FEDERAL COURT OF AUSTRALIA

Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311       

ADMINISTRATIVE LAW – jurisdictional error – whether Tribunal made jurisdictional error in failing to consider claim that applicant provided financial or emotional assistance so as to entitle applicant to visa – claim rejected in course of hearing although not referred to in reasons – whether really failure to consider claim – whether error of fact or law involved – whether privative clause precluded court from granting prerogative writ – principle in R v Hickman

Migration Act 1958 (Cth) ss 474,476

Judiciary Act 1903 (Cth) s 39B

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied

Darling Casino Ltd v New South Wales Casino Authority (1997) 191 CLR 602 discussed

Craig v The State of South Australia (1995) 184 CLR 163 applied

Paramanantham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 cited

Ahvazi v Minister for Immigration and Multicultural Affairs [2002] FCA 279 cited

R v Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 KB 338 (CA) cited

Anisminic v Foreign Compensation Commission [1969] 2 AC 147 referred to

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

Minister for Immigration and Multicultural Affairs, Re; Ex parte Cohen (2001) 177 ALR 473 distinguished

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 followed

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 cited

Wu v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 548 referred to

R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australia Ltd (1947) 75 CLR 361 cited

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

R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (1967) 118 CLR 219 cited

R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union  (1951) 82 CLR 208 cited

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

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

R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415 cited

O’Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232 cited

Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 cited

Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 referred to

Lednar v Magistrates’ Court (2000) 117 A Crim R 396 cited

WC & AC Morin Pty Ltd v Queensland Fisheries Authority [2000] QSC 169 cited

Walton v Ruddock, Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1839 referred to

Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 referred to

NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 approved

Aronson and Dyer Judicial Review of Administrative Action 2^nd ed. 2000

Leslie Zines, “Constitutional aspects of judicial review of administrative action” (1998) 1 Constitutional Law and Policy Rev 50

RATUMAIWAI V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N1503 OF 2001

HILL J

20 MARCH 2002

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the Minister’s costs.

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

REASONS FOR JUDGMENT

1                     The applicant, Anare Sua Ratumaiwai, is a resident of Fiji.  He applied for a Family (Residence) (Class AO) visa claiming to be a “special need relative” in relation to his brother, Jolame Takona Ratumaiwai, (“the brother”), a resident of Australia.  His application was refused by a delegate of the respondent Minister for Immigration and Multicultural Affairs (“the Minister”).  He then sought review of the delegate’s decision by the Migration Review Tribunal (“the Tribunal”).  The Tribunal affirmed the decision of the delegate that the applicant was not entitled to the grant of the visa.  He then applied to this Court, relying upon s 39B of the Judiciary Act 1903 (Cth) for the grant of a writ of certiorari, a writ of mandamus or a writ of prohibition. 

2                     The ground upon which it was claimed that a prerogative writ should issue was stated to be that the Tribunal committed an error which went to its jurisdiction in failing to take into account a relevant consideration, that being either that the applicant provided financial assistance or that the applicant provided emotional support to the brother.

3                     The Minister opposed the grant of any writ on the basis of s 474(1) of the Migration Act 1958 (Cth).  That subsection provides:

“(1) A privative clause decision:

(a)      is final and conclusive; and

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

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

Subsection (2) of the same section defined “privative clause decision” in the following terms:

“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).”

4                     There is no dispute between the parties that the Tribunal’s decision to affirm the decision of the delegate was a decision of an administrative character made, or at least, purporting to have been made under the Act.  It is also common ground that the Tribunal’s decision does not fall within subsections (4) or (5) of s 474 so as to fall outside the definition of privative clause decision.

5                     The question which thus falls for decision is the effect of s 474(1) in the present case and, particularly, whether it operates to require the Court, as counsel for the Minister submits, to dismiss the present application.

