FEDERAL COURT OF AUSTRALIA
Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839
MIGRATION – decision to cancel Electronic Travel Authority (Visitor) visa – whether holder’s intention is to visit Australia temporarily for tourist purposes – whether decision to cancel is a privative clause decision – whether a breach of the rules of natural justice – whether a breach of the statutory procedures prescribed in respect of the decision – whether error of law – consideration of the operation of the Hickman principle in relation to decisions in respect of visas under the Migration Act 1958 (Cth)
Migration Act 1958 (Cth) ss 116(1)(g), 120 and 474,
Judiciary Act 1903 (Cth) s 39B
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 - considered
Waterside Workers’ Federation of Australia v Gilchrist Watt & Sanderson Ltd (1924) 34 CLR 482 - cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - cited
The King v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Limited (1947) 75 CLR 361 - cited
The King v Murray; Ex parte Proctor (1949) 77 CLR 387 - cited
R v Coldham; Ex parte The Australian Workers’ Union (1983) 153 CLR 415 - cited
Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 - considered
Craig v The State of South Australia (1995) 184 CLR 163 – cited
R v Metal Trade Employers’ Association: Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 - cited
Abebe v The Commonwealth of Australia (1999) 197 CLR 510 – cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] 179 ALR 238 – considered
Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219 – cited
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 - considered
Century Metals and Mining NL v Yeomans (1988) 85 ALR 29 - considered
Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 - cited
Magrath v Goldsborough Mort & Co Ltd (1932) 47 CLR 121 - cited
Bropho v State of Western Australia (1990) 171 CLR 1 - cited
O’Toole v Charles David Proprietary Limited (1991) 171 CLR 232 - cited
Singh v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 531 - cited
Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 - considered
Sandoval v Minister for Immigration and Multicultural Affairs [2001] FCA 1237 – considered
Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 - cited
DAN WALTON v PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 1196 of 2001
JUDGE: MERKEL J
DATE: 20 DECEMBER 2001
PLACE: MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 1196 OF 2001 |
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BETWEEN: |
DAN WALTON APPLICANT
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AND: |
PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay one-half of the respondent’s taxed costs of the proceeding excluding any additional costs incurred as a consequence of senior counsel representing and appearing for the respondent.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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V 1196 OF 2001 |
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BETWEEN: |
APPLICANT
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AND: |
PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 The applicant is a citizen of the United States. He arrived at Melbourne Airport on 21 November 2001 holding an “Electronic Travel Authority (Visitor)” visa issued under sub-class 976 of sch 2 of the Migration Regulations 1994 (Cth) (“the Regulations”). A holder of the visa is entitled to travel to, and enter, Australia on multiple occasions within twelve months from the grant of the visa and to remain in Australia on each occasion for a period not exceeding three months. Relevantly for present purposes, a primary criterion for the holding of the visa was that the applicant state “an intention only to visit Australia temporarily for tourism purposes”.
2 An officer of the Department of Immigration and Multicultural Affairs (“the delegate”) interviewed the applicant at the airport. The delegate formed the view that there may be a ground for the cancellation of the visa under s 116 of the Migration Act 1958 (Cth) (“the Act”). She stated the ground as follows:
“You have an intention to reside permanently in Australia. You are carrying documents to support your intention to reside permanently in Australia.”
3 The delegate afforded the applicant an opportunity to comment on the ground in the course of an interview with her. The delegate also interviewed Ms Jennifer Hart, an Australian citizen and the applicant’s partner, who was waiting at the airport to meet the applicant.
4 Early in the afternoon of 21 November, the delegate decided to cancel the applicant’s visa under s 116(1)(g) of the Act and reg 2.43(1)(k) of the Regulations. Section 116(1)(g) of the Act, relevantly, provides that the Minister may cancel a visa if he or she is satisfied that:
“a prescribed ground for cancelling a visa applies to the holder.”
5 Regulation 2.43(1)(k) of the Regulations prescribes as a ground for cancellation, in the case of the holder of sub-class 976 visa:
“…that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit Australia temporarily for tourism purposes;”
6 The record of the delegate’s decision to cancel the visa (“the cancellation decision”) states that the reason given by the applicant why the ground of cancellation does not exist was that he is a genuine visitor who intends to depart Australia after a stay of approximately one month. The applicant is also recorded as saying that he is unsure “when or if” he will reside in Australia.
7 The record also stated that the evidence and reasons why grounds for cancellation exist are as follows:
“The visa holder is carrying evidence to support an intention to reside permanently in Australia. These include:
- shipment receipt of personal effect from USA to Australia
- letter dated October 2001 to friend Ann stating moving to Australia 19.11.01 to lodge permanent residence application.
I place greater weight on the evidence than on his assertions that he intends a short temporary stay.”
8 In setting out any “other reasons” given by the visa holder as to why the visa should not be cancelled the record stated “he is a genuine visitor”.
9 The delegate’s assessment of the relevant factors was:
“The visa holder is a non-genuine visitor.”
