FEDERAL COURT OF AUSTRALIA

JUDGMENT SUMMARY

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228

The Honourable Chief Justice Black
The Honourable Justice Beaumont
The Honourable Justice Wilcox
The Honourable Justice French

The Honourable Justice von Doussa

1.      The Court heard these five appeals together.  All of them raise questions of statutory interpretation about the extent to which the amendments made to the Migration Act 1958 (Cth) in October 2001 have, by s 474(1), restricted review by the courts of administrative decisions of the Minister for Immigration & Multicultural & Indigenous Affairs, his delegates, and the merits review tribunals (notably the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT)) in migration matters. 

2.      The first two appeals before the Court, (NAAV and NABE), concern people who had applied for protection visas.  The third appeal, (Ratumaiwai), concerns a person who applied for a family visa.  The fourth, (Turcan), concerns a person who held a permanent spouse visa which was cancelled by the Minister’s delegate while the person was outside Australia, and the fifth, (Wang), concerns a person who held a temporary business visa which was cancelled by the Minister’s delegate while the person was outside Australia, and whose request to the Minister to revoke that cancellation was refused. 

3.      Mr Turcan, whose spouse visa was cancelled while he was outside Australia, has been held in immigration detention since he returned to Australia on 22 February 2002 and was not immigration cleared.  Those involved in the other appeals are not in immigration detention.

4.      In the first appeal (NAAV), it was argued that the RRT failed to give procedural fairness to the appellant.  In the second (NABE) it was said that the RRT made a fundamental mistake because it misidentified the identity of the persons by whom the appellant claimed to be persecuted.  The third and fourth appeals (Ratumaiwai and Turcan) concerned alleged errors by the decision-makers in interpreting provisions of the Migration Act.  In the fifth appeal (Wang) it was claimed that the Minister’s delegate, contrary to the requirement of the Act, failed to give proper information about the decisionto cancel the visa as required by the Act before deciding whether or not to revoke that cancellation. 

5.      In most of the appeals the Solicitor-General for the Commonwealth argued on behalf of the Minister that no legal error was involved in the decision for which judicial review was sought, and in all of the appeals he argued that, in any case, the amendments made to the Migration Act in October 2001 had the effect that the decisions were protected from successful judicial review.  Essentially, the Minister relied on the ‘privative clause’ introduced in October 2001.  This is contained in s 474 of the Act, which reads:

“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.”

6.      The other parties have argued that this clause does not have the full effect for which the Minister argued, and that it does not protect the decisions in the present cases from successful judicial review.  Some of the other parties argued that if the clause did have that effect, it was invalid for constitutional reasons.

7.      The issues before the Court involve questions of statutory construction and each Judge has delivered separate reasons for judgment. 

8.      The separate judgments disclose two broadly differing approaches to the effect of the amendments.  The majority view, represented by the Chief Justice and Beaumont and von Doussa JJ, is that the amendments leave little scope for judicial review (in the sense that although the amendments to the legislation do not prevent access to the Courts, they leave little scope for an applicant to argue successfully that the decision affecting him/her was invalid on legal grounds).  Wilcox and French JJ, and are of the view that the amendments do not operate to restrict judicial review as substantially as the Minister contends. 

9.      All of the Judges agree that the October 2001 amendments have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by the Courts, and have done so by implicitly changing the substantive meaning of the Act so that the jurisdiction and/or power of decision-makers under the Act is expanded.  In this way, the decisions that might otherwise have been invalid are “validated” by the effect of the privative clause.  As mentioned, the clause does not bar access to the Courts and if it did so, the Judges point out in their reasons, questions of constitutional invalidity would arise.

10.  In the first, fourth and fifth appeals (NAAV, Turcanand Wang), the Judges (with the exception, in the case of NAAV, of Beaumont J, who does not express a view)agree that the decision-makers made a legal error which would, in the absence of the privative clause, mean that the challenged decisions would be invalid in law.  In NABE the Judges agree with the trial Judge’s conclusion that the decision-maker did not make a legal error.  All the Judges agree that there was an error by the decision-maker in Ratumaiwai,but agree with the trial Judge that the error was not one of such a nature as would make the decision invalid in law.

11.  The next paragraph states, in very brief summary form, the Judges’ conclusions about how the privative clause operates in the three appeals in which its operation is directly in question. 

12.  In the first appeal, (NAAV), a majority of the Judges (the Chief Justice, Beaumont and von Doussa JJ; Wilcox and French JJ dissenting) conclude that the privative clause operates to expand the power of the RRT so that its decision is not invalid despite the circumstance that the RRT failed to comply with the common law requirements of procedural fairness.  In the fourth appeal, (Turcan), a majority of the Judges (the Chief Justice, Wilcox and French JJ; Beaumont and von Doussa JJ dissenting) conclude that the privative clause does not operate to expand the power of the Minister’s delegate so that he or she can cancel a visa when satisfied on a basis that is incorrect in law, that the visa was granted in contravention of the Act.  In the fifth appeal, (Wang), a majority of the Judges (the Chief Justice, Wilcox and French JJ; Beaumont and von Doussa JJ dissenting) conclude that the privative clause does not operate to expand the Minister’s power to refuse to revoke a visa cancellation when the person whose visa was cancelled seeks revocation of that cancellation and was not provided with the information required under the Act.

13.  Consequent upon the interpretations that they give to the Migration Act, as amended to include the privative clause, all of the Judges agree that the challenges to the privative clause on Constitutional grounds fail.

14.  The results of the appeals are as follows:

·        NAAV’s appeal is dismissed, with costs, by majority (the Chief Justice, Beaumont and von Doussa JJ; Wilcox and French JJ dissenting).  The application for judicial review of the RRT’s decision therefore remains refused.

·        NABE’s appeal is dismissed with costs, unanimously.  The application for judicial review of the RRT’s decision therefore remains refused.

·        Mr Ratumaiwai’s appeal is dismissed with costs, unanimously.  The application for judicial review of the MRT’s decision therefore remains refused.

·        Mr Turcan’s appeal is allowed, with costs, by majority (the Chief Justice, Wilcox and French JJ; Beaumont and von Doussa JJ dissenting).  The decision of the trial judge is set aside.  Orders are made to quash the delegate’s decision to cancel Mr Turcan’s visa, and give liberty to apply within 7 days for any necessary consequential orders in relation to his release from detention.

·        The Minister’s appeal in Wang is dismissed, with costs, by majority (the Chief Justice, Wilcox and French JJ; Beaumont and von Doussa JJ dissenting).

15.     This summary is intended to assist in an understanding of the outcome of these appeals. Such summaries are commonly prepared by the Court in cases of general public interest, but they are not a substitute for the judges' reasons which remain the only authoritative statement of the Court.

16.     This summary will be available on the internet at www.fedcourt.gov.au soon after the delivery of judgment, as will the reasons for judgment.