 9 June 2000, referred to at paragraph 100 of the Tribunal’s reasons.

(m)              DFAT Country Information Report, “Information on the Current Situation With Respect To Passport Issue And Departure from Burma”, No 285/00, 2 June 2000 referred to at paragraph 101 of the Tribunal’s reasons.

(n)                DFAT cable RA 1782, cited at paragraphs 102 and 152 of the Tribunal’s reasons.

(o)                DFAT, “Processing of passport renewal applications”, CIR No 113/00, 15 March 2000, CX 41129 referred to at paragraph 105 of the Tribunal’s reasons.

(p)                DFAT, “Human Rights Update”, 2000, CX 39784, referred to at paragraphs 104, 105 and 152 of the Tribunal'’ reasons.

(q)                The Tribunal Burma Workshop transcript (paper given by Andrew Selth) referred to at paragraphs 106-110 and 152 of the Tribunal’s reasons.

(r)                 Unidentified “independent information” cited by the Tribunal at paragraph 123 of its reasons to the effect that “all schools were closed by the authorities at [the relevant time in 1989] …”.

(s)                Terrell Oung, Central/International Co-ordinator, Australia Burma Council, letter to the Tribunal, 30 May 2000, referred to at paragraph 111 of the Tribunal’s reasons.

(t)                 Trevor Edmond, Secretary, Friends of the NLD in Australia Inc, letter to the Tribunal, 2000, undated, referred to at paragraphs 109-110 of the Tribunal’s reasons.

(u)                DFAT, 1992, “Minute from DFAT concerning Burmese demonstrators in Australia”, 24 September, CX 8069 referred to at paragraph 112 of the Tribunal’s reasons.

 

 

IN THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN	NAAV N 265 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT   THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
BETWEEN	NABE N 282 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	ANARE SUA RATUMAIWAI N 399 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	AUREL TURCAN V 225 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	S 84 OF 2002 MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS APPELLANT
AND	JIAN ZHONG WANG RESPONDENT

 

JUDGES:	BLACK CJ, BEAUMONT, WILCOX, FRENCH and von DOUSSA JJ
DATE:	15 AUGUST 2002
PLACE:	MELBOURNE

 

REASONS FOR JUDGMENT

WILCOX J:

278               In the last week of September 2001, in the wake of the Tampa affair (see Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297, 110 FCR 452; on appeal, Ruddock v Vadarlis [2001] FCA 1329, 183 ALR 1), Parliament passed eight Bills dealing with “border protection” and/or immigration law. One of those Bills (“the Judicial Review Bill”) enacted the Migration Legislation Amendment (Judicial Review) Act 2001. This Act substituted a new Part 8 of the Migration Act 1958 (“the Act”). The common factor in these five appeals is that each raises questions concerning the constitutional validity, interpretation and application of that Part.

The new Part 8

279               The new Part 8 further restricted the already limited right to judicial review of decisions made under the Act. It commenced with a new s 474 that uses the term “privative clause decision” to refer to virtually all decisions under the Act. The exceptions are mostly decisions affecting property interests. Section 474(1) provides that:

“(1) A privative clause decision:

(a)               is final and conclusive; and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

280               However, Parliament did not intend s 474(1) to mean what it says. That is clear from the remainder of the new Part 8, in which Parliament imposed rules governing applications to this Court under s 39B of the Judiciary Act 1903, and even, for the first time, allowed applications for review to be made to the Federal Magistrates Court.

281               As is common ground in these appeals, s 474(1) is a privative clause designed to pick up and apply what the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) (Mr P Ruddock MP) described, in his Revised Explanatory Memorandum on the Judicial Review Bill, as “a line of authority stemming from the judgment of Dixon J” in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. As other members of the Court have done so, I need not quote the words used by Dixon J. They include the three conditions, stated in a proviso, that are sometimes called the “Hickman conditions”.

282               It is entirely understandable that Parliament should have thought it desirable to do something about the judicial review position that obtained in September 2001. In his Second Reading Speech on the Judicial Review Bill, on 26 September 2001, Mr Ruddock said the number of applications for review had increased from about 400 in 1994-95 to about 1640 in 2000-01; with a substantial increase in departmental expenditure on litigation.

283               However, the decision to seek salvation in a privative clause was curious. As the Government perceived the problem, it was not that too many applications for judicial review were succeeding, but that too many applications were being filed. In his Second Reading Speech, and referring to applications for judicial review, Mr Ruddock said:

“From experience we know that a substantial proportion of these cases will be withdrawn by the applicants prior to hearing. The percentage of applicants who withdraw fluctuates between one-third to one-half of applicants. Of the cases that go on to substantive court hearings the merits based decision is currently upheld in around 90 per cent of cases.

It is hard not to conclude that there is a substantial number who are using the legal process primarily in order to extend their stay in Australia, especially given that one-third to one-half of all applicants withdraw from legal proceedings before hearing.”

284               No doubt this was one reason for the large number of unsuccessful applications. I believe there were others. At that time, the standard letter sent to unsuccessful applicants by the Refugee Review Tribunal told them they had “the right to seek review of this decision by the Federal Court”. The letter contained no reference to the limited nature of the review that was available in the Court. It did not inform recipients that the Court had no power to review the Tribunal’s findings of fact. Overwhelmingly, then as now, refugee applicants lacked legal advice. As was demonstrated by daily experience in this Court, most review applicants wished only to recanvass the facts. Sometimes they learned the limitations on the Court’s role before the hearing and withdrew their application. More often, they learned at the hearing; but not before their misapprehension had caused expenditure to the Department of Immigration and Multicultural Affairs. Moreover, those who wished to soldier on, however hopeless the cause, had an unqualified right of appeal to a Full Court of this Court, the exercise of which caused further expense and delay.

285               The Tribunal’s standard letter now informs unsuccessful applicants they “may have a limited right to seek review” of the Tribunal’s decision “by the Federal Court, Federal Magistrates Court and/or the High Court”. Recipients are still not told of the nature of the limitation. In fairness, it would not be easy to do this in a manner that was both accurate and easily comprehensible.

286               Despite the new Part 8, the volume of migration applications made to this Court remains much the same. During the nine months (January to September 2001 inclusive) immediately preceding the commencement of the new Part 8, 1072 applications for review were filed in this Court. In the nine months immediately after commencement (October 2001 to June 2002 inclusive) 1003 applications were filed. Full Court appeals actually increased (227 to 242).

287               A privative clause, in the form of s 474, does not relieve a court from the obligation to receive applications for review and to consider each case. People still have the right to file an application and come to court. Overwhelmingly, applicants are unaware of s 474. Overwhelmingly, they have no understanding of the Court’s role. Most still wish only to recanvass the Tribunal’s findings of fact. There is still an unrestricted right of appeal from a first instance decision.

288               To the extent that a privative clause is effective, it diminishes the rule of law. That is a significant matter. The rule of law is a concept that lies at the heart of our system of government.

289               Our system of government depends upon three fundamental principles: first, laws may be made only by democratically elected Parliaments (statutes), or by Executive officers acting pursuant to authority conferred on them by a Parliament (regulations); second, everyone, including Ministers and other public officials, must obey those laws; and, third, on application by an affected person, judges, who are independent of the Executive government, can, and normally will, enforce the law and with it that obligation.

290               To the extent that it is effective, a privative clause abrogates the third principle. Judges must allow to stand decisions that are not in accordance with the will of Parliament.. In the immigration area, this may have profound consequences for individuals. By definition, the people most directly affected will be non-citizens. But Australian citizens may also be impacted; as spouses, relatives, friends or employers of non-citizen visa holders or applicants. This is especially the case where the privative clause (as here) applies to all visa decisions, not just decisions about applications for protection visas by asylum seekers. For any one of us, the relevant non-citizen may be very close to home: the woman our son wishes to marry, the father of our daughter’s child, a next door neighbour or key employee whose residence visa has been mistakenly cancelled.

Application of the Hickman principle

291               The reason why it remains necessary for a court to consider the particular case appears from Hickman itself. Despite his enunciation of the “Hickman conditions”, in that case Dixon J joined the other four members of the High Court in holding invalid the impugned order of the Local Reference Board. He explained at 618 that he did so because the relevant regulation included the words “in the coal mining industry” which, he said, “are words of final limitation upon the powers, duties and functions of the Boards”.

292               Two years later, in R v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Limited (1947) 75 CLR 361, Dixon J spelled out the situation even more clearly. The regulations in suit allowed the Controller to determine a rent upon application by a lessor or lessee or of his own motion. However, the Court held, the Controller could vary a determined rent only upon application by the relevant lessor or lessee. An application for variation of a determined rent was made by the tenant of one portion of a city building. There was no application for variation in respect of any of the other 38 tenancies in the building. Notwithstanding that fact, the Controller varied all the rents. The High Court unanimously held he had erred and granted prohibition in respect of the 38 tenancies.

293               Regulation 38 of the regulations said:

“Every determination of a Fair Rents Board or of the Controller shall, except as provided in this Part, be final and without appeal, and no writ of prohibition or certiorari shall lie in respect thereof.”

294               In a joint judgment, Latham CJ and Dixon J said (at 369):

“When Commonwealth legislation confers powers upon an officer a provision such as reg. 38 cannot be construed as intended to provide that his powers are absolutely unlimited. Such a construction would raise questions of the validity of the legislation. Such a provision cannot help to give effect to any legislation which it is beyond the power of the Commonwealth Parliament to enact. Further, even where no question of validity arises, the effect of such a provision in a particular case depends upon the construction of the relevant statute taken as a whole. If a legislature gives certain powers and certain powers only to an authority which it creates, a provision taking away prohibition cannot reasonably be construed to mean that the authority is intended to have unlimited powers in respect of all persons, and in respect of all subject matters, and without observance of any conditions which the legislature has attached to the exercise of the powers. Such a provision will operate to prevent prohibition going in cases of procedural deficiencies where the authority whose powers are in question is in substance dealing with the matter in respect of which power is conferred upon it. But if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s. 75(v.) of the Constitution in a case of the latter description: see Hickman. It is therefore necessary to inquire whether the regulations now under consideration impose any condition which must be satisfied when it is sought to exercise the power to vary a determination of rent.” (Emphasis added)

 

295               Their Honours went on to construe the regulations in suit. They concluded (at 370) that “as a variation can be made only upon an application to the Controller, and as a decision of the Controller to act of his own motion cannot be regarded as an application to the Controller, the Controller has no power to vary a determination of his own motion”.

296               In Rent Controller, there was no question of constitutional invalidity. Neither was it suggested the regulation could not have been drafted in such a way as to empower the Controller to vary a rent of his own motion. Yet, despite Hickman, the Controller’s decision was invalid; the reason being non compliance with a statutory condition precedent.

297               Subsequent cases show the concept of statutory limitation or condition has significantly limited the ability of the Hickman principle to immunise statutory decisions from judicial review. In the 57 years since Hickman, there has not been any case in which a majority of the High Court has applied Hickman to save from invalidity an order or decision, made under Commonwealth law, that would otherwise have been held invalid. Indeed, the High Court seems to have taken that step only once, in Coal Miners’ Industrial Union v Amalgamated Collieries of Western Australia Limited (1960) 104 CLR 437, a case that turned on Western Australian law. There have been a few applications of Hickman at a level below the High Court, predominantly in relation to State legislation, but “Hickman hits” have been a rare phenomenon.

298               I have indicated misgivings about the enactment of s 474. I have taken this unusual step because the issue so intimately affects the rule of law and the work of the courts (especially this Court). However, that done, I must put my misgivings aside. Whether wisely or otherwise, Parliament has enacted s 474. Legislative policy is for Parliament to determine, not for the courts. It is the duty of judges to interpret legislation in good faith and, provided it is constitutionally valid, to give it full force and effect, whatever the judges’ private views about its content. I can and will do that.

Constitutional validity of the amendments

299               Submissions of invalidity were made in the present appeals. Counsel for Mr Turcan, Mr T Hurley, contended s 474 of the Act fell outside the Commonwealth’s legislative power – even adding together s 51(xix), s 51(xxvii) and s 51(xxxix) of the Constitution – because it purports to remove from the High Court and the Federal Court jurisdiction to determine the legality of “a decision which itself causes a person to be detained, or requires another decision or conduct whereby a person is detained”. Counsel said a construction of s 474 that yielded that result “would be to introduce a lettre de cachet”. He referred to Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 528 where Deane J said: “The common law knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action”. This statement was adopted in Lim v Minister for Immigration (1992) 176 CLR 1 at 19-20.

300               As I understand the position, Mr Turcan is currently in immigration detention. So it is understandable that his counsel should have focussed attention on that fact. However, Mr Turcan is not being detained pursuant to an executive warrant; rather, it seems, pursuant to s 189(1) of the Migration Act. That subsection provides:

“(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.”

The subsection is one of the many provisions in Division 7 of Part 2 of the Act that regulate the detention, and release from detention, of specified categories of people.

301               The submission made by Mr Hurley points up the importance of correct decision-making in relation to the grant and cancellation of visas. Perhaps that is something that needs to be taken into account in assessing the proper construction, under Hickman principles, of statutory provisions concerning such decisions. However, the fact that the statute makes provision for detention of unlawful non-citizens, and people reasonably suspected of being unlawful non-citizens, does not, itself, mean that provisions limiting judicial review of decisions concerning such people are constitutionally invalid.

302               The solicitors for NAAV and Wang each filed notices under s 78B of the Judiciary Act. The notices raised two questions:

(i)                  whether s 474 of the Act is inconsistent with Chapter III of the Constitution in that it reserves to persons who are not judges the power to determine conclusively whether a duty to accord procedural fairness arises in a particular case, the content of the duty and whether it has been observed in the particular case; and

(ii)                whether s 474 is inconsistent with s 75(iii) or (v) of the Constitution.

303               In their written outline of submissions counsel for both NAAV and Mr Wang argued for these questions to be answered affirmatively. However, they left the main burden of the argument to Ms D Mortimer, counsel for the intervenor, the Human Rights and Equal Opportunity Commission (“HREOC”).

304               In its filed outline of argument, HREOC summarised its constitutional submissions in this way:

“1 The key concept underlying the Commission’s submissions is the proposition that the Australian legal system recognises, in various ways, an obligation to provide an effective remedy to persons present in this country whose interests have been adversely affected by a decision of an officer of the Commonwealth, where the decision is otherwise than in accordance with law. In this case, the need for an effective remedy is a need of non-citizens affected by decisions made under the Migration Act …

2               As in Abebe v The Commonwealth (1999) 197 CLR 510, yet in a different context, the central question raised in these appeals is whether s 474 of the Act requires, or can require, a Chapter III Court to affirm and/or assume that there has been a due administration of the law where there may not have been.

3. The Australian legal system recognises the obligation to provide an effective remedy from such a failure to provide due administration of the law:

– In a constitutional sense, by according primacy to the role of the High Court in supervising, under s 75(v), the lawfulness of actions taken by officers of the Commonwealth;

– At common law, by the repeated acknowledgement of the role of Ch III Courts in determining, declaring and enforcing the law which prescribes limits and governs the exercise of power: Attorney-General v Quinn (1990) 170 CLR 1 at 37; Abebe at [37];

– In the exercise of executive power under the Constitution to bind Australia to obligations in international law in respect of human rights, which it is to be assumed are undertaken intending that they be complied with and be reflected in our legal system: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 30 per Brennan J (with whom Mason CJ and McHugh J agreed).

4. Section 474 of the Act has the potential to compromise this obligation significantly.” (Original emphasis)

305               In developing these points, Ms Mortimer submitted that the Federal Court’s jurisdiction under s 39B(1A) of the Judiciary Act is co-extensive with the jurisdiction of the High Court under s 75(v) of the Constitution. She argued it followed the “limitations which operate on Parliament’s ability to affect the exercise of the powers of the High Court under s 75(v) must apply to the Federal Court”. Ms Mortimer pointed out that s 75(v) “is construed to permit the High Court always to be able to correct unlawful usurpations of power by judicial and non or quasi judicial officers”.

306               The submissions summarised in the preceding paragraph were not contested by counsel for the Minister. However, of course, the critical question is what is meant by “unlawful”.

307               Ms Mortimer argued that, if s 474 is construed in such a manner as to protect decisions that involve jurisdictional error, it is invalid. Her reason was that “then the administrative decision makers under this Act … have been given authority by Parliament conclusively to determine questions of law which go to their authority to decide, and to make a decision otherwise than in accordance with law”. She referred to the High Court’s decisions in Craig v South Australia (1995) 184 CLR 163, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1.

308               The application of the Hickman principle to cases of jurisdictional error is a problem of importance and some difficulty. However, I do not think the problem justifies this Court in holding that a provision in the form of s 474 of the Act is beyond the legislative competence of the Commonwealth Parliament. The High Court has discussed similar provisions in numerous cases, without making any suggestion of general constitutional invalidity. If a particular application of s 474 would lead to invalidity (either because it confers judicial power on non-judges or conflicts with s 75(v) of the Constitution) the Court should read it down so as to exclude that application, not declare it to be wholly invalid: see s 3A of the Act.

309               Counsel for HREOC drew attention to the fact that the privative clause (s 474) is not contained in those Parts of the Act that confer powers upon decision-makers, but in the Part concerned with judicial review. She suggested this raises questions about the application of the Hickman principle: “it simply may not be possible to prescribe in advance the operation of s 474 on all the various decisions which can be made by the RRT and the MRT under the Act”. Although Ms Mortimer did not put the argument in this way, it seems to me also to raise a constitutional issue, especially having regard to the provisions of the amending Act regarding the commencement of the new s 474. Part 2 of Schedule 1 of the Migration Legislation Amendment (Judicial Review) Act applied the new judicial review regime to privative clause decisions made on or after the date of commencement of Schedule 1 of that Act (2 October 2001). That step creates no particular problem. However, it also purported to apply the new regime to applications for judicial review made on or after the commencement of the Schedule in respect of decisions made before commencement of the Schedule. That being so, it is arguable that s 474 is not a provision expanding, to the furthest constitutionally-permissible limit, the jurisdiction of statutory decision-makers; but that it is a provision restricting review of decisions whose jurisdictional base remains limited to provisions other than s 474.

310               I have been troubled by this aspect of the case. However, in the absence of submissions specifically directed to the issue, it would not be appropriate for me to reach a conclusion about it.

311               I reject the submission that s 474 is constitutionally invalid.

Application of Hickman to the five appeals

(i)                 NAAV

312               The facts relating to NAAV’s appeal are set out in judgments of other members of the Court. The critical questions are, first, whether the Refugee Review Tribunal denied natural justice (procedural fairness) to the applicant and, second, if so whether this is an available ground of review.

313               In relation to the first matter, I have no doubt. Early in the hearing, the Tribunal member, Mr Gibson, referred to independent “country information” and told the applicant and his representative, Mr McDonnell, that he would “be telling you what that information may mean in your case, and giving you an opportunity to make comments about it”. Later in the hearing, Mr McDonnell asked Mr Gibson to make available “any independent country information that could have a bearing on the case”. Mr Gibson replied that it (the independent country information) had none, “it has no bearing at all”. Mr McDonnell accepted this as a satisfaction of his request.

314               At the conclusion of the hearing, Mr Gibson reinforced the message that he would not be considering undisclosed independent information. In the course of listing the material he would consider, he referred to “independent information, a little bit which I put to you during the oral evidence”.

315               Judging by his concluding remarks, Mr Gibson initially expected to be able to announce the Tribunal’s decision within about one month after the hearing, that is by about the end of August 2000. In fact the decision was made 13 months after the hearing, on 11 September 2001. For some unexplained reason, it was not published until 2 October 2001, the day on which the new Part 8 of the Act commenced to operate. No doubt because of the lengthy delay between hearing and decision, Mr Gibson must have forgotten the assurances he gave the applicant and his representative. Far from confining his use of independent information to whatever was put to the applicant during the course of his oral evidence, Mr Gibson took into account a large quantity of undisclosed material.

316               Counsel for NAAV described the relevant material to us, without contradiction, as “21 undisclosed documents, a particular atlas, (Mr Gibson’s) undisclosed specialist knowledge of military training and an undisclosed map”. The undisclosed material was important to the Tribunal’s decision-making process. NAAV had claimed that, following a particular demonstration in March 1998, he was taken to Insein Jail, where he was interrogated and mistreated for two weeks and then held for two months in solitary confinement. Mr Gibson rejected that claim. He said (at para 120):

“I am unable to accept that the applicant was detained in Insein Jail. I have read reports compiled from first hand accounts of prisoners in Insein Jail (see Amnesty International, Myanmar Conditions in prisons and labour camps, September 1995; and ABSDF, Cries from Insein, 1996). I can find no reference to prisoners being hooded whilst being interrogated over the time (sic) as the applicant claims he was.”

317               At the hearing before the primary judge, Gyles J, counsel read an affidavit in which NAAV deposed that, if he had known the Tribunal intended to use the Amnesty International and ABSDF documents for this purpose, he would have referred the Tribunal to a July 1998 publication of the All Burma Students’ Democratic Front, Tortured Voices: Personal Accounts of Burma’s Interrogation Centres, in which there are references to Insein prisoners being hooded. NAAV annexed relevant pages to his affidavit.

318               In his reasons for decision, Mr Gibson said he was unable to find on the Microsoft Encarta Interactive World Atlas certain villages mentioned by NAAV in his account of his flight from Burma to Bangladesh. The implication was that the villages did not exist. In this context, Mr Gibson referred to “the applicant’s inconsistent and implausible evidence”. In his affidavit, NAAV cited maps in which these villages are shown.

319               Mr Gibson’s conclusions about these matters may have affected the outcome. At para 157 of his decision, he said he must consider NAAV’s claims “both individually and cumulatively”. He said he was not satisfied NAAV had a well-founded fear of persecution for Convention reasons “even when his claims are assessed cumulatively”. Had Mr Gibson given NAAV and his representative the opportunity to respond to the independent information he was taking into account, he may have reached different conclusions about the important matters to which they related. In turn, this may have affected his overall assessment of NAAV’s credibility and claim to a protection visa.

320               It is not necessary for me to express any general view as to the extent to which the Refugee Review Tribunal (or any other statutory decision-maker) is bound to disclose independent country information to an applicant. If nothing had been said, it might have been open to Mr Gibson to rely upon undisclosed independent information in respect of matters not personal to the applicant. However, something was said. Although I am confident Mr Gibson did not intend to mislead NAAV, in fact he did so. The situation is similar to that which obtained in Aala.

321               That conclusion brings me to the second question: is the requirement of procedural fairness excluded by s 474?

322               In Aala the High Court held that the Refugee Review Tribunal was bound to accord procedural fairness to a visa applicant. Although s 476(2)(a) of the then Act excluded breach of the rules of natural justice as a ground of relief in this Court, that did not affect the Tribunal’s obligation to accord procedural fairness or the enforceability of that obligation under s 75(v) of the Constitution.

323               In Re Minister for Immigration and Ethnic Affairs; Ex parte Miah [2001] HCA 22; 179 ALR 238, the High Court took the same view about the obligation of a delegate of the Minister. McHugh J stated the relevant principle at [126]:

“It is now settled that, when a statute confers on a public official the power to do something which affects a person’s rights, interests or expectations, the rules of natural justice regulate the exercise of that power ‘unless they are excluded by plain words of necessary intendment’. An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from ‘indirect references, uncertain inferences or equivocal considerations’. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice. As I pointed out in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 196:

‘The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.’

The common law rules of natural justice are part of this background. They are taken to apply to the exercise of public power unless clearly excluded.”

324               Gaudron J noted, at [95], the heading of the relevant subdivision of the Act, subdivision AB of Division 3 of Part 2. It read: “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. Her Honour said: “That being so, those powers are to be exercised to ensure procedural fairness, albeit in a manner that is quick and efficient”. The obligation to accord procedural fairness was not excluded.

325               McHugh J, at [128], noted the same heading and commented it “assumes that the ‘code’ will operate fairly”. He said:

“The subject matter of the Act, the fact that it implements Australia’s international obligations, and the omission of words unambiguously pointing to an intention to exclude all the common law rules of natural justice indicate that the exercise of power under subdiv AB is conditioned on the observance of those rules except where the provisions of the Act specifically supersede them.”

326               Counsel for NAAV, Mr B Walker SC and Mr L Karp, pointed out that procedural fairness has not been specifically excluded from Part 8 of the Act. They noted that a Bill to achieve that result, the Migration Legislation Amendment (Procedural Fairness) Bill 2001 was presented to Parliament on 27 September 2001, but not enacted. Counsel said:

“… legislation impinging on common law rights must be strictly construed. Section 474 says nothing about procedural fairness. The only provision in sec 474 which could possibly encompass procedural fairness is para 474(3)(h) which includes within preparatory conduct that which would ordinarily be considered to be conduct subject to the rules of procedural fairness. This is far from a specific excluding reference to natural justice. It is even further from clear words of necessary intendment that natural justice not apply. Subsection 474(1) cannot be read as a clear intention to exclude natural justice, because the subsection does not say so. Nor can Hickman jurisprudence make it so because one of the enquiries with which Hickman is concerned is whether there are requirements in the statute which proscribe the conduct in question notwithstanding the existence of a privative clause. Requirements in a statute are as powerfully conveyed by unexcluded implications as by express words. The express and implied requirements provided by a statute are indifferently requirements of the statute, and are equally binding on everyone (including courts).”

327               In their written submissions on NAAV’s appeal, counsel for the Minister, Mr D Bennett QC, Mr S Gageler SC and Mr S Lloyd, acknowledged “the giving of procedural fairness will generally be an implied precondition on the valid exercise of the power”. However, they said that position is subject to any express statutory provision to the contrary. They contended s 474(1) of the Act constitutes such a provision. Counsel said a privative clause “necessarily excludes the application of the rules of procedural fairness except to the extent that they are incorporated into one of the Hickman provisos”. Counsel referred to Mr Ruddock’s Second Reading Speech and said:

“Given this clear statement of the object and desired effect of the legislation and given that the privative clause was inserted as an amendment to an existing Act, there is no scope to contend that limitations previously existing in the Act are ‘inviolable’ and not subject to the effect of the privative clause.”

328               If counsel meant, by this submission, to contend that the amendments should be construed in isolation from the remainder of the Act, I do not think that is correct. Amendments are designed to vary the terms of a previously existing statute; but the principal Act, as amended, remains to be considered as a whole. The relevant task, for present purposes, is to determine whether the Act, as it now stands and considered as a whole, evinces a Parliamentary intention to exclude the obligation of the Tribunal to afford natural justice or to exclude the power of a court to enforce that obligation.

329               Unlike the situation in Miah, NAAV’s appeal does not arise out of a decision by a delegate of the Minister, but, rather, a decision of the Refugee Review Tribunal. The heading of subdivision AB of Division 3 of Part 2 of the Act is not relevant to a decision of the Tribunal. However, s 420 of the Act applies to the Tribunal. It uses a similar collocation of words. Section 420(1) requires the Tribunal, in carrying out its functions under the Act, to “pursue the objective of providing a mechanism for review that is fair, just, economical, informed and quick”. Section 420(2)(b) says that the Tribunal, in reviewing a decision, “must act according to substantial justice and the merits of the case”. These are not the words of a Parliament that wishes to exclude the obligation to provide procedural fairness.

330               None of the Bills enacted by Parliament expressly excluded the obligation of natural justice that had been recently upheld by the High Court in AalaandMiah. The Government may have wished to achieve such an exclusion, but it did not receive the necessary Parliamentary support.

331               Under those circumstances, I conclude that Aala and Miah continue to apply; persons who make decisions under the Act affecting the visa entitlement of particular individuals are bound to accord to them procedural fairness.

332               I do not think this obligation is affected by the Hickman principle. As Latham CJ and Dixon J pointed out in Rent Controller, an element of that principle is that, if, upon the construction of the legislation as a whole, it appears that powers are exercisable only in certain cases, and not exercisable in other cases, a privative clause will not preclude relief. I agree with counsel for NAAV that this rule extends to common law obligations implied by a statute, as much as to obligations expressly imposed by the statute.

333               I would order that the appeal by NAAV be allowed, the orders of Gyles J be set aside and, in lieu thereof, it be ordered that the decision of the Refugee Review Tribunal be set aside and the matter be remitted to that Tribunal (differently constituted) for rehearing and determination.

(ii) NABE

334               The facts concerning this appeal have also been recounted by other members of the Court. The Refugee Review Tribunal accepted that NABE was a Sri Lankan national of Tamil extraction who was born in Jaffna. He was affected by the long-running civil war between the LTTE and the Sri Lankan government. NABE claimed to have been taken by the “authorities” (presumably Sri Lankan government forces) while engaged in choir practice at his church, and removed to a camp. The Tribunal did not make a clear finding about this claim but commented:

“… the episode occurred several years ago while he resided in the vicinity of the main trouble-spot in Sri Lanka. The fact that he was released from custody and was later able to travel to Colombo indicates that he was not of any continuing interest to the authorities, and the Tribunal finds accordingly.”

335               The Tribunal noted claimed later incidents but was not persuaded of the truth of all those claims. After referring extensively to country information the Tribunal member concluded:

“There is no doubt that Tamils have often been at risk of persecution in Colombo and elsewhere in recent years. The evidence also indicates, however, that almost half the population of Colombo is Tamil and that the risk of persecution is very far from universal. Aforementioned information indicates that, apart from those who have fled the authorities in the north, those most at risk are recently arrived young people without established links to Colombo.

In the present case the applicant has a history of residence in Colombo of at least a year and no credible claims of harm there for any Convention reason. His sister resided there with him, at least for a time. The applicant registered with the authorities, thus indicating he established a valid purpose for residing in Colombo, as well as indicating he was not regarded as a security risk. The Tribunal is not satisfied that he has no work history or significant family or personal contacts still in Colombo. In all the circumstances the Tribunal finds it would be reasonable for the applicant to again take up residence in the capital where he does not face any real chance of persecution for any Convention reason.”

336               The submission put to the primary judge, Tamberlin J, was that the Tribunal erred in failing to deal with a separate claim of mistreatment, not by the “authorities” but by the People’s Liberation Organization of Tamil Eelam (“PLOTE”), a pro-government militant organisation. This mistreatment was said to have occurred at Vavuniya in early 1999. It was contended that the failure to deal with the claim of persecution by PLOTE was a jurisdictional error.

337               Tamberlin J accepted this submission. He noted that, in his first statement, NABE referred to the mistreatment at Vavuniya in 1999 without identifying who was responsible for it. NABE referred only to “they”. However, his Honour also noted that the decision of the delegate recorded NABE’s claim that, whilst in Vavuniya, “he was arrested by PLOTE people”. He said (at para 37):

“This statement in the delegate’s decision clearly indicates that the applicant’s claim was not detention and torture by the authorities, but by PLOTE. It was the decision of the delegate that was the subject of the review by the RRT and this statement as to the nature of the claim was before the RRT when considering the decision. Other material before the RRT did not specify clearly who detained and tortured the applicant. On the material I have referred to, other statements by the applicant and the relevant part of the transcript of the hearing before the RRT which was tendered in evidence, I am satisfied that there was an error by the RRT which could have affected the outcome because it bears directly on the question whether there were grounds, based on past persecution, for the applicant believing there is a real risk of persecution if returned.” (Original emphasis)

 

338               I have not read all the material to which his Honour referred; in particular, the relevant part of the transcript of the hearing before the Tribunal. However, I accept this material supports the contention that NABE had claimed to have been mistreated at Vavuniya by PLOTE, rather than by government authorities. Even so, I have difficulty in concluding that the Tribunal fell into a jurisdictional error.

339               At his initial interview, NABE was asked whether he had any reasons for not wishing to return to his country of nationality. He replied:

“I came in here because it was impossible to live there so how can I go back there. I have come to Colombo three times. I have been sent back to Jaffna three times. If I return I will be arrested again. Many people who have been arrested disappeared in the past. As a Tamil person, if I return I will be arrested. Tamil are persecuted race in Sri Lanka.”

340               The persecution NABE claimed to fear was arrest, obviously by government authorities. That was the case put to the Department, in a supporting submission, by his immigration consultant, Rasan Selliah. Mr Selliah wrote:

“The situation in the country for Young Jaffna Tamils is very dangerous. The Jaffna Peninsula is expecting an outbreak of war at any time. Young Tamils in particular are persecuted by the authorities and by the LTTE. If they refuse to join the LTTE, they often go missing and many are ultimately killed. The authorities regularly detain and kill many youths.

Therefore, the applicant’s fear of being persecuted (torture, detention, extortion, and compulsory recruitment) for conventions reasons of race, political opinion (or imputed political opinion) and particular social group (being a young Tamil of Jasffna [sic]) is well founded.

The applicant genuinely fears to return to the Jaffna Peninsula. He cannot reasonably relocate to other parts of the country in order to avoid persecution. He had been arrested, tortured and had paid money to the authorities in Colombo. The applicant cannot speak Singhalese language. Therefore, relocation is impossible in the applicant’s case.

The applicant provided a full explanation to the interviewing officer.

The applicant truly believes that if he returns to Sri Lanka he will be arrested and tortured.

Therefore, we submit that the applicant is a refugee under the convention.”

341               In a letter sent to the Tribunal shortly before the hearing of NABE’s application for review of the delegate’s decision, Mr Selliah repeated the same argument, in almost identical words.

342               So far as I can ascertain, at no time did NABE claim a fear of persecution at the hands of PLOTE, as distinct from the “authorities”. The claimed mistreatment at Vavuniya was one of a long list of alleged incidents. As PLOTE was a body sympathetic to the Sri Lankan government, evaluation of that incident was relevant to the claim made by NABE, and the only claim made by him, of feared persecution by Sri Lankan government authorities. But it was not a separate claim requiring separate evaluation. The Tribunal may have overlooked the delegate’s reference to NABE having claimed the mistreatment occurred at the hands of PLOTE, rather than the army or government officials. If so, however, it seems to me that was merely an error of fact.

343               I accept the Tribunal is not limited to the formal claims made by an applicant for a protection visa. Sometimes the evidence suggests a risk of future persecution by some person, or in some manner, that falls outside an applicant’s formal claims. In that case and despite the absence of a claim, the Tribunal may come under an obligation to evaluate the situation. However, for that obligation to arise, there must be some reason for fearing a future problem. Whatever the truth about the Vanuniya incident, having regard to the Tribunal’s other findings of fact, there was no reason to apprehend future mistreatment of NABE by PLOTE.

344               As I respectfully disagree with Tamberlin J’s view that the Tribunal fell into jurisdictional error, I do not find it necessary to consider the correctness of his conclusion that s 474 saves the Tribunal’s decision from invalidity.

345               I would dismiss the appeal of NABE.

(iii) Ratumaiwai

346               This is an appeal against a decision of Hill J dismissing an application to review a decision of the Migration Review Tribunal. Once again, the facts are recounted by others.

347               It was common ground before Hill J that, in order to obtain relief and regardless of the operation of the new s 474 of the Act, it was necessary for Mr Ratumaiwai to demonstrate that the Tribunal had fallen into jurisdictional error. Hill J held he failed to do this. Accordingly, it was unnecessary for him to consider submissions concerning s 474 of the Act. Notwithstanding this, his Honour made some observations about the section.