10 Finally, the record of the cancellation decision states that in weighing up the grounds for cancellation, evidence available and other factors the reasons for the decision are:
“- shipment receipt of personal effects from USA to Australia;
- letter to friend dated October 2001 stating intentions.
I place greater weight on the evidence than on the [assertion] that the visa holder intends a temporary stay in Australia.”
11 The shipment receipt referred to is a shipment form, dated 21 September 2001, which records shipment of a significant number of the applicant’s personal items and effects from the United States to Australia.
12 The letter referred to stated, inter alia:
“Speaking of which, I will be leaving Nov 19th to live in Oz. I am going to apply for a permanent visa so I can stay and work etc. Jenny and I have begun looking at houses. Guess I really am getting old now! Hopefully, it won’t be long before the ‘little ones’ start coming along!”
13 After the cancellation of his visa the applicant was placed in immigration detention pending his removal from Australia. He commenced a proceeding in the Court pursuant to s 39B of the Judiciary Act 1903 (Cth) and ss 477, 478 and 479 of the Act, for prohibition and certiorari, and for an injunction and declaration, in relation to the cancellation decision. I granted an interlocutory injunction preventing the respondent from removing the applicant from Australia prior to the hearing and determination of the proceeding, which was fixed for hearing on 3 December.
The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)
14 The grounds for the relief sought by the applicant were that the cancellation decision was made without statutory authority and the decision maker committed an error of law, constituting jurisdictional error, on the face of the decision. The grounds require consideration of the amendments made to Pt 8 of the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which commenced on 2 October 2001.
15 It is common ground that the Court has jurisdiction in respect of the cancellation decision pursuant to s 39B of the Judiciary Act 1903 (Cth), which confers jurisdiction on the Court “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”. The jurisdiction under s 39B is co-extensive with the jurisdiction of the High Court under s 75(v) of the Constitution.
16 Section 474 of the Act limits judicial review in respect of a “privative clause decision”, which is defined in s 474(2):
“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).”
17 The decisions referred to in ss 474(4) and 474(5) are not relevant for present purposes. Accordingly, subject to the question of whether the cancellation decision was “made, proposed to be made, or required to be made, as the case may be, under [the] Act” it plainly satisfies the other criteria for a privative clause decision.
18 Section 474(1) provides:
“A private 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.”
19 Section 474 raises a number of questions. The first is whether it operates to validate, and therefore immunises from review, a decision which is made in breach of, or after a failure to comply with, a statutory requirement in respect of the decision. The second is whether it operates to exclude from judicial review a decision made in breach of the rules of natural justice. The third is whether a decision that has breached or failed to comply with legal requirements imposed in respect of the decision is a decision made under the Act and therefore a privative clause decision. I turn to consider each of those questions.
(a) The Hickman principle
20 Paragraphs 14 and 15 of the revised explanatory memorandum in respect of the Migration Legislation Amendment (Judicial Review) Bill 2001 explain s 474 as follows:
“New subsection 474(1) introduces a privative clause for decisions made under the Migration Act, regulations made under that Act or other instruments under that Act except for decisions made under the provisions set out in new subsection 474(4) or as prescribed under new subsection 474(5). A privative clause affects the extent of judicial review by both the Federal Court and the High Court of decisions covered by the clause.
A privative clause is a provision which, although on its face purports to oust all judicial review, in operation, by altering the substantive law, limits review by the courts to certain grounds. Such a clause has been interpreted by the High Court, in a line of authority stemming from the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598, to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides.”
21 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (“Hickman”) concerned a regulation that provided that a 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 on any account whatever”. The Hickman principle was explained by Dixon J (at 615) as follows:
“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.”
22 Dixon J stated (at 616):
“It is…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.”
23 His Honour (at 617) cited with approval the observation of Isaacs and Rich JJ in Waterside Workers’ Federation of Australia v Gilchrist, Watt & Sanderson Ltd (1924) 34 CLR 482 at 526, paraphrasing their observations:
“…that, if in one provision it is said that certain conditions shall be observed, and in a later provision of the same instrument that, notwithstanding they are not observed, what is done is not to be challenged, there then arises a contradiction, and effect must be given to the whole legislative instrument by a process of reconciliation.”
24 The process of reconciling apparently conflicting provisions may require determination of “the hierarchy of provisions…to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme”: see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382.
25 In The King v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Limited (1947) 75 CLR 361 at 369 Latham CJ and Dixon J observed:
“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 R v Hickman; Ex parte Fox. 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.”
26 Subsequently, in The King v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399-400, which also concerned a decision of a Local Reference Board, Dixon J described the two step process for resolving inconsistency between the consequences of breaching a statutory requirement and a privative clause:
“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 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. 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 reg. 17 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 reg. 17.”
