FEDERAL COURT OF AUSTRALIA

Wang v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 167

MIGRATION – cancellation of Business Entry (Class UC) Subclass 457 Business (Long Stay) Visa – whether requirement to give notice of cancellation of visa complied with – power to revoke cancellation of the visa – whether consideration of a response to a notice of cancellation constituted an essential pre-condition to the exercise of the power to revoke or refuse to revoke the cancellation.

MIGRATION – operation of privative clause – whether privative clause precluded review of a decision made in the absence of an essential pre-condition to the exercise of the power to

make the decision.

Migration Act 1958 (Cth) – ss 103, 116, 128, 129, 131, 474, 475A, 476

Judiciary Act 1903 (Cth) – s 39B, 39B(1A)

Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 – considered

Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 – referred to

Green v Daniels (1997) 51 ALJR 463 – referred to

O’Toole v Charles David Pty Ltd (1990) 171 CLR 232 – referred to

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 – considered

R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 – applied

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 – applied

R v Murray; Ex parte Proctor (1949) 77 CLR 387 – applied

Tickner v Chapman (1995) 133 ALR 226 – applied

Walton v Ruddock [2001] FCA 1839 - considered

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

S.187 of 2001

MANSFIELD J

27 FEBRUARY 2002

ADELAIDE

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.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This application seeks orders under s 39B of the Judiciary Act 1903 (Cth) declaring that a decision of a delegate of the respondent made under s 131 of the Migration Act 1958 (Cth) (the Act) on 2 October 2001 is invalid and of no effect, and setting aside that decision.  The application was lodged with the Court on 22 October 2001, so the Act as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which came into force on 2 October 2001 applies:  see Schedule 1 Item 8(2)(b) of that amending Act.  Consequently, if the applicant demonstrates some error on the part of the delegate in the making of the decision of 2 October 2001, it will be necessary to address the application of the privative clause contained in s 474 of the Act.  The respondent does not dispute that the Court has jurisdiction to make the orders sought under s 39B of the Judiciary Act.  Section 475A of the Act recognises that jurisdiction, and s 476 of the Act does not exclude it:  s 475A(b) of the Act.

2                     The applicant is a national of China.  On 1 March 2001 he was granted a Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) Visa.  The basis of the applicant’s application was 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 art classes at its Mars Sporting Complex.  The visa entitled him 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 applicant, also on 1 March 2001.

3                     The application for the visa was made by the applicant on 26 February 2001.  It was accompanied by 23 documents or categories of documents, in general attesting to the applicant’s professional skills, qualifications and experience as a martial arts instructor.

4                     On 18 July 2001, following the receipt of certain information, a delegate of the respondent cancelled the applicant’s visa under s 128 of the Act.  It was appropriate for that cancellation decision to be made under s 128 of the Act because, at the time, the applicant was no longer in Australia, having departed Australia on 13 July 2001.  It was, therefore, not necessary for the applicant to be given notice of the intention to cancel the visa prior to its cancellation.

5                     Section 116 of subdivision D of Pt 2 Div 3 of the Act empowers the respondent to cancel a visa in certain circumstances.  Subdivisions E and F prescribe procedures for cancelling visas under subdivision D.  The procedures prescribed in subdivision E apply “Subject to Subdivision F (non-citizens outside Australia)”, and impose a process of notification of the apparent grounds for cancellation and then the opportunity to respond before a decision is made to cancel a visa.  It is common ground that subdivision E did not apply to the applicant.

6                     Subdivision F contains ss 128 – 133.  Section 128 provides:

“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.”

7                     But for the cancellation, the visa would have entitled him to re-enter Australia from time to time thereafter.  The ground of cancellation was that available under s 116(1)(d) which relevantly provides 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;”

The term “enter” includes “re-enter”:  see the definition of “entry” in s 5 of the Act.

8                     The applicant was notified of the cancellation of the visa by letter dated 18 July 2001.  It was in the following terms:

“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.

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.”

9                     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.”

As can be seen, where a visa has been cancelled under s 128, the respondent is obliged to give notice of that cancellation to the person whose visa has been cancelled.  By reason of s 129(1)(b) the notice must include particulars of the ground of cancellation and of the information because of which that ground was considered to exist.  That information was not “non-disclosable information”.

10                 The delegate of the respondent, by memorandum dated 18 July 2001, had recorded the basis upon which the applicant’s visa had been cancelled.  It was called by the parties the Reasons for Decision.  I shall adopt that description.  After referring to the grant of the visa and the basis upon which that visa had been granted, it recorded:

“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.”