348               I agree with Hill J that Mr Ratumaiwai failed to demonstrate jurisdictional error by the Tribunal. I am content to adopt the reasons set out by Hill J in paras 20 to 32 of his judgment. On that basis, I would dismiss the appeal. As it is unnecessary for me to do so, I make no comment about Hill J’s observations regarding s 474.

(iv) Turcan

349               The application before the primary judge, Heerey J, sought review of two decisions. The first decision, made under s 128 of the Act, was to cancel a “permanent spouse class 801” visa held by Mr Turcan. This decision was made on 6 July 2001. No application for review was made until 27 February 2002, when a proceeding was instituted in this Court. That was done four days after the second decision, on 23 February 2002, to detain Mr Turcan under s 189(1) of the Act.

350               The first decision was made before the new Part 8 was enacted. If Mr Turcan had promptly applied for judicial review of that decision, he would not have confronted the privative clause that is now s 474 of the Act. But he did not do this, presumably because he was overseas from 3 May 2001 until 23 February 2002. When he did make his application, he was met by an objection as to competency. The objection was based upon the fact that the application was not made within the time fixed by the new s 477(1) of the Act. Section 477 relevantly provides:

“(1) An application to the Federal Court under section 39B of the Judiciary Act 1903 for:

(a)       a writ of mandamus, prohibition or certiorari; or

(b)       an injunction or a declaration;

in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision.

…

(2) The Federal Court of the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or (1A) outside the period specified in that subsection.”

351               After investigation of the relevant facts, Heerey J held that Mr Turcan was not notified of the decision of 6 July 2001, within the meaning of s 477(1), until his detention at Melbourne airport on 23 February 2002. On that basis, he held the new privative clause applied to the decision. It seems to me his Honour was correct in holding the new clause applied. But I would adopt a different reason. As Mr Turcan had not instituted any proceeding before 2 October 2001, he had no “right” to obtain relief on the basis of the law that existed before that date: see s 8(c) of the Acts Interpretation Act 1901 and the discussion in Pearce and Geddes, Statutory Interpretation in Australia (5^th ed) at paras 6.7 to 6.9.

352               On the basis that the new s 474 applied to both decisions, Heerey J held it was inappropriate to do more than consider whether any of the three Hickman conditions applied to either of them. Having held they did not, he dismissed the application for review.

353               At para 46 Heerey J explained his approach in this way:

“In my view, the correct approach is to first consider whether s 474 applies. If it does, the Court need not, indeed should not, go any further. The Court should not assess the case as if s 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the Court’s jurisdiction and is to be applied at the threshold.”

354               I respectfully disagree with two aspects of that statement. First, I do not think it is correct to say that s 474 “in its terms goes to the Court’s jurisdiction”. Although a reader uninstructed in the mysteries of privative clauses might read it that way, it is clear (and common ground in these appeals) that s 474 is code for an instruction to apply the line of authority stemming from Hickman. As the High Court has pointed out, the underlying theory of Hickman is that a privative provision is to be used as an aid to construction of the relevant statute; it may affect the availability of relief in the particular case, but it does not affect any court’s jurisdiction.

355               Second, it has not been the practice of the High Court simply to take a privative clause, to consider whether the case exhibited any of the Hickman conditions and, if not, dispose of it without considering other legal issues. In Hickman itself, Dixon J first considered whether the prosecutors were engaged in the coal mining industry. Only after reaching a conclusion about that matter (at 614) did he turn to a consideration of the Court’s jurisdiction under s 75(v) and the significance of the privative provision, reg 17. A similar methodology can be seen in other cases. Indeed, it is necessary to take this course if effect is to be given to that part of the Hickman doctrine that excludes application of a privative provision to a decision that ignores a statutory condition precedent or an inviolable limitation or restraint upon the powers of the decision-maker.

356               It follows that I respectfully think Heerey J erred in going straight to s 474. He should first have considered the other factors bearing on the validity of each of the decisions. That exercise not having been done, it is necessary for this Court to undertake the task.

357               Once again, the facts have been recounted by others. It will be recalled that Mr Turcan was the holder of a permanent class 801 onshore visa at the time of his departure for Moldova on 3 May 2001. As at that date, he had been separated from his wife for some five months, she having left the apartment they were sharing in December 2000. On 6 July 2001, Ms A Faulkner, an officer of the Department of Immigration and Multicultural Affairs, cancelled Mr Turcan’s visa on the ground that it “should not have been granted because its grant was in contravention of this Act”. This ground is set out in s 116(1)(f) of the Act. Ms Faulkner’s reason was that the relationship claimed by Mr Turcan on 17 November 2000 “for the purposes of your application for permanent residence on spouse grounds, was in fact no longer in place”.

358               The visa cancellation was effected pursuant to Subdivision F of Division 3 of Part 2 of the Act, Mr Turcan being a non-citizen who was then outside Australia. Section 128, which leads that Subdivision, provides:

“If:

(a)               the Minister is satisfied that:

(i)                 there is a ground for cancelling a visa under section 116; and

(ii)               it is appropriate to cancel in accordance with this Subdivision; and

(b)               the non-citizen is outside Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.”

359               It will be noted that s 128 expressly provides that the cancellation may be effected without notice to the holder of the visa. In that regard, Subdivision F stands in contrast to Subdivision E, which governs the cancellation of visas of persons not known to be outside Australia. That Subdivision requires notice of a proposed cancellation (s 119), the provision of certain information (s 120) and an opportunity for the visa holder to comment (s 121).

360               Counsel for Mr Turcan, Mr Hurley, accepted that s 128 does not require prior notice of a possible cancellation of a visa on a s 116 ground. However, he argued that the consequences of a cancellation under s 128 are severe; for that reason Parliament has required compliance with each of the three pre-conditions in s 128. Mr Hurley contended Ms Faulkner’s satisfaction about the first condition (“there is a ground for cancelling a visa under section 116”) involved error of law. He relied upon a Departmental assessment of the case that contains this analysis:

“7.7.6 Section 116(1)(f) does not allow for substantive visas to be cancelled where the delegate was satisfied at the time of grant that the criteria were met, but it is later found that those criteria were not met. This is because substantive visas are granted under s 65 of the Act. Unlike s 73, which allows the grant to occur only where the applicant actually meets the criteria, s 65 provides that the Minister must grant the visa ‘if satisfied that’ the criteria for the visa have been satisfied. That is, if the Minister or his delegate is satisfied that the applicant meets the criteria, the visa is lawfully granted, even it [sic] is later found that the applicant never actually met the criteria. Therefore, such a decision is not in contravention of the Act.

7.7.7 Conversely, if a delegate grants a visa when he or she is in fact not satisfied that the applicant meets the criteria (for example, in the case of fraud or misconduct by a delegate), the grant will contravene the Act. This is because the power to grant in s 65 is limited to cases where the delegate is satisfied the relevant criteria are met. In practice, establishing that a delegate was not satisfied that a criterion was met will be difficult as it depends on having probative evidence about the delegate’s state of mind at the time of grant.”

The writer of the assessment recommended reconsideration of the case by Ms Faulkner.

361               Mr Hurley argued “that the requirement that a decision-maker be lawfully ‘satisfied’ that proceeding under Subdivision F is appropriate is an inviolable limitation or restraint upon the jurisdiction or power given by s 128. It is a limitation on the power to decide”.

362               Counsel for the Commonwealth put a number of submissions in response to this argument. Their broadest submission was that s 474 of the Act leaves no room for consideration of inviolable limitations; it requires courts to consider only the existence of the three Hickman conditions. I do not think that submission can be sustained, having regard to the jurisprudence developed by the High Court in respect of other privative clauses.

363               At a more specific level, counsel argued that s 128 of the Act does not contain a “clearly expressed specific intention” to impose a limitation. The phrase is taken from R v Murray; Ex parte Proctor (1948) 77 CLR 387 at 400.

364               I think s 128 does include a clearly expressed intention to impose limitations, being the three conditions stated in para (a)(i), para (a)(ii) and para (b). The condition stated in para (b) was clearly satisfied in this case; Mr Turcan was outside Australia.

365               An issue arises in relation to para (a)(i) and para (a)(ii). The relevant limitation in relation to those conditions is that the Minister is “satisfied” of a particular matter. Ms Faulkner, acting on behalf of the Minister, was apparently subjectively satisfied of both these matters. However, in being so satisfied she seems to have fallen into an error of law. I agree with the analysis of the position set out in para 7.7.6 of the departmental assessment.

366               A statutory formula requiring an official to be “satisfied” of something, before exercising a power adversely to the interests of a particular individual, means lawfully, or validly, satisfied: see R v Connell; Ex parte Hetton Bellbird Collieries Limited (1944) 69 CLR 407 at 432 per Latham CJ. Ms Falkner was not so satisfied. Accordingly, she was not “satisfied” within the meaning of s 128(a) of the Act.

367               Mr Hurley did not put any separate argument in relation to the second decision, to detain Mr Turcan pursuant to s 189(1). He assumed the validity of this decision directly depended upon the validity of the first decision. That is not strictly correct. The power to detain under s 189(1) may be enlivened by an officer reasonably suspecting that a person is an unlawful non-citizen. Reasonable suspicion is not necessarily negatived by the fact that, unbeknown to the suspecter, an earlier decision is legally invalid. However, if the first decision relating to Mr Turcan is quashed, he will no doubt promptly be released from detention: see s 191.

368               I would uphold Mr Turcan’s appeal. I would set aside the orders made by Heerey J and, in lieu thereof, quash the delegate’s decision to cancel Mr Turcan’s visa. Prohibition should issue to restrain further action upon that decision.

(v) Wang

369               The remaining appeal is that of the Minister against the decision of Mansfield J in relation to Jian Zhong Wang.

370               This case also arises under Subdivision F of Division 3 of Part 2 of the Act. However, although there was a suggestion to the contrary from counsel for Mr Wang, Mr S Tilmont and Mr A Collett, it does not turn on s 128. I say that because it is clear that Mr Wang was overseas at the time of cancellation, and that the delegate of the Minister was satisfied, first, of the existence of a ground of cancellation under s 116(1)(d) of the Act and, second, that it was appropriate to cancel Mr Wang’s visa under Subdivision F.

371               Mansfield J accepted that the visa was validly cancelled under s 128. However, he held that the Minister had failed to comply with the requirements as to notice of cancellation contained in s 129; in particular, by failing to give adequate particulars of the ground of cancellation: see s 129(1)(b). In his view, that failure invalidated the delegate’s subsequent decision, under s 131 of the Act, not to revoke the cancellation. In paras 34 and 35 of his reasons Mansfield J said:

“In my judgment, the circumstance is not simply one where a procedural prescription imposed as part of the process of decision-making has not been complied with. It is one where the jurisdictional fact prescribed by the Act, and one which is also the essence of the material upon which the Minister is entitled and obliged to make a decision, has been shown not to exist. The purpose of the decision-making process under s 131 has been frustrated. …

In view of my characterisation of the nature of the decision to be made under s 131, and my view that the existence of a response to a valid notice under s 129(1), or at least to a notice which is adequate to elicit a meaningful response to the reasons for the cancellation of the visa, is an essential pre-condition to a valid decision under s 131, I consider that it is not intended by the Act that s 474(1) should preclude the grant of appropriate relief under s 39B of the Judiciary Act in the present circumstances. The decision under challenge is really no decision at all, because the respondent was not empowered in the circumstances to form any satisfaction in terms of s 131(1)(a) or (b). He did not have before him to enliven that power, and to impose the obligation to exercise it, a response to a notice under s 129(1). The absence of such a response is not ‘a mere defect or irregularity which does not deprive [him] of the power’ to make the decision: Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Mason CJ at 180.”

372               I agree. I would dismiss this appeal.

Conclusion

373               In Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 I expressed the view, first, that the jurisdiction of this Court under s 39B of the Judiciary Act, in relation to privative clause decisions, is co-extensive with the jurisdiction of the High Court, under s 75(v) of the Constitution, in respect of those decisions; and, second, that this Court ought to apply decisions of the High Court like Craig and Yusuf in determining the reach of s 474.

374               Nothing that has been said in relation to the present appeals causes me to depart from the first of the above two views. However, argument on these appeals suggests to me that my second view may go too far. Although the matter will ultimately be one for the High Court to determine, it may give inadequate weight to the intended operation of the Hickman principle if this Court were to set aside decisions that merely demonstrate jurisdictional error such as a failure to address the correct question; as distinct from a case where there is a failure to comply with a condition precedent or limitation expressed (Turcan and Wang) or implied(NAAV)by a relevant statute.

375               In the result I would uphold the appeals of Mr Turcan and NAAV and make the consequential orders set out above. I would dismiss each of the other appeals. In each case, the successful party should have an order for payment of his costs by the unsuccessful party.

 

Postscript

376               I note two events that have occurred since the above reasons were drafted. First, Parliament has enacted the Migration Legislation Amendment (Procedural Fairness) Act 2002. I see no reason to believe this Act will be any more effective than the 2001 legislation in reducing the number of applications for judicial review of migration decisions. What other effect it may have must be left for other cases to resolve. As is common ground, the recent statute has no application to any of the present appeals.

377               Second, I have read in draft form the reasons for judgment of the other members of the Court. French J reaches conclusions similar to my own. He does so by application to each appeal of legal principles which he has explained. I respectfully concur with both his Honour’s exposition of the relevant principles and his application of them to these appeals.

 

I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

 

 

Associate:

 

Dated: 15 August 2002

 

IN THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN	NAAV N 265 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT   THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
BETWEEN	NABE N 282 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	ANARE SUA RATUMAIWAI N 399 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	AUREL TURCAN V 225 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	S 84 OF 2002 MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS APPELLANT
AND	JIAN ZHONG WANG RESPONDENT

 

JUDGES:	BLACK CJ, BEAUMONT, WILCOX, FRENCH and von DOUSSA JJ
DATE:	15 AUGUST 2002
PLACE:	MELBOURNE

 

 

REASONS FOR JUDGMENT

FRENCH J:

CONTENTS

Introduction [378]

The Issues on the Appeals [385]

Australia’s Migration Statutes [386]

- A Brief History

Overview of the Migration Act [404]

Judicial Review of Decisions under

the Migration Act- Prior to the

1992 Amendments [408]

Judicial Review of Decisions under

the Migration Act- After the 1992

Amendments [413]

Judicial Review of Decisions under

the Migration Act- The Present Position [419]

Approach to Construction – The Relevant Rules [430]

Background to Construction – The Rule of Law [443]

Conditions Applicable to Statutory Powers

under the Migration Act [451]

Jurisdictional Error [461]

Theories of Judicial Review – Legislative

Intention or Judicial Imposition [477]

Privative Clauses and the Exercise of

Conditional Powers Generally [481]

The Hickman Principle [485]

The Jurisdiction of the Courts to Review

Decisions under the Migration Act [491]

The Construction of Section 474

– Application to Valid Decisions [510]

The Construction of Section 474

– Its Effect on Other Provisions of the Act [519]

Construction of Section 474

– Effect on Procedural Fairness [525]

Construction of Section 474

– General Conclusions [537]

Constitutional Validity of the Privative Clause [538]

The Five Appeals [547]

Conclusion [593]

Introduction

378               In September 2001, as part of a package of eight Acts, the Parliament of the Commonwealth enacted the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the “Judicial Review Act”). That amending Act, which came into effect on 2 October 2001, seeks to confine the grounds upon which persons affected by decisions made under the Migration Act 1958 (Cth) (“the Migration Act”) may challenge them in the High Court, the Federal Court and the Federal Magistrates Court. By a new s 474 it provides that a range of decisions under the Act shall be final and conclusive and are not to be challenged, appealed against, reviewed, quashed or called into question in any Court. Nor can they be subject to the remedies of prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

379               A law in this form is known as a privative or ouster clause. If interpreted literally such a clause in a federal enactment would be unconstitutional. It would be unconstitutional because it would take away the jurisdiction which is conferred upon the High Court by the Constitution itself. And it would be unconstitutional because it would allow Commonwealth officials to exceed, without any judicial check, not just statutory limits but also constitutional limits on power.

380               Privative clauses, which date back to at least the fifteenth century, have historically been given a narrow construction by the English courts. A detailed history is given by Aronson in Statutory Restrictions of Remedies in England & Australian Administrative Law Unpublished Doctoral Thesis, UNSW Law Library, 1971. See also Chapter 18 of Aronson and Dyer, Judicial Review of Administrative Action, 2^nd Edition, Law Book Company, 2000 (“Aronson and Dyer”). In Australia the courts have been more accommodating of such provisions but have developed an approach which permits limited judicial review of administrative decisions despite the existence of a privative clause. That approach is linked to the concept of giving effect to conflicting parliamentary or legislative intentions.

381               A privative clause may introduce into an Act of Parliament an apparent internal contradiction between the limits that Parliament imposes on official power and its denial of judicial supervision of those limits. The High Court and Sir Owen Dixon in particular recognised in a number of cases in the 1940’s that there was a need to try to reconcile that apparent contradiction where privative clauses were enacted. Dixon J expounded an approach to the interpretation of such clauses which would limit the grounds for judicial review but at the same time seek to give effect to the parliamentary intention that certain powers could not be exercised unless some fundamental conditions governing their exercise were met. Although not expressed as a consideration in the early cases, this also prevented restrictions on judicial review running so widely that they would be unconstitutional in their application to the High Court or otherwise by effectively authorising action beyond constitutional limits. The approach developed by Dixon J was recognised and accepted, in part, in the Second Reading Speech by the Minister for Immigration & Multicultural & Indigenous Affairs (the “Minister”) which introduced the amending Act to the Parliament. It was interpreted by the Minister as a somewhat rigid rule of law. In truth, it is a guide to reconciling conflicting statutory provisions and must be applied according to the terms and other features of each Act. As the course of decisions in the High Court since the 1940s illustrates, judges have applied privative clauses in a variety of ways which depend on the Acts they have had to deal with.

382               In the case of the Migration Act, judges of the Federal Court have expressed divergent views about the extent to which the Court can review decisions under the Act after the amendments. The Court has therefore convened a special sitting of five of its members to consider five appeals which raise a number of aspects of the operation of the privative clause.

383               Before turning to the particular cases under appeal, the general history of the Migration Actand its provisions before and after the 2001 amendments are reviewed. Principles of interpretation relevant to this appeal are considered and, in particular, the approach to the interpretation of privative clauses in the High Court which is relied upon by the Minister. This consideration leads to some general conclusions about the operation of the amending Act and some particular conclusions about the appeals presently before the Court.

384               The general conclusions about the operation of the privative clause, s 474, are as follows:

1. Section 474 is to be construed and applied in accordance with the approach indicated by the High Court in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (“Hickman”)and the line of authority which developed and expounded that approach.

2. Section 474 applies only to valid decisions made under the Act.

3. Whether a decision is valid, and therefore protected by s 474, is to be determined by construing the provision under which it is made together with the Act as a whole including s 474 and in accordance with the Hickman approach.

4. A decision is not valid and therefore not protected by s 474 from judicial review where:

(i) the decision exceeds the constitutional limits upon legislative power imposed by the Commonwealth Constitution; or

(ii) the decision was not made in good faith; or

(iii) the decision was not reasonably capable of reference to the power under which it was made; or

(iv) the decision was not made by reference to the subject matter, scope and objects of the Act; or

(v) the decision was made in breach of an express statutory limit or condition upon a power which, as a matter of construction, notwithstanding s 474, must be observed for the effective exercise of the power; or

(vi) the decision was made in breach of a limit or condition on a power which, notwithstanding s 474, is implied from the statute or imposed by common law and must be observed for the effective exercise of the power; or

(vii) the decision was made in breach of the requirements of procedural fairness where the circumstances were such that, notwithstanding s 474, procedural fairness was a necessary condition for the valid making of the decision.

5. Jurisdiction to review decisions made under the Migration Actis vested in:

(i) the High Court under s 75 of the Constitution and s 30 of the Judiciary Act 1903 (Cth) (“Judiciary Act”);

(ii) the Federal Court under s 39B and s 44 of the Judiciary Actand s 39 of the Federal Magistrates Act 1999 (Cth);

(iii) the Federal Magistrates Court under s 483A of the Migration Actand s 32AB of the Federal Court of Australia Act 1976 (Cth).

6. On the basis of the preceding conclusions s 474 is a valid exercise of the legislative power of the Commonwealth. Having regard to these general conclusions, the outcomes I would propose in respect of the five appeals before the Court are:

1. The first appeal, NAAV v Minister for Immigration & Multicultural Affairs, in which it was said the Refugee Review Tribunal treated the appellant unfairly,should be allowed, certiorari issued to quash the Tribunal’s decision, an order in the nature of prohibition issued to the Minister to prohibit him from acting upon or giving effect to or proceeding further upon the Tribunal’s decision, and mandamus issued requiring the Tribunal to determine the appellant’s application for review of the Minister’s decision refusing his application for a protection visa according to law.

2. The second appeal, NABE v Minister for Immigration & Multicultural Affairs, in which the Refugee Review Tribunal made an error of fact, should be dismissed.

3. The third appeal, Ratumaiwai v Minister for Immigration & Multicultural & Indigenous Affairs, in which the Migration Review Tribunal was said to have made an error of law and misconstrued the Migration Regulations 1994 (“Regulations”), should be dismissed.

4. The fourth appeal, Turcan v Minister for Immigration & Multicultural & Indigenous Affairs, in which the Minister’s delegate failed to comply with a condition precedent to the power to cancel a visa, should be allowed, certiorari issued to quash the delegate’s decision, and an order in the nature of prohibition issued to the Minister prohibiting him from acting upon or giving effect to or proceeding further upon the cancellation decision. There should be liberty to apply within seven days on the question of any continuing detention.

5. The fifth appeal, Minister for Immigration & Multicultural & Indigenous Affairs v Wang, in which the Minister’s delegate failed to comply with a condition precedent to the exercise of a power not to revoke the cancellation of a visa, should be dismissed.

 

The Issues on the Appeals

385               The common issues in the appeals now before the Court concern the proper construction of the privative clause, s 474, introduced into the Migration Act by the Judicial Review Act, the scope of judicial review, if any, which is available on that proper construction and the extent, if any, to which the section properly construed, is outside the legislative power of the Commonwealth.

Australia’s Migration Statutes - A Brief History

386               Section 51(xxvii) of the Constitution empowers the Parliament, subject to the Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to “immigration and emigration”. The Parliament is also empowered to make laws with respect to aliens under s 51(xix) and with respect to the influx of criminals under s 51(xxviii).

387               One of the first statutes enacted by the Commonwealth Parliament after federation was the Immigration Restriction Act 1901 (Cth). It was described in its long title as:

“An Act to place certain restrictions on Immigration and to provide for the removal from the Commonwealth of prohibited Immigrants.”

388               It prohibited the immigration into the Commonwealth of “any person who when asked to do so by an officer fails to write out at dictation and sign in the presence of the officer a passage of fifty words in length in a European language directed by the officer” (s 3(a)). Persons accepted were, inter alia, those possessed of a Certificate of Exemption signed by the Minister or an officer (s 3(h)). The Act was of modest length by contemporary standards comprising in all some nineteen sections. It was subjected to various amendments in the years that followed its enactment but by 1935 still only comprised some nineteen sections, albeit it was to be read with the Pacific Island Labourers Act 1901 (Cth) and the Contract Immigrants Act 1905 (Cth). By 1950, it had undergone further amendments and expanded to sixty-four sections. The “dictation” test provision was still in force as was the system of entry under Certificate of Exemption. That system was the precursor of the entry permit and visa regimes which were successive features of later migration legislation.

389               The Migration Act 1958 repealed the Immigration Act 1901, The Pacific Island Labourers Acts of 1901 and 1906 and the Aliens Deportation Act 1948 (Cth). It was described briefly in its long title as:

“An Act relating to Immigration, Deportation and Emigration.”

The Act established a completely new statutory scheme for migration. Entry into Australia was regulated by entry permits, the grant of which was within the power of officers of the Department of Immigration (s 6(2)). An immigrant entering Australia without an entry permit was a prohibited immigrant (s 6(1)). The Act provided for the issue of temporary entry permits (s 6(6)) and for their cancellation by the Minister “in his absolute discretion” (s 7(1)). It also provided for the deportation of aliens and immigrants under various conditions (ss 12, 22)). It created powers of examination, search and detention in relation to suspected prohibited immigrants and persons subject to deportation orders (ss 32-45). It set up a system for the registration of immigration agents (ss 46-53). Somewhat more complex than its immediate predecessor, the Act comprised some sixty-seven sections.

390               In 1985, the Human Rights Commission and the Administrative Review Council published reports on the operation of the Act – Human Rights Commission (1985) Report No 13: Human Rights and the Migration Act (Canberra AGPS); Administrative Review Council (1985) Report No 25: Review of Migration Decisions (Canberra AGPS). At the time merits review was provided by non-statutory Immigration Review Panels and the Determination of Refugee Status (DORS) Committee. Merits review was also available in some cases in the Administrative Appeals Tribunal. The Administrative Review Council Report recommended a new system of merits review involving immigration adjudications subject to review by the Administrative Appeals Tribunal. The Federal Government did not immediately adopt this recommendation but appointed a Committee to Advise on Australia’s Immigration Policies (CAAIP) in 1987. That Committee reported in 1988 – Immigration A Commitment to Australia, 3 Vols, Canberra AGPS. It proposed a process of Internal Departmental Review at first instance subject in turn to review by the Administrative Appeals Tribunal.

391               Following these reports the Migration Legislation Amendment Act 1989 (Cth) was enacted. The amendments were comprehensive including new provisions for the control of entry into Australia involving entry permits and visas. A new Part III related to review of decisions. This Part created the Immigration Review Tribunal and provided for a process of internal review. The Federal Court was given jurisdiction to entertain appeals on questions of law from decisions of the Tribunal (new ss 64V and 64X). The general jurisdiction of the Court to review administrative decisions made under the Act, conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and theJudiciary Act, remained intact. They are referred to later in these reasons. 1990 saw the establishment of a Parliamentary Joint Standing Committee on Regulations which later became the Joint Standing Committee on Migration. In 1991, a Refugee Status Review Committee replaced the DORS Committee.

392               The next major amendment to the Act was effected by the Migration Reform Act 1992 (Cth) (“Migration Reform Act”) which was passed in November 1992. It followed, inter alia, a report on the processing of refugees prepared by the Joint Standing Committee on Migration Regulations in August 1992 under the title, Australia’s Refugee and Humanitarian System: Achieving a Balance between Refuge and Control (Canberra AGPS). The amending Act introduced an objects clause into the Migration Act and made the visa the single authority under which, for the most part, a non-citizen could be permitted to enter into or remain in Australia. It also established what was described in the Second Reading Speech as “… a uniform regime for detention and removal of persons illegally in Australia” (Parliamentary Debates, House of Representatives, 4 November 1992, p. 2621). The 1992 Act established a statutory mechanism for merits review of decisions relating to the grant of protection visas to persons claiming to be refugees. For this purpose it created the Refugee Review Tribunal. The provisions relating to the Tribunal commenced on 1 July 1993. The rest were to come into effect on 1 November 1993 but their operational date was deferred by subsequent amendment to 1 September 1994 – Migration Laws Amendment Act 1993 (Cth)(No 59 of 1993).

393               The provisions of the Migration Reform Act, which came into effect on 1 September 1994, included those which introduced the new Part 8 into the Migration Act. That Part provided for a confined judicial review of specified classes of decision under the Act on grounds set out in s 476. Reference is made later in these reasons to its provisions. The restrictions on judicial review were referred to in the Minister’s Second Reading Speech. It was said that, under the review provisions:

“Credible independent merits review will ensure that the Government’s clear intentions in relation to controlling entry to Australia, as set out in the Migration Act, are not eroded by narrow judicial interpretations.”

 

- Australia, Parliamentary Debates, House of Representatives, 4 November 1992, p. 2621

And further:

“…the Government wishes to make the application of the legal concepts of migration decision making predictable. Judicial review rights for decisions on the grant or cancellation of a visa will be set out in the Migration Act. Judicial review will only be possible after the applicant has pursued all merits review rights or where merits review is not available. Grounds for review will include failure to follow the codified decision making procedures set out in the Act. As the codified procedures will allow an applicant a fair opportunity to present his or her claims, failure to observe the rules of natural justice and unreasonableness will not be grounds for review.”

- Australia, Parliamentary Debates, House of Representatives, 4 November 1992, p. 2623

394               The Migration Legislation Amendment Act (No 1) 1998 (Cth), which came into effect in 1999, introduced procedures to be adopted by review tribunals requiring them to give notice to applicants of information that might be adverse to their applications for review. The primary provisions were ss 359A and 359B in relation to the Migration Review Tribunal and ss 424A and 425B in relation to the Refugee Review Tribunal. The Second Reading Speech for the Bill introducing these provisions described it as establishing “… a code of procedure for both the MRT and the RRT which is similar to that already applying to decisions made by the Department”.

395               The most recent relevant changes to the Migration Actwere made in 2001. They were effected by a package of some eight amending Acts being:

(a) The Border Protection (Validation and Enforcement Powers) Act 2001 (Cth)(No 126 of 2001). This Act made new provision for the prosecution and sentencing of “people smuggling” offences and created new powers in relation to aspects of border control. It also recited the parliamentary intention that the statutory powers in the Migration Actdo not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders (s 7A).

(b) The Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) (No 127 of 2001) and The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) (No 128 of 2001). These Acts excised certain offshore territories from the migration zone, being the zone within which a valid application for a visa may be made by a non-citizen.

(c) The Migration Legislation Amendment (No 5) Act 2001 (Cth) (No 130 of 2001), which authorised airline and shipping operators, travel agents and prescribed organisations to disclose “personal information” relating to travel into or out of the migration zone, to officers for any purpose likely to facilitate the administration and enforcement of the Act (s 488A).

(d) The Migration Legislation Amendment Act (No 6) 2001 (Cth) (No 131 of 2001), which made changes to the conditions of eligibility for a protection visa.

(e) The Migration Legislation Amendment Act (No 1) 2001 (Cth) (No 129 of 2001), which made amendments to Part 8 of the Act that commenced on 1 October 2001. This Act also introduced the new Part 8A which imposed a thirty five day time limit for applications to the High Court, restricted the courts’ power to consolidate proceedings, proscribed representative, class and joint actions except in the case of family members, persons performing statutory functions, the Attorneys-General or other prescribed persons, and restricted the persons who could commence or continue proceedings that would raise an issue relating to visas, deportation or removal or in relation to the validity, interpretation of effect of the Act.

(f) The Judicial Review Act (No 134 of 2001), which repealed the Migration Legislation Amendment Act (No 1) 2001 in relation to its amendments to Part 8 of the Act and substituted a new Part 8. It also amended those sections in the new Part 8A which assumed the continued existence of the old Part 8. It reproduced in Part 8A, in relation to proceedings in the High Court, two of the provisions in Part 8 relating to Federal Court proceedings. The Act also made it a condition of eligibility for special category, protection and bridging visas that the Minister be satisfied that the applicant meets the statutory criteria for the visa.

(g) The Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth) (No 157 of 2001), which amended the new Parts 8 and 8A to confer jurisdiction on the Federal Magistrates Court concurrent with that of the Federal Court (s 483A).

396               The Judicial Review Act commenced on 2 October 2001. It applies to all judicial review proceedings where the decision under review was made on or after the commencement date or where the decision was made before the commencement date but where no application for judicial review had been lodged at the time of commencement.

397               In the Second Reading Speech for the Judicial Review Bill, the Minister referred to the 1992 changes and observed that the government of the day had intended those changes to reduce Federal Court litigation and to provide greater certainty as to what was required from decision-makers, visa applicants and visa holders. However the volume of cases before the courts had not been reduced. Recourse to the Federal Court and the High Court was trending upwards despite access to independent merits review by the Migration Review Tribunal and the Refugee Review Tribunal. The Minister said:

“The high level of litigation, particularly by twice refused refugee claimants, cannot remain unchecked. Increased litigation leads to increased costs and delays, and for those in detention, to a longer period of detention.”

 

- Australia, Parliamentary Debates, House of Representatives, 26 September 2001, p.31560

 

The Minister observed that litigation in the migration area could be an end in itself, delay in the final determination being seen as beneficial by those pursuing court action. He referred to s 75 of the Constitution and the inability to restrict access to the High Court legislatively. While access to the Federal Court and the scope of its judicial review jurisdiction could be changed by legislation, this would in practice deflect many cases to the High Court. This, it may be interpolated, was certainly the effect of the 1992 amendments. The Minister then referred to counsel’s advice that a privative clause would have the effect of narrowing the scope of judicial review by the High Court and by the Federal Court. The privative clause in the Bill was based upon a very similar clause considered in the case of Hickman. The Minister observed that the High Court had not, despite opportunity to do so, repudiated the approach to the construction of such provisions which he called the “Hickman principle as formulated by Justice Dixon in Hickman’s case”. The Minister said:

“Members may be aware that the effect of a privative clause such as that used in Hickman’scase is to expand the legal validity of the acts done and the decisions made by decision-makers. The result is to give decision-makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently.

In practice, the decision is lawful provided:

. the decision-maker is acting in good faith;

. the decision is reasonably capable of reference to the power given to the decision maker – that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member;

. the decision relates to the subject matter of the legislation – it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and

. constitutional limits are not exceeded – given the clear constitutional basis for visa decision making in theMigration Act, this is highly unlikely to arise.

The options available to the government were very much shaped by the Constitution. While the government accepts that the precise limits of privative clauses may need examination by the High Court, there is no other practical option open to the government to achieve its policy objective.”

- Australia, Parliamentary Debates, House of Representatives, 26 September 2001, p.31561

 

 

The Minister observed that the proposed Bill would provide the same grounds of review in both the Federal Court and the High Court so that there would be no advantage in invoking the original jurisdiction of the High Court. He then said:

“Although the measures in this bill will limit judicial review, many applicants who consider that they have received a decision from the department which is wrong will of course still have access to independent merits review by the Migration Review Tribunal and the Refugee Review Tribunal. It is the government’s intention that all bona fide applicants meeting the criteria for the grant of a particular visa be granted that visa – and that is particularly so in the case of those seeking protection visas. The independent merits review tribunals act as a safeguard in that respect.”

- Australia, Parliamentary Debates, House of Representatives, 26 September 2001, p.31561

398               The Revised Explanatory Memorandum for the Bill described the “intention” of the privative clause, s 474, in par 16 thus:

“The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful.”

399               The most recent changes to the Migration Act are the latest in a long series of over 100 amending Acts since it was enacted in 1958. The Act now comprises in excess of 740 sections. Its operation is supported by hundreds of regulations set out in two volumes. Significantly for present purposes, it is a statute replete with official powers and discretions, tightly controlled under the Act itself and under the Regulations by conditions and criteria to be satisfied before those powers and discretions can be exercised.

400               Since the hearing of these appeals the Parliament has enacted the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) which provides that existing fair procedure provisions constitute a code of fair procedures and exclude the application of the rules of procedural fairness applicable at common law. It does this by inserting in various subdivisions of the Act, which specify procedures relating to the exercise of powers, a common form section exemplified by the new s 51A which is inserted in subdivision AB of Division 3 of Part 2 of the Act dealing with the grant of visas for non-citizens. The new s 51A provides:

“(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.”