27 In R v Coldham; Ex parte The Australian Workers’ Union (1983) 153 CLR 415 (“Coldham”) at 419 Mason ACJ and Brennan J observed that a privative clause, such as s 60 of the Conciliation and Arbitration Act 1904 (Cth), is ineffective to prevent prohibition going to “inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal”.
28 More recently, the operation of a privative clause under State, rather than Commonwealth, legislation was considered in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 (“Darling Casino”). Gaudron and Gummow JJ observed (at 631):
“It is to be remembered that the Hickman principle is a rule of construction. This does not appear fully to have been appreciated in the Court of Appeal in the present case. Accordingly, the question in this case is not one of the meaning and effect of the Hickman principle 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 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 Hickman principle 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.”
29 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 privative 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’.”
30 And at 633:
“Mandamus and prohibition are remedies which are granted in cases of jurisdictional error – refusal to exercise jurisdiction, in the case of mandamus, and excess of jurisdiction, in the case of prohibition. The terms of s 75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law. However, there is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law to ensure that the impugned decision or conduct or refusal or failure to exercise a power is in fact valid and lawful.”
31 Jurisdictional errors, to which their Honours were referring, include errors of the kind described by Brennan, Deane, Toohey and McHugh JJ in Craig v The State of South Australia (1995) 184 CLR 163 at 179:
“If…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.”
32 The Hickman principle construes the Act in question on the basis that the privative clause has substantive, rather than merely procedural, consequences. Thus, rather than merely immunising a particular decision from review the clause operates substantively to make a decision made in breach of a statutory requirement valid and lawful, whereas it may otherwise have been invalid and unlawful. However, consistent with Gaudron and Gummow JJ’s observations in Darling Casino at 632-633 a privative clause does not validate a decision:
· made in breach of an “indispensable condition” (Murray at 399), “imperative duties” or which goes beyond “inviolable limitations or restraints” (R v Metal Trades Employers’ Association: Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 at 248);
· which involves a refusal to exercise jurisdiction or an excess of jurisdiction by officers of the Commonwealth.
33 In Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at 536-537 Gleeson CJ and McHugh J explained why a privative clause cannot cut down judicial review under s 75(v) of decisions of Commonwealth officers which involve jurisdictional error:
“…the decisions of Commonwealth officers - and members of the Tribunal are such officers - cannot be limited by any law of the Parliament. Laws of the Parliament, made under an appropriate head of constitutional power, may take the conduct of Commonwealth officers outside the scope of the jurisdiction of this Court under s 75(v). Such laws may do so, for example, by making lawful conduct which would otherwise be unlawful at common law or under State legislation or even under other federal legislation. But once a question arises as to whether a Commonwealth officer has acted lawfully or within or outside the jurisdiction conferred upon him or her, no law of the Parliament can curtail the jurisdiction of this Court to decide the issue, a jurisdiction which the Constitution has conferred on this Court to protect the people of the Commonwealth and the individual States from excesses of Commonwealth power.”
(b) Natural Justice/Procedural Fairness
34 In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] 179 ALR 238 (“Miah”) a failure to comply with the rules of natural justice by a delegate of the Minister in respect of a decision to refuse to grant a protection visa under the Act was regarded as acting in excess of jurisdiction, with the consequence that prohibition and certiorari in aid of prohibition would issue, as would mandamus, to compel determination of the application according to law: at 245 per Gleeson CJ and Hayne J (although their Honours were in dissent in concluding that the prescriptive provisions of the Act manifested an intention to have procedural fairness dealt with by the provisions of the statute, rather than by the more general requirements of procedural fairness), Gaudron J at 260-262, McHugh J at 274 and Kirby J at 290-292. See also Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219 at 223, 231 per Gaudron and Gummow JJ (with whom Gleeson CJ agreed), 258 per Kirby J, and 265 per Hayne J, and Darling Casino at 609 per Brennan CJ, Dawson and Toohey JJ.
35 The Migration Legislation Amendment (Procedural Fairness) Bill 2001 was intended to amend the Migration 1958 (Cth) by providing that the common law requirements of the natural justice hearing rule do not apply to visa decisions made under the Act. Had the Bill been passed the Act would plainly provide the clear legislative intention to exclude the rules of natural justice that the majority in Miah found was absent. The Bill, however, has not been passed with the consequence that, subject to s 474, the decision in Miah is likely to govern decisions made under the Act in relation to the grant, refusal to grant, or cancellation of visas.
36 Whether s 474 can operate to prevent judicial review of decisions made in breach of the rules of natural justice is not altogether clear. The breach, being an excess of jurisdiction, is reviewable under s 75(v) of the Constitution. While there may be a question as to whether the rules are derived from or implied by statute or arise under the common law (see for example Miah at 246, 251, 258, 266 and 286), in so far as the rules have not been abrogated or excluded by statute it has been said that it is not open to the federal legislature to prevent review under s 75(v) of a decision made in breach of the rules: see Miah at 261 per Gaudron J, 270 per McHugh J, and 290 per Kirby J. See also Re Refugee Review Tribunal; Ex parte HB (2001) HCA 34 at [10].