6                     Because the submissions of counsel for the applicant depend upon it being shown that the Tribunal made a jurisdictional error in the way it dealt with the review before it, it is first necessary to set out the relevant legislative or regulatory requirements for the issue of a subclass 806 Family Visa and outline the Tribunal’s reasons for decision so as to see whether it is correct to conclude that the Tribunal made a jurisdictional error.  If it did not then the applicant concedes that the application must be dismissed and that it would be unnecessary to determine what the effect of s 474(1) is in the present case.  If, however, it is the case, as the applicant submits, that the Tribunal made a jurisdictional error, then, but only then, will it be necessary to consider the effect of s 474(1) of the Act.

The legislative background

7                     The criteria which an applicant for a Family (Residence) (Class AO) visa (the relevant subclass here is subclass 806) are to be found in clause 806.213 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).  At relevant times the clause required that at the time of application and at the time of decision the applicant for a visa be a “special need relative” of a person who has nominated the visa applicant for the grant of the visa.  The nominator must be “settled”, a term defined in regulation 1.03.  The question whether the brother was “settled”, (a person will be “settled” where the person is “lawfully resident in Australia for a reasonable period”) was not in issue.

8                     The term “special need relative” was defined in regulation 1.03 at the relevant time as follows:

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

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

(b)        the assistance cannot reasonably be obtained from:

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

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

9                     The brother had suffered an injury to his back and his knee due to heavy lifting and carrying at work.   The Tribunal found that he had a disability, namely bilateral osteo-arthritis of the knees.  The Tribunal found also that the brother did not have a permanent or long-term need for assistance because of this disability.  The Tribunal wrote that it made this finding because the brother was at home during the day for long periods when the applicant was at work and there was no evidence of anything which the brother could not do while he was alone.  The Tribunal found, also, that the brother had made no effort to ameliorate his condition by the use of physical aids such as a stool (to sit on while making meals) or a walking frame.  The evidence of the brother was that he had pain and loss of mobility because of the osteo-arthritis and that he needed assistance with cooking, laundry and other household chores.

10                  The Tribunal found further that assistance was available to the brother to enable him to attend church, attend medical appointments or do shopping, activities which the brother’s lack of mobility would render difficult and in which the applicant provided assistance to the brother.  So, the applicant in his evidence deposed that he did the shopping, took the brother to church and went with him to medical appointments.  They then both travelled by taxi.  The Tribunal noted a concession that members of the church congregation would be likely to provide transport for him to attend church and further noted that there was no evidence that such persons would not do so to assist the brother to shop.  The Tribunal thus found that the brother had no need for long-term assistance because of death, prolonged mental or physical illness or any other serious circumstances.  Accordingly the Tribunal was of the view that the applicant was not a special need relative at the time of the visa application.  It was unnecessary for the Tribunal to consider whether this was also the case at the time of the Tribunal’s hearing.

11                  The criticism made by counsel for the applicant of the Tribunal’s decision was that the Tribunal had not addressed the question whether the applicant had, as the applicant said, provided to the brother financial assistance and emotional assistance.  By failing to consider these alternative forms of assistance which the applicant said he provided to the brother and confining himself solely to the physical assistance which the applicant provided (ie help with preparing meals, the laundry and housework, and transporting the applicant to church, to shop and for medical appointments) the Tribunal had, it was submitted, made a jurisdictional error.  That jurisdictional error might be characterised as a constructive failure to exercise jurisdiction, an error of law, or as a failure to take into account relevant considerations cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21-2.  It might be noted here that counsel for the Minister did not dispute that a failure to take into account a relevant consideration could constitute jurisdictional error.  Rather it was submitted that jurisdictional error could not be shown here, or alternatively was not shown here for a number of reasons, being:

·                    The Court could not receive into evidence the transcript of the proceedings so as to enable it to be established whether the applicant sought to ask the Tribunal to take into account financial and emotional assistance, and whether the applicant in fact gave evidence that he was prepared to provide assistance of that kind to his brother. 

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

·                    A matter could only be a relevant consideration so as to found jurisdictional error if the matter was one the decision maker was bound to take into account and the decision maker was not, in the present case, bound to take into account either financial or emotional assistance.

·                    Finally the Tribunal made no jurisdictional error in a case such as the present, where the applicant did not, at the hearing before the Tribunal seek to make a case involving financial or emotional assistance and did not ask the Tribunal member to rule on that case.