Sections 494A to 494D provide for the sending of documents by the Minister to persons specifying the methods by which such documents can be sent and when a person is taken to have received a document from the Minister. Among the parts of the Act which attract the inclusion of a section in the terms cited above are Division 5 of Part 5 and Division 4 of Part 7 which have to do with the conduct of reviews by the Migration Review Tribunal and the Refugee Review Tribunal.

401               The amendments apply to applications and cancellation decisions where notice is given after their commencement. In relation to the Migration Review Tribunal and the Refugee Review Tribunal they apply to any application for review made after the commencement.

402               The relationship of the amendments to s 474 of the Migration Actis also specified in the amending Act thus:

“The amendments made by items 1 to 6 are not to be taken to limit the scope of operation of section 474 of the Migration Act 1958 in relation to anything done, or omitted to be done, in relation to any matter dealt with in any provision that is taken to be an exhaustive statement of the requirements of the natural justice hearing rule by a section of that Act that is inserted by one of those items.”

403               The purpose of the new provisions was set out in the Explanatory Memorandum thus:

“4. The purpose of this Bill is to provide a clear legislative statement that the “codes of procedure” identified in the Bill are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The amendments in the Bill apply to the “codes of procedure” in the Act relating to:

. visa applications;

. visa cancellations under sections 109, 116 or 128 of the Act;

. the revocation of certain visa cancellations; and

. the review of decisions by the Migration Review Tribunal… and the Refugee Review Tribunal.”

Overview of the Migration Act

404               The long title of the Migration Act describes it as:

“An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.”

405               The object of the Act is set out in s 4:

“(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2)   To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3)   To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.”

406               The Act is divided into nine Parts:

(a) Part 1 - Preliminary (ss 1 to 12)

This Part includes the object of the Act (s 4), definitional provisions (s 5) as well as important provisions for the application of the Act (ss 6, 7, 8, 9), the intended effect of the conferral of powers by the Act (ss 3A, 7A), and the incorporation of general principles of criminal responsibility (s 4A). Section 3A requires that the Act be read so as not to exceed Commonwealth power. It does this by providing for the severance of valid from invalid applications of each of the provisions of the Act. Section 3A is to be read together with s 15A of the Acts Interpretation Act 1901 (Cth).

 

Part 1 also contains provisions relevant to the exercise of powers under the Act. For example, ss 5(3) and (4) ensure that powers conferred on authorised officers under the Act may also be exercised by the Minister.

 

(b) Part 2 - Control of Arrival and Presence of Non-citizens.

This Part comprises twenty Divisions. They deal with a variety of subjects including powers to obtain information and documents about non-citizens, visas for non-citizens, immigration detention, removal of unlawful non-citizens from Australia, deportation, powers of examination, search and detention, offences, forfeiture of things used in offences, and monitoring compliance with student visas

 

(c) Part 3 - Migration Agents and Immigration Assistance.

This Part, which ceases to be in force on 21 March 2003, comprises nine Divisions dealing with the registration of migration agents, the Migration Agents’ Registration Authority and general restrictions on the giving of immigration assistance other than by registered migration agents.

 

(d) Part 4 - Offences relating to decisions under Act.

This Part comprises ss 334, 335 and 336 and deals with false and misleading statements about the effect a person may have on decisions under the Act, and taking of bribes.

 

(e) Part 5 - Review of Decisions.

This Part comprises ten Divisions which identify decisions reviewable by the Migration Review Tribunal, provides for their review by the Tribunal, how it is to conduct such reviews, the exercise of its powers, its decisions, the giving and receiving of review documents and the referral of decisions to the Administrative Appeals Tribunal.

 

(f) Part 6 - Migration Review Tribunal.

This comprises two Divisions establishing the Tribunal and providing for registries and officers.

 

(g) Part 7 - Review of Protection Visa Decisions.

This Part comprises eleven Divisions. It provides for the establishment and membership of the Refugee Review Tribunal for review of decisions by that Tribunal. It also deals with the exercise of the Tribunal’s powers, the conduct of reviews by it, its decisions, the giving and receiving of review documents and the referral of decisions to the Administrative Appeals Tribunal.

 

(h) Part 8 - Judicial Review.

This Part comprises two Divisions, the first of which is the privative clause section, 474. The second contains provisions relating to privative clause decisions and the jurisdiction of the Court – it is referred to in more detail below.

 

(i) Part 8A - Restrictions on Court Proceedings.

This Part, introduced by the Migration Legislation Amendment Act (No 1) 2001 and amended by the Migration Legislation Amendment (Judicial Review) Act 2001 was discussed in the preceding section.

(j) Part 9 - Miscellaneous.

This Part regulates dealings with movement records and information (ss 488, 488A, 489), the methods by which documents may be given or received under the Act (ss 494A, 494B, 494C, 494D), the approval of forms (s 495) and making of regulations (ss 504, 505, 506, 507), the use by the Minister of computer programs (s 495A, 495B) or delegates (ss 496, 497) to make decisions, and the giving by the Minister of directions to persons or bodies having functions or powers under the Act (s 499). The Part also deals with the commencement and proof of issues in prosecutions for offences against the Act (ss 492, 493), and the ‘locality’ jurisdiction of State and Territory courts in relation to offences (s 494), and places a bar on legal proceedings relating to offshore entry persons (s 494AA).

Part 9 also confers power on the Minister to refuse or cancel temporary safe haven visas (s 500A), and to refuse or cancel visas on character grounds (s 501, 501A, 501B, 501C). AAT review of decisions to cancel or refuse on character grounds is provided for (s 500), as is the protection of information, provided in confidence to authorised migration officers or gazetted agencies, that is relevant to the exercise of the power (s 503A). The Part also empowers the Minister to declare a person to be an excluded person (s 502), and for the consequences that flow from the refusal or cancellation of a visa on character grounds (ss 501E, 501F).

The Part also provides that powers under the Act shall be exercised in accordance with the Regulations (s 498(1)), and any directions given by the Minister (ss 496(1A) and 499).

407               The range of powers conferred by the Act is substantial. They include powers to require the production of documents and information, to take persons into custody who are not charged with any criminal offence, to grant and cancel visas, to seize property, to disclose personal information provided in confidence, to enter the premises of education providers and require cooperation with searches and to deport or remove people from Australia. Many of the powers it confers are serious in their impact upon individuals, both citizens and non-citizens, and at times complex in their drafting. As will be seen later in these reasons, the part played in the Act by the privative clause is not to be resolved by assuming its uniform application across all the power creating and limiting provisions. The operation of the clause has to be considered in each case by reference to the particular sections or regulations in issue and in a statutory context which includes the whole array of powers and their constraints.

Judicial Review of Decisions under the Migration Act- Prior to the 1992 Amendments

408               Prior to 1 September 1994, judicial review of decisions made under the Migration Act was available in the High Court under s 75 of the Constitution and in the Federal Court under the ADJR Act and s 39B of the Judiciary Act as well as cases remitted from the High Court under s 44 of the Judiciary Act.

409               In 1977, the Parliament conferred on the Federal Court, by s 8 of the Administrative Decisions (Judicial Review) Act, jurisdiction to hear and determine applications made to the Court under that Act (s 8(1)). A person aggrieved by a decision to which the Act applies could apply to the Federal Court for an order of review in respect of the decision on any one or more of specified grounds set out in s 5 of the Act. Application could also be made for orders of review where a person had engaged in, was engaging or proposed to engage in conduct for the purpose of making a decision to which the Act applied (s 6(1)). The class of decision to which the Act applied was defined in s 3(1) thus:

“Decision to which this Act applies” means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;

other than:

(c) a decision by the Governor-General; or

(d) a decision included in any of the classes of decisions set out in Schedule 1.”

410               Section 3(2) expanded on the concept of “decision” thus:

“3(2) In this Act, a reference to the making of a decision includes a reference to –

(a) making, suspending, revoking or refusing to make an order, award or determination;

(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;

(d) imposing a condition or restriction;

(e) making a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing to do any other act or thing,

and a reference to a failure to make a decision shall be construed accordingly.”

Reference is made to these provisions because of the similarly worded definitions in the new s 474(3) of the Migration Act as it now stands.

411               The Federal Court has a general jurisdiction under s 39B of the Judiciary Act which in part adopts the language of s 75(v) of the Constitution save for exceptions relating to persons holding office under the Workplace Relations Act 1996, The Coal Industry Act 1946 and Judges of the Family Court of Australia (s 39B(2)). That jurisdiction could be invoked in relation to decisions under the Migration Act prior to the 1992 amendments coming into force.

412               Section 44 of the Judiciary Act,which has been unchanged since 1984, empowers the High Court to remit a matter or part of a matter pending in that Court to a federal court, court of a State or court of the Territory that has jurisdiction with respect to the subject matter and the parties. There is an exception to the latter limitation in s 44(2) but the class of matters to which that exception applies is not relevant for present purposes. Section 44(3) confers upon the Court to which a matter or part of a matter is remitted, jurisdiction in the matter or part of the matter as the case may be.

Judicial Review of Decisions under the Migration Act- After the 1992 Amendments

413               Part 8 of the Migration Act, as it stood following the 1992 amendments, conferred an exclusive but limited jurisdiction on the Federal Court to review decisions under the Act. It was defined as follows:

“486. The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution.”

414               The class of judicially-reviewable decisions was defined in s 475, subject to s 475(2), as:

“(a) decisions of the Immigration Review Tribunal;

(b) decisions of the Refugee Review Tribunal;

(c) other decisions made under this Act, or the regulations, relating to visas.”

415               Section 475(2) listed decisions that were “not judicially-reviewable decisions”. These included decisions that were subject to internal departmental review or to review by the Immigration Review Tribunal or the Refugee Review Tribunal.

416               Section 475(1) of the Act contracted the general jurisdiction conferred upon the Court by s 39B of the Judiciary Act so as to exclude its coverage of decisions under the Migration Act. The Court’s jurisdiction to hear a matter on remitter from the High Court under s 44 of theJudiciary Act was also contracted by s 485(2) so that the Court would “… not have any powers in relation to that matter other than the powers it would have had if that matter had been as a result of an application made under this Part” (s 485(3)).

417               The grounds upon which an application could be made for review by the Federal Court of a judicially-reviewable decision were limited by s 476 to those set out in that section. Breach of the rules of natural justice, other than by actual bias, was expressly excluded as was so-called “Wednesbury unreasonableness” (s 476(2)).

418               Section 481 set out the discretionary powers of the Federal Court on an application for review of a judicially-reviewable decision or failure to make a judicially-reviewable decision: namely to make an order affirming, quashing or setting aside the decision or part of the decision, or directing the making of the decision, an order referring the matter to which the decision relates to the person who made the decision for further consideration, an order declaring the rights of the parties in respect of any matter to which the decision relates, and/or an order directing any of the parties to do or refrain from doing an act or thing as necessary to do justice between the parties. The Court was also given power to make orders staying or otherwise effecting the implementation of a judicially-reviewable decision in order to secure the effectiveness of the hearing and determination of an application (s 482).

Judicial Review of Decisions under the Migration Act- The Present Position

419               As a result of the 2001 amendments, the provisions of the Act relating to judicial review have been completely rewritten. The Act does not now purport to confer jurisdiction or powers on the Federal Court. Rather it reinstates, subject to limits, the Court’s jurisdiction under s 39B of the Judiciary Act, and on remitter from the High Court in s 44 of that Act, to entertain applications for review of decisions under the Migration Act. The Court also has jurisdiction under s 39 of the Federal Magistrates Actto deal with matters transferred by the Federal Magistrates Court which jurisdiction is similarly limited.

420               Consideration of the scope of review of decisions under the Migration Act available in the High Court and in the federal courts must begin with the High Court’s constitutional jurisdiction and, in particular, that conferred in s 75 which relevantly provides:

“75. In all matters –

…

(iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

…

(v) In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.”

In addition, and pursuant to s 76 of the Constitution, the High Court has jurisdiction under s 30 of the Judiciary Act “… in all matters arising under the Constitution or involving its interpretation”. In aid of its original jurisdiction it has the powers, conferred by s 32 of the Judiciary Act, to grant such remedies as any of the parties to any court or matter pending before it are entitled to. Section 33 expressly authorises the Court to make orders or direct the issue of writs, inter alia, commanding the performance of any duty by any person holding office under the Commonwealth, writs of mandamus and writs of habeas corpus (s 33(1)(c), (e) and (f)). That section does not limit by implication the power of the High Court to make any order or direct the issue of any writ (s 33(2)).

421               The jurisdiction of the Federal Court is statutory and in relation to decisions made under the Migration Act derives primarily from s 39B of the Judiciary Act which provides in the relevant parts:

“39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

39B(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a) in which the Commonwealth is seeking an injunction or a declaration; or

(b) arising under the Constitution, or involving its interpretation; or

(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”

The other subsections of s 39B are not relevant for present purposes.

422               The Federal Court, like the High Court, is given broad powers in aid of the exercise of its jurisdiction. Section 22 of the Federal Court of Australia Act is in terms similar to those of s 32 of the Judiciary Act. Section 23 of the Federal Court of Australia Act provides:

“The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.”

Section 15 of the Federal Magistrates Act is to the same effect.

423               The Migration Act, after its most recent amendments, creates a class of decision called a “privative clause decision”. It is defined in s 474(2) thus:

“In this section:

 

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”

 

Section 474(3) defines “decision” in very broad terms thus:

“A reference in this section to a decision includes a reference to the following:

(a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination;

(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d) imposing, or refusing to remove, a condition or restriction;

(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article;

(g) doing or refusing to do any other act or thing;

(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j) a failure or refusal to make a decision.”

There is listed in a table imported into s 474(4) decisions that are not privative clause decisions. None of these is relevant for present purposes. There is also a definition in s 476 of “primary decision” which term, as used in that section, means a privative clause decision that is reviewable or has been reviewed under Part 5 or Part 7 of the Act or under s 500 or that would have been so reviewable if the relevant application had been made within the specified time (s 475(6)).

424               The privative clause which was said in the Second Reading Speech to rely upon the “Hickman principle” is s 474(1) which provides:

“A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

425               Section 474 constitutes Division 1 of Part 8. Division 2 comprises ss 475 to 484 inclusive. It is not to be taken to limit the scope or operation of s 474 (s 475). Section 475A however assumes the existence of Federal Court jurisdiction under s 39B and s 44 of the Judiciary Act and s 39 of the Federal Magistrates Act. It also assumes the jurisdiction of the Federal Magistrates Court which is expressly conferred by s 483A. Section 475A provides:

“Section 476 does not affect the jurisdiction of the Federal Court under section 39B or 44 of the Judiciary Act 1903 or section 39 of the Federal Magistrates Act 1999, or the jurisdiction of the Federal Magistrates Court under section 483A of this Act, s 44 of the Judiciary Act 1903 or section 32AB of the Federal Court of Australia Act 1976, in relation to:

 

(a) a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500; or

(b) any other decision in respect of which the court’s jurisdiction is not excluded by section 476.”

426               Section 476 contracts the general jurisdiction of the Federal Court under ss 39B and 44 of the Judiciary Act and s 39 of the Federal Magistrates Act by excluding from its purview various classes of decision including primary decisions. It places like limitations upon the jurisdiction of the Federal Magistrates Court which is otherwise the same as that of the Federal Court by virtue of s 483A. The constitutional jurisdiction of the High Court remains intact, as it must, even with respect to primary decisions which are excluded from the purview of the Federal Court and the Federal Magistrates Court.

427               Time limits, which are jurisdictional in character, are imposed by s 477(1):

“An application to the Federal Court or the Federal Magistrates Court under section 39B of the Judiciary Act 1903 for:

(a) a writ of mandamus, prohibition or certiorari; or

(b)         an injunction or a declaration;

in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision.”

A similar time limit is imposed in respect of like applications to the Federal Magistrates Court (s 477(1A)). Section 477(2) purports to prohibit the Federal Court and the Federal Magistrates Court from making any order allowing or having the effect of allowing an applicant to lodge an application outside the period specified. There is a limited class of persons who may make applications under s 477 (s 478) and there are specified persons who can be parties to the application (s 479). It does not appear that either the Migration Review Tribunal or the Refugee Review Tribunal are proper parties – see NAAA v Minister for Immigration & Multicultural Affairs [2002] FCA 362 and the authorities cited there. The Attorney-General is entitled to intervene, on behalf of the Commonwealth, in proceedings resulting from an application referred to in s 477 (s 480).

428               The jurisdiction of the Federal Court and the Federal Magistrates Court in relation to privative clause decisions is made exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under s 75 of the Constitution (s 484(1)). To avoid doubt, jurisdiction in relation to such decisions is not conferred on any court under the Jurisdiction of Courts (Cross Vesting) Act 1987 (s 484(3)). Section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) which provides for appeals on questions of law to the Federal Court does not apply to a privative clause decision (s 483).

429               Part 8A of the Act imposes a time limit of thirty-five days on applications to the High Court under s 75(v) (s 486A). It excludes, as a general rule (subject to exception by regulation), representative or class actions in migration proceedings and joinder of plaintiffs or applicants or addition of parties and limits the circumstances in which proceedings may be consolidated (s 486B). And under s 486C only the persons mentioned in that section may commence or continue a proceeding in the Federal Court or the Federal Magistrates Court raising an issue in connection with visas, deportation, removal of unlawful non-citizens and relating to the validity, interpretation or effect of a provision of the Act or the Regulations. Those persons are a party to a review mentioned in s 479, the Attorney-General of the Commonwealth or of a State or Territory, a person who commences or continues the proceeding in performing statutory functions or any other person prescribed by the Regulations. By s 494A in Part 9 proceedings are barred which, relate to offshore entry by an offshore entry person, the status of an offshore entry person as an unlawful non-citizen or the lawfulness of the detention of an offshore entry person based on the status of the person as an unlawful non-citizen. Proceedings relating to the exercise of powers under s 198A which provide for the removal of offshore entry persons from Australia to a third country declared by the Minister to provide relevant access and protection for persons seeking asylum, are also barred. This bar is subject, of course, to the provisions of s 75(v) of the Constitution.

Approach to Construction – The Relevant Rules

430               In a representative democracy those who are subject to the law, those who invoke it and those who apply it are entitled to expect that it means what it says. That proposition informs the approach of courts to the interpretation of laws in taking as their starting point the ordinary and grammatical sense of the words:

“… that rule is dictated by elementary considerations of fairness, for, after all, those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.”

- Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 340 (Gaudron J)

 

It is often said, and there is a statutory requirement, that Acts of Parliament be construed purposively, that is to say in a way which will accord with the legislative intention. The concept of legislative intention is a construct, a metaphor based upon another construct, that of “intention” in individual human beings. It has been called a fiction on the basis that neither individual members of parliament nor even the government necessarily mean the same thing by voting on a Bill “or, in some cases anything at all” – Mills v Meeking (1990) 169 CLR 214 at 234 (Dawson J); Yuill at 339 (Gaudron J). If “legislative intention” is used as a description of a collective mental state of the body of individuals who make up the parliament then it is a fiction with no useful purpose – Yuill at 345-6 (McHugh J). See also Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 at 612 (Lord Reid). In reality however it is not used in statutory construction to describe some antecedent mental state of the parliament, but to describe an attributed intention based on inferences drawn from the statute itself – Mills v Meeking at 226 (Mason CJ, Toohey J, Brennan J agreeing) and 346 (McHugh J). It operates as a persuasive declaration or an acceptance that the interpretation adopted is legitimate in a representative democracy characterised by parliamentary supremacy and the rule of law.

431               In the third edition of his text, Statutory Interpretation a Code, Butterworths, London, 1997 at 367, Francis Bennion speaks of legislative intention as “… not a myth or fiction, but a reality founded in the very nature of legislation”. The idea that there is no true intention behind an Act of Parliament is said to be “anti-democratic”. The concept of legislative intention involves a proper recognition of the source of the words being construed. Its text will therefore be seen as both:

“(a) a text validated by a legislature which is treated by the constitution as sovereign and infallible, and whose members are all taken to share in the intention embodied in the text notwithstanding that certain of them may in fact have disagreed with, or been unaware of, some or all of the Act’s provisions; and

(b) a text produced by a fallible drafter who is not a legislator but possesses an intention taken to be adopted by the legislature.”

(op cit at 371-2)

 

432               What Bennion says about the sovereignty and infallibility of the legislature in the British context must be read, in Australia, against the limits imposed upon the legislative powers of the Parliament by a written constitution. The notion of supremacy may be more apposite in that context than sovereignty – Kinley, “Constitutional Brokerage in Australia: Constitutions and the Doctrines of Parliamentary Supremacy and the Rule of Law” 22 Federal Law Review, 1994, 194. That however does not affect the validity of Bennion’s general observations. They may be extended to the proposition that “legislative intention”, as a legitimising and normative term, has real work to do and cannot be dismissed as mere fiction. Its use in the process of statutory interpretation is of fundamental importance because it directs courts to objective criteria of construction which are recognised as legitimate. It requires reference to matters which were before the Parliament when the law was enacted. The first and best criterion is the ordinary, grammatical meaning of the words themselves. The statute is the direct expression of the parliamentary deliberation and its legislative decision-making process. It is the words of the statute which are read by those whom they bind. It is sometimes said that the courts “ascertain” the intention of the legislature by considering the meaning of the words it has used – eg Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 304 (Gibbs CJ). In truth the grammatical and ordinary meaning is accepted, in such a case, as the criterion applicable, according to rules understood by Parliament, the Executive, parliamentary drafters and by the courts. They are rules whose application is reasonably predictable and being understood and predictable attract acceptance as criteria of the legitimacy of their product. Where the words expressed by Parliament are interpreted by the Court according to commonly understood rules of interpretation a court is entitled to make the normative statement that it has interpreted them in accordance with the legislative intention. This function has not been viewed with universal approval:

“It is the court’s construction of legislative words and not the words themselves that is law.”

- Hutchison, “The Rise and Ruse of Administrative Law and Scholarship” 48 Modern Law Review, 1985, 293-324 at 305

 

However the meaning of a legislative word is not like a rock lying on the ground waiting to be found. It is a product of interpretation which is legitimate if and only if the interpretation process invokes criteria which, whether developed by courts or decreed by statute, or both, are broadly understood by the Legislature, the Executive and the judiciary.

433               In some cases the grammatical and ordinary meaning of a statute may lead to absurdity or inconvenience in its operation or be inconsistent with the object of the Act as expressed in the Act or appearing by necessary implication from its subject matter and terms. In that event, the Court may apply additional generally accepted and understood criteria to the process of interpretation so that what emerges may still properly be described as according with legislative intention. One of those criteria, relied upon by counsel for the Minister, is the proposition that, in construing a statute, a court should have regard to the mischief which it was designed to cure. In this connection reference was made to CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384 at 408, where it was said by Brennan CJ, Dawson, Toohey and Gummow JJ:

“It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901(Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.”

 

434               It is also important to have regard to criteria of construction which Parliament has prescribed and which are set out in the Acts Interpretation Act. The Act applies to all Acts, “except so far as the contrary intention appears” (s 2(1)). It provides for what has been called purposive construction. So s 15AA(1) requires:

“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.”

This section operates upon the premise that more than one construction of the provision to be interpreted is open. If the ordinary grammatical meaning of the words appears to be inconsistent with legislative intention otherwise determined according to accepted criteria, for example, by reference to an express statement of the object of an Act, the Court is to select a construction which would promote purpose or object underlying the Act. This does not mean that a court can redraft the statute. As the Full Court said in R v L (1994) 49 FCR 534 at 538:

“The requirement of s 15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s 15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature …”

See also Mills v Meeking at 235 (Dawson J).

435               In Statutory Interpretation in Australia, 4^th Edition, Butterworths, 1996 at par 2.5 the authors, Pearce and Geddes, express their view that:

“… s 15AA requires the purpose or object to be taken into account even if the meaning of the words, interpreted in the context of the rest of the Act, is clear. When the purpose or object is brought into account, an alternative interpretation of the words may become apparent.”

All that this suggests, with respect, is a technique for ascertaining the existence of more than one construction of the words. It is in that sense consistent with what was said in Mills v Meeking and R v L.

436               The Court is invited to construe s 474 by reference to the Minister’s Second Reading Speech. He expressly relied upon the approach to construction of a privative clause in Hickman which was similar in terms to s 474(1) of the Migration Act. That decision and the authorities that followed it require no Second Reading Speech to warrant their consideration and application. But to the extent that the Second Reading Speech puts a particular interpretation on Hickman which is inconsistent with the line of authority that followed the dicta in that case, it will have to be considered.

437               It is necessary therefore to refer to s 15AB of the Acts Interpretation Act. That section authorises reference to extrinsic materials in ascertaining the meaning of a statutory provision. The purpose of such reference is:

“(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b) to determine the meaning of the provision when:

(i) the provision is ambiguous or obscure; or

(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.”

The use of extrinsic material under this section is not limited to cases in which the words of the statute are ambiguous or obscure or whose ordinary meaning would lead to a result that was manifestly absurd or unreasonable – Gardner Smith Pty Ltd v Collector of Customs (Vic) (1986) 66 ALR 377. On the other hand extrinsic material cannot be used to contradict the meaning of the language of an Act of Parliament in its proper statutory context – Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112.

438               In the non-exhaustive list of extrinsic materials that may be considered in the construction of a provision of an Act pursuant to s 15AB(2) there is included any relevant report of a committee of the Parliament or of either House of the Parliament that was made to the Parliament or that House of the Parliament before the time when the provision was enacted (s 15AB(2)(c)) and Explanatory Memoranda and the Second Reading Speech (s 15AB(2)(e) and (f)). It is important, however, to bear in mind the provisions of s 15AB(3) which provides:

“In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters to:

(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and

(b) the need to avoid prolonging legal or other proceedings without compensating advantage.”

This acknowledges the general proposition with which this discussion began, namely that people are entitled to expect that the law which binds them means what it says. In this connection the observation made by Mason CJ, Wilson and Dawson JJ in their joint judgment in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 is apposite in its application to the use of second reading speeches to assist in construction:

“The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.” (emphasis added)

 

See to similar effect Deane J at 552. See also Catlow v Accident Compensation Commission (1989) 167 CLR 543 at 550 (Brennan and Gaudron JJ) and the recent endorsement of that principle by McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 (“Miah”) at [132]. The caution in Re Bolton has equal application to the case where the law is said to exclude or limit access to the courts by those adversely affected by official decisions.

439               Notwithstanding the caution about the Minister’s words in the Second Reading Speech, there is a common law principle of construction that where Parliament enacts a statute using language which has been the subject of judicial construction in a Superior Court in the context of another statute it may (not must) be taken that the legislature intended the same construction to apply to the later statute – Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106. In this case the Minister in his Second Reading Speech placed express reliance upon the construction of a similarly worded privative clause in Hickman. The use of that wording in the statute, together with the Minister’s Second Reading Speech, are accepted indicators of legislative intention and due regard should be paid to them.

440               Two other points arise from the Acts Interpretation Act which are relevant in these cases. The Court is primarily concerned with the construction of a particular provision, that is s 474 of the Migration Act. That section was introduced into the Migration Act by amending legislation. It attracts the requirement of s 15 of the Acts Interpretation Act that every Act amending another Act shall, unless the contrary intention appears, be construed with such other Act and as part thereof. So s 474 of the Migration Act, as it now stands, is to be construed with the whole of the Migration Act and with regard to the context which the whole of that Act supplies and to the objects which underlie it. And, as will be seen below, other provisions of the Act are to be construed having regard to the terms of s 474.

441               The second point is the requirement imposed by s 15A of the Acts Interpretation Act that:

“Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth to the intent that where any enactment thereof would, but for the section, have been construed as being in excess of that power it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power.”

442               The construction of statutes may also require consideration of Australia’s obligations under international treaties into which it has entered. Where a statute enacted after Australia’s assumption of treaty obligations offers a constructional choice, it is reasonable to operate on the basis that the choice which is consistent with those international obligations will best reflect the intention of the Parliament – Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363 (O’Connor J) and see Minister for Foreign Affairs & Trade v Magno (1992) 37 FCR 298 at 304 (Gummow J) and the cases there discussed. Where an Act purports to give effect to Australia’s obligations under an international treaty or convention then it will be construed, so far as possible, in accordance with the provisions of that treaty or convention – Queensland v The Commonwealth (1989) 167 CLR 232 at 238-40; Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 204; Yager v The Queen (1977) 139 CLR 28 at 43-4.

Background to Construction – The Rule of Law

443               Overarching the specific rules governing interpretation there is a constitutional and societal setting in which statutes are to be construed. As McHugh J said in Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104 at 196:

“The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.”

 

The concept of the rule of law plays a normative role as part of this background. It has been called a foundation assumption of the Commonwealth Constitution – Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193 (Dixon J). Gleeson CJ recently described s 75(v) as providing in the Constitution “… a basic guarantee of the rule of law” – M Gleeson, “The Rule of Law and the Constitution”, Boyer Lectures 2000, ABC Books at 67. The rule of law is a broad concept and presents difficulty in definition. It is “a celebrated historic ideal, the precise meaning of which may be less clear today than ever before” – Fallon, “‘The Rule of Law’ as a Concept in Constitutional Discourse” 97 Columbia Law Review, 1997, 1. It is not necessary for present purposes to explore the ongoing and open-ended debate about its content. But in this country it imports the elements of representative democracy with legislative supremacy vested in the Parliament subject to a Constitution which limits its powers, an executive to carry out its laws and a judiciary to interpret them and determine their scope and limits in the particular case by reference to the traditions of the common law.

444               The historical roots of the judicial function in upholding the rule of law run back to the great confrontation between the Chief Justice in Common Pleas, Sir Edward Coke, and King James I at the beginning of the seventeenth century. The King told the judges that he could withdraw any matter from them. They were his delegates. He could decide in what court any matter could be tried. It was treason to affirm that he was under the law. According to Coke’s report of it, he told the King, in the words of Bracton “quod Rex non debet esse sub homine, sed sub Deo et lege” – the King is subject to no man but to God and to the law – Prohibitions del Roy, 12 Co Rep, 1607, 623; Case of Proclamations, 12 Co Rep, 1611, 74; Windeyer, Lectures on Legal History 2^nd Edition (Rev) Law Book Co, 1957, pp 201-202.

445               The Parliament of the Commonwealth of Australia today exercises its powers in a setting, which despite constitutional differences, may be described, like the United Kingdom, as a “liberal democracy founded on the traditions and principles of the common law” – R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539 at 587 per Lord Steyn. The rule of law, so far as it is reflected in common law principle, came to Australia from England. It may be seen in the often quoted passage from the judgment of O’Connor J in Potter v Minahan (1908) 7 CLR 277 at 304, citing the fourth edition of Maxwell, On the Interpretation of Statutes, Sweet & Maxwell Ltd, London, 1905, at 122:

“It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.”

 

This presumption “against the modification or abolition of fundamental rights or principles” was restated by the High Court in Bropho v State of Western Australia (1990) 171 CLR 1 at 18. In Coco v The Queen (1994) 179 CLR 427 at 437 a majority of the High Court (Mason CJ, Brennan, Gaudron and McHugh JJ) said:

“The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakeable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.”

446               It is not only interference with fundamental rights that attracts these considerations. The general proposition can be made, consistently with essential elements of the rule of law, that official power must be exercised as authorised by the Parliament and in accordance with the subject matter and the conditions both substantive and procedural imposed by the Parliament. That proposition is not to be set aside by too lightly assuming the global elimination of judicial review in a particular statute. This question is of importance when it comes to considering the impact of the privative clause upon the construction of statutory conditions, express or implied, in the exercise of official powers under the Act as well as conditions ordinarily imposed or implied by the common law, such as the requirement for procedural fairness. Some such conditions may operate as conditions precedent to the effective exercise of power and as sources of “jurisdictional error” notwithstanding the privative clause because that clause may not sufficiently indicate a parliamentary intention to the contrary. In that context, conditions governing the exercise of powers which impact on fundamental rights and liberties and longstanding principles of the common law will require close scrutiny to determine whether or not they are, as a matter of legislative intention, “inviolable” so that, on established jurisprudence, they would operate as conditions of validity notwithstanding the privative clause. By way of example, in Miah at 266, McHugh J identified the common law rules of natural justice as part of the background principles upon which legal texts depend and said of them:

“They are taken to apply to the exercise of public power unless clearly excluded”.

447               Clear language is expected as an indication of parliamentary intention to abridge or extinguish fundamental rights and liberties. It is also expected when Parliament creates new rights and liabilities to engage Chapter III of the Constitution and when it withdraws rights and liabilities from such engagement by redefining the jurisdiction of a federal court – Shergold v Tanner (2002) 188 ALR 302 at 307; [2002] HCA 19 at [27] (“Shergold”).

448               The courts of the United Kingdom have asserted a “principle of legality” as a strong presumption that broadly expressed discretions are subject to the fundamental human rights recognised by the common law. So in R v Lord Chancellor; Ex parte Witham [1998] QB 575, a power to make rules relating to court fees was held to be subject to the common law limitation that it could not be exercised so as to deprive the subject of the constitutional right of access to the court unless abrogation of that right was specifically and expressly authorised by parliament. The rule under challenge in that case removed the Lord Chancellor’s powers to reduce or waive court fees on the grounds of undue financial hardship. See also R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 (HL). Lord Hoffman there said at 131:

“[t]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”

See generally the discussion by Dyzenhaus, Hunt and Taggart, “The Principle of Legalityin Administrative Law: Internationalisation as Constitutionalisation”, 1 Oxford University Commonwealth Law Journal, 2001, 5-34. The principle of legality may be more broadly expressed than the requirement in Australia for clear words to abridge or extinguish fundamental rights and liberties. It is nevertheless plainly related to that requirement.

449               Professor Leslie Zines has questioned the assumption that legal power can be limited only by having a superior court available to determine those limits. He considers it “… likely that Parliament would have intended by a privative clause that the power should be limited by the stated criteria which were to be determined and applied by the decision-maker”. This is subject to the qualification that the power of such determination could not amount to a conclusive determination of a controversy as to the existence of legal rights and duties which would be inconsistent with the constitutional separation of executive and judicial powers – Zines, “Constitutional Aspects of Judicial Review of Administrative Action”1 Constitutional Law and Policy Review, 1998, 50 at 52. As a general proposition the comment is valid. But the authorities to be considered below make it clear that where there is an ineffective exercise of power, accepted approaches to privative clauses allow for its review where the relevant jurisdiction exists.

450               Consideration of the concept of the rule of law and the related principle of legality leads to consideration of the ways in which the Constitution, the Parliament and the courts have defined or limited or conditioned statutory power and the ways in which the ideas of jurisdiction and jurisdictional error have been used to maintain these definitions, limits and conditions. That in turn impacts upon the relationship between privative clauses, the construction of the statutory powers upon which they operate and the remedies available where those powers are said to be exceeded. The following sections of these reasons discuss those general issues before turning to the specific operation of the privative clause provision in the Migration Act and its effect upon the outcomes of the appeals before the Court.