37 As s 474 and Pt 8 of the Act are altogether silent on compliance or non-compliance with the rules of natural justice there may be obstacles in the path of an argument that the section provides a clear legislative intention to abrogate or exclude the rules of natural justice cf s 501(5). See also Miah at 262 per Gaudron J and 289-290 per Kirby J in respect of s 69(1) of the Act. Thus, absent a change in the substantive law in that regard, plainly, there are grounds for contending that s 474 does not prevent the review of decisions in respect of visas on that ground.
(c) A decision made under the Act
38 A privative clause decision is defined in s 474(2) as, inter alia, a decision “made, proposed to be made, or required to be made, as the case may be, under this Act”.
39 Section 474(3) provides for a reference to a decision in s 474 to include a wide range of decisions, as well as conduct including a refusal to do an act or thing, a refusal to make a decision, and conduct preparatory to the making of a decision. The width of the definition in s 474(3) but, in particular, the inclusion of refusals to make a decision and preparatory conduct in the definition of “decision”, explains why a “privative clause decision” is defined to include decisions proposed or required to be made under the Act, as well as decisions made under the Act. The issue in respect of a substantive decision that has been made in relation to a visa appears to be whether it is a decision under the Act.
40 In Darling Casino the privative clause related to decisions made “under” the relevant Act. In that context Gaudron and Gummow JJ observed (at 635):
“There is one point we should add, because the Court of Appeal appears to have proceeded on a contrary view. It concerns the content of the phrase in s 155(1), ‘a decision of the Authority under this Act’. The phrase is not ‘under or purporting to be under this Act’. Section 11 obliges the Authority to have regard to certain matters. Section 12 forbids the Authority to grant an application unless satisfied of the matters there specified and for that purpose the Authority is to consider the items specified in s 12(2)(a)-(h). Section 13 contains a definition of ‘close associate’, a term used in s 12. Sections 11, 12 and 13 are central to the legislative scheme. 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’.”
41 The issue of whether an invalid decision purportedly made under an enactment is a decision made “under” the enactment is, ultimately, a question of statutory construction having regard to the nature and objects of the enactment in question (see for example Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 314-315 per Bowen CJ, 339-340 per Smithers J cf 342-344 per Deane J). Thus, a broad view has been taken of the ambit of decisions “under” an enactment in cases concerning the Administrative Decisions (Judicial Review) Act 1977 (Cth), an act providing for the review of decisions under federal enactments. In such cases purported or otherwise invalid “statutory” decisions are regarded as decisions made “under” an enactment as they are said to have been made “in pursuance of” or “under the authority of” the Act in question: see Century Metals and Mining NL v Yeomans (1988) 85 ALR 29 at 45-46 per French J. In Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 at 447-448 French J observed that it is clear that, as the grounds for review include lack of jurisdiction or authority to make the decision:
“…a decision made in purported reliance upon a power conferred by statute is a decision which is to be treated for the purposes of judicial review as a decision made under that statute.”
42 However, a different view might be taken of the construction of a provision depriving superior courts of the power to review an unlawful exercise of power. In that context the “general rule is that statutes are not to be interpreted as depriving superior Courts of power to prevent an unauthorized assumption of jurisdiction”: see Magrath v Goldsborough Mort & Co Ltd (1932) 47 CLR 121 at 134 and Bropho v State of Western Australia (1990) 171 CLR 1 at 17.
43 In the industrial context, in O’Toole v Charles David Proprietary Limited (1991) 171 CLR 232 at 285-288 Deane, Gaudron and McHugh JJ observed that the privative provisions contained in s 60 of the Conciliation and Arbitration Act 1904 (Cth) apply to a purported award that satisfies the Hickman principle. Their Honours observed at 285-286:
“Section 4(1) of the Act provided that, except where otherwise clearly intended, ‘Award’ means ‘an award made under this Act and includes an order’. Under the Act, the power to make an award is vested in the Commission alone.
It is apparent that the words ‘an award’ in s. 60 refer, as a matter of statutory construction, to at least some purported awards: see, e.g., Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd. (1942) 66 C.L.R. 161 at p. 182; R. v. Hickman; Ex parte Fox and Clinton (1945) 70 C.L.R. 598, at p. 615. Were it otherwise, the provisions of s 60(1) would be essentially nugatory since, if their application were confined to valid awards, they would not preclude challenge to the validity of an award. On the other hand, it is also apparent that the section does not extend to every document or prescript which purports to be an award made under the Act.”
44 Plainly, the precise ambit of the definition of a privative clause decision will need to be considered in the context of the particular decision under challenge and the ground of invalidity relied upon by an applicant in seeking judicial review of that decision.