Jurisdictional Error – the authorities discussed

12                  As Gaudron and Gummow JJ pointed out in Darling Casino Ltd v New South Wales Casino Authority (1997) 191 CLR 602 at 633 mandamus and prohibition both provide remedies in cases of jurisdictional error.  Mandamus is granted for refusal to exercise jurisdiction, prohibition for acting in excess of jurisdiction. A writ of certiorari is available to correct an error which appears on the face of the record. 

13                  A general description of what constitutes jurisdictional error is to be found in the decision of Brennan, 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.”

14                  Where a Tribunal fails to address a matter, the decision on which could affect the outcome of the Tribunal’s review, the failure of the Tribunal to do so will constitute a jurisdictional error because the Tribunal will have failed to exercise its jurisdiction.  Such a failure is often referred to as a constructive failure to exercise jurisdiction.  However, it will normally only be the case that the Tribunal has made a jurisdictional error by failing to address an issue where the matter is raised by the evidence and the applicant requests the Tribunal to address the matter.  It is not for the Tribunal to make out a case for an applicant, nor is it, in my opinion, for the Tribunal to have to dredge through the totality of material which may be before it to discover whether somewhere among that material there is an argument that might be relevant to an applicant’s case.    It will be different where the facts before the Tribunal clearly raise an issue, a decision on which may affect the outcome of a review.  In such a case the Tribunal will usually have an obligation to address that issue, even if the applicant does not request directly that the Tribunal do so: Paramanantham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63; Ahvazi v Minister for Immigration and Multicultural Affairs [2002] FCA 279 at par 16-18.

15                  While it is clear law that in the case of a writ of certiorari the error must appear on the face of the record, (although it seems that jurisdictional error can be proved by going outside the record, cf Aronson and Dyer Judicial Review of Administrative Action 2^nd ed. 2000 at 177and Craig at 176) that is not the case where mandamus or prohibition is sought.  If only certiorari had been sought in the present case there would be a question whether the transcript of proceedings before the Tribunal could be admitted into evidence.  That question would then fall to be determined by reference to the question whether the error was jurisdictional and also the question whether the transcript could be regarded as part of the record.  Be that as it may, because prohibition is sought, there is no impediment in the Court receiving the transcript into evidence, subject to the relevance of the transcript in showing jurisdictional error, since the Court is not confined to the record of the Tribunal’s decision.  It was for that reason that I accepted a tender of the transcript here.  While the transcript could likewise be looked at in determining whether there was a refusal to exercise jurisdiction, there is a difficulty in the present case in granting a writ of mandamus unless the Tribunal is a party to the proceedings.  The order, if granted, would necessarily be addressed to the Tribunal commanding it to exercise its jurisdiction.  That difficulty does not, however, arise in the case of a writ of prohibition which may be addressed to the Minister to prevent the Minister giving effect to the decision, which was made in excess of jurisdiction. 

16                  Judicial review, it is trite to say, differs from an appeal.  It is an exercise of the supervisory jurisdiction of the Court.  Historically, judicial review was initiated by prerogative writ.  The procedural difficulties of prerogative writs led, in Australia, to the enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth)which, where applicable, provided a simple procedure for judicial review and codified the grounds of such a review.  In judicial review proceedings the Court may correct an error of law made by an administrative decision maker.  However, errors of law may arise in circumstances where the decision maker acted within jurisdiction, although in doing so came to the wrong conclusion as well as in circumstances where the decision maker acted without jurisdiction, cf R v Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 KB 338, 346 (CA).