It then referred to s 103 of the Act and to s 116(1)(d) of the Act, and concluded that a ground for cancellation exists under s 116(1)(d) of the Act, that the visa holder is outside Australia, and that it is 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”.

11                 As noted above, if the applicant had been in Australia at the time of the decision to cancel his visa, he would have been entitled to the benefit of the procedures prescribed under subdivision E of Division 3 before the visa was cancelled. 

12                 The structure of ss 128-133 in subdivision F is that the cancellation first occurs, and then s 129 operates so that the person whose visa has been cancelled is notified of the cancellation in terms which enable that person to respond to the cancellation.  If a response is made to a notice under s 129, s 131 then obliges the respondent 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.

13                 The applicant contends that s 129(1) was not complied with in the circumstances because he has not been given notice of the information about which documents were found to have been bogus, and about why those documents were considered to be bogus, although the delegate of the respondent in the Reasons for Decision identified three specific documents which he considered to be bogus and the foundation for that view.

14                 The applicant through his migration agent responded to the letter of 18 July 2001 on 21 August 2001, within the period prescribed.  That letter 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 traveled [sic] to Korea to sign the martial art championship competititon to promotion [sic] the Australia 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.”

It claimed that the applicant had been unable to identify which of the many documents attesting to his skills qualifications and experience as a martial arts instructor had been found to be bogus.  The applicant was therefore unable specifically to respond in relation to the three documents about which the delegate of the respondent had in fact made such a finding.

15                 The next event was the decision purportedly made under s 131 of the Act declining to revoke the cancellation of the visa.  The applicant was notified of that decision by letter dated 2 October 2001 in the following 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.

If you wish to travel to Australia you will need to make another visa application.  However, I can give no indication of the possible outcome of that application.  Please contact your nearest Australian mission for further information.

I will leave your original documents at the reception desk of my office for you to arrange collection.”

Reference is made in that letter to Reasons for that decision as set out in an attachment.  The attachment is a minute of the reasons for the decision not to revoke the cancellation of the visa.  It is unnecessary to refer to that document in any detail, save to note that the delegate on that occasion considered that the applicant “has presented a number of bogus documents and that these include” three identified documents or classes of documents, of which only one is within the category of three documents previously found by the same delegate to have been bogus.  Nothing turns on that matter in this application.

DID THE NOTICE OF CANCELLATION COMPLY WITH SECTION 129?

16                 The applicant’s migration agent (being the recipient of the notice of the cancellation of the visa pursuant to an appointment notified to the respondent) says that he did not receive the Reasons for Decision for cancelling the visa, but only the letter of 18 July 2001 itself.  The letter of 18 July 2001 does not expressly refer to any enclosure.  The delegate of the respondent has no specific recollection of the matter, but says (and I accept) that his usual practice would have been to send the letter of notification together with the Reasons for Decision, and that he has no reason to consider that he did not follow his usual practice and departmental policy by enclosing that document.  The respondent, through counsel, in those circumstances sensibly adopted the view of being unable to dispute the positive evidence of the applicant’s migration agent.

17                 In those circumstances, I accept that evidence.  I find that the Reasons for Decision of 18 July 2001 were not enclosed with the letter of notification of the cancellation of the visa of the same date.  The respondent accepts that the issues raised in the application for review should be determined on the basis that a copy of the Reasons for Decision were not provided to the applicant.

18                 I also find that the respondent did not comply with s 129 of the Act by giving to the applicant notice of the cancellation of the visa, of the ground of cancellation, and of the particulars of that ground and information because of which that ground was considered to exist.  That deficiency in the notification of the cancellation of the visa is a significant one, as it impaired the applicant’s ability to respond as s 129(1)(c) contemplates.

CONSEQUENCES OF THE NON-COMPLIANCE

19                 The respondent’s contention is that the decision of 2 October 2001 is a “privative clause” decision under s 474 of the Act so that, notwithstanding the failure to comply with s 129(1) of the Act, the Court has no power to grant the relief which is claimed.  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.”

The applicant accepts that the decision of 2 October 2001, if it had been made regularly in accordance with the Act, is a privative clause decision as defined in the Act.

20                 Section 474(2) defines privative clause decision as follows:

“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) identifies the decisions to which reference is made in the definition of privative clause decision to include the “ …revoking or refusing to make an order …”, and the “doing or refusing to do any other act or thing”:  s 474(3)(a) and (g).  As the applicant has acknowledged that, if regularly made, the decision of 18 July 2001 would be a privative clause decision, it is not necessary to explore further whether the decision under review does have that quality.

