FEDERAL COURT OF AUSTRALIA

Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397

MIGRATION – permanent spouse class 801 visa – cancellation of visa in July 2001 when visa holder outside Australia – detention of visa holder on return to Australia in February 2002 – challenge to cancellation and detention decisions under s 39B Judiciary Act 1903 (Cth) – whether challenges prevented by s 474 Migration Act 1958 (Cth)

MIGRATION – judicial review – objection to competency – notification of decision to cancel visa – sent to address given on visa application – applicant in the meantime lodges with Department application for translation of documents giving another address – whether other address “known to the Minister”

WORDS AND PHRASES – “known to the Minister”

Migration Act 1958 (Cth)  ss 128, 116(1), 189(1), 477, 474

Migration Regulations 1994 (Cth)  reg 5.02A (2)

Minister for Immigration & Multicultural Affairs v Singh (2000) 171 ALR 53 distinguished

Al Adwan v Minister for Immigration & Multicultural Affairs [2001] FCA 706 at [44] followed

Joshi v Minister for Immigration & Multicultural Affairs [2001] FCA 1765 at [28] – [50] followed

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615 applied

Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839 mentioned

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

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

NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 mentioned

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

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

Craig v South Australia (1995) 184 CLR 163 at 179 mentioned

Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161 at 182  applied

AUREL TURCAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 122 OF 2002

HEEREY J

18 APRIL 2002

HOBART (HEARD IN MELBOURNE)

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant pay the respondent’s costs including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks prohibition and certiorari under s 39B of the Judiciary Act 1903 (Cth) in relation to two decisions of delegates of the respondent Minister.  The first (the July 01 decision) was a decision made on 6 July 2001 under s 128 of the Migration Act 1958 (Cth) (the Act) to cancel a permanent spouse class 801 visa held by the applicant.  The second (the February 02 decision) was a decision made on 23 February 2002 under s 189(1) of the Act to detain the applicant as an unlawful non-citizen.  Injunctions and other relief are also sought.

2                     The applicant’s proceeding was commenced in this Court on 27 February 2002.  The Minister has filed an objection to competency in relation to the challenge to the July 01 decision.  It is alleged the application was not made within the time fixed by s 477(1) of the Act.

3                     Since the proceeding was commenced after the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the 2001 amendments) came into effect on 2 October 2001, the applicant’s application is governed by the Act as so amended.  It is accepted that both the July 01 decision and the February 02 decision are “privative clause decisions” within the meaning of s 474(2).  The operation and effect of s 474(1) are therefore central issues in this case.

The applicant’s visa

4                     The applicant was born on 15 May 1972.  He is a citizen of Moldova.  On 26 March 1998 he arrived in Australia on a three month visa for the purpose of participating in a sporting competition at Coffs Harbour. 

5                     In April the applicant moved to Melbourne where he met Elena Mamara.  On 17 July they announced their engagement and on 28 August 1998 they were married.

6                     On 4 September 1998 the applicant applied for a TK extended eligibility (temporary) subclause 820 visa as the spouse of an Australian citizen.  This was granted on 11 November 1998.  This visa entitled the applicant to remain in Australia for two years at which timethe Migration Regulations 1994 (Cth) (the Regulations) would require the circumstances of the marriage to be reviewed prior to the granting of a permanent visa. 

7                     A file in the Department of Immigration and Multicultural Affairs (the Department) records the receipt on 20 July 2000 of an allegation from an anonymous informer that the applicant had entered into a contrived marriage with his wife “whereby he paid her money in instalments and she agreed to go along with his story for Immigration purposes”.  The informer claimed that the applicant had set up a tiling business and expected permanent residence to be granted in one month’s time.  The informer claimed that the applicant later intended to separate and divorce from his wife and to sponsor various members of his family to Australia.  The informer claimed that the applicant had fought for the Russians in Chechnya and had committed war crimes there.  The applicant did not become aware of these allegations until February 2002.  He denies them.