17                  As will be discussed in more detail later, Parliament may enact legislation designed to protect administrative decisions from judicial review.  In Australia provisions of this kind are usually referred to as “privative clauses”.  They have a long history in this country and in the United Kingdom where they are sometimes referred to as “ouster clauses”, see, for example, Anisminic v Foreign Compensation Commission [1969] 2 AC 147 at 170 per Lord Reid. Both in Australia and in the United Kingdom, such clauses have been strictly construed.  It suffices here merely to note that, subject to the exceptions which are discussed in the pivotal judgment of Dixon CJ in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, such clauses will operate both in Australia and in the United Kingdom to preclude a Court on judicial review correcting an error of law that is made within jurisdiction.  However, the effect of the case law would seem to be that such clauses are construed (as will be seen, the meaning of such clauses involves an issue of interpretation) as not precluding the Court from examining whether the decision, otherwise protected, was made outside the jurisdiction of the decision maker and, if made without jurisdiction from setting it aside. 

18                  It is important to emphasise here at the risk of being repetitive, that not all decisions involving legal error are decisions made in excess of jurisdiction.  That this is so is clear from Craig at 176.  It follows, from this that a privative clause will, subject to the three exceptions in Hickman clearly preclude a Court in proceedings initiated by certiorari, mandamus or prohibition from setting aside a decision where there is legal error which does not go to jurisdiction.  

19                  Where the Tribunal wrongly excluded age as a consideration relevant to whether an applicant for a visa had a disability McHugh J held in Minister for Immigration and Multicultural Affairs, Re; Ex parte Cohen (2001) 177 ALR 473 that no jurisdictional error was disclosed.  First, it could not be said that the Tribunal had failed to take into account a relevant consideration, for it had done so, even if in so doing it acted erroneously.  Secondly, the fact that the Tribunal was wrong in failing to regard age as involving a disability did not constitute jurisdictional error.  Rather the Tribunal had made a mistake of fact in the meaning of an ordinary English word: Ex parte Cohen (2001) 177 ALR 473 per McHugh J, even if it did so by applying a precedent that was ultimately found to have been wrongly decided.  It would seem that his Honour would have reached the same conclusion even if the question whether age was a disability involved not an error of fact, but an error of law.   His Honour said at 481-482:

“Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.

If an administrative tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide.  But questions of fact are ordinarily for an administrative tribunal to determine and so are the reasoning processes employed to make such findings.  Disagreement with a finding of fact or the reasoning process used to find it is usually a slender ground for concluding that a tribunal misconceived its duty.”

Whether the Tribunal made a jurisdictional error

20                  When regard is had to the transcript of the proceedings in the Tribunal it can be seen that the Tribunal member asked the applicant in what ways he provided assistance to the brother.  After stating that he did the cooking because the brother could not stand, as well as the washing and cleaning the applicant said that he paid for food and also paid the electricity bill each month.  He said “looking at the moneywise, he usually hasn’t got the money.”  The Tribunal member then said:

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

21                  Later in the interview the Tribunal member noted that in the papers before him it said that the applicant gave emotional support.  To this the Tribunal Member said:

“…but we don’t actually have any evidence that he has got anything wrong mentally.  Is that correct?”

22                  The applicant replied in the affirmative.  The Tribunal then repeated the question that “there’s no evidence to suggest that the brother had any sort of mental illness or disability.”  The applicant again replied that the brother had no mental illness.

23                  Later the Member questioned the brother and asked him what things the applicant did for him that the brother believed he could not do for himself.  After detailing cooking, shopping etc the brother said that the applicant also helped financially.  The Tribunal Member said:

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

24                  The brother made no reference to emotional support.

25                  Later in the interview the Tribunal Member recalled the applicant.  A translator is reported as saying; “He’s (referring to the applicant) asking about the financial condition.”  The Tribunal Member said:

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

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

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

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

29                  In my view, once it is seen that the Tribunal has addressed the issue of financial assistance, however, even if in so doing it has made an error of law, that error is not, in my opinion, a jurisdictional error. 