21                 The respondent acknowledges that the Court has jurisdiction under s 39B of the Judiciary Act to review the decision of the delegate.  He also accepts that, despite the literal width of s 474(1) apparently ousting the jurisdiction of the Court in circumstances such as the present, there are limited circumstances in which the Court may nevertheless review decisions under the Judiciary Act.  That jurisdiction exists under s 39B at least because it relates to a matter arising under a law of the Parliament:  s 39B(1A).

22                 The reason why the respondent acknowledges that s 474(1) cannot operate fully according to its terms emerges from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 (Hickman):

“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.  …  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 [a privative clause] 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 [in this case] 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 R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 (Coldham) Mason ACJ and Brennan J at 418 said:

“However, it has been established by a long course of judicial decisions in this Court that a privative clause in the form to be found in s 60 of the [Conciliation and Arbitration Act 1904 (Cth)] 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 (ie does not on its face go beyond the power) …” to use the words of Kitto J in Reg v Commonwealth Conciliation and Arbitration Commission; Ex Parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 252-253.”  [Further references omitted.]

23                 In this matter the respondent points out that none of those three conditions are met.  I accept that that is the case.  There is no challenge to the constitutional authority of the Parliament to pass a provision such as s 474 or to authorise the delegate of the respondent to have made the decision which he made.  There is no suggestion that the exercise of power by the delegate of the respondent was unrelated to the subject matter of the Act.  It is clear that the delegate of the respondent was in fact considering whether to revoke his decision to cancel the visa, and that that was the relevant subject matter to which s 131 directed his attention.  Nor has it been suggested that the delegate of the respondent, in making the decision under s 131 to refuse to revoke the cancellation of the applicant’s visa, was acting other than in a bona fide attempt to act in the course of his authority.

24                 Dixon J in R v Murray Ex parte Proctor (1949) 77 CLR 387 at 399-400 (Murray) pointed out that the apparent inconsistency between provisions which define and restrict the power of a Tribunal by prescribing the course it must pursue, and a provision which says that the validity of its determinations shall not be challenged or called into question on any account whatever, should be resolved by an attempt to arrive at the true intention of the legislative instrument.  His Honour pointed out that the first step in such a process is to apply to the privative clause the established principles which preclude the legislature from ousting the jurisdiction of the Courts, that is the three matters or conditions referred to in Hickman above.  It should not be supposed that the legislature would intend to contradict the constitutional power of the High Court under s 75(v) of the Constitution to ensure that legislative instruments are in accordance with the constitutional power from which they are derived.  His Honour then continued 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 [the privative clause].”

The respondent acknowledges that that is a matter which the Court should address.  That is, the respondent acknowledges that, if the Court were to find (as it has) that the delegate of the respondent did not comply with s 129(1) of the Act, it should then ask whether, construing the statutory scheme as a whole and giving proper weight and emphasis to the privative clause in s 474 of the Act, compliance with s 129 was intended to be an essential pre-condition to the exercise of power.  In other words, the respondent contends, the appropriate question for the Court is whether Parliament intended that such a contravention would render the decision invalid notwithstanding the terms of s 474(1) of the Act.

25                 In Coldham Mason ACJ and Brennan J at 419 said:

“But a clause like 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.” [References omitted.]

In that case, the Court found that the jurisdiction of the Australian Conciliation and Arbitration Commission under the Conciliation and Arbitration Act 1904 (Cth) depended upon the existence of the jurisdictional fact that employees were eligible for membership of the organisation in whose favour a representation order under s 142A(1) of that Act was made.  The Commission did not have power to determine that jurisdictional fact under that Act, so the privative clause in s 60 did not confer conclusive character upon the Commission’s finding about the existence of the jurisdictional fact.  That is a different circumstance from the present matter.

26                 The respondent submits that the appropriate question to be asked in this matter is whether, despite the general terms of the privative clause, the obligation to comply with s 129(1) was intended to be an essential pre-condition to the exercise of the power.  He submits that the question which the Court should address is the same as that identified in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 per McHugh, Gummow, Kirby and Hayne JJ, namely:

“ … to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.”

I do not think there is a significant difference in the manner of identifying the question to be addressed which, as Dixon J pointed out, is ultimately a question of construction.  See also per Gaudron and Gummow JJ in Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 (Darling Casino).  Their Honours said at 633:

“Mandamus and prohibition are remedies which are granted in cases of jurisdictional error – refusal to exercise jurisdiction, in the case of mandamus, an 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.”

Merkel J cited that passage in his Honour’s reasons for decision in Walton v Ruddock [2001] FCA 1839 at [30].  His Honour at [32] concluded that, consistent with the observations of Gaudron and Gummow JJ 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.”

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, 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”.