(d) The issues arising under the Act
45 The applicant’s case relies upon alleged failures to observe or comply with procedures which the applicant contends must be satisfied when it is sought to exercise the power to cancel a visa under s 116(1) of the Act. Those procedures, which are said to be mandated by the Act and to be reviewable under s 75(v) (and therefore s 39B), include a requirement to comply with the rules of natural justice. In that context the issues requiring determination in a case involving the operation of s 474 are:
· whether there was a failure to observe or comply with any provisions of the Act or of any other requirement imposed by law (including a failure to comply with the rules of natural justice) in respect of the decision;
· whether the decision was a privative clause decision but, in particular, whether the decision was a decision “made, proposed to be made, or required to be made, as the case may be, under this Act”;
· whether, interpreting the Act as a whole (including s 474) , the requirement that was not observed or complied with was one that the legislature required must be observed or complied with, in the sense that the legislature imposed the requirement as an “indispensable condition”, “imperative duty” or an “inviolable limitation or restraint” when it is sought to exercise the power conferred under the relevant provisions of the Act;
· whether the decision involved jurisdictional error, in the sense of refusal to exercise jurisdiction or excess of jurisdiction;
· if the jurisdictional error was a failure to comply with the rules of natural justice, whether review of the decision on that ground is excluded by s 474;
· if the requirement was not one that must be observed and did not involve jurisdictional error, was the decision a bona fide attempt to exercise the decision maker’s power, was it related to the subject matter of the legislation and was it reasonably capable of reference to the power given to the decision maker.
46 It is clear that the operation of s 474, in the context of s 75(v) of the Constitution and the highly prescriptive regime contained in the Act in relation to visa decisions will remain a vexed and difficult question with no simple or short answer: see for example Campbell “An examination of the provisions of the Migration Legislation Amendment Bill (No 4) 1997 purporting to limit judicial review” (1998) 5 Australian Journal of Administrative Law 135; Kirk “Administrative Justice and the Australian Constitution” [1999] Papers of the National Administrative Law Conference of the Australian Institute of Administrative Law 78; Aronson & Dyer Judicial Review of Administrative Action (2nd ed) (2000) at 689-696.
Failure to comply with requirements imposed by law
47 The applicant relied upon numerous grounds of alleged non-compliance or failure to observe conditions mandated by the Act or imposed by law. It is appropriate to deal with each of the alleged breaches in the order they were set out in the second amended application.
(a) The decision maker failed to sign the approved form constituting the instrument by which the decision was made.
48 The approved form (Form 1111) recording the cancellation decision comprised Pt A (Notice of intention to cancel visa), Pt B (Record of decision to cancel visa) and Pt C (Notification of decision (in immigration clearance)). Pt A and Pt C were signed by the delegate but Pt B, although duly completed by the delegate, was not signed by her.
49 The form is a departmental form and there is no requirement under the Act or the Regulations that it be signed or, relevantly, that Pt B be signed. The form is referred to in a Migration Series Instruction issued on 18 October 2001 (“MSI 340”), which relates, inter alia, to visa cancellations. MSI 340 contains departmental instructions as to the procedures that are to be followed and the principles that are to be applied in respect of visa cancellation decisions. Paragraph 10.1.2 provides that Form 1111 should be used for the cancellation of temporary visas at an airport. There is no requirement that the form must be signed wherever indicated nor is it suggested in MS1 340 that a failure to use the form as indicated has any legal consequence. The approved form was used by the delegate, who provided the substantive information that was required to be set out in it.
50 In my view no legal consequence attended the failure to sign Pt B of the approved form.
(b) The decision maker failed to comply with s 120(1) of the Act by not giving the applicant particulars of “relevant information” and not inviting him to comment upon it in the manner prescribed by s 121.
51 The “relevant information” was said to be statements by Ms Hart to the delegate that:
· if the applicant could not lodge an application for a permanent visa in Australia the return ticket that he held would act like a safeguard;
· Ms Hart would like this to be the applicant’s first Christmas in Australia.
52 Section 120(2) requires the Minister (or his delegate) to give to a visa holder particulars of information that “would be the reason, or part of the reason, for cancelling a visa”, that is specifically about the holder, and was not given by the holder. Sections 120 and 121 require that steps be taken to ensure the holder understands why the information is relevant to the cancellation of his or her visa and that the holder be afforded an opportunity to comment on it.
53 Section 120 is similar in its operation to s 359A (in respect of the Immigration Review Tribunal) and s 424A (in respect of the Refugee Review Tribunal). In Singh v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 531 at 536-537 I discussed the operation of those provisions. Relevantly, for present purposes, at 537 I stated that while relevant information will be information that is material and adverse to an applicant, the enlivening of the statutory obligations concerning the information only arises in respect of information that would be a reason or part of a reason for the decision in question. Thus, whether a breach of the statutory requirements has occurred will usually only be ascertainable from the written reasons for the decision.
54 There will usually be little difficulty in ascertaining whether information would be a reason or part of the reason from a decision of the Immigration Review Tribunal or the Refugee Review Tribunal as each Tribunal is required to set out the reasons for its decision in writing and its findings on material questions of fact (ss 368 and 430 respectively). Thus, the reasons will disclose whether particular information was a reason or part of a reason for the decision.