30                  I should say that in my view there is no particular reason why financial assistance could not fall within the kind of assistance with which the definition of “special need relative” is concerned.  The only qualification to assistance to be found in the definition is that the assistance be needed by the nominator because of one of the factors referred to in paragraph (a) of the definition.  A person who as a result of disability or prolonged illness suffers financial hardship might well have a long-term need for financial assistance such that an applicant to be considered as a special need relative could, subject to the provisions of para (b) qualify.  That seems implicit in the decision of the Full Court of this Court in Wu v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 548 at 561.  Indeed, it seems from interpretative material produced by the Minister as a PAM guide to the Regulations that the Minister himself was of the view that financial assistance, at least where present with other kinds of assistance, could qualify, even if financial assistance alone might not.  However, it is not, in my opinion, necessary to decide the question.  It suffices for present purposes that the Tribunal did not commit a jurisdictional error in refusing to grant the applicant a visa on the ground that the applicant gave the brother financial assistance.

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

32                  There is a real question whether the applicant ever really made a claim based upon emotional support.  As I have earlier said, there is a difficulty in regarding the Tribunal as failing to exercise its jurisdiction by not considering a matter, when the applicant has not himself or herself sought to request the Tribunal to do so (at least except where the matter is such that it clearly appears as an issue to be resolved on the materials before the Tribunal). But even if the applicant did in the present case seek to make a case which depended upon assistance by way of emotional support, to succeed in that claim, it would be necessary for the applicant to show that the brother had a permanent or long-term need for emotional support because of his disability and that such support could not reasonably be obtained from a source referred to in paragraph (b) of the definition.  There was no evidence, whether directly from the brother, or otherwise from which this need could be inferred.  Hence, even if it is correct that the Tribunal made an error of law, that error could not have affected the ultimate result.  Finally, for the reasons which I have earlier given for finding that the error of law made in holding that financial assistance could not be “assistance” in a relevant sense did not involve jurisdictional error so too the Tribunal’s error in holding that emotional support could only be relevant where the nominator had a mental illness was likewise such as not to involve jurisdictional error. 

33                  It follows that I am of the view that the applicant could not succeed in his application, whether or not this Court had, despite s 474 of the Act, jurisdiction to grant prohibition, mandamus or certiorari.  It is accordingly unnecessary for me to consider the submissions of the applicant based upon s 474 for the application must be dismissed.  However, since the question was argued before me I shall consider briefly the question.

34                  Section 474 is in very similar terms to the privative clause discussed by the High Court in the pivotal case of R v Hickman; Ex parte Fox and Clinton to which reference has already been made.  It is not suggested by counsel for the applicant that such difference as there may can be relied upon by him.  Hickman involved an application for a writ of prohibition directed to the chairman and members of a Board established under regulations relating to the Coal industry prohibiting it from proceeding further upon orders which the Board had made. The complaint was that the persons affected by the orders were not engaged in the “coal mining industry”.  It was held by the Court that they were not, that is to say that the board’s orders were made under an error of law which went to jurisdiction.  It was argued that, nevertheless, having regard to the privative clause, the decision of the board was protected from invalidity. 

35                  Dixon J, whose judgment has subsequently been repeated in many cases, said at 614-615, speaking of privative clauses of the kind before the Court:

“The particular regulation is expressed in a manner that has grown familiar.  Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg 17 is well established.  They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decisions they relate.  Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.”

36                  As his Honour’s judgment points out at 616 in a case where the legislature confers authority on a quasi-judicial body subject to limitations, but also 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.”

37                  In the circumstances the Court held that a writ of Prohibition should issue on the basis that the Board had determined a matter (ie the meaning and application of the words “the coal mining industry”) which the Board had no authority to determine.

38                  It should be noted here that there is no suggestion in the present case that any of the three exceptions expressed in Hickman have any application.

39                  The principle enunciated in Hickman has been consistently followed in the many cases which have subsequently arisen in the High Court and which involved privative clauses.  In each the principle is accepted to be a question of interpretation:  Leslie Zines, “Constitutional aspects of judicial review of administrative action” (1998) 1 Constitutional Law and Policy Rev 50.  Among the cases where Hickman has been applied, or discussed are: R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australia Ltd (1947) 75 CLR 361, 369, R v Murray; Ex parte Proctor (1949) 77 CLR 387, 388-400, R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (1967) 118 CLR 219, 252-3, R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union  (1951) 82 CLR 208, 249, R v Members of the Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd (1959) 101 CLR 246, 255, Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437, 442-3, R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415, 418, O’Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232, 285-8, Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, 631 and  Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168.  The last mentioned case referred to Hickman as being settled authority. 