Conditions Applicable to Statutory Powers under the Migration Act

451               In determining whether a decision made in purported exercise of a statutory power is invalid for exceeding that power, it is necessary to consider the provision conferring the power and its constitutional and statutory setting. There is no such thing as an absolute or unlimited statutory power. Every Commonwealth statute and every power it confers is confined by constitutional limits. It must be a law with respect to one of the subjects on which the Commonwealth Parliament may make laws under the Constitution. It cannot confer upon an administrative body the judicial power of the Commonwealth. It cannot transgress constitutional prohibitions. Nor, can it reduce the jurisdiction conferred directly on the High Court by the Constitution although it may, by the width of the powers conferred or duties imposed, affect the range of actions in respect of which that jurisdiction may be invoked. A statute conferring a power which apparently exceeds any of these limits must be read down, if that be possible, so that its operation will be confined within the boundaries of validity – s 15A of the Acts Interpretation Act. In the case of the Migration Actthere is additional provision in s 3A for the severance of valid from invalid applications, if any, of an offending provision.

452               Every statutory power, whether subject to an express condition or not, is confined by the subject matter, scope and purpose of the legislation under which it is conferred – Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 (Dixon J), see also 496 (Latham CJ); R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 368 (Mason J); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40(Mason J); O’Sullivan v Farrer (1989) 168 CLR 210 at 216 (Mason CJ, Brennan, Dawson and Gaudron JJ); and Oshlack v Richmond River Council (1998) 193 CLR 72 at 84 (Gaudron and Gummow JJ). A privative clause, however widely expressed, cannot affect those defining attributes of the statute in which it appears, a fortiori where there is, as in the Migration Act, an express statement of its objects. In addition to these general parameters there may be particular conditions on powers expressly imposed by the terms of the statute.

453               The Migration Act and the Regulations made under it are replete with powers conferred on the Minister and his officers, as well as upon the Tribunals which the Act establishes. Those powers are variously subject to different kinds of conditions which may be classified as follows:

1. A condition precedent requiring the existence of a fact before the power can be exercised.

2. A condition precedent which requires the decision-maker’s reasonable belief or suspicion that a fact exists before the power can be exercised.

3. A condition precedent that requires the decision-maker’s state of satisfaction as to the existence of a fact before the power can be exercised.

4. A condition which defines the content of the power by reference to its subject matter.

5. A condition which prescribes procedures incidental to or governing the manner of exercise of the power.

454               An example of a power subject to a condition of the first kind is the power of the Minister, at the request of the spouse of a deportee, to remove that person from Australia (s 205). The existence of the request is a condition precedent. An example of a power subject to a condition of the second kind, is the power of the Minister to compel, on pain of prosecution, the giving and/or the production of documents or information about unlawful non-citizens (s 18). That power is conditioned upon the Minister having “reason to believe” various matters relevant to the exercise of the power. It requires the existence of the requisite belief and an objectively reasonable basis for it – WA Pines Pty Ltd v Bannerman (1980) 30 ALR 559 at 571 (Lockhart J, Bowen CJ agreeing):

“Words such as these are found frequently in legislation or regulations conferring powers on Ministers of the Crown or public servants. They must be read as limiting otherwise arbitrary powers”.

 

That the exercise of such a power may be challenged for want of reasons for the specified belief is well established – 567 per Brennan J and the authorities there cited including Nakkuda Ali v Jayaratne [1951] AC 66 and Bradley v The Commonwealth (1973) 128 CLR 557 at 574-5 per Barwick CJ and Gibbs J. A more recent example of the limits imposed on official action by this kind of condition is seen in the decision of the Full Court in Goldie v Minister for Immigration & Multicultural Affairs (2002) 188 ALR 708, where an officer of the department who had detained a person under s 189 of the Migration Act without a reasonable basis for his suspicion that the person was an unlawful non-citizen was held to have detained the person unlawfully and to be liable in damages.

455               An example of the third kind of condition is the Minister’s state of satisfaction that the various criteria for the grant of a visa have been satisfied (s 65). So too is the requirement for ministerial satisfaction of certain matters before a visa can be cancelled (s 116). Indeed the formation of the relevant opinion or state of satisfaction will be a jurisdictional fact (discussed below) so that the power is not validly exercised if it does not exist – Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 (“Eshetu”) at 653-657 (Gummow J):

“A determination that the decision-maker is not ‘satisfied’ that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable under s 75(v) of the Constitution.” (651)

 

Where a condition on a statutory power requires formation of an opinion or a state of satisfaction as to a matter it is necessary that the opinion or state of satisfaction be based upon a correct interpretation of the relevant statute. In R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, Latham CJ said at 430:

“Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power.”

And at p 432:

 

“If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of the power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.”

See also Buck v Bavone (1976) 135 CLR 110 at 118-119 for a similar statement by Gibbs J and Foley v Padley (1984) 154 CLR 349 for approval of Latham CJ’s opinion by Gibbs CJ at 353 and Brennan J at 370. These and related authorities were cited by Gummow J in Eshetu at 652. Where an official or ministerial opinion or state of satisfaction as to a fact is not expressly required to be reasonably based in fact the Court would not ordinarily review it on the ground of the non-existence of the fact that is its subject. But where it can be shown that the opinion or state of satisfaction rests upon error of law such as misconstruction of the statute then it is not the opinion or state of satisfaction required for the exercise of the power. In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 208-209 Gleeson CJ, Gaudron and Hayne JJ also referred with approval to what Latham CJ said in Hetton Bellbird Collieries when they observed that the Full Bench of the Commission would have committed jurisdictional error if, inter alia, it “misunderstood the nature of the opinion it was to form”. See also Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at 438-439 per Gleeson CJ and Gummow J and Re Patterson; Ex parte Taylor (2001) 182 ALR 657 at 676 (Gaudron J), 698 (Gummow and Hayne JJ) and 742 (Kirby J).

456               As to the fourth category, it may be debatable whether the subject matter of a power defines a condition of its exercise. But by way of example the power to detain a “designated person” under s 180 may be characterised as conditioned upon the fact that the detainee is a designated person. Alternatively, it may be said that it is a power to be exercised with respect to that class of persons which is its subject matter.

457               Fifthly, there are procedural conditions attaching to the exercise of various powers such as the requirement upon the Refugee Review Tribunal under s 424A of the Migration Act to provide to an applicant for review potentially adverse information for comment by the applicant before the Tribunal makes its decision.

458               Powers conferred in any Act may be subject to implied limitations. A procedural requirement not expressed as a condition of the exercise of a power may nevertheless be construed as vitiating its exercise if breached. There may also be limitations imposed by reference to the common law of judicial review. These include some of the matters referred to by Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (“Anisminic”) at 171 as heads of jurisdictional error, albeit the full range of such error may be confined, in Australia, to administrative bodies. Bad faith, breach of the rules of natural justice, exercising power for improper purposes, misconstruing the statute and so failing to deal with the question required to be addressed, failure to take into account relevant considerations and taking into account irrelevant considerations, are all matters capable of vitiating the purported exercise of a statutory power.

459               The term “jurisdiction” is used to describe the authority of a repository of legal power to make a decision. Originally defined by reference to the authority of courts it was extended to statutory officials and bodies. In the context of administrative law it may be a taxonomy of questionable utility. For historical reasons it still defines, in Australia, the limits of the availability of prerogative or constitutional writs and in particular prohibition and certiorari. In determining the limits of judicial review in relation to decisions under the Migration Actit is necessary to consider two things:

1. The construction of provisions of the Migration Actconferring powers and of limits and conditions on those powers having regard to the privative clause s 474.

2. The scope of the jurisdiction of the High Court, Federal Court and Federal Magistrates Court and the extent to which available remedies are limited by the concept of jurisdictional error.

460               The preferable outcome of such consideration is one in which all relevant issues of construction in the statute and the availability of remedies linked to jurisdictional error are able to be defined in terms of powers and limits or conditions on powers. This requires consideration of the relationship between the ideas of jurisdiction and power in the context of administrative law.

Jurisdictional Error

461               The idea of power lies at the heart of the ordinary meaning of the word “jurisdiction”. Its primary meaning is “legal authority or power” which is extended to “power or authority in general” and by a kind of metaphorical application “the extent or range of judicial or administrative power” and “the territory over which such power extends” – Oxford English Dictionary. At least in the curial context it is “the authority to decide” – Abebe v The Commonwealth (1999) 197 CLR 170 (“Abebe”) at 524 (Gleeson CJ and McHugh J). In a related usage, jurisdiction may be taken to refer to the extent or limits on power defined by subject matter. It is rightly described as an expression “which is used in a variety of senses and takes its colour from its context” – Anisminic Ltd v Foreign Compensation Commission [1968] 2 QB 862 at 889 (Diplock LJ).

462               The administrative law classification of error as jurisdictional was historically linked to the filtering or controlling criteria for issue of the prerogative writs of prohibition and certiorari. Both had their origins as instruments by which inferior courts were restrained by the Royal courts of justice from exceeding their powers. In R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Limited [1924] 1 KB 171 (“Electricity Commissioners) at 205 Atkin LJ described their scope thus:

“… both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognized as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”

See also at 193-194 (Bankes LJ). The historical development of the concept of jurisdiction in England dates back to the 17^th century impeachment of decisions of Justices of the Peace. Its application to administrative decisions indicates its true character as a species of power.

“Acting ultra vires and acting without jurisdiction have essentially the same meaning, although in general the term “vires” has been employed when considering administrative decisions and subordinate legislative orders and “jurisdiction” when considering judicial decisions, or those having a judicial flavour”

– De Smith Woolf and Jowell, Judicial Review of Administrative Action 5^th Edition, Sweet & Maxwell, 5.012.

 

463               In R v Commissioner of Patents; Ex parte Weiss (1939) 61 CLR 240 at 258 Dixon J referred to Electricity Commissioners and others as evidencing the great extension of the scope of prohibition effected in England by judicial decision to apply to many administrative bodies acting only “quasi-judicially”. No distinction appeared to have been drawn between the kind of tribunal to which certiorari would go and that to which prohibition would lie. It is interesting to note in that judgment that Dixon J seemed to require demonstration of “a complete lack of authority” in order to found prohibition (259).

464               The qualification upon the issue of the prerogative writs, that the impugned function be classed as “judicial”, reflected their origin in the supervision of inferior courts. That terminology and the related term “quasi-judicial” have fallen into disuse as a classification of powers now outmoded in administrative law – Ridge v Baldwin [1964] AC 40; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 225 (Mason J). In so saying it is recognised that the constitutional idea of judicial power is central to the separation of powers established under the Commonwealth Constitution.

465               The concept of jurisdiction was not only used historically as a means of filtering or controlling the availability of the prerogative writs. It also became a tool by which the courts maintained what they saw as the rule of law in the face of privative clauses. So although the United Kingdom Parliament responded, with privative clauses, to the excessive use of certiorari to quash decisions for trivial defects of form and although effect was given to those restrictions:

“…the court refused to allow them to interfere with the court’s control over excess of jurisdiction; for otherwise (once again) subordinate tribunals would have become a law unto themselves. In any case of ultra vires therefore, the court continued to grant certiorari regardless of the “no certiorari” clause.”

- Wade and Forsyth, Administrative Law, 8^th Edition, Oxford, 2000 at 703.

 

466               In Anisminic the House of Lords effectively widened the scope of jurisdictional error to cover all errors of law. The case concerned misconstruction by the Foreign Compensation Commission of an Order in Council which governed the exercise of its powers to award compensation from funds paid to the British Government by foreign governments for the expropriation of British property abroad. It took the view that the Order in Council required that claimants and their successors in title should be British nationals at the date of the 1959 treaty setting up the fund. The statute establishing the Commission provided that “the determination by the Commission of any application made to them under this Act is not to be called into question in any court of law”. The House of Lords held that this clause protected only valid determinations of the Commission. Lord Reid said:

“I have come without hesitation to the conclusion that in this case we are not prevented from inquiring whether the order of the commission was a nullity.

It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word “jurisdiction” has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly”.

467               The reasoning of the other law Lords was consistent with that of Lord Reid save for Lord Morris. As was said in the 5^th edition of De Smith at 5-029, although the House of Lords accepted the survival of the rule that a judicial tribunal has power to err within the limits of its jurisdiction it is not easy to identify errors of law which would not go to jurisdiction on their analysis. Subsequent cases supported that proposition for administrative authorities whose decisions were subject to privative clauses but not as a general rule for inferior courts – Re Racal Communications Ltd [1981] AC 374 at 383 (Lord Diplock); O’Reilly v Mackman [1982] 2 AC 237 at 278; R v Lord President of the Privy Council; Ex parte Page [1993] AC 682.

468               The High Court in Craig v South Australia (1995) 184 CLR 163 (“Craig”) was concerned with circumstances in which certiorari would issue to a judge of the District Court of South Australia who stayed criminal proceedings until the accused could be provided with legal representation. It was contended that the stay was based upon a misunderstanding of High Court authority in Dietrich v The Queen (1992) 177 CLR 292. The Court pointed to the necessity “to distinguish between, on the one hand inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ” (176). The primary focus of discussion in that case was upon what constitutes jurisdictional error on the part of an inferior court (177). The decision did not involve any consideration of privative clauses there being none applicable. The basis of the distinction to be drawn between the inferior courts and administrative bodies lay in the composition of the courts which are made up of people with formal legal qualifications or training. They are part of the judicial system established under the Commonwealth and State Constitutions. Non-judicial tribunals do not necessarily have the same composition nor are they part of the national judicial system. The distinction may be drawn even more sharply with ministerial and administrative officers exercising statutory powers.

469               The elision of the distinction between courts and tribunals in England following Anisminic was rejected in Craig where it was said:

“At least in the absence of a contrary intent in the statutory or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law.” (179)

 

The distinction between courts and administrative decision-makers in Australia was supported by reference to “constitutional limitations coming from the doctrine of separation of judicial and executive powers [which] preclude legislative competence to confer judicial power upon an administrative tribunal” (179). Error of law constituting jurisdictional error and attracting certiorari to quash the impugned decision of an administrative tribunal would occur where the tribunal exceeded its authority or powers by:

·        Identifying a wrong issue

·        Asking itself a wrong question

·        Ignoring relevant material

·        Relying upon irrelevant material

·        In some circumstance making an erroneous finding or reaching a mistaken conclusion

Such an error of law, being, “jurisdictional error” would invalidate any order or decision of the Tribunal (179). The Court went on to consider what constitutes, for the purposes of certiorari, the “record” of the inferior court. It did not consider that question in relation to an administrative tribunal.

470               The linking of the prerogative writs to jurisdictional error requires some consideration of the role of those remedies under Chapter III of the Constitution. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (“Aala”), Gaudron and Gummow JJ characterised the role of prohibition and mandamus under Chapter III as enforcing “… the fidelity required by covering clause 5 of the Constitution itself rather than any fidelity owed to the Crown as a particular element in the Constitutional statutes” (92). The term “constitutional writ” was therefore a more convenient shorthand than “prerogative writ” to describe the writs mentioned in s 75(v). Certiorari, when issued as an ancillary remedy for like purposes may also be so described.

471               A species of jurisdictional error is said to arise when an official exercises a power conditioned upon the existence of a fact where the fact is found by a court not to exist. In Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148, Gleeson CJ, Gummow, Kirby and Hayne JJ, with whom Gaudron J generally agreed, said:

“The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of a decision-maker to exercise a discretion.”

There is a recent and helpful discussion of this topic in Aronson, “The Resurgence of Jurisdictional Facts” 21 Public Law Review, 2001, 17-39. The learned author, in that article, cautions against treating the question of jurisdictional fact as simply a matter of statutory interpretation which may attribute “too much to the parliament and too little to the judiciary” (39). In Cabal v Attorney-General (Cth) (2001) 188 ALR 77, Weinberg J observed in an interesting consideration of the “doctrine” of jurisdictional fact that the authorities are not easy to reconcile:

“Some of them reflect a belief that the ‘doctrine’ is a myth, and that the issue to be determined in any case in which it is invoked is purely one of statutory interpretation. Others reflect a broader view in which ‘jurisdictional fact’ plays an important role in adjudicating the rights of the parties, whether by reason of the effects it has upon the onus of proof or substantively.” (90)

 

His Honour followed the approach taken in Eshetu which was somewhat broader than that taken in earlier decisions. He said:

“I also consider that there is nothing special about the task of statutory construction with regard to the determination of whether a factual reference in a statutory formulation is a ‘jurisdictional fact’ and that all the normal rules of statutory construction apply.” (95)

 

The latter observation accords with the position adopted by Spigelman CJ (Mason P and Meagher AJ agreeing) in Timbarri Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64.

472               Where a power is conditioned not upon the objective existence of a fact but upon a belief or state of satisfaction as to its existence, held by the decision-maker then, as Spigelman CJ said:

“… the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that that mental state is a particular kind of jurisdictional fact.” (64)

 

That observation however will not apply to the case where the decision-maker is required to have “reason to believe” or “suspect” something. For then, as earlier observed, an objective basis for the belief or suspicion is required.

473               Jurisdictional error was considered in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. Its consideration did not relate to the constitutional writs but to the specific ground of review for want of jurisdiction under the former s 476 of the Migration Act. In their joint judgment McHugh, Gaudron and Hayne JJ reiterated what had been said in Craig, that jurisdictional error by an administrative tribunal could be seen to embrace a number of different kinds of error:

“What is important however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law” (22).

 

474               As discussed earlier the term “jurisdictional error” has historical roots related to the initial application of prerogative writs against orders of inferior courts. The extension of that application to administrative tribunals and other officers or bodies has carried the terminology with it. There is a distinction still to be drawn in Australia between jurisdictional error, in the narrow sense, and error within jurisdiction for the purposes of the issue of writs to inferior courts. Despite the persistence of the historical terminology it is not clear that anything more than the question whether a decision has been made in excess of power need be posed where administrative bodies are concerned. Aronson and Dyer observe that most judgments today use ultra vires and jurisdictional error interchangeably or differentiate between them on grounds of common usage only (pp 9-10).

475               The issues raised by the privative clause, s 474, concern the construction of powers conferred upon official decision-makers under the Migration Act. The question whether non-compliance with a limitation or condition attaching to the exercise of a power will render the exercise invalid is a matter of construction having regard to s 474. The contention that non-compliance with a limitation or condition or the non-existence of a conditioning fact constitute respectively jurisdictional error or non-fulfilment of a jurisdictional fact is conclusionary and depends upon the answer to the question – is the exercise of the power valid?

476               The traditional grounds of judicial review go to power. They may be regarded variously as reflecting conditions or limitations upon the exercise of power. Whether and to what extent they continue to be available in the light of s 474 is a question of construction.

Theories of Judicial Review – Legislative Intention or Judicial Imposition

477               There is longstanding debate about whether the traditional grounds of judicial review are better explained as reflecting a perceived legislative intention or an imposition of judicially decreed rules or something in between. For one body of opinion typified by Sir William Wade they derive from implied legislative intention. The proposition that a public authority cannot act outside its powers he called “the central principle of administrative law”. On this view the task of the judge in judicial review is to demonstrate compliance with the will of parliament as expressed in the statute conferring the power:

“It is presumed that Parliament did not intend to authorise abuses, and that certain safeguards against abuse must be implied in the Act. These are matters of general principle, embodied in the rules which govern the interpretation of statutes. Parliament is not expected to incorporate them expressly in every Act that is passed. They may be taken for granted as part of the implied conditions to which every Act is subject and which the courts extract by reading between the lines. Any violation of them, therefore, renders the offending action ultra vires.

 

- Wade and Forsyth, Administrative Law 8^th Ed ,Oxford, 2000 p 36

478               Christopher Forsyth in “Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, The Sovereignty of Parliament and Judicial Review” Cambridge Law Journal, 1996,122-140 defends the Wade thesis and refers to Lord Browne-Wilkinson’s judgment in R v Lord President of the Privy Council; Ex parte Page where his Lordship said, at 701:

“In all cases … this intervention… is based on the proposition that such powers have been conferred on the decision-maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair procedures and, in a Wednesbury sense, reasonably.”

 

Another school of thought, reflected in the views of Sir John Laws, sees the modern principles of administrative law as “categorically judicial creations” and not “suddenly interwoven into the legislature’s intentions in the 1960’s and 70’s and onward” ­– J Laws, “Law and Democracy” Public Law, 1995, 72 at 79. Between these two poles a “modified doctrine” of ultra vires proposes that in the absence of clear contrary provision parliament is taken, in conferring statutory powers, to require decision-makers to treat individuals in a manner which accords with the rule of law. So the power to act unfairly and unreasonably is presumed to be absent from any parliamentary grant. The task of transforming the general intention that the Executive should respect the rule of law into detailed legally enforceable rules of fairness and rationality is a matter for the courts – Elliott, The Constitutional Foundations of Judicial Review, Hart Publishing, 2001 at 109-110. Professor Paul Craig argues persuasively against both the ultra vires and modified ultra vires models on the basis that “[t]he common law model of illegality best captures what the courts have done for the last three hundred and fifty years and it continues to do so. This is so even when courts or judges proclaim adherence to the ultra vires model.” Craig, “Competing Models of Judicial Review”, Public Law (Autumn), 1999, 428 at 446. For a recent review of the competing theories see TRS Allan, “The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretive Inquiry?” Cambridge Law Journal, 2002, 87-125.

479               It does not matter for present purposes which theory provides the best fit to public law in Australia. Subject to constitutional limitations, the powers conferred on decision-makers by statute may be as wide or as narrow as the Parliament provides. There may be some limitations on power implied from Chapter III of the Constitution and, in particular, s 75. For “an essential characteristic of the judicature is that it declares and enforces the law which determines the limits of the power conferred by statute upon administrative decision-makers” – Corporation of the City of Enfield v Development Assessment Commission at 153 (Gleeson CJ, Gummow, Kirby and Hayne JJ). Sir Anthony Mason has suggested that the doctrine of separation of powers reflected in Chapter III may offer a more satisfactory underpinning for the role of federal courts in judicial review than the ultra vires doctrine. The courts are the arbiters of all questions of law relating to executive action and legislative ouster of their jurisdiction is precluded. On this basis privative clauses would be given a narrow operation. But as Mason also says:

“… if we accept that the legislature has power to enact the substantive law governing the making of the relevant decision, there is no reason why the legislature cannot by means of an appropriately worded privative clause ensure that the impugned decision is valid and lawful. That would accord with the Hickman principle. If, as a matter of substantive law, the decision is valid and lawful, no question of ouster of jurisdiction or denial of access to the court would arise.”

 

- Mason, “Developments in Australian Administrative Law” 28 Hong Kong Law Journal, 1998, 379 at 389-90

480               Whether the common law of judicial review is best characterised as a constructivelegislative intention or a superimposed judicial invention will not affect the outcome of this case. For, subject to constitutional limits and the limits imposed by reference to the subject matter, scope and objects of a statute, implications as to limitations on the powers conferred by it may be negatived by statute and express limits deprived of vitiating effect.

Privative Clauses and the Exercise of Conditional Powers Generally

481               Non-compliance with a statutory condition does not necessarily render a purported decision invalid. The question is one of construction and, as indicated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, will involve the inquiry “… whether it was a purpose of the legislation that an Act done in breach of the provision should be invalid”. A privative clause evidences a legislative purpose against invalidity. Whether it is necessary to take the further step of characterising such a clause as extending the power of the decision-maker is debatable. For such a clause is to be read with the whole of the Act in which it appears, including the conditional powers that Act creates and not as a later addition which transforms otherwise invalid decisions into valid decisions. As will be seen later in these reasons the effect of a privative clause upon the construction of conditional powers in a statute does not stand in the way of the conclusion that it operates only to preclude the review of valid decisions. For that conclusion leaves open the question – what is the range of invalid decisions which fall outside the scope of the privative clause?

482               Whether an express condition on a power reflects a parliamentary purpose that the power is not to be exercised if the condition is not met will depend, inter alia, upon the terms of the power and of the condition and their subject matter. A procedural requirement serving essentially administrative purposes is unlikely to affect the validity of an exercise of the power to which it attaches. On the other hand a statutory requirement of procedural fairness in the exercise of a power affecting personal liberty or property rights is likely to condition its validity. A substantive requirement upon the exercise of such a power may also condition validity. If the consequence of non-compliance with such a condition is invalidity notwithstanding the interpretive force of a privative clause, then there is no decision for the purposes of the privative clause and it will not apply.

483               By way of analogous case arising under the common law of judicial review, failure to accord natural justice, absent a privative clause, may cause a purported decision to lack the character of a decision. This proposition was reaffirmed in the joint judgment of Gaudron and Gummow JJ in Aala at 91. Their Honours observed that denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction to which prohibition will lie under s 75(v) albeit it does not lie as of right but is discretionary. And more recently in Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117, in considering the characterisation of a decision made in breach of natural justice, against the general law of jurisdictional error, Gaudron and Gummow JJ said:

“A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.” (129)

484               The question whether the rules of procedural fairness are best regarded as a common law imposition or as manifestations of an implied legislative intention reflects the wider debate, referred to earlier, about the constitutional character of judicial review of executive action. Contending views on this question in relation to procedural fairness are referred to in the joint judgment of Gaudron and Gummow JJ in Aala at 100-101. There is no doubt however that the source of the rules of procedural fairness whether treated as imposed on or implied in statutory powers is judicial:

“[t]he justice of the common law will supply the omission of the legislature.”

 

- Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180 at 194 (Byles J)

 

Whatever the proper classification of the rules, it is clear that they may be displaced by a statute albeit it has often been said that clear language to that effect is required – Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109 (Barwick CJ), 118 (Jacobs J); Salemi v Mackellar (No 2) (1977) 137 CLR 396 at 401 (Barwick CJ), 422 (Gibbs J), 440 (Stephen J) and 451 (Jacobs J); Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 491 (Barwick CJ), 496 (Murphy J), 500 (Aickin J, Stephen and Mason JJ agreeing); Kioa v West (1985) 159 CLR 550, 584 (Mason J), 594 (Wilson J), 612 (Brennan J), 632 (Deane J); Haoucher v Minister of State for Immigration & Ethnic Affairs (1990) 169 CLR 648 at 680 (McHugh J); Annetts v McCann (1990) 170 CLR 596 at 598 (Mason CJ, Deane and McHugh JJ). The question may be posed why the legislature does not have the power to displace the rules of procedural fairness by a proper implication from the terms of an Act if it has the power to do so by clear words. It may be that the answer is twofold. First, the strength of the rules and the requirement for clear words to displace them reflect their judicial origin and the importance that traditionally attaches to them by the Courts. Second, that the rule of construction requiring clear words to displace procedural fairness is so well established and generally understood that it is able to be claimed as a legitimate criterion for the determination of legislative intention in this area. A privative clause in its statutory context, may disclose a legislative intention to negative the implication of procedural fairness as it may negative the implication of other, unexpressed limitations on the exercise of statutory power which might be imposed by traditional grounds of judicial review. It does not necessarily do so.

The Hickman Principle

485               The Minister relied, in his Second Reading Speech, on Hickman as governing the intended construction of s 474. That case concerned reg 17 of the National Security (Coal Mining Industry Employment) Regulations 1946. The relevant part of the regulation provided that the decision of a Local Reference Board:

“… shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court or on account whatever.”

A Local Reference Board was empowered to settle disputes as to any local matter likely to affect the amicable relations of employers and employees in the coal mining industry. The Court held that, notwithstanding reg 17, prohibition would lie under s 75(v) of the Constitution in respect of a decision based on an erroneous finding that an activity was within the ambit of the coal mining industry. All the Justices accepted what was by then the well settled proposition that a privative clause could not exclude the jurisdiction conferred on the High Court by s 75(v) of the Constitution (606 per Latham CJ, 610 per Rich J, 611 per Starke J, 614 per Dixon J and 620 per McTiernan J).

486               Latham CJ said reg 17 could not be construed as conferring jurisdiction on a Board to make decisions on matters which had no relation to the coal mining industry (607). He referred to other regulations which would be robbed of any effect if reg 17 were so construed. And if it were, the validity of the regulations would be open to question. Rich J held prohibition would lie under s 75(v) of the Constitution to restrain action in excess of jurisdiction which was confined by the subject matter limitation in the regulations. On that basis he construed reg 17 as not intended to validate decisions beyond the subject matter limitations of the regulations. Starke J approached the question in terms of “jurisdictional facts” which he described as “… examinable in this court on proceedings in prohibition, for instance the existence of facts necessary to give the Board authority to exercise the functions it has assumed”. McTiernan J, taking a constructional approach similar to that of Latham CJ, concluded that the intention of the regulations was that the Local Reference Board “… should confine the exercise of the powers which the Regulations vest in it to the coal mining industry” (at 621). Dixon J, in the passage referred to in the Minister’s Second Reading Speech, said:

“The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.” (614-615)

This was an expression of a constructional approach concerned, not only with the privative clause but also with the legislation of which it was part. This was made clear later in the judgment where his Honour said:

“… where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity.” (616)

And further:

“In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them. Further, if there is an opposition between the Constitution and any such provision, it should be resolved by adopting any interpretation of the provision that is fairly open.” (616)

It is important immediately to repeat that Hickman sets out an approach to construction involving “a question of interpretation of the whole legislative instrument”. It does not establish, as a sufficient condition for validity, in all cases and regardless of the statutory setting, satisfaction of the three criteria identified by Dixon J. For a decision may satisfy all three criteria yet be vitiated for want of satisfaction of a condition or limitation upon a power which, as a matter of construction, stands alongside the privative clause. In this respect the Second Reading Speech appears to rest upon a reading of Hickman which would elevate some of what Sir Owen Dixon said in that caseinto a rigid rule of construction inconsistent with its underlying reasoning and that of subsequent authorities particularly R v Murray; Ex parte Proctor (1949) 77 CLR 387 (“Proctor”). There are later authorities in which some Justices of the High Court have spoken as though only three criteria were sufficient for validity. Generally speaking those statements have been made where no other statutory condition or limitation was in issue. The line of authority in the High Court from Water Conservation and Irrigation Commissioner (NSW) v Browning to Oshlack v Richmond River Council, referred to earlier in these reasons, establishes, for every statutory power, that it is to be exercised within the broad parameters defined by the subject matter, scope and objects of the statute which creates it. It may be that this global limitation is subsumed in the Hickman criteria in one way or another but it is probably preferable that it be stated distinctly as a condition upon power that exists with or without a privative clause.

487               In the joint judgment of Latham CJ and Dixon J in R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 (“Rent Controller”), a privative clause rendering the Controller’s determinations final and without appeal and precluding prohibition and certiorari was held not to mean that the authority had unlimited powers in respect of all persons and in respect of all subject matters and without observance of any statutory conditions. The clause was effective to deny prohibition for procedural deficiencies where the authority was in substance dealing with the subject matter of the power:

“But if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s 75(v) of the Constitution in a case of the latter description: see R v Hickman; Ex parte Fox and Clinton….”(369)

 

Rich and Williams JJ agreed with the reasons for judgment of Latham CJ and Dixon J. Starke J added that the privative clause did not enable the Rent Controller finally to determine whether the conditions required for the exercise of his jurisdiction had or had not been fulfilled (376).

488               A narrower statement of the Hickman approach appeared in the judgment of Dixon J in R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123 where, speaking again of reg 17 of the National Security (Coal Mining Industry Employment) Regulations, he said, at 140:

“Such a provision is taken to mean that it is enough if the award order or determination deals with a subject matter placed within the province of the tribunal and represents a bona-fide attempt to exercise its powers and authorities or some of them. In those conditions a failure to observe the requirements of the regulations does not spell invalidity and a valid award or order is not prohibited.”

That narrower statement may be explained by the fact that, as in Hickman, the Court was addressing the question whether the Board’s determination had anything to do with the coal mining industry. The general issue of limitations or conditions upon statutory powers was not before the Court. Nevertheless Latham CJ repeated (at 130) what he had said in Rent Controller. Rich J essayed the broad proposition that reg 17 would not preclude the exercise of the court’s jurisdiction under s 75(v) of the Constitution “…where it appears that an award is invalid” (136). Starke J appeared to allow improper purposes as a basis upon which prohibition would lie notwithstanding reg 17 (137).

489               That privative clauses must be construed in the context of the statutes of which they are part, was made clear in Proctor. The Court held that reg 13(2) of the National Security (Coal Mining Industry Employment) Regulations conditioned the validity of determinations of Local Reference Boards upon the presence of a quorum. So where a Board purported to act in the absence of a quorum prohibition lay notwithstanding reg 17. Latham CJ at 395 cited Hickman for the proposition that:

“… if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s 75(v) of the Constitution in a case of the latter description…”

490               Assuming a decision within constitutional limits, made bona fide, and referable to the subject matter of the legislation, the remaining question, as Dixon J put it at 399, was:

“… whether, upon the true interpretation of the legislative instrument as a whole, it does not sufficiently express an intention that what the Board does shall be considered an authorized exercise of its power and accordingly valid and effectual, notwithstanding that the Board has failed strictly to pursue the procedure the instrument indicates or prescribes and that the Board has in some respects gone outside or beyond the limits within which it was intended that the actual exercise of its authority should be confined.”

The constructional problem to be resolved was described as the inconsistency between provisions limiting the power of a tribunal and prescribing its procedures on the one hand, and a privative clause, which said that the validity of the tribunal’s decrees shall not be challenged or called into question, on the other. This apparent inconsistency was to be overcome by an attempt to arrive at the true intention of the legislative document containing the two provisions considered as a whole. Dixon J set out the steps by which this should be done:

“The first step in such a process of interpretation is to apply to a provision like reg 17 the traditional or established interpretation which makes the protection it purports to afford inapplicable unless there has been an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province.

…

A second step in interpreting the whole legislative instrument must be to consider whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action. For a clearly expressed specific intention of this kind can hardly give way to the general intention indicated by such a provision as reg 17.” (399-400)

McTiernan, Williams and Webb JJ agreed without significant elaboration that prohibition should issue against the Board in respect of its decision made without a proper quorum.

491               A proper analysis of s 474, consistent with the reasoning in the preceding cases, would address its effect upon the exercise of limited or conditioned statutory powers in the Migration Act. In this respect construction of the Act and the privative clause in terms of statutory power does not require exploration of the taxonomy of jurisdictional error. That term, as earlier discussed, arises in the context of the constitutional writs. It identifies a proper occasion for the issue of prohibition in the exercise of the High Court’s constitutional jurisdiction under s 75(v), certiorari as ancillary thereto and the issue of those writs under this Court’s statutory jurisdiction conferred by s 39B of the Judiciary Act.

492               The possibility that a statute may impose a condition on the validity of a decision notwithstanding a privative clause was restated by Dixon J in R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 (“Metal Trades”). Speaking of s 32 of the Conciliation & Arbitration Act 1904 (Cth), which he relied upon (in dissent) to validate an order of the Commonwealth Court of Conciliation & Arbitration, he said, at 248:

“No doubt there are instances in the Act where imperative duties or inviolable limitations or restraints are imposed by the Act on the Arbitration Court or the commissioners. When that is the case invalidity affects any transgression of the limitation or restraint and a mistaken decision that the duty is less extensive than it is does not relieve the court or the commissioner from its imperative obligation. In such cases prerogative writs will issue for the enforcement of the duty or restraint.”