55 Although the approved form requires a decision-maker to briefly set out “the reasons for the decision” to cancel a visa there is no statutory requirement in that regard in respect of that decision nor is there any requirement to set out findings on material questions of fact.
56 The cancellation decision is recorded in the approved form completed by the delegate. The information contained in the form does not state that any statements by Ms Hart but, more particularly, the statements relied upon by the applicant, were a reason or part of a reason for the cancellation decision, nor does it contain information from which I would be prepared to infer that the statements were a reason or part of a reason for the decision. Indeed, the reasons given by the delegate are that she placed greater weight on the shipment receipt and the letter than on the applicant’s assertions that he intends a short temporary stay in Australia. There is no reference in the record of the decision to anything said by Ms Hart. While the relevant statements, together with other relevant information, were included in the delegate’s inspectors report that does not afford a basis for concluding that the statements were a reason or part of a reason for her decision. It is a matter of speculation as to whether the delegate placed any reliance on the statements in reaching her decision.
57 Accordingly, the applicant has not established that the information relied upon is “relevant information” for the purposes of s 120(2). The applicant also relied upon other statements made by Ms Hart in support of his contention that the procedural requirements set out in s 121 in relation to an invitation to the visa holder to comment on relevant information were not complied with. As I am not satisfied the information in question is “relevant information” the provisions of s 121 are not applicable to these statements.
(c) A breach of the rules of natural justice/procedural fairness
58 The applicant contends that the delegate failed to give the applicant an opportunity to deal with adverse matters that she was proposing to take into account in determining whether to exercise her power to cancel the applicant’s visa. The matters said to be adverse to the applicant’s interests were the two statements by Ms Hart referred to above. In order to understand the applicant’s contentions on this issue it is necessary to recount certain matters.
59 The applicant’s temporary visa permitted him to remain in Australia for three months. When he arrived on 21 November 2001 he held a return air ticket with a booking for his return to the United States on about 12 December 2001. Nonetheless the applicant stated that he intended to stay approximately one month.
60 The issue of fact for the delegate to determine was whether the applicant did not have “an intention only to visit Australia temporarily for tourism purposes”. In the approved form the delegate stated the possible ground for cancellation to be the applicant’s “intention to reside permanently in Australia”. Plainly, the shipping receipt and the letter afforded strong grounds for that view. In the interview with the delegate the applicant explained his intention to come to Australia in the future but said his visit on this trip was temporary as he was proposing to return to the United States to earn enough money for a down payment on a house he and Ms Hart wished to acquire when he returned to Australia. He said he was a genuine visitor and denied having an intention to settle permanently during the present trip or to apply for permanent residency on this trip.
61 The delegate then interviewed Ms Hart in the arrival hall where she was waiting for the applicant. The inspector’s report records the conversation as follows:
“At 12.34 pm I spoke to Jennifer Hart in the arrivals area. In summary I explained to Jenny what was happening with pax [passenger]. She stated that both were unsure at this time what they wish to do but hope to settle in Australia. Jenny stated that she had returned from the U.S.A. for family reasons as she had been in the U.S.A. for 4 years. She claimed that the shipment of personal effects were combined personal effects, not just hers and that she will be providing support for pax during his stay. Jenny is currently living with her parents but has arranged to rent in the near future. She is not currently employed but expects to take up an employment contract in December.
In respect of intention to remain permanently, she stated that they both have looked into it and are unsure whether to reside in Australia or the U.S.A. if he couldn’t lodge in Australia the return ticket he holds would act like a safe guard. She stated that they had received a migration pack and have seen migration agent BDO, Harriet Mantell in October who had explained the process to them.
Jenny stated reason for pax to visit is because her aunt has cancer and a 40% chance of survival, she would also like this to be his first Christmas here.”
62 The delegate then recommenced her interview with the applicant. She asked some questions about previous immigration advice sought by Ms Hart and the applicant, the shipment from the United States to Australia of the personal effects of the applicant and Ms Hart and a number of other matters arising from her interview with Ms Hart. Although the delegate did not, in terms, put to the applicant the two statements of Ms Hart, she did say:
“Jenny also mentioned that you would like to live in Australia, but you haven’t finally decided whether you would live in Australia yet.”