40                 It may be noted that while Dixon J emphasised the issue of interpretation which arose when a privative clause was enacted, absent a case falling within the three exceptions, also pointed out that that issue of interpretation took place against the Constitutional background of s 75(v) granting to the High Court jurisdiction to grant writs of prohibition etc.  This may explain the reservation hinted at by Gaudron and Gummow JJ later in Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602that there might be a need to consider the principle in a case arising in the State context where the question of interpretation falls to be resolved without the constitutional limitation which s 75(v) of the Constitution implies.  If a privative clause were to operate so as to render all purported decisions of a Tribunal valid, even where made without jurisdiction so that the public duty of the Tribunal would, as a result, be taken to have always been exercised and jurisdictional error would legislatively always be overcome would be to render the constitutional jurisdiction of the High Court to grant writs of mandamus or prohibition under 75(v) devoid of content.  It could not be inferred that Parliament would intend to do that, for it must be assumed that Parliament intended its legislation (or in the case of Regulations, the rule making body intended that its Regulations) would be valid.  Any attempt to take away the jurisdiction of the High Court to grant writs or mandamus or prohibition would be void, even if the attempt was framed not directly in terms that purported to take away jurisdiction, but in terms which rendered a decision in all cases immune from scrutiny by the High Court exercising jurisdiction under s 75(v) by the device of extending the ambit of lawfulness of the decision.

41                 It is interesting to note the position which prevails in the United Kingdom where privative clauses have been enacted, but without any constitutional limitation.  While the English Courts must accept that their jurisdiction can be ousted by Parliamentary proscription, a clause which purports to do so will be strictly construed: Anisminic v Foreign Compensation Commission [1969] 2 AC 147.  In one sense the adoption of the requirement of strict construction arises from the ordinary rule of interpretation applicable in all cases where Parliament enacts legislation which affects common law protection or common law rights.  Those rights will only be taken to have been abrogated and the protection withdrawn where Parliament has said so expressly or by necessary implication.  So, it will not lightly be assumed that Parliament intended an ouster of the jurisdiction of the Courts unless it has made its intention to do so clear by express words or necessary implication.   

42                 A similar approach to that taken in the United Kingdom was adopted by Spigelman CJ in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at para 174, (although his Honour’s discussion of Hickman may be thought to extend somewhat the exceptions stated by Dixon CJ in that case): see Lednar v Magistrates’ Court (2000) 117 A Crim R 396 at para 224 per Gillard J; WC & AC Morin Pty Ltd v Queensland Fisheries Authority [2000] QSC 169 at para 27 per Jones J.

43                  I was referred to the explanation for the introduction of s 474 into the Act given by the Minister in his Second Reading Speech, where he said:

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

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

In practice, the decision is lawful provided:

      the decision maker is acting in good faith;

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

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

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

44                  To the same effect is paragraph 16 of the Revised Explanatory Memorandum relating to s 474(1).  While both the Second Reading Speech and the Explanatory Memorandum are intrinsic material to which regard can be had, particularly for the purpose of determining the Parliamentary purpose, it is doubtful whether resort to the material adds much to the language which Parliament itself has used.

45                  A number of cases in this Court have already raised s 474.  However, only in three of them has the issue of construction been specifically discussed.  In the remainder, the Court has found that the decision of the Tribunal involved no jurisdictional error, so that (as in the present case) the issue of interpretation did not really arise for discussion. 

46                  The decision of Merkel J in Walton v Ruddock, Minister for Immigration & Multicultural Affairs [2001] FCA 1839 is the first case which raised the question of interpretation posed by Hickman.  In that case his Honour embarked upon a discussion of whether it was open to an applicant in this Court to challenge a decision of the Refugee Review Tribunal on the ground that the Tribunal had not afforded to the applicant natural justice.  His Honour expressed the view that there were grounds for contending that s 474 did not prevent the review of decisions in respect of visas on that ground.  However, as his Honour found that the applicant was not denied natural justice his Honour did not express a concluded view on the subject.