493               Dixon J reiterated what he had said in Hickman and Proctor and it was approved to varying degrees by other justices of the High Court in a number of other cases – R v Commonwealth Court of Conciliation & Arbitration; Ex parte Grant (1950) 81 CLR 27 at 55-56 (McTiernan J) and 59 (Fullagar J); R v Kelly; Ex parte Berman (1953) 89 CLR 608 at 630 (Kitto J); R v Members of the Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd (1959) 101 CLR 246 at 255 (Dixon CJ, Kitto and Windeyer JJ); The Coal Miners Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437 at 442-443 (Dixon CJ and Kitto J), 454-455 (Menzies J), 448 (Fullagar J). In the latter case, Menzies J said of the first passage from the judgment of Dixon J in Hickman, referred to earlier in these reasons, that it had “… come to be regarded as classical”. Further support for Hickman and Proctor is to be found in R v Commonwealth Conciliation & Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1968) 118 CLR 219 at 252-253 (Kitto J); R v Judges of the Commonwealth Industrial Court; Ex parte Cocks [1969] ALR 161 at 168 (Kitto J); North West County Council v Dunn (1971) 126 CLR 247 at 269 (Walsh J, Gibbs and Owen JJ agreeing).

494               The proposition that a privative clause “cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of “[a] Tribunal” was restated by Mason ACJ and Brennan J in R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 (“Coldham”) at 419. Deane and Dawson JJ took what, on the face of it, was a more expansive view of the Court’s jurisdiction. If the decision-maker (in that case the Australian Conciliation & Arbitration Commission) purported “to exceed its powers or fail[ed] to perform its lawful function” its members, as officers of the Commonwealth, would be subject to the jurisdiction of the Court under s 75(v) (427). The Commission had decided that certain workers, found to be eligible for membership of a particular union, were to be represented exclusively by that union. The criterion of eligibility was a condition of the power of the Commission to make the impugned order. It defined the inviolable limitation on power which, in that case, had a constitutional dimension. The Commission could not make a conclusive determination on the issue of eligibility without straying into the area of judicial power reserved by Chapter III to the High Court and other courts exercising federal jurisdiction. It is evident, however, that the characterisation of the limitation as inviolable did not depend upon the constitutional question but rather upon the “quite explicit” terms of the provision conferring the power to make orders of the kind in issue (419). Indeed Deane and Dawson JJ characterised the eligibility criterion as a “jurisdictional fact” (427).

495               The privative clause in Coldham was s 60 of the Conciliation & Arbitration Act 1904 (Cth). Subsection 60(1) was in the same terms as s 474(1) although it began with the words “subject to this Act…”. It may be noted that it was held to have no effect in a case where there is in effect no decision and the failure to give a decision constitutes a failure to perform a public duty – Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 520. On this point however there is a relevant difference between s 60 and s 474 for the latter contains, in s 474(3), an extended definition of “decision” which includes a failure or refusal to make a decision.

496               Section 60 was considered again in O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 (“O’Toole”). However that case was focussed on whether the section exceeded the legislative powers of the Parliament. While the three Hickman criteria were prominent in the judgments, the Proctor criterion relating to limitations on power was not. Mason CJ referred to Proctor in the context of the “good faith” requirement (249). Brennan J cited the Proctor criterion which he seemed to have thought inherent in those stated by Dixon J in Hickman. Nevertheless, he accepted that a privative clause would not prevent review where a decision-maker failed to comply with an inviolable limitation or restraint upon the jurisdiction or powers of the Tribunal (274). Deane, Gaudron and McHugh JJ regarded s 60, subject to constitutional limits which required it to be read down, as protecting any purported award which satisfied the three Hickman conditions. They made no reference to the Proctor condition. In the event it was not an issue before the Court. Dawson J, with whom Toohey J agreed, cited Mason ACJ and Brennan J in Coldham and their reference to inviolable limitations or restraints”. He saw s 60 as intended to exclude attack upon an award “upon the basis of some mere defect or irregularity which is not such as to deny the power to make it” (305).

497               Hickman was cited in relation to ss 175 and 177 of the Income Tax Assessment Act 1936 (Cth) in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 (“Richard Walter”) at 180 (Mason CJ), 195 (Brennan J), 205 (Deane and Gaudron JJ), 222 (Dawson J), 233 (Toohey J), 240 (McHugh J). Mason CJ described the outcome of the line of authority from Hickman thus at 180:

“What emerges from the decisions of this Court applying the Hickman principle to privative clauses, especially to s 60 … of the Conciliation and Arbitration Act 1904 (Cth), is that they are effective to protect an award or order from challenge on the ground of a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order.”

 

 

Brennan J explained the character of the Hickman principle as “a rule of construction” and repeated the point made by Dixon J in Hickman that it is “a question of interpretation of the whole legislative instruction whether transgression of the limits…necessarily spells invalidity” (195). Deane and Gaudron JJ also referred expressly to Rent Controller and Proctor in their footnote 128, observing in the text that Parliament could provide that administrative decisions of the relevant kind were valid and enforceable “… notwithstanding the existence of some procedural defect which would otherwise result in invalidity” (206-207).

498               A privative clause in a State statute was considered by Gaudron and Gummow JJ in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602. They emphasised the nature of the Hickman principle as a rule of construction. The question was not one of the meaning and effect of the Hickman principle but rather “…the meaning and effect of the statutory provisions in question” (631). Their Honours referred to Metal Trades and also Richard Walter. They characterised those cases as saying that a privative clause could protect against procedural defects or irregularity but that it could not prevent the court from reviewing decisions including a refusal to discharge imperative duties or going beyond inviolable limitations or restraints.

499               The weight of the case law developed by the High Court over the fifty-seven years which has passed since Hickman was decided gives authoritative support for the approach to the construction of privative clauses undertaken by Dixon J in that case and his elaboration of it in Proctor. It cannot be said that the subsequent case law proceeds with bright linear clarity in its exposition and re-exposition of the approach taken by Dixon J. Not all of the enunciations are consistent as between the various justices or with what he said. Indeed, Sir Owen Dixon himself seems to have formulated his approach to privative clauses in different and not entirely consistent ways from time to time – a variability no doubt connected to the circumstances of the particular cases before the Court. However enough emerges consistently with the line of authority cited, to enable the following general propositions to be extracted:

1. The inclusion in a statute of a privative clause affects the construction of those provisions of the statute which confer powers to make decisions which attract the application of the clause.

2. The provisions of a statute which confer powers to make decisions attracting the application of a privative clause will themselves affect the construction and operation of that clause.

3. Every valid conferral of statutory power, whether or not protected by a privative clause, is subject to a condition:

(i) that it will not be exercised so as to exceed the limits upon legislative power imposed expressly and implicitly by the Commonwealth Constitution;

(ii) that it will be exercised honestly and in good faith;

(iii) that decisions made under it will be reasonably capable of reference to that power;

(iv) that the power is to be exercised by reference to the subject matter, scope and objects of the statute.

4. Every valid conferral of a statutory power is subject to any condition imposed upon its exercise, which as a matter of construction, having regard to the terms of the privative clause, is necessary for the effective exercise of the power.

It may be said that the last proposition is circular and in a sense it is. However, it recognises that, notwithstanding the existence of a privative clause, conditions may exist upon the exercise of particular powers in an Act which are conditions precedent to the exercise of those powers which exercise is in turn judicially reviewable for failure to comply with such conditions. So much was conceded as a possibility in the written submissions on behalf of the Minister which accepted that there may be “inviolable limitations which a privative clause cannot affect”. Nothing has been said in the cases in the High Court, and it is not a corollary of the Hickman principles that such conditions or limitations are confined to those expressed in the statute. In Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at 108, Spigelman CJ expressed the view (albeit in dissent) that there is nothing in the authorities to suggest that Hickman is intended to be an exhaustive statement of the categories of error in which a privative clause will be objected to particular stringency.

500               The problem posed by a privative clause is one of statutory construction. That construction should have regard to the ordinary meaning of the words used in the clause and those provisions of the statute with which it has to be reconciled. The Hickman principle does not provide a narrow, one size fits all, rule of construction which has no regard to the particular context in which the task of reconciliation arises. That is evident in the varying approaches taken to the operation of such clauses in different statutory settings. The words of Sir Owen Dixon in Hickman are not to be calcified. They exhort a flexible and, indeed, ambulatory rubric for reconciling the apparently irreconcilable. To treat them otherwise is to fall into what Knox CJ, Starke and Dixon JJ in another context called:

“…the danger which attends the formulation of principles and doctrines and all reasoning a priori in matters which in the end are governed by the meaning of the language in which the Legislature has expressed its will.”

- Country Roads Board v Neale Ads Pty Ltd (1930) 43 CLR 126 at 135

 

The Jurisdiction of the Courts to Review Decisions under the Migration Act

501               As appears from the provisions of Parts 8 and 8A of the Migration Act the only relevant original jurisdiction in which the Act contemplates that judicial review of decisions made under it will occur is that conferred:

. on the High Court by s 75 of the Constitution and s 30 of the Judiciary Act;

. on the Federal Court by s 39B of the Judiciary Act and s 39 of the Federal Magistrates Act - as amended by s 476;

. on the Federal Court by s 44 of the Judiciary Act when a matter is remitted to it by the High Court – as amended by s 476;

. on the Federal Magistrates Court under s 483A of the Migration Actwhich confers upon it the same jurisdiction as the Federal Court in relation to matters arising under the Act and on transfer from the Federal Court under s 32AB of the Federal Court of Australia Act.

502               The jurisdiction conferred upon the High Court by s 75(v) of the Constitution was intended to overcome the difficulty identified in Marbury v Madison 5 US (1 Cranch) 137 (1803), that the Supreme Court of the United States could not validly be given original jurisdiction under the United States Constitution to issue writs of mandamus to non-judicial officers of the United States – La Nauze, The Making of the Australian Constitution (1972) at 233-4; J Thomson, “Constitutional Authority for Judicial Review: A Contribution from the Framers of the Australian Constitution”in The Convention Debates (1891-1898) Commentary Indices and Guide, Craven (ed), Legal Books Pty Ltd, 1986, 173 at 178-80.

503               In 1983, the Judiciary Act was amended by the Statute Law (Miscellaneous Provisions) Act (No 2) 1983 (Cth) and s 39B enacted. The purpose of its enactment was described in the Second Reading Speech of the then Attorney-General thus:

“There are a number of amendments to this Act. The first amendment inserts a new section 39B into the Act. Paragraph 75(v) of the Constitution confers original jurisdiction on the High Court of Australia in matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. The High Court has a heavy work load and one way of reducing that work load would be to confer jurisdiction in paragraph 75(v) matters on the Federal Court of Australia. The High Court cannot be divested of its jurisdiction in this area.

Section 44 of this Act empowers the High Court to remit matters pending before it to any Federal court, or court of a State or Territory where that Court has jurisdiction in respect of the subject matter and the parties. The proposed amendment will not only confer jurisdiction so that proceedings under paragraph 75(v) may be commenced in the Federal Court but will also allow the High Court to remit to the Federal Court matters commenced before it.”

 

- Australia, Parliamentary Debates, House of Representatives, 21 September 1983, p.1049

 

504               The operation of s 39B(1) does not extend to persons holding office under the Workplace Relations Act 1996 (Cth), The Coal Industry Act 1946 (Cth) and Judges of the Family Court of Australia. However the language of the section, its identity with that of s 75(v) and the Second Reading Speech indicate that its effect is to confer on the Federal Court the same original jurisdiction as that conferred on the High Court by s 75(v) albeit it is statutory and not constitutional. Unlike the High Court, the jurisdiction of the Federal Court is entirely defined by statute so that what Parliament has conferred upon it under s 39B it can remove, contract or qualify. However it cannot validly contract the jurisdiction conferred on the High Court by s 75(v). A contraction of Federal Court jurisdiction under s 39B(1) and s 44 with respect to any subject matter will result in a disconformity between its jurisdiction with respect to that subject matter and the constitutional jurisdiction of the High Court. The consequence of such a disconformity as seen in the operation of the previous Part 8 (held to be valid by High Court majority in Abebe) was a substantial number of applications in the original jurisdiction of the High Court seeking to take advantage there of grounds of judicial review that had been closed off in the Federal Court. A disconformity exists under the Amendment Act because primary decisions and other decisions identified in s 476 cannot be challenged in the Federal Court but could be challenged in the High Court. This may not have serious practical effects where a party has not exhausted merits review. For such a party may not be able to attract discretionary judicial review in the High Court’s original jurisdiction unless some important question of law is raised.

505               There is nothing to suggest that s 474 is intended to have an operation in relation to the jurisdiction of the Federal Court under s 39B(1) and the like jurisdiction of the Federal Magistrates Court that would differ from its operation in relation to the constitutional jurisdiction of the High Court under s 75(v). Given the intended operation of s 474 as affecting the construction of powers and conditions and limitations on powers under the Act as disclosed in the Second Reading Speech, it could hardly be otherwise. A law which would confine the jurisdiction conferred by s 39B(1) should not be construed “more narrowly than the jurisdiction conferred by s 75(v) of the Constitution unless the restriction appears expressly or by necessary intendment”: Shergold at [42] citing Brennan J in Richard Walter at 193. Section 474 could not validly operate upon the constitutional jurisdiction of the High Court under s 75 and is not intended to. It follows that it is not intended to have any operation upon the jurisdiction of the Federal Court under s 39B(1) of the Judiciary Act. And that jurisdiction is expressly preserved by the Act, save for those matters, including primary decisions, excluded by operation of s 476 upon the Court’s jurisdiction. Section 476, it may be noted, has nothing to say about the High Court’s jurisdiction.

506               There is a difference in scope between the relevant original jurisdiction of the High Court and that of the Federal Court. The High Court’s jurisdiction covers cases in which one or more of the constitutional writs or injunctive relief is sought against an officer of the Commonwealth. It has jurisdiction under s 75(iii) in any matter in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party. It also has an original statutory jurisdiction under s 30 of the Judiciary Act in matters arising under the Constitution or involving its interpretation.

507               The jurisdiction of the Federal Court is differently defined. That conferred on it by s 39B(1), subject to immaterial exclusions under s 39B(2) replicates in statutory form s 75(v) of the Constitution. The original jurisdiction of the Court in matters arising under the Constitution or involving its interpretation, which is conferred by s 39B(1A)(b), replicates the like statutory jurisdiction conferred on the High Court by s 30. Importantly however the Court has a further head of jurisdiction conferred by s 39B(1A)(c) which is not found in the original jurisdiction of the High Court. That is jurisdiction in any matter arising under any laws made by the Parliament, other than criminal matters. It extends to any matter in which:

“… the right or duty in question in the matter owes its existence to Federal law or depends upon Federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law”.

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154

 

See also Felton v Mulligan (1971) 124 CLR 367 at 387 (Windeyer J), 408 (Walsh J) and 416 (Gibbs J); Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476 (Stephen, Mason, Aickin and Wilson JJ) and LNC Industries Ltd v BMW (Australia) (1983) 151 CLR 575 at 581-582.

508               The remedies which may be awarded by the High Court in the exercise of its constitutional jurisdiction under s 75(v) are those there specified and, by implication those ancillary or incidental to the effective exercise of its jurisdiction, including certiorari – Aala at 90 (Gaudron and Gummow JJ, Gleeson CJ agreeing); Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 188 ALR 1 at 8 (Gleeson CJ), 67 (Hayne J). See also R v Cooke; Ex parte Twigg (1980) 147 CLR 15; Pitfield v Franki (1970) 123 CLR 448. Although these cases were concerned with certiorari claimed as an adjunct to prohibition ancillary relief may encompass a range of remedies. The availability of the writs of prohibition and mandamus is confined by the need to demonstrate excess or refusal of jurisdiction – Darling Casino at 633 (Gaudron and Gummow JJ). Certiorari is available for jurisdictional error. When certiorari is sought for jurisdictional error it is not necessary that the error be on the face of the record. A superior court entertaining an application for certiorari in such a case may take account of any relevant material properly before it – Craig at 176 citing Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 167 and R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at 353. See also Aronson and Dyer (2^nd Ed) at 186 and Shaw and Gwynne, “Certiorari and error on the face of the record” (1997) 71 ALJ 356 at 357. The condition that non - jurisdictional error appear on the face of the record, for certiorari to issue, appears to be academic as such error would not vitiate the exercise of the relevant power or render invalid the decision which is its expression. It would be a valid decision under Migration Act, and, for the reasons set out below, it would attract the protection of the privative clause. It may also be noted that the grant of injunctive relief under s 75(v) is not confined to cases of jurisdictional error – Muin v Refugee Review Tribunal [2002] HCA 30 at [47] per Gaudron J.

509               The Federal Court has the power to award the remedies for which s 39B(1) expressly provides. It may grant ancillary relief under s 23 of the Federal Court of Australia Act. This may include certiorari in order to effect complete disposition of the matters before the Court. In any proceedings under the jurisdiction conferred by s 39B(1A) the Court will not be limited to the prerogative writs or confined by the criteria for their issue. The relief that can be granted will depend upon the cause of action comprising the matter said to arise under Commonwealth law. So declaratory relief may be available in respect of a decision which is beyond power. Such a decision, as appears below, is not protected by s 474. Tortious remedies may also be available for unlawful detention – see Goldie v Commonwealth (supra) as may orders in the nature of habeas corpus: see Ruddock v Vadarlis (2001) 110 FCR 491 at [75] per Black CJ, [164] per French J, contra Beaumont J at [107-111]. It may also be that certiorari can be claimed as a primary remedy in a proceeding brought under s 39B(1A).

The Construction of Section 474 – Application to Valid Decisions

510               It is consistent with the approach to construction outlined earlier, to begin with the words of s 474 and their ordinary, grammatical meaning. The section is expressed as precluding any form of judicial review of a class of actions which answer the description “privative clause decision”. That is a defined term and refers to “a decision of an administrative character made, proposed to be made or required to be made as the case may be” under the Migration Act or under a regulation or other instrument made under the Act. The definition closely follows the language used to define “a decision to which this Act applies” in s 3(1) of the ADJR Act. So too, the expanded definition of “decision” in s 474(3) follows the language of the definition of “decision” in s 3(2) of the ADJR Act albeit it includes reference to “granting” and “cancelling” reflecting the use of those particular words in parts of the Migration Act.

511               Administrative decisions beyond power may be treated as not being decisions in the sense that they are legally ineffective. The privative clause in issue in Anisminic, precluded the calling in question in any court of law of any “determination by the Commission of any application made to them under their Act”. Putting to one side for the moment the taxonomy of jurisdictional error and error within jurisdiction, the House of Lords held that the provision did not apply to purported decisions which were nullities. Russell LJ had identified the issue in the proceedings before the Court of Appeal thus:

“When is a determination not a determination? That is the question.”

- [1968] 2 QB 862 at 912.

 

Following that decision the privative clause, s 3 of the Foreign Compensation Act 1969 (UK), was amended so that the word “determination” was defined to include “anything which purports to be a determination”.

512               Neither the definition of “privative clause decision” in s 474 nor the definition of “decision to which this Act applies” in the ADJR Act expressly includes purported decisions invalid because they are beyond power. If legally ineffective purported decisions are not included then s 474 will not preclude their review. That leaves open the question whether, and to what extent, the section affects the construction of the provisions of the Act conferring powers which are subject to limits or conditions on their exercise whether express, implied or otherwise imposed by the common law.

513               The decisions to which the ADJR Act applies extend to purported but invalid decisions made under enactments. In the context of that Act, the contrary intention is untenable. For if such a decision were not covered then those grounds of review in s 5, which go to power, would be nugatory – Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 at 448 (French J); Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 at 375 (Branson J). The interpretation of “decision made under an enactment” adopted in those two cases, is demanded by the text and the objects of the ADJR Act. It would have been absurd to exclude from review a class of decision to which the grounds of review set out in the Act were directed. The same considerations do not apply to the definition of privative clause decision in s 474. For that section is concerned not to confer jurisdiction but, depending upon the approach taken, to limit jurisdiction or to affect the way in which official powers are construed. Moreover the construction of the section and indeed that of other sections of the Migration Act affected by it, must operate within constitutional boundaries as to subject matter, the exercise of judicial power and the irreducible authority of the High Court to entertain applications for constitutional writs.

514               The meaning of the term “privative clause decision” therefore is not to be governed by the authorities relating to the range of decisions to which the ADJR Act applies. The provisions of Division 2 of Part 8 were drafted on the assumption that the Federal Court and the Federal Magistrates Court will have jurisdiction. The Minister’s Second Reading Speech itself contemplated that some purported decisions would be subject to judicial review in the High Court under s 75(v) of the Constitution or in the Federal Court or the Federal Magistrates Court under s 39B or s 44 of the Judiciary Act, s 39 of the Federal Magistrates Act, and s 483A of the Migration Act. The expressed basis for the retention of that jurisdiction, at least in the case of the Federal Court and the Federal Magistrates Court, was that the range of invalid decisions would be limited to the categories set out in Hickman. As interpreted by the Minister in effect these categories were as follows:

·        the decision-maker was not acting in good faith;

·        the decision was not reasonably capable of reference to the power given to the decision-maker;

·        the decision did not relate to the subject matter of the legislation;

·        the decision exceeded constitutional limits.

515               The idea that a privative clause, expressed to operate on a class of administrative decisions made under a statute, will not apply to purported decisions which are not valid exercises of statutory power, is not novel. Griffiths CJ in Baxter v New South Wales Clickers’ Association (1909) 10 CLR 114 thought an order or determination of the Industrial Court made on a matter outside the scope of its relevant Act “ought not to be regarded as a “decision” within the meaning of s 52 [the privative clause of the Industrial Disputes Act 1908]” (at 131). And where the Industrial Arbitration (Amendment) Act 1926 excluded review of “… the validity of any proceeding or decision of a [conciliation] committee…” set up under the Act, Isaacs ACJ and Powers J held the limit of the words “proceeding or decision” was to be found in the subject matter of the proceedings or decision – Morgan and Australian Workers’ Union v Rylands Bros (Australia) Ltd (1927) 39 CLR 517 at 524. A preclusive provision in the National Security (Coal Mining Industry Employment) Regulations was held by Latham CJ (McTiernan J agreeing) not to confer validity on an invalid award. Latham CJ contemplated that a purported award might be so completely beyond any possible jurisdiction that it could not reasonably be said to be an award – The Australian Coal & Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 177. Starke J rejected this possibility as ignoring the language of the regulation and disregarding the decisions of the Court. He accepted, however, that the privative clause could not exclude the right to prohibition pursuant to s 75(v) of the Constitution (186).

516               In O’Toole at 285-7, Deane, Gaudron and McHugh JJ construed s 60(1) of the Conciliation & Arbitration Act 1904 (Cth) which was materially identical to s 474(1), as not being confined to valid awards. A purported award would therefore attract the protection of the section if it satisfied the conditions enunciated by Dixon J in Hickman. It is clear from their subsequent discussion, however, that the three justices saw s 60 as having a “validating” operation (293). Notwithstanding the approach taken by the joint judgment in O’Toole, it may still be said of s 474, albeit in a different sense, that it applies only to valid decisions. For what is a valid decision is determined after construction of the power under which that decision is made which construction has regard to the interpretive force of the privative clause. So full weight is given to the principle informing Hickman and later cases that a privative clause is to be reconciled as a matter of construction with the other provisions of the Act in which it appears.

517               More recently, in Darling Casino Ltd v New South Wales Casino Control Authority, Gaudron and Gummow JJ, (Brennan CJ, Dawson and Toohey JJ agreeing) commented on the application of s 155 of the Casino Control Act 1992 (NSW) which treated as final, and not subject to appeal or review, “a decision of the Authority under this Act”. Their Honours observed that the phrase used was not “under or purporting to be under this Act” and said:

“Section 155 cannot fairly be construed as declaring an intention of the legislature that the Authority is empowered and protected in respect of determinations under s 18 reached other than upon satisfaction of the conditions which enliven its power. Those decisions would not have been made ‘under this Act’.” (635)

518               For the preceding reasons, based upon the terminology and function of s 474, it applies only to valid decisions made under the Act. This leaves for determination the considerably larger question of the effects of the section upon the construction of powers conferred by the Act and therefore upon the conditions of validity of decisions purportedly made pursuant to such powers. The answers to that constructional question in turn define the range of decisions which are to be treated as valid, and therefore protected from judicial review, notwithstanding failure to comply with apparent limits or conditions on the powers pursuant to which they are made.

The Construction of Section 474 – Its Effect on Other Provisions of the Act

519               The ordinary meaning of the words of s 474, taken in isolation, indicates a clear and unequivocal purpose of excluding any resort to the courts, including the High Court, to challenge by way of judicial review official decisions made under the Migration Act. If the section were so construed it would be invalid in its application to the High Court because a statute cannot affect the jurisdiction conferred on that court by the Constitution. It would also be invalid because it would protect action beyond constitutional limits.

520               If it did have such a construction it could perhaps be read down pursuant to s 15A of the Acts Interpretation Act and/or s 3A of the Migration Actand limited in its application to the statutory jurisdictions of the Federal Court and the Federal Magistrates Court. But an interpretation of s 474 which would prevent the Federal Court from exercising any jurisdiction in decisions under the Migration Act is negatived by the statutory context. Division 2 of Part 8 plainly contemplates the continuing jurisdiction of the Federal Court under s 39B and s 44 of the Judiciary Act and s 39 of the Federal Magistrates Act. Section 483A, expressly invests jurisdiction in the Federal Magistrates Court to the same extent as the jurisdiction invested in the Federal Court.

521               The Second Reading Speech made it clear that the legislation was intended, by its drafters, not to affect the jurisdiction of the High Court. It was intended to reinstate s 39B jurisdiction in the Federal Court and to confer jurisdiction upon the Federal Magistrates Court so that they could review decisions under the Act save for those excluded from these statutory jurisdictions by s 476. It was also intended by the drafters to confine the grounds of review as far as possible in accordance with the approach enunciated in Hickman. The legislative history of the progression from the 1992 amendments to the 2001 amendments is supportive of a purpose, in the latter amendments, of further confinement of the grounds of judicial review within constitutional limits while minimising practical disconformity between the jurisdiction of the High Court and that of the other federal courts.

522               The construction of s 474 must have regard to its words, its constitutional and statutory context, the legislative history and terms of the Second Reading Speech. The Second Reading Speech invokes Hickman in a restrictive way that does not accord with the weight of subsequent authority. Despite that, it reflects a clear purpose that effect should be given, in the construction of s 474, to the judicially established approach to the construction of privative clauses. That approach, which includes the application of the criterion in Proctor, seeks to give best effect to legislative intention, in the sense earlier discussed, by giving effect to all provisions of the Act including those in which Parliament has tied the effective exercise of certain powers to the satisfaction of important prior conditions. In identifying the powers and conditions, if any, which fall into the latter category, it is necessary to pay regard to the established principle of construction that, absent clear language to the contrary, Parliament is presumed not to intend to abrogate established common law rights. So the Parliament is not lightly to be taken to have intended to confer on the Minister or his officials unconstrained power to take people into custody, to compel the disclosure of documents and information or to seize property and the like. These powers are constrained under the Act by conditions which afford a measure of protection to citizen and non-citizen alike.

523               It was submitted for the Minister that there are no conditions in the Migration Act which could be characterised as “inviolable limitations” for the purposes of s 474. In support of this submission it was said that the Parliament must be taken to have known that the Act into which s 474 was inserted was often in very prescriptive terms. Parliament, it was said, had identified a range of decision-making powers which were exempt from the provisions of the privative clause. The Court is invited to make a global judgment about the construction to be given to conditions affecting all other decision-making powers in the Act. The alterio exclusius argument is not such a powerful tool of interpretation that the Court should be prepared to adopt the bold and sweeping proposition that Parliament has, in effect, decided to relieve the Executive of the necessity to comply with all conditions on any other powers whatever their subject matter and content. The submission for the Minister would apply with equal facility to support the argument that the criteria conceded by the Minister, as grounding judicial review in respect of privative clause decisions, did not in truth apply. Indeed, there is nothing in the Second Reading Speech or the Explanatory Memorandum to suggest that the “Hickman doctrine” was not intended to have effect across the full range of decisions in the Act. The fact that that doctrine was expressed in a restrictive way inconsistent with the authorities does not impact upon that conclusion.

524               The privative clause does not therefore have the global operation upon conditional powers which is propounded by the Minister. It operates only upon valid decisions. Whether a decision is valid will depend upon whether the limits or necessary conditions for the exercise of the decision-making power have been obeyed. Whether a condition on a power is necessary to its effective exercise will depend upon the interaction of the clause and the condition. That interaction is not logical because this aspect of the operation of the clause, based on Hickman, bears little, if any, relationship to its language. Rather the clause conveys an interpretive force against invalidity for want of compliance with limits or conditions on powers. That interpretive force has to be weighed against the nature and importance of power and the limit or condition which affects it. There is then a question whether the clause will exclude review of limits or conditions upon powers not imposed expressly or by necessary implication from the terms of the statute. In the present case this goes principally to the question whether the privative clause precludes review based upon failure to accord procedural fairness.

Construction of Section 474 – Effect on Procedural Fairness

525               The question now arises whether s 474 precludes the traditional grounds of judicial review other than the grounds specified in Hickman and the cases that followed. There can be no doubt, having regard to the legislative history of Part 8 that the only legislative intention that can legitimately be asserted in this respect is one which sought the narrowing of the grounds of review as far as possible in accordance with the accepted constitutional and constructional principles already canvassed. There will be traditional grounds of review subsumed in the generality of those contemplated by Hickman.

526               The traditional grounds of review when applied to a statutory power may be characterised as going to the limits of that power defined by reference to its subject matter scope and objects and the terms of the particular provision in issue including any conditions express or implied upon which its valid exercise depends. In those cases the grounds of review, whether or not it may be said that they derive from common law rules, are, for the most part, supportable by reference to the internal logic of the statute itself.

527               Non-compliance with procedural requirements of the Act or Regulations which was a permitted ground for review under the former s 476, will not be available unless compliance with those requirements is a necessary condition of the exercise of the power to which they apply, notwithstanding the privative clause. Want of jurisdiction to make a decision, another ground of review in the old s 476, will be subsumed within the permitted grounds identified above. The same is true of the ground previously available under s 476 that the decision was not authorised by the Act or the Regulations. Improper exercise of power may be an element of bad faith or establish that the decision was not reasonably capable of reference to the power under which it was made. Improper purposes is theoretically available as a ground of review having regard to the scope and objects of the Act itself but given the width of the objects of the Migration Act it is difficult to see how it will arise in any practical way. Error of law is likely to inform one or more of the permitted grounds and in particular that relating to breach of an essential condition on a power. Without more however it will not provide a stand alone basis for review. Fraud and actual bias affecting the decision, which stood as grounds of review under the old s 476, would now support review on the ground of bad faith. It is difficult to see how the former “no evidence” ground would operate except to the extent that it might underlie the question whether a jurisdictional fact has been established. As indicated earlier, the issue of jurisdictional fact in this context is subsumed in the ground relating to non-compliance with a necessary condition on a power that subsists notwithstanding the privative clause.

528               The constructional approach which flows from Hickman and Proctor would allow, in theory, for procedural fairness to apply as a condition precedent to the effective exercise of certain important powers such as provisions affecting individual liberty. This possibility is open whether procedural fairness is imported on the basis that its requirements are implied in the statute or superposed as a rule of common law. Prior to the amendments, it was regarded by the High Court as a matter going to jurisdiction and grounding the issue of prohibition:

“…if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Constitution.”

- Aala at 101 (Gaudron and Gummow JJ, Gleeson CJ agreeing)

 

 

That observation rests on the stated premise that the Act has not limited or extinguished the obligation to accord procedural fairness. The fact that breach of the rules of natural justice (save for actual bias) was excluded as a ground of review under s 476 as it stood when Aala was decided was held not to affect the implication that it was a requirement of decision making under the statute. Their Honours took the view that no question arose of its attempted abrogation by statute. On the contrary, s 476(2)(a) as it previously stood, in limiting the grounds which could be taken in the Federal Court, assumed the existence of the requirement in respect of decisions under the Act which included those of the Tribunal.

529               In Annetts v McCann, Mason CJ, Deane and McHugh JJ said at 598:

“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.”

Where natural justice is not excluded its content varies according to its statutory context and the circumstances in which it is invoked – Haoucher v Minister of State for Immigration & Ethnic Affairs at 652 (Deane J); National Companies & Securities Commission v News Corporations Ltd (1984) 156 CLR 296 at 326 (Brennan J); Mobil Oil Australia Pty Ltd v Commissioner of Taxation (1963) 113 CLR 475 at 503-504 (Kitto J).

530               Procedural fairness in official decision-making is not to be classed as some kind of ethical ornamentation which is inimical to efficiency. As the Full Court said in Barratt v Howard (2000) 96 FCR 428 at 444:

“Fairness is not a moral fetter on efficiency. Fairness, expressed in recognition of the right to be heard and want of bias on the part of the decision-maker, operates in aid of informed decision-making that has regard to relevant criteria and so advances the statutory purpose. So equity serves efficiency.”

The requirements of procedural fairness may overlap with other constraints integrally connected with the exercise of statutory power. A decision affected by actual bias may also be a decision made in bad faith or actuated by purposes foreign to those for which the relevant power is conferred. There may be cases in which the internal logic of the statute itself requires that processes be followed with reflect procedural fairness. By way of example, considered in the Wang appeal later in these reasons, where a visa has been cancelled without notice to the visa holder and while the visa holder is out of the country, s 129 requires notice of the cancellation and the grounds upon which it is based to be given to the former visa holder so that he or she may respond and the Minister may consider, in the light of such response, whether to revoke the cancellation. Here the notice required is integral to the exercise of the power to revoke or refuse revocation under s 131 of the Act.

531               No doubt there are cases in which a suitably worded provision of an Act can exclude the common law requirements of procedural fairness altogether. Absent clear words of exclusion the statutory context may qualify the requirements of procedural fairness by diminishing their scope or confining their operation to a limited range of decisions. A privative clause which does not in terms exclude natural justice will not support the global proposition that, because it is a privative clause, natural justice is excluded in all cases under the Act. But it may affect consideration of whether procedural fairness applies to particular statutory powers in respect of which the question is raised. Although these propositions may be to some degree academic because of the recent enactment of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), that Act does not apply to the present proceedings.

532               Against the general exclusion of common law procedural fairness from the Migration Actis the long standing criterion of construction that requires clear words to produce that outcome. There were at the relevant time no express words of exclusion in the Act. The High Court found procedural fairness not impliedly excluded by statutory provisions embodying one of its elements relating to notification of potentially adverse information which might be relied upon by the decision-maker, eg s 424A, see Aala and Miah. Linked to these considerations is the importance of many of the decisions made under the Act to the persons affected by them, decisions which in the case of protection visas may have life or death consequences.

533               On the other hand, there is the legislative intention to reduce the scope for judicial review. That legislative intention, declared according to accepted criteria of construction, weighs against the common law implication of procedural fairness generally as a condition of the effective exercise of powers under the Act. The position in light of the Judicial Review Act differs from the statutory scheme considered in Aala and Miah. Nevertheless the large and complex array of powers created by the Act and the long recognised rule that requires clear words to exclude procedural fairness militate against its global extinction by the privative clause. It is necessary therefore to consider the question of procedural fairness case by case accepting that the interpretive force of s 474 lies against its general application as a condition of the valid exercise of powers.