8                     On 15 November 2000 the applicant was granted a permanent class 801 onshore visa.  The officer who granted the permanent visa did not sight the file containing the note of the informer’s allegations.  It had been mislaid.

Cancellation of visa

9                     In an affidavit filed in this proceeding the applicant says that after some months living with Elena’s parents and then in a friend’s house the couple moved into an apartment at 8/33 Rathmines Street, Fairfield in about May 1999.  By the following year the applicant had established his own tiling business called “Turcan Tiling”.  His wife undertook all the administrative tasks associated with the running of this business.  For the next 18 months the applicant and his wife lived together.  They shared household duties, paid bills out of their joint savings, engaged in sexual intercourse with each other and attended social functions.

10                  On or about 12 or 13 November 2000 Elena, who was studying and doing some casual work, asked the applicant to move out of their home.  She said she needed some peace and quiet.  As a result the applicant moved to her parents’ house.  The applicant and his wife did not live together at the Fairfield apartment thereafter, although the applicant says sexual intercourse took place on two occasions.  In December 2000 Elena moved out of the Fairfield apartment taking all of the furniture.  She told the applicant that he could move back in but he declined.  In December 2000 the applicant went to Moldova for a holiday.  He returned to Australia on 20 January 2001 and attempted a reconciliation with Elena, but without success.  On 3 May 2001 he again travelled to Moldova and did not return to Australia until 22 February 2002. 

11                  In the meantime the file containing a note of the informer’s allegations had been located within the Department.  The matter was reconsidered and various enquiries made.  A friend of Elena’s family told the Department that he was aware that the applicant had recently returned to Moldova but was not able to comment for how long.  Elena’s father told an officer that she had told him that her relationship with the applicant ceased prior to the date on which the applicant had gone to the Department to obtain the permanent visa.  She had not told her father this because the applicant had threatened to harm her and her family if she revealed the breakup.  

12                  By a letter dated 5 July 2001 Elena told the Department that her marriage to the applicant was over from 13 February 2000 due to the many arguments they were having.  In the letter she said that on 14 February 2000 she returned from New South Wales and found that he had left the home to live elsewhere.  During the middle of 2000 she told him that she was going to inform the Department to let them know about the separation.  He came that night and broke in through the window and broke her laptop computer, television set and video.  He took her by force out of the apartment and put a screwdriver in front of her and told her that he was going to kill her if she let Immigration know of their separation.  He threatened to blackmail her and said he would disgrace her before her family and the whole Romanian community.  Since the final paperwork for the visa in September 2000 she had not contacted him and did not know where he was.  These allegations have not been tested in the present proceeding.

13                  On 6 July 2001 Ms Anni Faulkner, a Departmental officer and a delegate of the Minister, completed a Form 1144 Notification of Cancellation under s 128 of the Act.  The form as completed states that the applicant’s visa was cancelled on 6 July 2001 under s 116(1)(f).  Ms Faulkner has written on the form:

“The visa should not have been granted because its grant was in contravention of this Act.”

The reasons given are:

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

A duplicateof the notification was sent by Ms Faulkner to the applicant at the address 8/33 Rathmines Street, Fairfield.  In a statutory declaration made on 21 September 2000 submitted in support of his permanent visa application the applicant had given that address as his residential address.  It was the address of the applicant appearing in the Department’s computer records in July 2001.  At that time, reg 5.02A(2) provided that a document relating to the cancellation of a visa must be given to the holder by one of three methods, one of which was “(b) by sending it to the person’s residential or business address last known to the Minister”.  Departmental records indicate Ms Faulkner was aware the applicant was outside Australia.

Translating and Interpreting Service application

14                  At this point reference needs to be made to an event which is relevant to the determination of the objection to competency.