47                  The second of the cases where the effect of s 474 was discussed and the only case where it was an essential element of the decision was Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167.  In that case Mansfield J held that s 474 did not prevent an applicant from arguing that the decision of the Minister cancelling a visa under s 128 of the Act was invalid because there had been a failure to comply with the notice provisions contained in s 129 of the Act.  The giving of notice was an essential prerequisite to the exercise of the power of cancellation such that, to adapt the words of Dixon CJ in R v Murray; Ex parte Proctor at 400 observance of the limitations and compliance with the requirements of it were essential to valid action.  It was an “indispensable condition” to the exercise of the power.  Or, to put the matter another way, s 129 was, in the language used in R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208, 248 an “inviolable limitation[s] or restraint[s].”

48                  The third and most recent case was NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263.  In that case, decided after I had heard argument in the present case, Gyles J held that a decision of the Refugee Review Tribunal could not, as a result of s 474, be set aside because there had been on the part of the Tribunal a failure to afford the applicant natural justice.  It should be said, however, that at best, the discussion on s 474 provided only an alternative ground of decision, since his Honour was of the view that the circumstances did not reveal a failure to afford procedural fairness.  Indeed, the better view is that his Honour’s discussion on s 474 was dicta.

49                  Counsel for the applicant relied upon the decision of Mansfield J as supporting his submission that in the present case s 474 did not preclude the Court from holding that the Tribunal had constructively failed to exercise its jurisdiction.  The submission went so far as to argue, if I understood it correctly, that the decision of his Honour supported the proposition that the Court was not precluded by s 474 from finding a decision of the Tribunal invalid in any case where the Tribunal made an error of law in determining whether a criterion for issue of a visa was satisfied.  However, in my view the decision should not be read as holding more than that where compliance with a condition for the exercise of power is an essential prerequisite to the exercise of a Tribunal’s jurisdiction a clause such as s 474 would not preclude the Court from holding that the Tribunal’s decision was invalid.

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

51                  For my part I am inclined to agree with Gyles J that s 474 would preclude the Court (the question may be different where the High Court is involved, for this would raise the constitutional question) from making an order for prohibition absolute where there had been a denial of natural justice.  In addition to the matters to which his Honour refers in reaching this conclusion there is the fact that the jurisdiction of this Court is limited under s 476 in such a way as to preclude from judicial review the denial of natural justice.  Prior to the amendments in 2001 which, inter alia, introduced s 474 the provisions of s 486 operated to preclude this Court from exercising jurisdiction under the Judiciary Act 1903 (Cth) at all in respect of judicially reviewable decisions.  Thus this Court had no jurisdiction to set aside a decision made in denial of natural justice either by exercising jurisdiction to grant a prerogative writ under s 39B of the Judiciary Act 1903 (Cth) or by judicial review under the provisions of s 476 of the Migration Act 1958 (Cth).  It would be strange if one would attribute to Parliament the intention, while enacting a privative clause which on its face restricts the Court’s jurisdiction, of nevertheless expanding the jurisdiction of this Court to set aside decisions for failure to give procedural fairness in proceedings under the Judiciary Act 1903 (Cth) by granting prohibition, where if the visa applicant had sought judicial review the Court would have no jurisdiction to do so.  On the other hand, there is nothing in s 476 which would prevent the Court from setting aside in judicial review proceedings a decision made in excess of jurisdiction under one or other of the heads of review (eg, error of law) and so there is no reason to believe that Parliament would thus have limited this Court’s power to grant prohibition where there was jurisdictional error. 

52                  However, as I have already said, the present case is not one where jurisdictional error has been made out.  The Tribunal addressed the issues presented to it.  If, in so doing, the Tribunal made an error of law, so be it.  That error of law does not amount to jurisdictional error of the kind which would enliven the power of the Court to grant a writ of prohibition in the face of s 474 of the Act.

53                  I would accordingly dismiss the application and order the applicant to pay the Minister’s costs of it.

Associate:

Dated:              20 March 2002