534               Procedural fairness may apply when a legitimate or reasonable expectation of its application is based upon a statement or undertaking by the decision-maker – Kioa v West at 582-583 (Mason J). Examples of cases involving undertakings giving rise to legitimate expectations of procedural fairness are: R v Liverpool Corporation; Ex parte Liverpool Taxi Fleet Operators Association [1972] 2 QB 299 (promise not to increase the number of licensed taxis in a city); Salemi v Mackellar (No 2) (amnesty to prohibited immigrants); Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 (promise to accord a hearing before deportation); Haoucher (implied promise not to depart from policy relating to criminal deportations where AAT recommendation against deportation). In Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 20 Mason CJ said:

“… a legitimate expectation may be created by the giving of assurances … the existence of a regular practice, … the consequences of denial of the benefit to which the expectation relates or the satisfaction of statutory conditions. The list is not exhaustive, but provides indications of the kinds of factors which a court will take into account in deciding whether or not an expectation is legitimate.”

In Darling Casino,Brennan CJ, Dawson and Toohey JJ in a related proposition said that:

“… it should not be assumed that the exercise of a power conferred in general terms cannot be confined by the procedures adopted by a repository. If the power must be exercised in conformity with the rules of natural justice, a failure by the repository to adhere to a declared procedure may constitute or result in a failure to accord natural justice to a person whose interests are liable to affection by the exercise of the power. In such a case, an exercise of the power adversely to the interests of the person denied natural justice is liable to be set aside.” (609)

535               It may be difficult to sustain the proposition that the requirements of procedural fairness when engendered by undertaking or assurance are implied by statute. The better view would seem to be that, whatever the position in relation to procedural fairness generally its application by reason of assurance or undertaking is judge-made law which nevertheless can be displaced by clear statutory words – Aronson and Dyer at 89-90. That is not to dilute the requirement that it takes clear words to displace it particularly when based upon a decision-maker’s promise. Procedural fairness lies at the heart of administrative justice as a longstanding requirement of the common law and reflective in Australia, as in other common law countries, of ordinary concepts of justice. Properly applied it does not lay upon decision-makers burdensome procedural requirements of the kind that would be expected of a court of law. What Lord Shaw said in Local Government Board v Arlidge [1915] AC 120 at 138 is still valid:

“… that the judiciary should presume to impose its own methods on administrative or executive officers is a usurpation. And the assumption that the methods of natural justice are ex necessitate those of Courts of justice is wholly unfounded”.

That comment however goes to the content of procedural fairness rather than its existence as a condition of power. As Kirby J said in the recent decision of the High Court in Muin v Refugee Review Tribunal at [227]:

 

“It is obviously important to avoid rigid rules and the over-judicialisation of the Tribunal’s proceedings. Yet it is equally important to recognise the significance of the decisions it makes both for the applicants and for the composition of the Australian population. The fundamental postulate of the Act is that the decisions made under it will be both informed and just…. Ordinarily, therefore an opportunity ought to ‘be given to the person concerned to respond to adverse information that is credible, relevant and significant to the decision….’. In some cases, adverse information considered by an administrator might be withheld from the person affected where there is a compelling need for confidentiality, secrecy or speed in the making of the decision.”

536               Broadly speaking the interpretive force of s 474 may be taken to create a climate in the Act which is hostile to the general application of common law procedural fairness. It cannot be taken to have excluded it altogether in all cases. In some cases a want of procedural fairness will amount to a failure to exercise the relevant power for other reasons such as bad faith or failure to comply with an essential requirement of the statute. In some cases the power to be exercised by an official decision-maker may be so dramatic in its effect upon the life or liberty of an individual that, absent explicit exclusion, attribution of an implied legislative intent to exclude procedural fairness would offend common concepts of justice. It might be said that the notion of common concepts of justice amounts to little more than the judges’ concepts of justice. But in the end, where constructional choices are open, the Court is entitled, and I would venture expected, to make a judgment in favour of that construction which promotes fair treatment over that which does not. Where there is a legitimate expectation raised, particularly where it is generated by a promise or undertaking on the part of the decision-maker to observe a particular process in a specific case, and when the exercise of the power has serious consequences for the individual, the common law doctrine may be engaged and, absent clear statutory words, condition its validity.

Construction of Section 474 – General Conclusions

537               It is not possible or appropriate here to do more than draw broad conclusions about the operation of the privative clause and then consider their consequences in the particular circumstances of each of the appeals presently before the Court. The application of the privative clause in cases not before this Court will await their hearing and determination. In general however, it may be said that s 474 will not preclude judicial review of a decision under the Act on any of the following grounds:

1. The decision exceeds the constitutional limits upon legislative power imposed by the Commonwealth Constitution.

2. The decision was not made in good faith.

3. The decision was not reasonably capable of reference to the power under which it was made.

4. The decision was not made by reference to the subject matter, scope and objects of the Act.

5. The decision was made in breach of an express statutory limit or condition upon a power which, as a matter of construction, notwithstanding s 474, must be observed for the effective exercise of the power.

6. The decision is made in breach of a limit or condition on a power which, notwithstanding s 474, is implied from the statute or imposed by the common law and which must be observed for the effective exercise of the power.

7. The decision was made in breach of the requirements of procedural fairness when the circumstances are such that, notwithstanding s 474, procedural fairness is a necessary condition for the valid making of the decision.

Each of these grounds, if invoked in proceedings under s 39B(1), and made out, will vitiate the decision and thereby constitute jurisdictional error attracting the grant of prohibition and certiorari by way of ancillary relief. Declaratory relief could be granted ancillary to the constitutional writs or as primary relief in an action brought under s 39B(1A).

 

Constitutional Validity of the Privative Clause

538               The threshold question in considering the constitutional validity of s 474 of the Migration Actis the question of characterisation. Its apparent character is that of a law with respect to those matters which are the subject of decision-making powers in the Migration Act. On that basis it is a law which bears the multiple character of a law with respect to immigration and emigration (s 51(xxxvii)), aliens (s 51(xix) and possibly the influx of criminals (s 51(xxviii)). It might also be thought to bear the character of a law with respect to the jurisdiction of the High Court and other courts created by the Parliament or in which Federal jurisdiction is invested.

539               There was no debate about the characterisation of the law before the Court and it seems indisputable that it bears at least the character of a law with respect to the subjects in placita (xix), (xxvii) and (xxviii). The question then arises – on what if any grounds could its constitutional validity be questioned. If literally interpreted it would purport to exclude the jurisdiction conferred upon the High Court by ss 75(iii) and 75(v) of the Constitution. This it cannot validly do for:

“… it is clear that, as s 75 is a constitutional grant of jurisdiction, it is beyond the power of the Parliament to withdraw any matter from the grant of jurisdiction or to abrogate or qualify the grant”.

Deputy Commissioner of Taxation v Richard Walter Pty Ltd(1995) 183 CLR 168 at 179 (Mason CJ) and see also 192 (Brennan J), 205 (Deane and Gaudron JJ), 223 (Dawson J) and 233 (Toohey J) and the authorities there cited.

540               Section 474, construed according to the ordinary meaning of its words, is not a valid law of the Commonwealth at least in its application to the jurisdiction conferred on the High Court by s 75 of the Constitution. If confined in its operation to the statutory jurisdiction of the Federal Court and the Federal Magistrates Court that objection could not be taken and it might be that s 3A of the Migration Actwould so confine it. However on the authority of Hickman and the cases that followed it the section is not to be construed according to the ordinary meaning of its words but rather as an instrument for the construction of other provisions of the Act. On that basis there is no purported operation of the section upon the constitutional jurisdiction of the High Court. So in O’Toole, s 60(1) of the Conciliation & Arbitration Act 1904 (Cth), in the same terms as s 474(1) was construed on Hickman principles. It was held not to contract the jurisdiction of the High Court but to expand the statutory jurisdiction of the Industrial Arbitration Commission.

541               In NAAV one of the grounds of appeal asserts that s 474 is invalid for inconsistency with paragraphs 75(iii) and 75(v) of the Constitution. There was nothing in the written submissions on behalf of NAAV to advance that contention. The other ground going to the validity of s 474 involved the assertion that it reserved to administrative decision-makers, and others who are not Judges, a part of the judicial power of the Commonwealth. The oral constitutional argument advanced on behalf of NAAV rested on the assumption that the words of s 474 should be given their literal meaning. As already observed such a construction would spell invalidity. But on the authority of Hickman and the cases already cited the words are not given their natural meaning. So invalidity is avoided. This leads to a tension between the words and the effect given to them by the courts. To some it may seem that the courts are disregarding the words. The Minister has invited the Court to adopt that approach. Indeed, he has submitted that the Court is bound to find that there is scope for judicial review, albeit limited. Whatever criticism may be made of the Hickman approach it is not for this Court to say it is wrong. If it is to be reconsidered that is a matter for the High Court.

542               The Human Rights and Equal Opportunity Commission, which intervened by leave in NAAV and NABE, submitted that the Court should reconsider whether on the Minister’s construction of s 474, decision-makers under the Act were invalidly being given judicial power. Alternatively it was said that if the Refugee Review Tribunal’s decisions, which involved jurisdictional error, were protected by s 474 then the section is invalid as an impermissible intrusion by Parliament into the exercise of judicial power. Neither proposition acknowledges the constructional operation of s 474 on the other provisions of the Migration Act. The Commonwealth Parliament may define the statutory power of an official as widely as it wishes within constitutional limits. So to do does not confer upon the official the authority conclusively to determine the limits of his or her own power. Nor does the privative clause have that effect. For the provision operates only upon valid decisions. An official who makes an error of law which vitiates the exercise of the decision-making power does not make a decision which is protected by the section.

543               This is not a case in which the judicial power of the Commonwealth is conferred upon someone who is not a Chapter III Judge. Nor does s 474 direct courts as to the exercise of their jurisdiction – Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1 at 36-37.

544               The Turcan notice of appeal did not in terms raise a constitutional ground. However a Notice of a Constitutional matter pursuant to s 78B of the Judiciary Act was issued in that case. The constitutional matter identified was whether s 474(1) is authorised by the Constitution “… in so far as it purports to remove from the jurisdiction of the High Court or the Federal Court jurisdiction to determine whether a decision which itself causes a person to be detained or requires another decision or conduct whereby a person is detained is lawful”. There was no argument advanced in the written submissions in Turcan which went to the validity of s 474 nor in the oral submissions put to the Court.

545               In the Minister’s appeal in Wang it was submitted for the respondent that, to the extent s 474 limits or restricts the jurisdiction of the High Court and consequentially the jurisdiction of the Federal Court to review decisions under the Migration Act, it is invalid. The arguments advanced, as in the other cases, require for their efficacy an interpretation of s 474 according to the ordinary meaning of its words.

546               On the basis of the construction of s 474 applied in these reasons pursuant to Hickman and the cases that followed it the section is not shown to be beyond constitutional power.

The Five Appeals

547               In light of the preceding general conclusions, consideration may be given to the particular appeals before the Court.

1. NAAV v Minister for Immigration & Multicultural Affairs and the Refugee Review Tribunal

548               The appellant, a citizen of Burma, entered Australia on 2 November 1995 on a visa valid until 20 January 1996. On 1 February 1996, he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs. That application was refused by a delegate of the Minister on 29 April 1998. On 15 May 1998, the appellant applied to the Refugee Review Tribunal for review of that decision. Some three years and four months later, on 11 September 2001, the Tribunal affirmed the decision not to grant a protection visa. The decision was not handed down until 2 October 2001. On 29 October 2001, an application was filed in this Court under s 39B of the Judiciary Act seeking writs of certiorari and mandamus seeking to quash the Tribunal’s purported decision and to direct that it rehear and redetermine the application for review of the delegate’s decision refusing a protection visa according to law. Injunctive relief directed to the Minister preventing him from giving effect to the Tribunal’s decision was also sought.

549               The application was subsequently amended so that in addition it claimed a declaration that s 474 of the Migration Actis invalid as ultra vires the Commonwealth Constitution and a writ of prohibition to prevent the Minister from giving effect to the Tribunal’s decision.

550               The substantial ground of the application was that the Tribunal had failed to comply with the requirements of procedural fairness by basing its decision in part upon country information and a map which it had not disclosed to the appellant. The application having been filed after 2 October was governed by the amendments to the Migration Act made by the Judicial Review Act which introduced the new privative clause provision to be found in s 474. Gyles J heard the application and on 15 March 2002 ordered that it be dismissed with costs. The present appeal is against the order of Gyles J.

551               In opening remarks at the hearing of the application the Tribunal member told the applicant and his wife that there were some questions he would be putting to them. He also said he would be talking to them “…about information that I have concerning your country which is independent information”. He explained that the information came from various sources and said:

“Now, I will be telling you what that information may mean in your case, and giving you an opportunity to make comments about it.”

At the end of the hearing the appellant’s migration adviser asked the member that the independent country information he had mentioned which could have a bearing on the case be made available if it were going to be taken into consideration. The member responded:

“Yes, in fact I should have corrected myself. In fact, it doesn’t have any, I read it during one of the breaks, that is why I stopped actually, because I thought that it did and when I started reading down I found out that the dates were disparate from the dates that I thought that they were, so no, it has no bearing at all.”

 

Further, the member acknowledged that if there were any materials on the departmental file inconsistent with any of the evidence given by the appellant and his wife, he would put it to them in the form of a letter pursuant to s 424A. He also said by way of conclusion at the hearing:

“Now, in coming to my decision in both your cases, please understand that I will take into account all the various forms of information and evidence that I have. Now, this includes the materials contained within the Department’s file. The information and material in the Tribunal’s files. Your written submissions, any additional written materials which is forwarded, your oral evidence at the hearing, independent information, a little bit which I put to you during the oral evidence, and of course the definite [sic] of a refugee contained in the Refugee’s Convention.”

552               The Tribunal’s decision was published some thirteen months later. Its reasons identified twenty-one sources of country information which the Tribunal regarded as inconsistent with or adverse to the claims of the appellant. Neither the appellant nor his migration agent had received any notice of these matters from the Tribunal. The information came from a range of sources, some in the public domain and some from the Department of Foreign Affairs and Trade. The learned primary judge appended to his judgment a summary of those documents which had been prepared by the solicitor for the applicants.

553               It is not possible, within the compass of these reasons, to do justice to the careful and comprehensive consideration given by his Honour to the law and the facts of the case before him. It is sufficient for present purposes to summarise his conclusions thus:

1. Proceedings before the Refugee Review Tribunal are inquisitorial. An applicant has no case to meet and can put whatever information is thought appropriate to the Tribunal. The Tribunal hearing under s 425 is an opportunity for persuasion not confrontation – [52].

2. The Tribunal is a high volume jurisdiction and achievement of its statutory objectives in terms of s 420 of the Act requires balance and compromise.

3. Section 474 is inconsistent with the existence of an implied duty on the Refugee Review Tribunal to afford procedural fairness by supplying information going beyond the requirements of Div 4 of Part 7 of the Act.

4. Section 424A governs the provision of potentially adverse information to an applicant – [79].

5. An applicant for a visa should expect that his or her claim will be critically examined by the Minister and, if applicable, by the Tribunal, in the light of relevant country information which is known or available to the decision-maker – [82].

6. If a new event or circumstance arises which the Tribunal proposes to consider it may be obliged to advise the applicant, according to the circumstances –Miah - [82].

7. The Tribunal is not required to put to an applicant country information which originated prior to the Tribunal hearing as opposed to information that has its source after the hearing.

His Honour also considered a constitutional challenge to s 474 made by the appellant on the basis that the section vests part of the judicial power of the Commonwealth in persons who are not judges appointed in terms of s 71 of the Constitution and in bodies which are not courts established in terms of that section. He rejected this challenge by reference to the decision of the Full Court in SZ v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 342. A second contention for invalidity was based upon alleged inconsistency of s 474 with s 75(iii) and s 75(v) of the Constitution. It was put that the section effected a de facto withdrawal of constitutional jurisdiction from the High Court. This submission too was rejected.

554               The appellant submitted that he was denied procedural fairness in two ways. First, the Tribunal misled him by conveying the impression, contrary to the fact, that it had no adverse information to put to him. Second, the Tribunal referred to undisclosed information, from which it drew inferences adverse to him, without providing him with an opportunity to comment on it first. It was argued, consistently with views expressed by Merkel J in Walton v Ruddock [2001] FCA 1839 at [35], that procedural fairness has not been excluded by operation of the 2001 amendments. In any event, legislation impinging on common law rights must be strictly construed. Section 474 says nothing about procedural fairness. Natural justice being an implied duty to act fairly is closer to the heart of the rule of law than any other kind of rule governing administrative regulation. Its requirements, it was said, cannot be removed by a general provision.

555               With respect to the differing view expressed by Gyles J, this was a case in which there was a departure from minimum standards of procedural fairness. The appellant would have been entitled to expect, on the strength of the statements made by the Tribunal member at the end of the hearing, that he would be contacted if there were to be any significant departure from the impression created by the member’s statement that no country information of which the appellant was unaware would be relied upon by the Tribunal without prior notification to the Appellant to provide him with an opportunity to comment on it. Accepting that the Tribunal is a high volume jurisdiction, as his Honour observed, it must also be recognised that its decisions can have profoundly serious consequences for the persons affected by them. The recent decision of the High Court in Muin v Refugee Review Tribunal established that, under the Act as it stood prior to the enactment of s 474, reliance by the Tribunal upon adverse country information, not disclosed to the applicant for review, could constitute a breach of procedural fairness that would attract certiorari, prohibition and mandamus – at [28]-[31] per Gleeson CJ, [64] per Gaudron J, [137]-[140] McHugh J, [226]-[236] Kirby J. The present case is more favourable to the appellant on the facts than Muin’s case because of the assurance given by the Tribunal about the use of country information.

556               For the reasons already given in the general discussion of the operation of s 474, the statements made by the Tribunal engendered a legitimate expectation that the member would not be considering country information adverse to the appellant which had not already been disclosed. The appellant was entitled at a minimum to be told if that approach was not going to be adhered to. It would have provided him with an opportunity to make more wide ranging submissions in an endeavour to anticipate elements of the information relied upon which might be adverse to him. Indeed in this case he ought to have been told of the information adverse to him that was to be relied upon. The unfairness of what occurred is so clear and its impact on the outcome of the case so obvious that it may be said it was a breach which vitiated the exercise of the Tribunal’s power to make a determination. It is not to be supposed that the privative clause introduces a legislative intent, in the sense in which that term has been used earlier in these reasons, that a breach of procedural fairness which is so clear and contrary to a statement made by the decision-maker himself should be beyond the reach of judicial review.

557               The notice of appeal also challenged the constitutional validity of s 474. For the reasons given earlier that challenge fails.

558               For the preceding reasons this appeal should be allowed, certiorari should issue to quash the decision of the Tribunal prohibition should issue to the Minister to prohibit him from acting upon or giving effect to or proceeding further upon the Tribunal’s decision, and mandamus should issue requiring the Tribunal to determine the appellant’s application for review of the Minister’s decision refusing his application for a protection visa according to law.

2. NABE v Minister for Immigration & Multicultural & Indigenous Affairs

559               The appellant is a Sri Lankan national of Tamil ethnicity and Roman Catholic religion. He claimed to be at risk of persecution from authorities in Sri Lanka by reason of his suspected involvement with the Tamil Tigers. He entered Australia on a false Canadian passport. The Tribunal held that in Colombo he would face no real chance of persecution for any Convention reason. His application in this Court, under s 39B of the Judiciary Act, sought writs of certiorari and mandamus to quash the decision of the Tribunal and to compel it to rehear and redetermine his application for review of the refusal of a protection visa. The grounds of the application asserted jurisdictional error on the part of the Tribunal on the basis that it had ignored relevant material, reached a decision that could not reasonably have been reached or reached a decision without any reasonable or rational foundation. In dismissing the application, Tamberlin J held that s 474 “… in terms makes it evident that the decision of the RRT is intended to authoritatively resolve questions of fact and law before it”. His Honour accepted that the principle was qualified by the authorities to the effect that a privative clause will not apply to prevent judicial review where the decision is unconstitutional or in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, or where the empowering statute makes it clear that compliance with a condition is essential to the exercise of jurisdiction. He was satisfied that the Tribunal had erred. It had characterised the appellant’s claims as including a claim that he was interrogated, beaten and otherwise mistreated by the authorities while detained for two weeks on suspicion of involvement with the LTTE or with the People’s Liberation Organisation of Tamil Eelam (PLOTE). In fact the appellant’s claim was that he was arrested by the PLOTE and was detained and tortured during interrogation by them on the basis of his suspected involvement with the LTTE. He appeals against the decision of Tamberlin J.

560               In this case there was only one ground of appeal. That is that the learned primary judge erred in finding that, although there was an error by the Refugee Review Tribunal which could have affected the outcome of its decision, the error was protected by s 474 of the Migration Act.

561               It was submitted that the Tribunal’s error of fact was jurisdictional within the meaning of Craig as it made a finding of fact that the appellant was detained and tortured by authorities when there was no evidence to support that conclusion. Reliance was placed on the dicta of Hill J in Gamaethige v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 424 at [12]. His Honour there said that a finding of fact made without evidence to support it may be classified for administrative law purposes as a decision made without jurisdiction. A failure by the Tribunal to address or deal with the case actually raised before it was also said to amount to jurisdictional error – Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802 at [7] per Merkel J. Because the Tribunal had misunderstood the appellant’s claims it was said to have failed to deal with the case raised and committed a jurisdictional error.

562               To argue that an error of jurisdiction avoids the application of a privative clause fails to acknowledge that the privative clause itself is involved in the determination of what is or is not a jurisdictional error and what is or is not a condition precedent to the valid exercise of a power. An error of fact of the kind committed by the Tribunal in this case is clearly a matter for concern. It is, however, an erroneous finding about the appellant’s evidence. It cannot be said to fall into any of the grounds of review which are now available consistently with s 474. It is for that reason not an error which goes to jurisdiction or to the decision-making power of the Tribunal. On this basis relief is not available under either ss 39B(1) or 39B(1A) going to the validity of the decision. The appeal being raised on this single ground, must be dismissed.

3. Ratumaiwai v Minister for Immigration & Multicultural & Indigenous Affairs

563               This appellant is a resident of Fiji who on 25 July 1997 applied to the Minister for a Family (Residence) (Class AO) Visa. The application was made on the basis that he was what is referred to in the relevant visa subclass as a “special need relative”. His brother, is a resident of Australia who became a citizen in 1996 and has lived in this country for about thirteen years. He suffered an injury to his back and knee due to heavy lifting. As a result he had a disability, bilateral osteo-arthritis of the knees. He is in receipt of social security benefits. A delegate of the Minister refused the appellant’s application on 14 December 1999. On 31 December 1999, the appellant applied to the Migration Review Tribunal for a review of the delegate’s decision. That application was refused on 3 October 2001. Thereafter he lodged an application in this Court, under s 39B of the Judiciary Act, seeking writs of certiorari and mandamus to quash the purported decision of the Migration Tribunal and to direct it to rehear and redetermine his application. He also sought a writ of prohibition directed to the Minister to prevent him from acting upon or giving effect to or enforcing the decision of the Tribunal.

564               The Tribunal found that the appellant’s brother did not have a permanent or long term need for assistance because of his disability. The appellant provided assistance to his brother to enable him to attend Church and medical appointments and to go shopping, which the brother’s lack of mobility would render difficult. However there were other sources of assistance of this kind. The Tribunal found that the brother did not require long term assistance because of death, prolonged medical or physical illness or any other serious circumstance. On this basis it was of the view that the appellant was not a “special need relative”.

565               These findings must be seen against the regulatory criterion that an applicant for a Family (Residence) (Class AO) Visa be a “special need relative” defined in reg 1.03 at the relevant time as follows:

“Special need relative” in relation to an Australian citizen usually resident in Australia, an Australian permanent resident usually resident in Australia or … means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a) the citizen or resident has a permanent or long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and

(b) the assistance cannot reasonably be obtained from:

(i) any other relative of the citizen or resident, being a relative who is an Australian citizen, an Australian permanent resident or…

(ii) welfare, hospital, nursing or community services in Australia.”

566               The appellant contended at first instance that the Tribunal had committed an error going to jurisdiction in failing to take into account a relevant consideration that being either that the appellant provided financial assistance or emotional support to his brother. Hill J dismissed the application on 20 March 2002. He found that the Tribunal did not deal with the issue of financial assistance in its reasons for decision as required under s 430(1)(b) of the Act. However it was clear from the transcript that the Tribunal considered and rejected the appellant’s contention that his provision of financial assistance to his brother qualified him as a special need relative. Once the Tribunal was found to have considered the question of financial assistance, even if it made an error about whether it was the kind of assistance that would qualify the appellant as a special need relative, it was an error of law and not a jurisdictional error. His Honour was of the view, contrary to that of the Tribunal, that financial assistance could qualify its provider as a special need relative.

567               His Honour also found the Tribunal to have erred in law in holding that emotional support could only qualify its provider as a special need relative when the recipient of the support was suffering from a mental disease. There was a real question whether the appellant ever really made a claim based on emotional support. If he were to advance a case on that basis it would be necessary for him to show that the brother had a permanent or long term need for that support because of his disability and that such support could not reasonably be obtained from the alternative sources referred to in par (b) of the definition. His Honour found that there was no evidence, whether directly from the brother, or otherwise, from which that need could be inferred. So even if it were correct that the Tribunal had made an error of law, that error could not have affected the ultimate result. In any event neither of the errors of law identified amounted to jurisdictional error.

568               The appellant’s application for a permanent residence visa was dated 24 July 1997. It was prepared with the aid of a migration agent. Question 76 on the application said:

“What circumstance has led to your relative needing your assistance (eg permanent disability, death of a close relative etc)?”

The answer was:

“PERMANENT DISABILITY

MY BROTHER’S WIFE PASSED AWAY AND HIS HEALTH NEEDS ATT. HE CANNOT STAND FOR LONG PERIOD OF TIMES.” (sic)

 

 

Question 77 asked:

“Give details of the assistance you provide to your relative.”

The answer given was:

“CLEANING, SHOPPING, EVERY DAY NECC COOKING”

 

 

In a statement signed by the appellant’s brother, however, it was said, inter alia:

“The nature of my ailment renders me useless as far as financial and physical needs acquisition is concerned.”

A medical report dated 26 January 1998 in support of the application indicated that the brother had “severe degenerative changes in his lumbar spine and left and right knee” and that he continues to require assistance at home with respect to cooking, cleaning, housework, dressing and other aspects of his personal care. In the application to the Migration Review Tribunal, the appellant stated that his brother needed him for financial and physical assistance.

569               There were two hearings before the Tribunal. On 21 August the appellant gave evidence. His brother gave evidence on 12 September. In the course of the hearing on 21 August the appellant said that he paid for various expenses for him and for his brother including meals, groceries and the electricity bill. The Tribunal member said in the course of the hearing:

“Well, I’m afraid money is not going to make much difference to this application. Giving financial assistance wouldn’t qualify you as a special need relative.”

In relation to the appellant’s claim that he gave his brother emotional support, the Tribunal said at the hearing that there was no evidence of mental illness. In an exchange with the brother on 17 September, the Tribunal said, in answer to the proposition that he had a need for financial support from the appellant:

“But that doesn’t qualify. If you look at the decision it says that you need assistance because of death, disability, prolonged illness or other serious circumstances so financial help is not relevant to the application.”

In its reasons for decision, the Tribunal recorded that the appellant had stated that his brother needed financial and physical support from him and that he continued working to financially support himself and his brother.

570               The appellant claimed that the Tribunal erred in failing to make any finding that financial support was provided. The Tribunal was said to have erred in law in its view that a need for financial assistance from a person did not qualify the provider as a special need relative.

571               The definition of “special need relative” in reg 1.03 of the Regulations makes no express reference to the kind of assistance that will bring a person within its definition. In context it is assistance of a personal nature causally related to “death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally”.

572               The first question is whether the Tribunal has made an error in law in excluding financial assistance from the content of qualifying assistance. His Honour found that even if it had it had erred within jurisdiction. It is doubtful that mere financial assistance would qualify as the kind of personal assistance contemplated by the Regulations. The kind of assistance contemplated by reg 1.03 goes well beyond financial assistance which can be provided from anywhere. It is directed to assistance of a kind which can be provided because of the presence of the appellant in Australia. His Honour found that, whether or not the Tribunal erred as a matter of law, there was no basis for review of its decision. It was open to the Tribunal to hold that the kind of assistance baldly described as financial assistance did not fall within the scope of the Regulations.

573               On the matter of emotional support, his Honour held that there was no case advanced from which a need for emotional support could be inferred. In this he was correct. The Tribunal was no doubt incorrect to suggest that a need for emotional support was necessarily to be tied to mental illness. In the end however it made no difference to the case. For the preceding reasons the third appeal is dismissed.

4. Turcan v Minister for Immigration & Multicultural & Indigenous Affairs

574               The appellant is a citizen of Moldova who came to Australia on 26 March 1998 on a three month visa in order to participate in a sporting competition at Coffs Harbour. In April of that year he went to Melbourne and met Elena Mamara. They were married on 28 August 1998. The appellant applied for a TK Extended Eligibility (Temporary) Subclass 820 Visa as the spouse of an Australian citizen on 4 September 1998. That visa was granted on 11 November 1998 and entitled him to remain in Australia for two years. He was granted a permanent Subclass 801 Onshore Visa on 15 November 2000. However, on 6 July 2001 a notice was issued by a delegate of the Minister stating that his visa was cancelled on that day under s 128 of the Act on the ground set out in s 116(1)(f). Section 128 of the Act provides:

“If:

(a) the Minister is satisfied that:

(i) there is a ground for cancelling a visa under section 116; and

(ii) it is appropriate to cancel in accordance with this Subdivision; and

(b) the non-citizen is outside Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.”

(a)    Section 116(1) provides, inter alia, that the Minister may cancel a visa if he or she is satisfied that:

“(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

…

(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.”

575               At the time of the cancellation notice, the appellant was out of Australia and did not return until late in the evening on 22 February 2002. In the meantime an internal review recommended that the cancellation be reconsidered. However at the time of his return the cancellation was still in effect and he was taken into detention on 23 February 2002. The appellant commenced proceedings in this Court under s 39B of the Judiciary Act seeking the issue of writs of certiorari and prohibition.

576               The appellant alleged jurisdictional error based on error of law, want of satisfaction of a relevant condition of the cancellation and failure to make a bona fide attempt to exercise the power given by s 128 of the Migration Act. Heerey J considered the operation of s 474 and agreed with, and adopted, the reasoning of Gyles J in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263. He held that the section in its terms goes to the Court’s jurisdiction. The asserted grounds in the application did not make out bad faith on the part of the delegate cancelling his visa. Mistake of fact or law would not constitute bad faith. To the extent that the grounds involved allegations of a breach of natural justice, they were not available for the reasons given by Gyles J in NAAX. The decision related to the subject matter of the legislation and was reasonably referable to the function assigned to the decision-maker. On that basis, s 474 prevented review. The appellant also challenged his detention seeking prohibition against the Minister from acting on the “purported performance” by the departmental officer at Melbourne airport on 23 February 2002 of his duty under s 189(1) to detain the appellant as an unlawful non-citizen. By similar reasoning his Honour held that this aspect of the application was also precluded by s 474.

577               The learned primary judge appears to have taken the view that the three Hickman grounds, as enunciated by the Minister in his Second Reading Speech, provide the only bases upon which judicial review is available notwithstanding s 474. To the extent that his Honour thus excluded the Proctor ground of failure to comply with a condition precedent to the exercise of the relevant power, he was, with respect, in error.

578               The delegate who cancelled the appellant’s visa erred in law in relying upon s 116(1)(f) of the Act. For, as a departmental minute recommending reconsideration of his claims, correctly pointed out, on 15 October 2001:

“7.7.6 Section 116(1)(f) does not allow for substantive visas to be cancelled where the delegate was satisfied at the time of grant that the criteria were met, but it is later found that those criteria were not met. This is because substantive visas are granted under s 65 of the Act. Unlike s 73, which allows the grant to occur only where the applicant actually meets the criteria, s 65 provides that the Minister must grant the visa if satisfied that the criteria for the visa have been satisfied. That is, if the Minister or his delegate is satisfied that the applicant meets the criteria, the visa is lawfully granted, even [if] it is later found that the applicant never actually met the criteria. Therefore, such a decision is not in contravention of the Act.”

(Section 73 was amended by the Judicial Review Act, so that a bridging visa may now be granted if the Minister is satisfied that the criteria are met.)

579               Ministerial satisfaction that there is a ground for cancelling a visa under s 116 is a condition of the power of cancellation conferred by s 128. There is no power to cancel a visa under the Act that is not required to be triggered by some fact or state of ministerial satisfaction. Parliament is not to be taken to have intended, by virtue of the privative clause, to confer on the Minister a power to cancel visas on a whim. The condition in s 128 is a condition precedent notwithstanding s 474. A decision made without fulfilment of that condition is not a decision to which s 474 applies. The content of the necessary satisfaction under s 128 is defined by reference to s 116. Where the Minister or delegate relies upon a ground for cancellation which does not apply because he or she mistakes the law, the requisite state of satisfaction does not exist. So the delegate may not be satisfied of a breach of a section wrongly construed. What is required is a state of satisfaction that there is a ground for cancelling a visa under s 116 properly construed.

580               This is enough to dispose of this appeal. The delegate did not possess the requisite state of satisfaction to enliven the power of cancellation – see the discussion earlier of Hetton Bellbird Collieries, Buck v Bavone, Foley v Padley, Eshetu, Coal and Allied Operations Ltd, Jia and Re Patterson. The appeal should be allowed and the decision below set aside. Certiorari should issue to quash the delegate’s decision on 6 July 2001 to cancel Mr Turcan’s visa and prohibition to prevent the Minister from proceeding upon the basis that the visa has been cancelled. It does not follow from the preceding that Mr Turcan’s detention, when it occurred, was unlawful. The duty, and incidental power, to detain under s 189 is conditioned upon the reasonable suspicion of an officer that a person is an unlawful non-citizen. The quashing of the cancellation decision means that he is no longer, by reason of the cancellation of the visa, an unlawful non-citizen. It would seem therefore that he should be released immediately unless there be some other basis for keeping him in custody. It may be expected that, consistent with the reasoning in this appeal, he would be released without further order. If, however, there were any disputed difficulty in securing his immediate release the matter could be referred back to the Court by application under liberty to apply within the next seven days.

5. Minister for Immigration & Multicultural & Indigenous Affairs v Wang

581               In this case the Minister appeals against the decision of Mansfield J given on 27 February 2002. His Honour made a declaration that a decision of the Minister’s delegate refusing to revoke the cancellation of the respondent’s temporary business entry visa was invalid and of no effect. The respondent is a national of China who was granted a Temporary Business Entry Visa on 1 March 2001. This was on the basis that he was sponsored by an Australian business to establish a Kung Fu academy and to teach martial arts classes at a sporting complex. The Minister’s delegate cancelled the respondent’s visa under s 128 of the Migration Act on 18 July 2001 on the basis that the qualifying documents on which he had relied were bogus. The only notice of cancellation sent to the respondent was a letter dated 18 July which was in the following terms:

“I wish to advise that the visa granted to you on 01 March 2001 has been cancelled under s 128 of the Migration Act 1958 (“the Act”). Grounds for cancellation of that visa exist under S116(1)(d) of the Act which states that “the Minister may cancel a visa if he … is satisfied that 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.”