28                 Where the decision maker is claimed to have acted in excess of jurisdiction by reason of the limited terms of a valid law, rather than by reason of constitutional limitations upon the exercise of the jurisdiction (e.g. O’Toole), it is the terms of the enactment itself which will indicate whether they impose jurisdictional limitations or restraints upon the exercise of the powers which are “inviolable”.  In that situation, the expression “inviolable” must mean that the Parliament has intended that those limitations or restraints must be complied with if the decision in question is to be immune from judicial control under s 39B of the Judiciary Act, notwithstanding the provisions of the privative clause.  As their Honours said in Darling Casino at 633, the Parliament is not restricted by any constitutional imperative from enacting a privative clause which would ensure that an impugned decision is in fact valid and lawful.  It must be noted, however, that their Honours added the qualification that that can be done only “within the limits of the relevant legislative powers”. 

29                 In this matter, the applicant accepts that s 474 of the Act is a valid provision.  Moreover, he accepts that position even if it were found that the effect of s 474(1) of the Act were to be construed so as to exclude from the Court’s jurisdiction the power to make any order under s 39B of the Judiciary Act in respect of a failure to give notice as required by s 129(1).  He does not contend in this matter that s 474, even if it had that effect, would be beyond the legislative power of the Parliament.  The issue, as presented, is therefore one of ascertaining the intention of the Parliament.

30                 Section 474(2) defines a privative clause decision as one made “under” the Act.  However, in the particular circumstances, I do not consider it helpful to take the view that a decision which is made without compliance with the procedure in s 129(1) of the Act is not a decision “under” the Act because it is only a purported decision under the Act.  That would give s 474(1) little practical effect, as that approach would expose many decisions under the Act to review where the procedures prescribed were not complied with.  I do not consider that that result was intended by Parliament.  To the extent that the applicant, through his counsel, so contended I reject that submission.  Counsel for the applicant did not explore the full purport of the observations of Gaudron and Gummow JJ in Darling Casino at 635 adverting to the expression “under” an enactment as distinct from the expression “under or purporting to be under” the enactment.

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 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”.

32                 It 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:  see e.g. Tickner v Chapman (1995) 133 ALR 226 per Black CJ at 238 and per Kiefel J at 268.  Black CJ said:

“The meaning of ‘consider’ used as a transitive verb referring to the consideration of something is given in the Oxford English Dictionary, 2^nd ed, as ‘to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of’.  Consideration of a document such as a representation or a submission … involves an active intellectual process directed at that representation or submission.”

Kiefel J said:

“The scheme of the Act is such that it is only after a consideration of both the report and the representations that the minister may proceed to make a declaration.  Matters contained in them may influence whether the minister is satisfied as to the matters in s 10(1)(b) … the consideration of the representations is expressed as a precondition to the making of any declaration.”

33                 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 applicant’s response of 21 August 2001 shows, the absence of that information meant that the applicant’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 applicant was not given the information required so as to enable him to do so.

34                 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 respondent has wrongly precluded himself from attaining the requisite state of satisfaction.

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.

36                 I do not consider that in relation to a decision under s 131, there is any administrative consideration which points to an opposite conclusion.  There is no administrative inconvenience in adopting the view expressed above, because s 129(3) provides that the validity of the decision to cancel the visa is not affected by any failure to give the notice required by s 129(1).  The cancellation of the visa operates, notwithstanding the failure to give a proper notice under s 129.  That cancellation of the applicant’s visa continues to operate.

37                 For those reasons, I have reached the view that the proper construction of the Act, in the circumstances as I have found them, means that no valid decision under s 131 of the Act has taken place.  I have also reached the view that s 474(1) of the Act is not intended to preclude the Court from granting appropriate relief under s 39B of the Judiciary Act.  There are no other reasons apparent to me, nor any put forward by the respondent, why I should not exercise my discretion to grant appropriate relief.

38                 I therefore declare that the decision made by a delegate of the respondent on 2 October 2001 declining to revoke the cancellation of the visa, a cancellation decision made under s 128 on 18 July 2001, is invalid and of no effect. In view of the decision I have reached, the respondent should now give to the applicant the notice which s 129(1) required.  On the assumption that the applicant responds, the respondent will have to consider that response and then, in the light of that consideration, address the alternative matters identified by s 131(1)(a) and (b) to decide whether to revoke the cancellation of the visa.  At this point, I do not see it as necessary to make any further orders to require the respondent to give notice  to the applicant under s 129(1) of the Act.  I will give the applicant leave to apply for further orders if the respondent, in the light of this decision, does not now give to the applicant a proper notice under s 129(1) of the Act.  If the applicant then responds, that will enliven the obligation of the respondent to make a decision under s 131 of the Act.

Associate:

Dated:              27 February 2002