63 The delegate also asked if there was any reason the applicant had not applied to migrate permanently to Australia.
64 Towards the conclusion of the further interview the delegate stated:
“THE DELEGATE: All of this doesn’t make much sense to me, because you moved all your personal effects to Australia, you’ve brought your dog to Australia, you have a letter to a friend that you haven’t sent yet saying that you’re moving to Australia, which is hard evidence of fact, you have an intention to remain permanently in Australia, but ---“
to which the applicant responded:
“There again, I mean, that’s just a coincidence, and that’s our personal belongings, that stuff that I’m, you know, bringing down here to give to her, and the only thing I can offer is that, you know, I should be allowed to, you know, honour my word, that I’m here to visit and I’m going to go back. I mean, I’ll be on the plane. I mean, that’s as good as I can do for you. I understand that it’s a tricky call on your part and it’s a – you know, I mean, but I’m telling you now, I’m on the plane and, I mean, that’s what I have to do. So, you know, I mean, it’s just, I guess, whether you want to allow me to have that opportunity to, you know, be true to my word. So, I mean ---”
65 After a short break the delegate informed the applicant that she had decided to cancel his visa.
66 The applicant submitted that the statement by the delegate that, if the applicant couldn’t lodge an application for a permanent visa in Australia his return ticket was like a safeguard, was adverse and material information that ought to have been, but was not, put to the applicant. The immediately preceding statement of Ms Hart was that she and the applicant were unsure whether to reside in Australia or the United States. That matter was put to the applicant.
67 The statement relied upon was about the possibility of lodging an application in Australia with the return ticket acting as the safeguard that the applicant would return. It was made in the context of Ms Hart seeking to re-iterate that the applicant was a genuine visitor. The statement is not necessarily inconsistent with the genuineness of the applicant’s visit as it does not suggest that the applicant does not intend to return to the United States as planned. It also does not appear to have been regarded by the delegate as adverse to the applicant. However, it is arguable that the statement implies that if the applicant can obtain a permanent visa on this visit he may stay on in Australia but if he does not the return ticket will ensure his return. The problem with this interpretation is that the delegate raised that issue with the applicant.
68 In Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 I made certain observations about the rules of natural justice that are apposite:
“…the decision-maker must bring to the applicant’s attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa at 587 per Mason J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481. It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant’s attention, or that the applicant is on notice of its ‘essential features’: see Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 247; Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123; Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230; McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600-601; Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540 at 548.”
69 Thus, even if the arguably adverse interpretation of Ms Hart’s statement were to be accepted I am satisfied the “gravamen or substance of the issue” raised by the statement was put to the applicant and he was on notice as to its “essential features”. In the course of the delegate’s interview with the applicant, both before and after the interview with Ms Hart, the delegate fairly and directly raised with the applicant the issues of whether he was not a genuine visitor, whether he was intending to apply for a permanent visa while he was in Australia, and whether he intended to stay on in Australia. The fact that the delegate did not put the actual statement made by Ms Hart to the applicant does not have the consequence that the rules of natural justice were not complied with.
70 The further statement that Ms Hart would like this to be the applicant’s first Christmas in Australia does not suggest the applicant is not a genuine visitor and, in my view, was not material or adverse to his interests. Also, it does not appear to have been regarded as adverse by the delegate. The applicant stated to the delegate that his stay was for approximately a month, which would take him to shortly before Christmas. I do not regard the wish that the applicant be in Australia for Christmas as inconsistent with his stated intention to be a genuine visitor or to depart after approximately a month.
71 Accordingly, I do not accept the applicant’s contention that the rules of natural justice or procedural fairness were not complied with by the delegate.
(d) Failure to comply with Departmental policy
72 The applicant put a number of submissions based upon MSI 340. The MSI states a number of “primary considerations” that are relevant to the exercise of the discretion to cancel a temporary visa, assuming the ground for cancellation is made out. The considerations include the purpose of travel to and stay in Australia, the extent of non-compliance with any conditions subject to which the visa was granted, the degree of hardship that may be caused to the visa holder and any family members, the circumstances in which the grounds of cancellation arose and the holder’s behaviour in relation to the Department, now and on previous occasions.
73 The applicant submitted that the delegate was bound to have regard to all of the primary considerations on the basis that MSI 340 was a Ministerial direction under s 499(1) or s 496(1A) of the Act (see Sandoval v Minister for Immigration and Multicultural Affairs [2001] FCA 1237 (“Sandoval”) at [60]-[65]). In the alternative, it was submitted that the decision maker was bound to take into account the existence and content of a lawful policy as a relevant consideration (see Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 at 205-208).
74 There are a number of difficulties with the applicant’s submissions. While it is correct that in Sandoval Gray J concluded that MSI 316 (a predecessor of MSI 340) was a binding ministerial direction under s 499 or s 496(1A) of the Act, it appears that his Honour arrived at that conclusion based on inferences he drew from the document. However, in the present case a Departmental officer has, in an affidavit, explained the process by which a document such as an MSI becomes a ministerial direction for the purposes of the Act. It is unnecessary for present purposes to outline that process as the process is not in dispute and it is also not in dispute that it has not yet occurred in relation to MSI 340. It is clear from the affidavit that MSI 340 is not a ministerial direction for the purposes of s 499(1) or s 496(1A). It follows that the contentions based on Sandoval cannot be made out.