Your visa was cancelled on 18 July 2001 because documents attesting to your skills, qualifications and experience as a martial arts instructor have been found to be bogus.

The “Act” gives you the opportunity to comment on the ground for cancellation and to give reasons why your visa should not have been cancelled.

If you are able to show that the ground for cancellation does/did not exist, the cancellation of your visa will be revoked. It [sic] you cannot show that the ground for cancellation does not exist, but there is a reason why your visa should not have been cancelled, the cancellation of your visa may be revoked.

 

You should respond to this Notice by 22 August 2001. There is no provision for this time frame to be extended. If you do not respond by that date, the revocation of the cancellation of your visa will not be considered.

As you are no longer the holder of an Australian visa, you are not entitled to travel to Australia. If you do you will be refused immigration clearance and will be removed from Australia. Relevant agencies in Australia have been advised that your visa has been cancelled.

 

You may wish to make another application for a visa, however I can give no indication of the possible outcome of that application. You should contact your nearest Australian mission for further information.”

582               Reasons for the decision which, contrary to normal practice, were not enclosed with the letter, identified the documents said to be bogus. Those documents were:

. a certificate of award from a Hong Kong martial arts tournament

. a certificate as a Kung Fu instructor for the police;

. a reference from the Shaolin Temple.

583               At the time of the cancellation the respondent was outside Australia, having departed on 13 July 2001. The power to cancel the visa arose under s 116 of the Act. The relevant procedures were to be found in subdivision F which requires, in s 129, that a person whose visa has been cancelled be notified in terms which enable that person to respond to it. Section 131 provides that, after considering any response to a notice under s 129, the Minister, if not satisfied that there was a ground for the cancellation or that there is another reason why the cancellation should be revoked, is to revoke it. On 21 August 2001, the respondent replied, through his migration agent, to the letter of 18 July. The reply was in the following terms:

“We do not believe that Mr Wong’s 457 visa should be cancelled. We wish to submit the following original documents to support our claim. Please return them to us after your assessment. Some of the documents were over 5 years old; we believe that they must be genuine.

Due to the fact that we did not receive any information related to the allegation from the file obtained under FOI, we cannot reply specifically why DIMA claimed that the documents lodged were bogus.

We do not believe that documents lodged with DIMA were bogus. Mr Wong and Mars Basketball Centre had spent a lot of money to start the martial art academy. Mars has started the $100,000 renovation last month. Mr Wong had travelled [sic] to Korea to sign the martial art championship competition to promotion [sic] the Australian Shao Lin Kung Fu Academy. (This project budget is $500,000 with ticket sale over $700,000) They also spend a lot of money (over $20,000) in uniform and materials for the academy.

Please contact me if you need more information or any contact number to clarify any claims that we submitted to DIMA.”

584               On 2 October 2001, the Minister’s delegate decided not to revoke the cancellation of the visa. This decision was notified to the respondent. There was a set of reasons for decision attached to this notification. The respondent thereafter commenced proceedings in the Court. In the proceedings the respondent submitted that the notification requirement under s 129 was not complied with because he was not given notice of which of his qualifying documents were said to have been bogus and why they were so considered.

585               The learned primary judge found that the notice of 18 July 2001 did not comply, in terms of its content, with s 129 of the Act and that the deficiency was significant as it impaired the respondent’s ability to answer as contemplated by s 129(1)(c). That finding is not challenged in this appeal.

586               His Honour considered the effects of the non-compliance in the light of s 474. He held that the precondition to the entitlement of the delegate to make a decision refusing to revoke the cancellation under s 131 was not satisfied. The jurisdictional fact prescribed by the Act and one which was also the essence of the material upon which the Minister was entitled and obliged to make a decision, had been shown not to exist. Section 474(1) was not intended to preclude the grant of appropriate relief under s 39B of the Judiciary Actin those circumstances. The decision under challenge was no decision at all because the Minister’s delegate did not have before him that which enlivened the power under s 131. His Honour made orders in the following terms:

“THE COURT DECLARES THAT:

1. The decision of the respondent refusing to revoke the cancellation of the applicant’s visa is invalid and of no effect.

THE COURT ORDERS THAT:

2. Leave is given to the applicant to apply for such further orders in the light of the reasons for decision as he may be advised.”

It does not appear that any further orders were made.

587               The Minister appeals against that decision. The grounds of appeal raise two issues:

1. Whether as a matter of construction a decision under s 131 to reconsider the cancellation of a visa can only be made after the Minister has considered any response to a notice under s 129.

2. Whether s 129 prescribed a condition precedent to the effective exercise of the power under s 131 so that the exercise of the power was reviewable in spite of s 474.

588               In support of his contentions on the first issue, counsel for the Minister pointed to the following features of the legislation:

1. The combined effect of the provisions in Subdivision F allows for the cancellation of a visa without requiring procedural fairness prior to the cancellation but with a view to the affected person having an opportunity to seek revocation of the decision. The opportunity is not expressly conditioned on any application within a particular time although the former visa holder is to be invited to show a basis for revocation within twenty eight days (s 129(1)(c) and Regulations, reg 2.46(a)). On that view, the power of the Minister to revoke the cancellation may properly be exercised, absent any response to a notice under s 129 and absent the giving of a valid notice under that provision.

2. Section 129 does not specify a period within which a notice must be given to a former visa holder. As a cancellation decision is valid whether or not a notice is given (s 129(3)), this suggests a legislative intention that the giving of a valid notice is not to be considered an essential precondition for the exercise of any power.

3. The power conferred by s 131 may be exercised from time to time. It requires that the cancellation be revoked if the Minister, is, for example, not satisfied that there was a ground for cancellation. That state of non-satisfaction could be achieved at any time for a variety of reasons. The fact that a cancellation is effective, absent any notification under s 129, suggests a broad view should be given to the power under s 131.

589               The language of s 129 is imperative. It is in the following terms:

“129(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:

(a) stating the ground on which it was cancelled; and

(b) giving particulars of that ground and of the information (not being non-discloseable information) because of which the ground was considered to exist; and

(c) inviting the former holder to show, within a specified time, being a prescribed time, that:

(i) that ground does not exist; or

(ii) there is a reason why the visa should not have been cancelled; and

(d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and

(e) stating that if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.

(2) The notice is to be given in the prescribed way.

(3) Failure to give notification of a decision does not affect the validity of the decision.”

Section 131(1) provides:

“131(1) Subject to subsection (2), after considering any response to a notice under s 129 of the cancellation of a visa, the Minister:

(a) if not satisfied that there was a ground for the cancellation; or

(b) if satisfied that there is another reason why the cancellation should be revoked;

is to revoke the cancellation.”

590               It is important to note that, in this case, the unchallenged finding of his Honour was that the notification required by s 129 had not been given. That finding was premised on an equivalence between an insufficient notification and no notification at all, which equivalence was not in issue. No argument was advanced that notification of the cancellation had been given despite the failure to provide particulars of the ground of cancellation and the information on which it was based (s 129(1)(b)). There is, for the purposes of this appeal, no distinction to be drawn between this case and the case in which no notification of any kind was given. The ministerial argument invites the conclusion that a failure to notify the former visa-holder under s 129 does not invalidate a decision, taken at some time after cancellation, not to revoke the cancellation.

591               The logical consequence of the Minister’s argument is to eviscerate the legislative scheme of ss 128, 129 and 131. That scheme provides for cancellation without prior notice, followed by post-cancellation notification accompanied by an invitation to argue for revocation and thereafter, a decision about revocation following consideration of the former visa-holder’s response if any. The response is plainly intended to address the grounds upon which cancellation was based. The notification requirement is intended to elicit the subject matter of the Minister’s consideration, being a response or absence of response.

592               The internal logic of the scheme points to notification under s 129 as one of its essential elements. This is emphasised by the imperative language of the section. It is nothing to the point that the cancellation remains valid under s 129(3) despite failure to give notification. The duty to give a notice remains and may be enforced by mandamus in a way that has practical utility for it will elicit a statement of the ground of cancellation and particulars of that ground and of the information upon which the cancellation was based. It will also set in train the process for consideration of revocation. It is nothing to the point that the Minister may, under s 131 consider revocation of the cancellation at any time after the response or expiry of time limited for the response to a s 129 notice. The requirements of s 129 and the way that they are imported into s 131 have all the hallmarks of a condition precedent to the effective exercise of the power conferred by s 131 to decide not to revoke. There is no constructional option which avoids that outcome. As a matter of construction, as his Honour found, there is in that event, no decision upon which s 474 can operate. It therefore does not apply to preclude judicial review. For these reasons the Minister’s appeal should be dismissed.

Conclusion

593               The legislature has sought, by the enactment of s 474, to confine the grounds of review and thereby reduce the flow of cases to the courts challenging decisions under the Migration Act. There is no doubt that the volume of cases and the time they take impose burdens upon public resources and, for those applicants in immigration detention, may result in protracted periods of incarceration. Experience with the 1992 amendments and, even since the 2001 amendments, however suggests that narrowing the grounds of review does not reduce the incidence of desperate people with hopeless cases applying to the Court to seek a reversal of tribunal or ministerial decisions. When the 1992 amendments excluded all natural justice grounds except actual bias there appeared to be an increase in the number of cases alleging actual bias. If, under the narrow view of Hickman, want of good faith remains a ground of review, it may be expected that there will be an increased number of applications alleging want of good faith on the part of the decision-maker. The overwhelming majority of applications for judicial review under the Migration Act and the overwhelming majority of appeals from first instance judicial decisions fail. This does not appear to have deterred those affected by adverse decisions from applying for review. Nor has it deterred them from appealing.

594               The surest path to more efficient and expeditious disposition of these cases is likely to be procedural. The imposition of a requirement that no application for review of a tribunal decision nor any appeal, could be commenced without leave of the Court, or in the case of prerogative writs, the grant of an order nisi, able to be determined on the papers, would go a long way to enabling hopeless cases to be rejected at the threshold. The provision of legal advice about the limited scope of judicial review would also have a part to play in enabling potential applicants or appellants to make better informed decisions. These are practical measures which could alleviate the burden that present processes impose on public resources.

I certify that the preceding two hundred and seventeen (217) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:

Dated: 15 August 2002

 

 

 

IN THE FEDERAL COURT OF AUSTRALIA

 

BETWEEN	NAAV N 265 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT   THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT
BETWEEN	NABE N 282 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	ANARE SUA RATUMAIWAI N 399 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	AUREL TURCAN V 225 OF 2002 APPELLANT
AND	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
BETWEEN	S 84 OF 2002 MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS APPELLANT
AND	JIAN ZHONG WANG RESPONDENT

 

JUDGES:	BLACK CJ, BEAUMONT, WILCOX, FRENCH and von DOUSSA JJ
DATE:	15 AUGUST 2002
PLACE:	MELBOURNE

 

REASONS FOR JUDGMENT

von DOUSSA J

595               These five appeals have been heard together. The common question raised by each of them concerns the jurisdiction and power of the Federal Court of Australia to judicially review privative clause decisions as defined in s 474 of the Migration Act 1958 (Cth) (the Act). It is convenient to refer to the individuals who are parties to the appeals as the visa applicants, and to the Minister for Immigration and Multicultural and Indigenous Affairs simply as the Minister. The Minister in each appeal contends that s 474, properly construed, prevents the visa applicants obtaining the relief which they seek against adverse visa decisions. The visa applicants dispute the Minister’s interpretation of s 474. In the alternative, if s 474 has the meaning for which the Minister contends, in four of the appeals it is alleged that s 474 is beyond the legislative competence of Parliament, and notices have been given under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General. In the appeals by NAAV and NABE, the Human Rights and Equal Opportunity Commission has been granted leave to intervene and has presented argument both on the construction of s 474 and on the Constitutional issues.

596               Section 474 was introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). That Act was one of a package of eight Acts passed in September 2001 which amended the Migration Act 1958 (the 2001 amendments). The 2001 amendments repealed the former Part 8 of the Act headed Review of Decisions by Federal Court and substituted the present Part 8 headed Judicial Review (ss 474 – 484) and Part 8A headed Restrictions on Court Proceedings (ss 486A – 486C). A number of consequential and other amendments were also made. It will be necessary to say something about the history of the former Part 8 later in these reasons. Section 474 provides:

“(1) A privative clause decision:

(a)               is final and conclusive; and

(b)               must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)                is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)               In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

 

(3)               A reference in this section to a decision includes a reference to the following:

(a)               granting, making, suspending, cancelling, revoking or refusing to make an order or determination;

(b)               granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c)                granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d)               imposing, or refusing to remove, a condition or restriction;

(e)                making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

(f)                 retaining, or refusing to deliver up, an article;

(g)               doing or refusing to do any other act or thing;

(h)               conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i)                 a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j)                 a failure or refusal to make a decision.

…”

The section goes on in subs (4) to provide that decisions under 31 specified provisions of the Act are not privative clause decisions, and in subs (5) to provide that regulations may prescribe that decisions made under other provisions of the Act are not privative clause decisions. Subsections (4) and (5) are not material to the present appeals.

597               The Migration Legislation Amendment (Judicial Review) Act 2001 came into operation on 2 October 2001. Each appeal concerns a privative clause decisioneither to refuse to grant a visa to a non-citizen or to revoke a visa held by a non-citizen. In four of the appeals the decision was handed down on or shortly after 2 October 2001, and the other appeal, by Mr Turcan, concerns two decisions made on 6 July 2001 and 23 February 2002 respectively. By Schedule 1, Part 2, clause 8(2), the Migration Legislation Amendment (Judicial Review) Act 2001 applies in respect of judicial review of a decision made on or after 2 October 2001 or made before that date where the application for judicial review is lodged thereafter.

598               In two of the appeals the privative clause decisions in question were made by delegates of the respondent Minister (the matters of Mr Turcan and Mr Wang). In another two the decisions were made by the Refugee Review Tribunal (the RRT) (the matters of NAAV and NABE). In the other appeal the decision was made by the Migration Review Tribunal (MRT) (the matter of Mr Ratumaiwai).

599               The privative clause decisions became the subject of applications by the visa applicants made to the Federal Court under s 39B of the Judiciary Act 1903 (Cth) which relevantly provides in s 39B(1):

“… the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.”

Section 39B is a law made under s 77 of the Constitution defining the jurisdiction of the Federal Court of Australia. Section 39B(1) is taken from s 75(v) of the Constitution and its language is for all intents and purposes identical to the language of s 75(v): see Shergold v Tanner [2002] HCA 19 at [41] and Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 181, 212 – 213 and 231.

600               Each application made under s 39B alleged that in the making of the relevant privative clause decision there has been a jurisdictional error of law of a kind that ordinarily would attract an appropriate remedy to enable its correction on judicial review under s 39B. However, by reason of s 474 of the Act the Minister contends that the error of law alleged by the visa applicants cannot attract relief under s 39B from this Court, nor indeed from the High Court of Australia under s 75(v) of the Constitution. The Minister contends that s 474 properly understood and construed means that the power of the relevant decision maker has been expanded in such a way that the lawfulness of any decision made, whether by the Minister’s delegate, by the MRT or by the RRT, is beyond question provided:

“its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.”

These words, and the three provisos which they express, come from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615which is more fully referred to below.

601               In support of the allegations that jurisdictional error occurred reliance was placed on Craig v The State of South Australia (1995) 184 CLR 163 where the High Court said at 179:

“At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd [1981] AL 374 at 383:

‘Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide question of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.’

The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

The opening words of this passage are important as the Minister contends that s 474 of the Act is a law that now expresses a contrary intention.

602               In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 the question before the High Court concerned the extent of the jurisdiction and power of the Federal Court under s 476 in the former Part 8 of the Act as it stood before the 2001 amendments (the former Part 8) to judicially review a decision of the RRT. The Minister submitted that the use of over-arching concepts, such as jurisdictional error, was inconsistent with the statutory scheme in the former Part 8 which enumerated specific grounds of review that were available in the Federal Court and others that were not.

603               After referring to the above passage from Craig, McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed, said at [82]:

“‘Jurisdictional error’ can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”

The concluding sentence of this passage also receives emphasis in the Minister’s submissions. It is contended that by the 2001 amendments through s 474, decision makers under the Act are now given power to authoritatively determine questions of law or to make decisions that otherwise would not be in accordance with the law.

604               The principle enunciated by Dixon J in Hickman is central to the construction which the Minister seeks to place on the 2001 amendments. Standing alone, the words of s 474 would appear to remove any ground for challenging the legality of a decision that comes within the defined meaning of privative clause decision. However, the Minister contends that the Hickman principle dictates that the clause must be understood as having a more restricted meaning. The Minister’s position is encapsulated in the explanation of The Migration Legislation Amendment (Judicial Review) Bill 2001 given to Parliament in the Minister’s Second Reading Speech made in the House of Representatives on 26 September 2001 (Hansard 31559 – 31561). The speech not only expresses the Minister’s contentions about how the provisions of the Bill should be construed and operate, but also outlines the object of the proposed amendments. The Minister said:

“This bill implements one of the government’s important policy initiatives within the immigration and multicultural affairs portfolio.

The bill gives legislative effect to the government’s longstanding commitment to introduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances. This commitment was made in light of the extensive merits review rights in the migration legislation and concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia.

The bill introduces a new judicial review scheme for decisions made under the Migration Act relating to the entry to, and stay in Australia, of non-citizens of Australia. The key mechanism in the new scheme is the privative clause provision at new section 474.

The privative clause, and the related provisions, will replace the existing judicial review scheme at Part 8 of the Migration Act. Unlike the existing scheme, the new judicial review scheme will also apply to the High Court and not just the Federal Court.

The privative clause does not mean that access to the courts is denied, nor that only the High Court can hear migration matters. Both the Federal Court and the High Court can hear migration matters, but the grounds of judicial review before either court have been limited.

One need only look at the history of the existing judicial review scheme and how it is operating today to see what would happen in the future if it were left untouched.

The current judicial review scheme for visa decisions was introduced by the last Labor government through the Migration Reform Act 1992 and commenced on 1 September 1994. It was part of a package of changes, building on an existing scheme where the attributes that a non-citizen needs to be granted a visa are set out in detail in the migration legislation. The changes included:

·             expanded access to merits review;

·             a requirement that any review rights must be exhausted prior to seeking judicial review;

·             statutory codes of procedure for visa decision making; and

·             some restriction of the grounds of judicial review in light of the access to merits review and statutory codes for visa decision making.

The Labor government intended those changes to reduce Federal Court litigation and to provide greater certainty as to what was required from both decision-makers, visa applicants and visa holders.

That scheme has not reduced the volume of cases before the courts; just the opposite.

…

Faced with the problem I have outlined, I asked the Department of Immigration and Multicultural Affairs in early 1996 to explore options for best achieving the government’s policy objective of restricting access to judicial review. This was done in conjunction with the Attorney-General’s Department, the Department of the Prime Minister and Cabinet and eminent legal counsel.

The advice received from legal counsel was that the only workable option was a privative clause.

As members are probably aware, section 75 of the Commonwealth Constitution gives the High Court original jurisdiction to consider challenges to the actions and decisions of Commonwealth officers. As a result, access to the High Court cannot be legislatively restricted without a constitutional amendment.

However, access to the Federal Court, and the scope of judicial review it can exercise, can be changed by legislation. To simply restrict access to the Federal Court in migration legislation matters, would in practice deflect many cases to the High Court under section 75 of the Constitution. This has the potential to erode the proper role and purpose of the High Court.

Counsel’s advice was that a privative clause would have the effect of narrowing the scope of judicial review by the High Court and of course the Federal Court. That advice was largely based on the High Court’s own interpretation of such clauses in cases following the seminal High Court case of Hickman in 1945. The privative clause in the bill is based on a very similar clause in Hickman’s case.

The High Court has not since, despite opportunities to do so, repudiated the Hickman principle, as formulated by Justice Dixon in Hickman’s case. Indeed, that principle was described as ‘classical’ in a later High Court case.

Members may be aware that the effect of a privative clause such as that used in Hickman’s case is to expand the legal validity of the acts done and the decisions made by decision makers. The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently.

In practice, the decision is lawful provided:

·             the decision maker is acting in good faith;

·             the decision is reasonably capable of reference to the power given to the decision maker – that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member;

·             the decision relates to the subject matter of the legislation – it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and

·             constitutional limits are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise.

The options available to the government were very much shaped by the Constitution. While the government accepts that the precise limits of privative clauses may need examination by the High Court, there is no other practical option open to the government to achieve its policy objective.”

605               That the object of Parliament in enacting the 2001 amendments was to restrict the growing number of applications to the courts for judicial review is confirmed also by the history of the legislative amendments to the Act. As the Second Reading Speech outlines, major amendments were made by the Migration Reform Act 1992 which introduced the former Part 8. Those amendments removed the previous jurisdiction of the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and under s 39B of the Judiciary Act. Further, under the former Part 8, the jurisdiction of the Federal Court was limited to specific grounds stated in s 476: see ss 475 – 476 and 485 of the former Part 8. The validity of these provisions was upheld in Abebe v The Commonwealth of Australia (1999) 197 CLR 510 (by Gleeson CJ, McHugh, Kirby and Callinan JJ, Gaudron, Gummow and Hayne JJ dissenting). Because the jurisdiction of the High Court was more extensive than that of the Federal Court under the former Part 8, applications in increasing numbers were commenced under s 75(v) of the Constitution in the High Court (see for example Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 and Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 179 ALR 296). The problems created by the increase in the workload of the High Court were anticipated in Abebe at [50], [207] and [237].

606               Decisions on the restrictive provisions of s 476 of the former Part 8, culminating in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, for a time suggested that the jurisdiction of the Federal Court was confined so as to exclude many types of jurisdictional error, in addition to breaches of the rules of natural justice which were expressly excluded: see s 476(2)(a) of the former Part 8. However, the reasons for decision in Minister for Immigration and Multicultural Affairs v Yusuf exposed the potential scope of the Federal Court jurisdiction under s 476(1)(b) and (c) to judicially review decisions under the Act that involved jurisdictional errors of the kind described in Yusuf at [82] in the passage cited above. The likelihood that more applications under the former Part 8 would succeed was obvious. The decision in Yusuf was handed down on 31 May 2001. The 2001 amendments followed.

607               A number of features of the 2001 amendments are to be noted. Whereas the former Part 8 excluded the operation of s 39B of the Judiciary Act and independently defined in s 476 a more restricted jurisdiction on which decisions could be challenged by way of judicial review in the Federal Court, the 2001 amendments restore the jurisdiction of the Federal Court under s 39B, but restrict that jurisdiction to certain classes of decision (including privative clause decisions: see s 475A and 476 of the 2001 amendments). The fact that Parts 8 and 8A of the 2001 amendments expressly recognise the Federal Court’s jurisdiction under s 39B (and also under s 44 of the Judiciary Act) and contain provisions regulating applications to the Federal Court indicates that s 474 was not intended to mean what it literally says. The same conclusion follows from the recognition in s 483A of the Act of the jurisdiction of the Federal Magistrates’ Court under s 39 of the Federal Magistrates Act 1999.

608               In Shergold v Tanner at [42] the High Court referred with approval to the observation of Brennan J in Deputy Commissioner of Taxation v Richard Walter Pty Ltd at 193 that a law which would confine the jurisdiction conferred by s 39B should not be construed “more narrowly than the jurisdiction conferred by s 75(v) of the Constitution unless the restriction appears expressly or by necessary intendment”. In respect of those classes of decision amenable to judicial review under s 39B, the Act as amended does not seek to further restrict the s 39B jurisdiction. In respect of those decisions the jurisdiction of the Federal Court is co-extensive with the jurisdiction of the High Court under s 75(v) of the Constitution, a jurisdiction which is beyond the constitutional competence of the Parliament to exclude.

609               The 2001 amendments also remove the restrictions placed on the power of the Federal Court by s 481(1)(a) of the former Part 8. That section required the Federal Court to “affirm” a decision where, in reality, it concluded that an impugned decision involved an error of law but it was not within the grounds of review permitted under s 476 of the former Part 8. Thus, the features of the former Part 8 which led the dissenting Judges in Abebe to conclude that the provisions of the former Part 8 were invalid, were removed.

610               The next feature to be observed about the 2001 amendments is that, although an object was to reduce litigation challenging adverse administrative decisions under the Act, Part 8 and Part 8A place no restriction other than time limitations upon the institution of applications under s 39B in respect of privative clause decisions which, with few exceptions, are decisions of the kind previously challenged in this court under the former Part 8 and in the High Court under s 75(v) of the Constitution. The restriction which the 2001 amendments seek to affect is upon the likely success of applications so made. That restriction operates, so it is argued by the Minister, by extending the power of the relevant decision-maker so that there will be no unlawfulness in a decision which could otherwise attract relief on judicial review: R v Coldham; Ex parte The Australian Workers Union (1983) 153 CLR 415 at 418, Abebe at [58], Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 at 630 – 631, and Zines, ‘Constitutional aspects of judicial review of administrative action’(1998) 1 Constitutional Law and Policy Review 50 at 51.

611               In short, the effect of the Minister’s contentions is that the 2001 amendments removed the restriction on the grounds upon which judicial review was available under the former s 476, and substituted a privative clause which says nothing about the scope of the court’s jurisdiction which independently arises under s 39B of the Judiciary Act, but seeks, in the case of privative clause decisions, to insulate the decision-maker against unlawfulness in the decision making process.

612               Another feature of the 2001 amendments which has already been referred to, is that the words of s 474 are not to be understood as meaning what they appear to say. The words of s 474 are in substance the same as those employed in the privative clause considered by the High Court in Hickman in 1945, being reg 17 of the National Security (Coal Mining Industry Employment) Regulations. As the Minister’s position is so centrally placed upon passages of the judgment of Dixon J, it is appropriate to set out a number of passages from it. At pp 614 – 615, his Honour said:

“The Board derives its power from Regulations of which reg. 17 forms a part, and that regulation must be taken into account in ascertaining what are the true limits of the authority of the Board, and whether its decision is void.

The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg. 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.” [emphasis added]

613               It is convenient to refer to the words in emphasis as the Hickman provisos. It is these three provisos which find expression in the Minister’s Second Reading Speech, to which is added the further qualification, implicit in all discussion about the relationship of privative clauses with s 75(v) of the Constitution, namely that the subject matter of the relevant legislation must be within the legislative power conferred by the Constitution.

614               Later, in further explaining how reg 17 was to be construed, his Honour said at 615 – 616:

“To confine the meaning of those words to acts done lawfully and within the jurisdiction of the tribunal ignores the clear, distinct and unmistakable intent of the regulation. Prohibition at common law was the appropriate remedy for restraining inferior courts from exceeding their jurisdiction, and yet this remedy is withdrawn by the regulation …

It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution. The relevant subject matter in the present case is naval and military defence. It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg. 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity. In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid.

In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them.” [references omitted]

615               In the reconciliation process involved in interpreting the legislation, the inconsistency between the provision which appears to limit the power of the Tribunal and the privative clause which appears to contemplate that the Tribunal’s decision will operate free from the limitation, is to be “resolved by reading the two provisions together and giving effect to each”: R v Coldham at 418.

616               The Hickman principle has been applied or referred to with apparent approval by the High Court on many occasions, including in recent years: The Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437; R v Coldham; O’Toole v Charles David Pty Ltd (1991) 171 CLR 232; Deputy Commissioner of Taxation v Richard Walter Pty Ltd; Darling Harbour Ltd v New South Wales Casino Control Authority at 630 – 633; and Abebe at [98] and [156]. Mason CJ observed in O’Toole v Charles David Pty Ltd at 249 that the scope and content of the three Hickman provisos have not been examined in any detail in decisions of the High Court subsequent to Hickman (see also Brennan J at 275). However, the High Court in that decision discussed the first proviso, differing between members on whether a court was entitled to examine the subjective intentions or motivation of the decision-maker in deciding whether a decision was a bone fide attempt to exercise power.

617               Although the Minister in the Second Reading Speech said that the precise limits of privative clauses may need examination by the High Court, and there was criticism of the Hickman principle implicit in some of the submissions made in these appeals, the Hickman principle has a long and accepted place in Australian jurisprudence. The proper function of this Court is to apply the principle as explained by the High Court – not to question its correctness.

618               Whilst Dixon J discussed what has become known as the Hickman principle, Hickman was not decided upon the basis of that principle by any of the members of the court. The issue concerned the validity of an order made by a Local Reference Board directed to the prosecutors who were contract carriers employing lorry drivers. The Court held that the order was not validly made as the power of the Local Reference Board was limited to settling disputes between employers and employees “in the coal mining industry” and the prosecutors were not within that industry. Relevantly, Dixon J at 618 said that:

“On the face of those regulations it is clear enough that the words ‘in the coal mining industry’ are words of final limitation upon the powers, duties and functions of the Boards.

I therefore think that the orders under consideration undertake to decide a matter the determination or control of which is completely outside the authority of a Local Board.”

619               Thus, in Hickman, Dixon J seemed to acknowledge that there was another limitation or condition to the validating effect of a privative clause, in addition to the three provisos earlier mentioned in his judgment. The purported exercise of power by the decision-maker must not be one that contravenes a “final limitation upon the powers, duties and functions” of the decision-maker.

620               In some of the later cases this additional condition to the Hickman principle has been recognised but described in different words. In R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 Dixon J, in discussing the operation of a similar privative clause, said at 248 that:

“No doubt there are instances in the Act where imperative duties or inviolable limitations or restraints are imposed by the Act on the Arbitration Court or the Commissioners. When that is the case invalidity affects any transgression of the limitation or restraint …”

Similar language was used in R v Coldham. The High Court there considered whether s 60 of the Conciliation and Arbitration Act 1904 (Cth) was a bar to an application by the prosecutor made under s 75(v) of the Constitution. Section 60 was in terms which do not materially differ from s 474 of the Act. Mason ACJ and Brennan J at 419 said:

“But a clauselike s 60 cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal. In the face of such a provision, a clause like s 60 is ineffective to prevent prohibition going when the Tribunal transgresses those limitations or restraints …”

In O’Toole v Charles David Pty Ltd at 274 Brennan J, after citing Dixon J in Hickman, referred to the “fourth condition”: the privative clause will not operate to give validity if to do so would “infringe ‘inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal’: R v Coldham”.

621               In R v Coldham the Commission had sought to exercise power under s 142A(1) of the Conciliation and Arbitration Act which authorised the Commission to make an order in respect of employees “who are eligible for membership of the organisation”. The issue raised by the prosecutor was that persons subject to an order made by the Commission were not eligible for membership of the relevant organisation. It was held that s 142A neither expressly nor impliedly conferred jurisdiction on the Commission to give a binding decision on whether persons are eligible for membership of an organisation. Whether a person was so eligible was described as a “jurisdictional fact” reviewable by prohibition (at 419, per Mason ACJ and Brennan J, and at 427, per Deane and Dawson JJ.) At 428, Deane and Dawson JJ likened the requirement that employees be eligible for membership of the organisation to the requirement in Hickman that confined the power of the Local Reference Board to the “coal mining industry”, and cited with approval the passage from the judgment of Dixon J where his Honour described that requirement as “words of final limitation upon the powers …”.

622               The notion of a “jurisdictional fact” is not a precise one and the meaning of that expression in a particular case will turn on the statutory context in which the expression is used: e.g. see Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [28] and Aronson, “The Resurgence of Jurisdictional Facts”, 12 Public Law Review 17 at 21 – 24. In Minister for Immigration & Multicultural Affairs v Eshetu at [115] Gummow J identified two steps of a “jurisdictional nature” (later described at [127] as “jurisdictional factors”) upon which the lawful exercise of power by the RRT under Part 7 of the Act depended. His Honour said:

“First, the effect of s 414 and the definition of ‘RRT-reviewable decisions’ was to specify that which attracted the jurisdiction of the Tribunal. Secondly, in the exercise of that jurisdiction the Tribunal was to exercise the powers and discretions conferred by the Act upon the Minister and the delegate on behalf of the Minister, but with the limitations which attended the exercise of those powers and discretions by those officers. The Tribunal was not authorised to make a decision which the Act would not have authorised the Minister (and thus the delegate) to make.”

623               Here Gummow J identifies first, a jurisdictional factor of a kind which “attracted the jurisdiction of the Tribunal”, and secondly, one of a different kind that conditioned “the exercise of that jurisdiction” once attracted by the fulfilment of the jurisdictional factor of the first kind.

624               I understand Mason CJ and Brennan J, and Deane and Dawson JJ, in R v Coldham to be using the expression “jurisdictional fact” in the sense that describes a jurisdictional factor that attracts the jurisdiction of the Commission. It is in the same sense that the expressions “words of final limitation” (Hickman at 618), “imperative duties or inviolable limitations or restraints” (R v Metal Trades Employers Association at 248) were first applied, and have been used in subsequent decisions of the High Court in cases concerning the operation of a privative clause like s 474. For example, in Hickman, prohibition was granted because the Local Reference Board’s jurisdiction was not attracted because the dispute to which the impugned order related was not related to the coal mining industry (Latham CJ at 609, Rich J at 610, Stake J at 611, Dixon J at 618, McTiernan J at 621). In R v Murray; Ex parte Proctor (1949) 77 CLR 387 prohibition was granted because the jurisdiction of the Board was not attracted because the group of people which purported to exercise the powers of the Local Reference Board was not properly constituted (see Latham CJ at 394 – 395, McTiernan J at 402, Williams J at 402). In R v The Commonwealth Rent Controllers; Ex parte Natural Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 prohibition was granted as the jurisdiction of the rent controller to make the determination under challenge was not attracted by an application from any of those people to whom the determination was directed (Latham CJ and Dixon J at 371 – 372, Rich J at 373, Starke J at 376). In R v Coldham prohibition was granted as the jurisdiction of the Commission was not attracted because the persons subject to the purported order were not “eligible for membership of the organisation” within the meaning of the statutory provision which vested power in the Commission (Mason ACJ and Brennan J at 419, Deane and Dawson JJ at 427). In each of those cases the impugned award was not protected by the relevant privative clause that operated in respect of awards made within jurisdiction. In contrast, in Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd a privative clause applied to save an order because the High Court held that the order was not altogether outside the scope of the authority of the Arbitration Court (Dixon CJ at 443 and 446 - 447, with whom Fullagar and Kitto JJ agreed, McTiernan J at 448 and Menzies J at 454).

625               Under the Act the jurisdictional factors which attract the authority and powers of decision makers in the sense described in a particular case will be few. For example, in relation to the grant of visas, s 45 requires that a non-citizen who wants a visa must apply. The application must be a valid application: s 46. The Minister is then required to consider a valid application for a visa: s 47. The Minister may delegate that function and power to a delegate: s 496. The relevant authority and powers to make the primary decision in the visa application is attracted by the making of a valid application to the Minister, and in the case of the exercise of power by a delegate, by the additional factor of a valid delegation. In the case of the review jurisdictions of the MRT and the RRT their authority and powers are attracted by a valid application to review a decision which is a MRT-reviewable decision or a RRT-reviewable decision as the case may be: ss 348 and 414 respectively. Again, the attraction of jurisdiction is also dependent on the valid constitution of the Tribunal (e.g. upon the valid appointment of the member which is to constitute the Tribunal). These factors constitute the “inviolable limitations or restraints” upon the attraction of the relevant authority and powers under the Act. Unless these conditions arise there cannot be a lawful exercise of decision making power under the Act, and no occasion for the operation of s 474 of the Act arises.

626               There is obviously a close relationship between what I have identified in the cases as a “fourth condition” to the Hickman principle, and the proviso stated by Dixon J Hickman that the decision must be reasonably capable of reference to the power given to the decision maker. Indeed, the Minister in the Second Reading Speech has treated the “fourth condition” as encompassed in this provision, and it appears that Dixon J himself did so in R v Murray; Ex parte Proctor at 400 - 401. See also the opinion of Allsop J in NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 at [30] which is, I think, to the same effect. Whether the “fourth condition” stands separately or is encompassed within the three Hickman provisos, the consequence of the condition is the same.

627               Under the definition in s 474(2) of the Act a privative clause decision is one of an administrative character “made, proposed to be made, or required to be made, as the case may be, under this Act … (whether in the exercise of a discretion or not)”. Only passing reference was made in argument to those words, and it was not suggested that the privative clause provisions of s 474(1) could be altogether avoided by demonstrating that an impugned decision did not fall within the definition because a jurisdictional error of the Craig type rendered it one not made under the Act, but one only purportedly so made. Nevertheless, the requirements of the definition in s 474(2) must be noted, as s 474(1) only has application to a privative clause decision that meets the definition. A closely similar collocation of words to those used in s 474(2) appear in the definition of “decision to which this Act applies” in s 3 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). In the context of that Act a decision is said to be made “under an enactment” if it is made “in pursuance of”, or “under the authority of” or where, as a matter of substance, the decision has a sufficiently close connection with the legislative provision to make it appropriate to speak of it as having been “made under” that provision. In short a decision made in purported reliance upon a power conferred by a statute is a decision which is to be treated as a decision made under that statute: see French J in Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 at 447 – 448 and the decisions there cited.

628               The construction of the definition in s 3 of the ADJR Act is informed by the grounds for review provided for in s 5(c) and (d) of the ADJR Act in respect of which there are no similar provisions in the Act. In the Act, there is no contextual reason for construing the words of the definition in s 474(2) as including purported decisions that are invalid because they are beyond power. However, in determining whether a decision is beyond power full force must be given to the effect of s 474(1). On the contentions of the Minister, the Hickman principle expands the lawful authority and power of the decision-maker so that the lawfulness of the decision is beyond question so long as the Hickman provisos are fulfilled. It would follow that if a decision purportedly made in pursuance of a power in the Act is made in breach of an inviolable limitation or restraint imposed by the Act, or is made in breach of one of the other Hickman provisos, it will not be a decision made under the Act. Relief would lie under s 39B of the Judiciary Act. On the other hand, if the Hickman provisos are fulfilled, the decision will be made under the Act. If that decision, apart from s 474(1), would be invalid as beyond power, and therefore not one made under the Act, the operation of s 474(1) would have the effect of giving validity to the decision so that it is one made under the Act.

629               If the authority and powers of the decision maker are attracted by fulfilment of the relevant jurisdictional factors then the occasion arises to consider the rule of construction embodied in the Hickman principle. Section 474(1) must be reconciled with apparently inconsistent provisions of the Act which expressly or by implication (in the case of the rules of natural justice) would, apart from s 474(1), impose imperative duties upon a decision maker. I make the following observations about the required exercise of construction, which address matters raised by submissions from the parties to these appeals.

630               Once the jurisdiction of the decision maker is enlivened, the construction exercise requires ascertainment of the extent to which the relevant statutory provisions, when properly construed, give rise to an inconsistency that must be reconciled: Darling Casino Ltd v New South Wales Casino Contract Authority at 631. There will be no inconsistency to the extent that the three Hickman provisos remove from the operation of s 474(1):

·               a decision that is not a bona fide attempt to exercise the power which the Act reposes in the decision maker. There may be occasions, such as where a decision is affected by actual bias, where this is an important ground on which a decision will be rendered invalid notwithstanding s 474(1);

·               a decision that does not relate to the subject matter of the Act. As the Second Reading Speech observes, it is highly unlikely that an impugned decision about visas would transgress this proviso;

·               a decision which is not reasonably capable of reference to the power. Again it is unlikely that a decision about a visa would not meet this requirement. In the case of a valid application for a protection visa, for example, the relevant source of power is to be found in ss 36(2) and 65 of the Act. The decision-maker (be it the Minister, a delegate, or the RRT) must be satisfied as to the criterion in s 36(2) and the other criteria prescribed in s 65. If so satisfied the visa must be granted, and if not so satisfied it must be refused.

In practical terms, apart from issues that may arise on the first of these provisos, there is likely to be inconsistency which must be reconciled between s 474(1) and other provisions of the Act expressed in imperative terms which an unsuccessful visa applicant would seek to rely on.

631               In the course of argument before this court reliance was placed on the following passage from the judgment of Dixon J in R v Murray; Ex parte Proctor where, in the course of describing the exercise of construction involved, he said at 400:

“A second step in interpreting the whole legislative instrument must be to consider whether particular limitations on power and specific requirements as to the manner in which the Tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action. For a clearly expressed specific intention of this kind can hardly give way to the general intention indicated by such a provision as reg. 17.”

Counsel for the visa applicants argued that procedural provisions in the Act which relate to the exercise of decision making power, such as s 424A and s 425 which say that the RRT “must” be given certain information, and the Tribunal “must” invite the applicant to appear before it, and ss 120 and 129 which say that the Minister (or delegate) in the case of a cancellation of a visa “must” give certain information and notices, “expressed specific intention” the observance of which is essential to valid action, and could “not give way to the general intention indicated” by s 474.

632               In the same vein, on the footing that s 474(1) is a provision expressing a general intention, other well established rules of construction or presumptions were referred to in support of the argument that s 474(1) should give way to specific requirements which other provisions of the Act say are to be followed by decision makers. These included that privative clauses are to be construed “by reference to a presumption that the legislature does not intend to deprive a citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied”: Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132 at 160 and Darling Casino Ltd v New South Wales Casino Control Authority at 633; and that “words unambiguously pointing to an intention to exclude all common law rules of natural justice” were necessary to have that effect: Miah at [128] per McHugh J; see Twist v Randwick City Council (1976) 136 CLR 106 at 109 – 110; and Annetts v McCann (1990) 170 CLR 596 at 598. Counsel for the Human Rights and Equal Opportunity Commission, supported in this respect by counsel for NABE, argued further that, at the least, ambiguity existed as to the extent to which s 474(1) was intended to amend other provisions of the Act and remove an effective remedy of judicial review, and that in resolving the ambiguity the court should “favour that construction which accords with Australia’s obligations under a treaty or international convention to which Australia is a party”: Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. Particular emphasis was given by counsel to Australia’s various obligations under the International Covenant on Civil and Political Rights. There is also a presumption against the modification or abrogation of fundamental rights. The High Court has emphasised that the presence of general words in a statute:

“is insufficient to authorise interference with the basic immunities which are the foundation of our freedom; to constitute such authorisation express words are required: Coco v R (1994) 179 CLR 427 at 436 (and see also at 437 – 438).”

Decisions which refuse or revoke the grant of a protection visa and the detention of a non-citizen who does not hold a valid visa plainly affect fundamental human rights. Further in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 76 ALJR 598 at [48] Gaudron and Gummow JJ said:

“Because it is fundamental to the rule of law that persons affected by administrative decisions should have access to the courts to challenge those decisions, privative clauses are strictly construed.”

633               I do not think these arguments can be accepted. In R v Murray; Ex parte Proctor, the privative clause was part of the regulatory package originally promulgated, and it is understandable that Dixon J described reg 17 as one indicating a “general intention”. In the present case s 474 was introduced as the centre piece of amending legislation which had a very specific intention. I do not think it can be doubted that s 474 was intended to amend provisions of the Act relating to the procedures attending the decision making processes which the Act envisaged. That amendment was to occur by the expansion of the power and authority of decision makers. The intention was that s 474 would have the effect that the provisions, or at least some of them, relating to the decision making process that had hitherto been understood to be mandatory would henceforth be only directory (see R v Murray; Ex parte Proctor at 399). In its intended operation the terms and intent of s 474 were specific. The question now before the Court is to decide the extent to which s 474 is to have that effect, and whether the extent is so all-embracing that now all the apparent requirements of the decision making processes laid down in the Act are to be treated as guidelines, unenforceable on judicial review by any court, as the Solicitor-General has contended; or as counsel for NAAV described the result of the Minister’s construction, whether the decision making process has been de-regulated to the point where any decision would be the product of administrative discretion, subject only to bona fides and other Hickman limitations.

634               In addressing this question I do not think it is helpful to attempt to characterise provisions of the Act as either general or specific. Rather, the approach should be that stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 – 382:

“A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.” [footnotes omitted]

635               Given the history of amendments to the Act, and the clear object of the 2001 amendments, in my opinion it is clear that Parliament intended that there be a hierarchy in the provisions of the Act as amended, and that s 474(1) is, in the case of privative clause decisions, to be the leading provision, with the consequence that apparently inconsistent provisions of the Act are to be construed as subject to s 474(1). Notwithstanding the rules of construction that would favour a contrary construction if there was doubt about Parliament’s intention, in this instance Parliament’s intention is clear. The court’s role is to construe the Act accordingly. It is the role of Parliament, not the courts, to decide on the fairness of the law it enacts, and of the effects which the law will have on the lives of those affected by privative clause decisions.

636               To construe s 474(1) so that it did not have the effect of validating decisions by extending the authority and powers of decision makers so as to render lawful irregularities that would otherwise constitute jurisdictional error of the Craig type would defeat the clear object of Parliament, and produce the surprising result that the 2001 amendments give grounds for judicial review in the Federal Court that had been expressly excluded by s 476 of the former Part 8 namely, for a breach of the rules of natural justice (s 476(2)(a), only actual bias being preserved as a ground under s 476(1)(f)) and Wednesbury unreasonableness (s 476(2)(b)).

637               There have been a number of decisions of single judges of this court which have considered s 474 of the Act, including the five judgments the subject of these appeals. I am in general agreement with the views expressed by Gyles J in NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 (which is the judgment subject to the present appeal by NAAV) and by Allsop J in NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713.

638               I am unable to agree with the construction placed on s 474 in Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 and Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 which would exclude from the validating effect of s 474(1) jurisdictional errors of the kind described in Craig, including a breach of the rules of natural justice.

639               In SBBK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 265, to which reference was made in argument, Tamberlin J found that the RRT had committed a fundamental error of principle by failing to address a central question of whether the applicant was a member of a particular social group comprising “women in Iran” or “divorced women in Iran”. His Honour said at [44] that it was clear from the Hickman line of authorities:

“… that a privative clause will not usually protect a decision that exceeds constitutional limits, or a decision that is made in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, nor will the privative clause serve to validate a decision where there has not been a compliance with a condition that is essential to the exercise of jurisdiction in accordance with statutory terms.”

As a statement about the general effect of Hickman this passage is unexceptional, but I share the difficulty expressed by Allsop J in NAAG of 2002 at [59] – [60] about Tamberlin J’s conclusion that an error of law in failing to identify the right question to be addressed in the applicant’s claim constitutes a failure to comply with a condition that is essential to the exercise of jurisdiction of the RRT. In my opinion the jurisdiction of the RRT was attracted by a valid application to the RRT made under s 414 to review an RRT-reviewable decision. Once that jurisdiction was enlivened, the manner of exercise of the authority and powers of the RRT came within the expanded area of authority and powers brought about by s 474(1), with the consequence that the decision of the RRT was lawfully made. This consequence arises even if in the absence of s 474(1) the decision would have been infected with a jurisdictional error of the Craig type because the wrong question had been asked.

640               Against the construction which I place on s 474(1), I turn to the Constitutional issues raised by the parties in notices given by them under s 78B of the Judiciary Act. These issues are whether s 474 is inconsistent with Chapter III of the Constitution in that it purports (a) to direct courts as to the manner and outcome of the exercise of their jurisdiction, (b) to reserve to persons who are not judges the power conclusively to determine questions of law, including whether a duty to accord procedural fairness applies in the context of the applicable statutory provisions, and (c) to remove the jurisdiction of the High Court and the Federal Court to determine whether a decision which causes a person to be detained is lawful.

641               Wilcox J in his reasons for decision has set out the summary of the constitutional submissions made by HREOC. Fundamental to those submissions is the underlying premise that an impugned decision in respect of which it is said that the law should provide an effective remedy is one made otherwise than in accordance with law. On the view that s 474 operates to extend the power of the decision-maker so that there will be no unlawfulness in a decision protected by a privative clause, no part of the jurisdiction of the High Court under s 75(v) of the Constitution or of the Federal Court under s 39B of the Judiciary Act is removed. I consider the position is as described by Hayne J in Re Refugee Review Tribunal; Ex parte Aala at [166]:

“The use of the expression ‘constitutional writs’ should not distract attention from the fact that the Constitution is silent about the circumstances in which the writs may issue. What is constitutionally entrenched is the jurisdiction of this Court when the writs are sought, rather than any particular ground for the issue of the writs. The tension to which this may give rise (and the resolution of that tension) is examined in the privative clause cases, particularly the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton. As those cases demonstrate, the Parliament may lawfully prescribe the kind of duty to which an officer of the Commonwealth is subject and may lawfully prescribe the way in which that duty shall be performed.” [footnotes omitted]

642               A privative clause decision will exceed the lawful authority and powers of a decision-maker only where jurisdictional factors essential to the enlivenment of the authority and powers of the decision-maker are absent. In that situation the jurisdiction of the High Court under s 75(5) of the Constitution, and of the Federal Court under s 39B of the Judiciary Act, is intact and may be invoked to remedy the unlawful exercise of power. In the exercise of that jurisdiction s 474 does not purport to direct or fetter the court as to how it should perform its function. In my opinion Gyles J was correct in NAAV in holding that s 477 was not inconsistent with Chapter III of the Constitution.

643               Before Gyles J in NAAV it was argued that the decision of the RRT was a decision as to whether a person satisfied the definition of a refugee. Thus it was said that it constituted a determination of an existing right or status, not the creation of a new right, and for this reason, it was contended that s 474 purported to vest part of the judicial power of the Commonwealth in persons who are not judges appointed in terms of s 72 of the Constitution: Abebe at [164] and Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at [41]. Gyles J rejected this contention, accepting the submission of the Solicitor-General that a determination as to refugee status is one which creates a new right. So much had been decided by a Full Court of this Court in SZ v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 342. Before this Court counsel for HREOC contended that the decision in SZ was to be distinguished. Counsel argued:

“106. … However, the power to make a binding determination as to existing rights is not the only feature relied upon to determine whether a decision maker exercises judicial power. Whether a determination is properly construed as ‘binding’ depends to some extent on the availability of curial methods of collateral challenge. In Breckler, the governing consideration for the High Court against the powers of the Superannuation Complaints Tribunal being characterised as judicial was the voluntary nature of the enforcement regime established by the relevant legislation: at [43]–[44]. However, the majority emphasised (at [46]) that the Superannuation (Resolution of Complaints) Act 1993 (Cth)

… does not purport to give determinations of the Tribunal that conclusive character which would prevent collateral challenge in proceedings to compel observance of those determinations … Conferral upon the determination of the Tribunal of the status of a decision of the trustee does not bring with it a preclusive effect which immunises the determination, and thus its status, from attack in properly constituted curial proceedings.

107.          If decisions which involve jurisdictional error are protected by s 474, then the administrative decision makers under this Act (including of course, not just the RRT, but the MRT, the Minister and the Minister’s delegates) have been given authority by parliament conclusively to determine questions of law which go to their authority to decide, and to make a decision otherwise than in accordance with law: Craig v South Australia (1995) 184 CLR 163 at 179; Yusuf at [82]; Aala at [166] per Hayne J.”

644               This argument also depends upon the premise that an impugned privative clause decision is one that involves jurisdictional error. However, once it is accepted that the Hickman principle has the effect of extending the lawful authority and powers of the decision-maker, a decision protected by s 474(1) will not be a decision that involves jurisdictional error.

645               The argument that s 474 is inconsistent with Chapter III of the Constitution because it purports to remove the jurisdiction of the High Court and the Federal Court to determine whether a decision which causes a person to be detained is lawful, was advanced by counsel for Mr Turcan who contended that to accept the construction placed on s 474 by the Minister “would be to introduce a lettre de cachet”. In the present case, however, Mr Turcan was detained not pursuant to any executive warrant, but pursuant to s 189(1) of the Migration Act which in mandatory terms requires an officer who knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen to detain that person. Mr Turcan’s detention is a consequence of the provisions of the Act, not an executive decision. However, insofar as the argument contends that s 474 removes the jurisdiction of the courts to determine whether a decision which causes a person to be detained is lawful, the argument fails for the same reason as the other constitutional challenges. The jurisdiction to review the decision has not been withdrawn. It remains, and will provide a remedy if the decision-maker has exceeded the authority and powers reposed in the decision-maker by the relevant provisions of the Act as expanded by s 474.

646               In my opinion the operation of s 474 in accordance with the Hickman principle is not inconsistent with Chapter III of the Constitution.

647               I turn now to each of the appeals. The facts of each matter are set out in the judgment of Beaumont J.

NAAV

648               I agree with the analysis of the facts made by Wilcox J and with his conclusion that, but for s 474(1), the natural justice requirements of procedural fairness were not met. I agree that the statements made by the Tribunal, and the Tribunal’s subsequent use of important documents that were not brought to the attention of NAAV, had the affect (although unintended) of misleading him. However, in my opinion, the rules of procedural fairness have been excluded by s 474. It follows that the Tribunal’s decision was lawfully made.

649               In my opinion the constitutional challenge to s 474 made by NAAV fails, and the appeal against the decision of Gyles J should be dismissed.

NABE

650               The primary Judge, Tamberlin J, held that the RRT had fallen into error as it misunderstood the applicant’s claim to be that he had suffered detention and torture at the hands of “the authorities” from whom he feared further persecution in the future, whereas the applicant also claimed that he had been mistreated at Vavuniya by the PLOTE. I agree with Wilcox J that the error identified by Tamberlin J was an error of fact that did not amount to a jurisdictional error. However, even if the error amounted to a jurisdictional error of the Craig type, I consider that the decision was validated by s 474(1) as the authority and powers of the RRT had been properly engaged by a valid application made to the RRT for review of an RRT-reviewable decision, and none of the three Hickman provisos has application. In my opinion his appeal should be dismissed.

MR ratumaiwai

651               In my opinion Mr Ratumaiwai failed to demonstrate jurisdictional error of the Craig type for the reasons given by the primary Judge, Hill J, at pars 20 – 32 of his judgment. The appeal must therefore be dismissed. Even if the Tribunal had committed errors of law of the kind contended for by Mr Ratumaiwai by misinterpreting the definition of “special need relative” in the Migration Regulations, reg 1.03, and by failing to consider whether Mr Ratumaiwai had provided to his brother financial assistance and emotional assistance, I consider that s 474 would nevertheless save the Tribunal’s decision from invalidity.

MR TURCAN

652               The decisions challenged by Mr Turcan, like that challenged by Mr Wang, concern the revocation of a visa that had been earlier granted. Mr Turcan sought review of two decisions. The first was made on 6 July 2001 under s 128 of the Act to cancel his permanent spouse class 801 visa. Mr Turcan did not receive notification of this decision. He was overseas at the time. The second decision was made on 23 February 2002 under s 189(1) of the Act to detain him when he entered the migration zone intending to return to Australia.

653               Mr Turcan brought his application under s 39B of the Judiciary Act to review both decisions on 27 February 2002. The application in respect of both decisions was governed by the 2001 amendments to the Act. Heerey J held that the application to review the first decision was not out of time because Mr Turcan did not receive notification of it until 23 February 2002 (see s 477(1) of the Act).

654               Section 128 of the Act provides:

“If:

(a)               the Minister is satisfied that:

(i)                 there is a ground for cancelling a visa under section 116;

and

(ii) it is appropriate to cancel in accordance with this Subdivision; and

(b)               the non-citizen is outside Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.”

655               Relevantly, s 116(1) empowers the Minister to cancel a visa if he or she is satisfied that:

“(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

…

(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.”

656               On 6 July 2001 an officer of the Department of Immigration and Multicultural Affairs, Ms A Faulkner, cancelled Mr Turcan’s visa relying on the ground stated in s 116(1)(f), namely that it “should not have been granted because … its grant was in contravention of the Act” because she was of the opinion that:

“The relationship that you claimed to have on 17 Nov 2000 in the presence of a departmental officer for the purposes of your application for permanent residence on spouse grounds, was in fact no longer in place. This was known to you prior to the grant of a residency.”

657               The jurisdictional factors that attract the authority and powers of the Minister (or the Minister’s delegate) to cancel a visa under s 128 are to be found within the provisions of s 128 (which stands as a source of power independent from s 116: see s 118). Those factors are three in number. First, the satisfaction of the Minister that there is a ground for cancelling the visa under s 116. In this case the paragraph of s 116 relied on by the delegate, par 116(1)(f), relevantly required satisfaction that the visa holder’s visa should not have been granted because the grant was in contravention of the Act. Secondly, the satisfaction of the Minister that it is appropriate to cancel in accordance with Subdiv F. Thirdly, that the non-citizen is outside Australia.

658               Mr Turcan in his application for review alleged among other grounds that in making the decision of 6 July 2001 Ms Faulkner could not have been satisfied that there was a ground for cancelling the visa under s 116 as required by s 128(a)(i) because s 116(1)(f) did not authorise the making of the decision.

659               This contention is based on a departmental case note in Mr Turcan’s file that reads:

“7.7.6 Section 116(1)(f) does not allow for substantive visas to be cancelled where the delegate was satisfied at the time of grant that the criteria were met, but it is later found that those criteria were not met. This is because substantive visas are granted under s 65 of the Act. Unlike s 73, which allows the grant to occur only where the applicant actually meets the criteria, s 65 provides that the Minister must grant the visa ‘if satisfied that’ the criteria for the visa have been satisfied. That is, if the Minister or his delegate is satisfied that the applicant meets the criteria, the visa is lawfully granted, even (if) it is later found that the applicant never actually met the criteria. Therefore, such a decision is not in contravention of the Act.”

660               The author of the case note goes on to argue that the appropriate ground for cancellation of Mr Turcan’s visa would have been under s 116(1)(d), and recommended that the decision of 6 July 2001 be reconsidered. That, however, had not occurred by 23 February 2002.

661               Counsel for Mr Turcan relied on par 7.7.6 of the case note as accurately stating the law, but without supporting argument. The Minister’s written submissions (par 27) appear to accept that Ms Faulkner purported to cancel the visa under a wrong and inapplicable ground. In my opinion, such a concession would be correct. The original decision to grant the visa was made under s 65 of the Act, the Minister’s delegate then being satisfied under s 65(1)(a)(ii) that criteria prescribed in the regulations had been satisfied. The relevant criterion about which the delegate was satisfied is set out in subclause 801.221(2)(c) in Schedule 2 of the regulations in relation to a Subclass 801 – Spouse visa, namely that the applicant for the visa “is the spouse of the sponsoring spouse”. Regulation 1.15A relevantly provides that a person is the spouse of another person if the two persons are in a “married relationship” as defined in subreg 1.15A(1A) which reads:

“Persons are in a married relationship if:

(a)   they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and

(b)   the Minister is satisfied that:

(i)                 they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii)               the relationship between them is genuine and continuing; and

(iii)             they:

(A)                     live together; or

(B)                      do not live separately and apart on a permanent basis.”

662               The definition of “married relationship” requires in part the existence of the fact specified in par (a) and in part the existence of the Minister’s (or the Minister’s delegate’s) satisfaction about the matters specified in par (b). There is no dispute that the factual requirement of par (a) existed, and the inference from the grant of the visa is that the delegate was satisfied as to the matters specified in par (b). Thus, when the visa was granted the relevant criteria were fulfilled, and it cannot be said that the visa “should not have been granted because … its grant was in contravention of the Act” (s 116(1)(f)). On the contrary, the delegate being so satisfied was obliged under s 65 to grant the visa. The fact that the delegate’s satisfaction may have rested on incorrect information that Mr Turcan, in breach of s 104, had not corrected does not give rise to a situation that comes within s 116(1)(f).

663               It follows that Ms Faulkner misconceived the scope of s 116(1)(f) of the Act. Absent s 474(1) of the Act, her misconstruction of that provision would constitute an error of law that would invalidate an exercise of power conditioned on her state of satisfaction under s 128 that there was a ground for cancelling the visa under s 116. Counsel for Mr Turcan argued that this consequence should follow notwithstanding s 474(1), and reliance was placed on the authorities referred to in Minister for Immigration & Multicultural Affairs v Eshetu per Gummow J at [131] and following, in particular R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1994) 69 CLR 407. In R v Connell, Latham CJ at 432 said that it was settled that if a statute provides that a power may be exercised if a person is of a particular opinion, such a provision does not mean that the person may act upon such an opinion if it is shown that he has misunderstood the nature of the opinion which he is to form, or has misconstrued the terms of the relevant legislation in forming that opinion.

664               However, R v Connell was distinguished in the Coalminers Industrial Union of Workers of Western Australian v Amalgamated Collieries of Western Australia Ltd. The legislation there under consideration contained a privative clause in s 108. Dixon CJ (with whom Fullagar and Kitto JJ agreed) said at 446:

“It is contended for the respondent that the Arbitration Court either misconceived this provision or misconstrued the fact; for the relevant fact, according to the argument, simply was that unless production was raised the employers harboured an intention to close the pits, or at all events stated an opinion that they would be unable to avoid doing so. The difficulty about such a contention is that it ignores the criterion of jurisdiction which results from a combination of s 108 with the terms of s 137(1). Section 137(1) by its introductory words ‘where it appears reasonably likely to the Court’ commits to the Court the judgment of the very facts which the foregoing contention of the respondent treats as jurisdictional. Section 108 then operates in the manner that has been explained at the commencement of this judgment. The result is to make it impossible to base prohibition or certiorari on any error of the Arbitration Court made in a bona fide attempt to apply these conceptions in the course of exercising the power which that Court possesses, a power to which the order might reasonably be referred. Plainly it is not a misapprehension which would take the order completely outside the scope of the Arbitration Court’s authority.”

665               Menzies J (with whom Fullagar J also agreed) also distinguished R v Connell at 453 – 455. At 453 his Honour said:

“The distinction that I draw between that case and this is that there the grant of power was construed as not extending to the formation of an unchallengeable opinion unless and until a correct interpretation had been put upon the word ‘anomalous’, whereas here, as I construe s 137, the matter upon which the Court must itself form an opinion includes the meaning of the word ‘lock-out’. In like fashion, it seems to me that the decision of the Privy Council in Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust is to be distinguished. In this case it cannot be said that the Court of Arbitration did not form an opinion upon the matters, including the possibility of a lock-out, which had to appear to it to be ‘reasonably likely’; the most that can be said is that it formed a wrong opinion.” [footnotes omitted]

666               And at 454 his Honour continued:

“In any event, I consider that, even if there were an excess of jurisdiction, the proceedings of the Court of Arbitration and its order are protected by s 108 of the Industrial Arbitration Act, which provides that ‘proceedings in the Court … shall not be impeached … nor shall the same be removable to any Court by certiorari or otherwise; and no … order, or proceeding of the Court … shall be liable to be challenged … or called in question by any Court of judicature on any account whatsoever’.”

667               In the present case I consider s 128 of the Act should be construed as extending authority and power to the Minister (or the Minister’s delegate) to reach an unchallengeable state of satisfaction as to the matters therein specified, provided that the three Hickman provisos are all fulfilled. In relation to the decision made on 6 July 2001 the delegate reached a state of satisfaction as to the matters specified in s 128(a)(i) and (ii). I agree with Heerey J that the decision was made in a bona fide attempt to exercise the power of visa cancellation, that the decision relates to the subject matter of the legislation, namely cancellation of a visa on a ground stated in s 116, and that the decision is reasonably referable to the function assigned to the decision-maker.

668               In relation to the decision made on 23 February 2002, the detaining officer’s authority and power to take Mr Turcan into detention was conditioned on him knowing or reasonably suspecting that Mr Turcan was an unlawful non-citizen. It is not disputed that it was open to the officer, on seeing the computer records that Mr Turcan’s visa had been cancelled, to reasonably suspect that he was an unlawful non-citizen. I also agree with Heerey J that the three Hickman provisos were fulfilled in the case of the officer’s decision.

669               In my opinion Mr Turcan’s appeal should be dismissed.

MR WANG

670               Mr Wang’s visa was also cancelled under s 128 of the Act. In his case the duly appointed delegate of the Minister was satisfied there was a ground for cancelling the visa under s 116(1)(d) because he was satisfied that Mr Wang had supported his visa application with bogus documents. When a visa is cancelled under s 128 the former visa holder “must” be given a notice stating the grounds on which the visa was cancelled, giving particulars of the grounds, and inviting the former holder within a specified time to show that the ground did not exist or some reason why the visa should not be cancelled: s 129. The primary Judge, Mansfield J, held that the notice that was given to Mr Wang did not comply with s 129 because it did not give particulars of the ground of cancellation and information on which that ground was considered to exist. Section 131(1) provides:

“Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:

(a)                                       if not satisfied that there was a ground for the cancellation, or

(b)                                       if satisfied that there is another reason why the cancellation should be revoked;

is to revoke the cancellation.”

671               In the absence of a notice that complied with s 129 the delegate made the decision challenged by Mr Wang under s 131 not to revoke the cancellation of his visa. Mansfield J at [31] said:

“As a starting point, it can be seen that the very purpose of the decision under s 131 is to reconsider the cancellation of a visa in the light of the response of the person whose visa has been cancelled. Section 129(1) directs that person be given certain notice, and requires that person be given the opportunity to respond to the reasons for cancellation within the specified time: s 129(1)(c). Absent any such response, the respondent does not have to proceed to any reconsideration under s 131 of the Act. It is only by reason of that response to the notice that the respondent is obliged by s 131 to reconsider his decision. Although s 131 does not expressly oblige the respondent to consider the response, in my view it is clear that that is what it provides for. Accordingly, the jurisdictional fact which s 131 prescribes, and upon which the decision under s 131 is to be made, is the response of the applicant to the notice under s 129(1). It is only upon the response that the respondent can then address whether he is satisfied that a ground existed for the cancellation of the visa (s 131(1)(a)) or whether he is satisfied that there is another reason why the cancellation of the visa should be revoked (s 131(1)(b)). The material that s 131 requires the respondent to address in making that decision is the ‘response to a notice under s 129 of the cancellation of a visa’.”

His Honour held that the jurisdictional fact that he identified in s 131 was an inviolable limitation or restraint of the kind discussed by the High Court in cases which have considered the Hickman principle. His Honour held that it was a precondition to the making of a decision under s 131 which was not fulfilled; absent a response to a valid notice under s 129(1) the power to make a decision under s 131 did not arise.

672               If his Honour’s identification of the jurisdictional fact that enlivened the delegate’s power to make a decision under s 131 were correct, I would agree with his decision. However I take a different view about the identification of the jurisdictional factors which attract the power to make a decision under s 131. In my opinion the requirement of s 129 to give a notice after cancellation of a visa, and the provisions of s 131 providing for reconsideration are part and parcel of the authority and powers given to the Minister under Subd F to cancel visas. The relevant jurisdictional factors that enliven that authority and those powers are the three limitations contained in s 128, namely, the satisfaction of the Minister (or his delegate) that the visa holder’s visa would be liable to be cancelled under s 116, that it is appropriate to cancel in accordance with the Subdivision, and that the non-citizen is outside Australia. The Act then lays down procedural provisions which apply where cancellation occurs, including the procedures laid down for notification to the former visa holder, and the procedures for reconsideration. In my opinion it is not correct to treat each step and each decision that may follow cancellation as discrete areas of authority or “jurisdiction” which are only enlivened upon compliance with procedural provisions that operate at a preceding point in time. If this were the correct approach to the provisions of Subdiv F, a similar approach, for example, to the procedures relating to a review by the RRT would mean that a failure to give to the applicant all the information required by s 424A, or the failure to give the applicant the invitations required by ss 424B, 425 or 425A would constitute preconditions to the exercise of the power to make a decision. In my opinion the result of such an approach would be to defeat the object of s 474(1). I consider it is clear that s 474(1) was intended to broaden the authority and powers of decision makers in their compliance with the apparently imperative decision making procedures.

673               It was not part of Mr Wang’s case before Mansfield J or before this Court that any of the three Hickman provisos was not fulfilled. In this situation I consider s 474(1) applied to validate the decision not to revoke the cancellation of Mr Wang’s visa.

674               It does not follow from this conclusion that procedural steps in the decision making process which the Act says “must” be followed have been stripped by the enactment of s 474(1) of any significance whatsoever. The statutory procedures remain, but are directory, not mandatory. A failure by a decision-maker to follow directory provisions in the Act may in the circumstances of a particular decision be important in determining whether its making was “an honest attempt to deal with a subject matter confided to the Tribunal and to act in pursuance of the powers of the tribunal …”: R v Murray; Ex parte Proctor per Dixon J at 400. A blatant disregard of statutory directions about a decision making process laid down in the Act is unlikely to meet the Hickman proviso that the decision be one that is a bona fide attempt to exercise the relevant power. Unless that requirement is met, s 474(1) cannot validate the decision.

675               In my opinion the appeal by the Minister against the decision of Mansfield J should be allowed, the declaration that the decision refusing to revoke the cancellation of Mr Wang’s visa is invalid and of no effect should be set aside, and the application made under s 39B of the Judiciary Act should be dismissed with costs.

676               In summary, I consider the appeals by NAAV, NABE, Mr Ratumaiwai and Mr Turcan should be dismissed with costs. The appeal by the Minister against the judgment in favour of Mr Wang should be allowed with the consequential orders set out in the preceding paragraph.

 

I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated: 15 August 2002

Counsel for Appellant in N 265 of 2002	B Walker SC with L Karp
Solicitor for Appellant in N 265 of 2002	Legal Aid Commission of New South Wales
Counsel for Appellant in N 282 of 2002	B Zipser
Solicitor for Appellant N 282 of 2002	Jamnadas & Associates
Counsel for Appellant in N 399 of 2002	L Karp
Solicitor for Appellant in N 399 of 2002	John H Maait & Co
Counsel for Appellant in V 225 of 2002	T V Hurley
Solicitor for Appellant in V 225 of 2002	Armstrong Ross
Counsel for Respondent in N 265, N 282, N 399 and V 225 of 2002, and Appellant in S 84 of 2002:	D M. J. Bennett QC Solicitor-General for the Commonwealth and S J Gageler SC with S Lloyd
Solicitor for Respondent in N 265, N 282, N 399 and V 225 of 2002, and Appellant in S 84 of 2002:	Australian Government Solicitor
Counsel for Respondent in S 84 of 2002	S Tilmouth QC with A Collett
Solicitor for Respondent in S 84 of 2002:	Patel & Co
Counsel for Intervener in N 265 and N 282 of 2002:	D S  Mortimer
Date of Hearing:	3 and 4 June 2002
Date of Judgment:	15 August 2002