75 There are also a number of difficulties with the argument that the delegate was bound to take into account as a relevant consideration each of the primary considerations to which I have referred. It is clear from the evidence that MSI 340, while expressing Department policy, sets out guidelines which as a matter of policy are not to be regarded by decision makers as inflexible. Further, the operation of the guidelines in any particular case must have regard to the circumstances of that case. Thus, if no material raising the issue of hardship is proffered by or on behalf of a visa holder the decision maker is unlikely to be required to consider that issue.
76 In the present case the applicant did not raise hardship as an issue. I am not satisfied that there was material before the delegate that the cancellation of the temporary visa was likely to cause hardship to the applicant or to any of his family members. In that regard, I am prepared to assume (without deciding) that his relationship with Ms Hart was sufficient to treat her as a family member. Obviously, the visa cancellation decision is likely to cause concern and inconvenience but the material before the delegate does not establish that it is likely to cause hardship. Neither was the applicant’s past behaviour in relation to the Department relied upon by him in any significant respect. This is not surprising given that, whatever may have occurred in the past, the circumstances of his visit in November were different to those that had attended any previous visit. Thus, the material that might be said to raise any of the matters listed as primary considerations was sparse. It was certainly not of sufficient cogency or substance to be capable of resulting in the cancellation decision being set aside on the ground that the delegate did not consider the issues raised by that material.
77 In any event I am not prepared to assume that the delegate did not have regard to the relevant primary considerations. The fact that the delegate did not refer to those considerations does not mean that she disregarded them. There is nothing in the material before me that would warrant a conclusion that the delegate did not consider the consequences of the cancellation for Ms Hart and the applicant and also the applicant’s prior behaviour in relation to the Department.
78 Accordingly, the grounds relied upon by the applicant in relation to MSI 340 have not been made out.
(e) Errors of law
79 The applicant submitted that the delegate misunderstood the nature and scope of the discretion she was required by s 116(1) to exercise. In substance, it was submitted that on a fair reading of the delegate’s record of her decision she failed to appreciate that she was exercising a discretionary power and erroneously assumed that, upon the ground of cancellation being made out, she was obliged to cancel the applicant’s visa.
80 In my view there is no merit in that submission. The approved form, which was duly completed by the delegate, deals separately with whether the grounds of cancellation have been made out, and whether there are any other reasons why the visa should not be cancelled. The form, and the manner in which the cancellation decision is recorded, deal separately with the ground of cancellation and with “other reasons” which are only relevant to whether the discretionary power to cancel should be exercised. While it is correct that the response recorded as having been given by the applicant in respect of “other reasons” was that he is a genuine visitor, and therefore merely reiterated the ground of cancellation, it was a matter for the applicant, rather than the delegate, to raise other reasons. In the present case neither the applicant or Ms Hart proffered “other” reasons why the visa should not be cancelled. Thus, the material did not raise any discretionary factors against cancellation.
81 Accordingly, I am not satisfied that the submission that the delegate failed to understand that she was exercising a discretionary power is made out.
82 It was also submitted that the delegate conflated two distinct concepts in exercising her power. It is said that she regarded an intention to reside permanently in Australia as synonymous with an intention to apply for a visa to reside permanently in Australia while the applicant was in Australia. I am not satisfied that there was any such conflation. Whether or not the applicant had an intention to apply for a visa to reside permanently in Australia while he was here (and by implication, remain in Australia) was capable of being properly treated by the delegate as a matter that can be logically probative of the applicant’s current intention concerning the purpose of his visit to Australia. The question of an application for a visa for permanent residence arose in the context of the shipping receipt and the letter which suggested the applicant was moving permanently to Australia. An intention on the part of the applicant to apply for a permanent visa while in Australia was capable of being relevant to whether he did not have a genuine intention to visit Australia temporarily.
83 Accordingly, I am not satisfied that any error of law was involved in the exercise of the delegate’s power to cancel the applicant’s visa.
84 It follows from the foregoing that the grounds relied upon by the applicant have not been made out; there was no breach or failure to comply with any obligation imposed by law in respect of the cancellation decision and it is therefore unnecessary to determine the operation of s 474 in the present case. Accordingly, the application must be dismissed.
Costs
85 Senior counsel for the Minister accepted that the complexity and costs of the present proceeding had been substantially increased by the fact that he raised the question of the operation of the new s 474 of the Act, a matter of some importance, and that it was appropriate for the Court to make some allowance in respect of costs as a result of that circumstance in the event that the Minister succeeds in having the application dismissed. In
all the circumstances it is appropriate that costs follow the event but that the applicant ought to only pay only one half of the Minister’s costs, excluding the costs of senior counsel.
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I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. |
Associate:
Dated: 20 December 2001
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Counsel for the Applicant: |
Mr P R D Gray |
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Solicitor for the Applicant: |
Erskine Rodan & Associates |
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Counsel for the Respondent: |
Mr A C Cavanough QC with Mr S G E McLeish |
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Solicitor for the Respondent: |
Australian Government Solicitor |
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Date of Hearing: |
3 and 6 December 2001 |
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Date of Judgment: |
20 December 2001 |