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

Originals retained?              No  a      Yes

Visa sighted?                      No            Yesa

Permanent resident?            No            Yesa

Eligible for free service?      No            Yesa

Copy of passport?              Yesa      No

Payment made?                  No  a      Yes

16                  Opposite the question “Permanent resident?” the form asks for “Arrival date/Grant of permanent residence”.  “Arrival date” has been deleted and the figures inserted “15/11/00”.

17                  Opposite the question “Copy of Passport?” the form asks for “Passport number”.  There appears “AO184890” and “VISA:- 8032651629/S”.

18                  The Melway street directory shows Lois Street in what appears to be a residential street in St Albans East, a suburb of Melbourne.  As of 4 March 2001 the Lois Street address was in fact the applicant’s residential address. 

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

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

Internal review of cancellation

21                  Section 128 provides:

“If:

(a)       the Minister is satisfied that:

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

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

(b)       the non-citizen is outside Australia;

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

22                  Section 116(1) provides that, subject to subsections not presently relevant, the Minister may cancel a visa if he or she is satisfied that

“(f)  the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth;” 

Another ground provided is:

“(d)  if its holder has not entered Australia or has so entered but has not been immigration cleared – it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been Immigration cleared;” 

23                  In October 2001 the cancellation of the applicant’s visa was the subject of an internal review.  A recommendation was made that the matter should be referred to the Residence  Section which should “be made aware of what appears to be a legally flawed cancellation decision in relation to Mr Turcan and decide whether the cancelling officer wishes to revoke the cancellation and consider cancellation under 116(1)(d) or referral to Investigations Melbourne”.  The basis for this view was that s 116(1)(f) does not allow for substantive visas to be cancelled where the delegate was satisfied at the time the criteria were met, even if it later appears that those criteria were not in fact met.  This is because the substantive visas are granted under s 65 which depends upon the Minister or the Minister’s delegate being satisfied as to the relevant criteria.  This is in contrast to s 73 which allows a grant to occur only where the applicant actually meets the criteria.  In the present case the delegate had in fact been satisfied as to the criteria and thus the appropriate ground for cancellation was s 116(1)(d).  This view was confirmed by a minute dated 29 January 2002 from the Investigations Section to the Manager, Residence Section, Melbourne seeking consideration whether the cancellation decision should be set aside.

Detention

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

“Mr Aurel Turcan

By Hand

Dear Mr Turcan

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

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

Paragraph 116(1)(f) states:

the visa should not have been granted because the application for it, or its grant was in contravention of this Act or of another law of the Commonwealth;

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

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

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

F. Andrew

Duty Manager

Melbourne Airport

23 February 2002.”

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

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

26                  The applicant has remained in detention since 23 February.  On 27 February I granted an interlocutory injunction to restrain the Minister from acting on the July 01 decision.  Hearing of the substantive application was fixed for 27 March.

Objection to Competency

27                  It was not in dispute that the competency or otherwise of the application in relation to the July 01 decision is to be determined by s 477(1) of the Act which was introduced by the 2001 amendments.  Section 477(1) provides:

“(1)     An application to the Federal Court under s 39B of the Judiciary Act 1903 for

            (a)        a writ of mandamus, prohibition or certiorari; or

            (b)        an injunction or a declaration;

in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by s 476 must be made to the Federal Court within 28 days of the notification of the decision.”

28                  The reference to “notification” in s 477(1) includes a reference to any past action which, as a result of legislative provisions then in force, is deemed to amount to notification for the purposes of the Act.  As already mentioned, reg 5.02A was in force on 6 July 2001.  It was authorised by s 504(1)(e) and s 504(3) of the Act.  Although there was a repeal of the regulation as of 10 August 2001 by item 29 of the Schedule to the Migration Amendment Regulations 2001 (No 6) (SR 2001, No 206) and the insertion of a similar regulation, reg 4(4) of the amending regulation provided that reg 5.02A continued to apply in relation to a notice given under the regulation before the amending regulations commenced.  The critical question is therefore whether the Fairfield address was the applicant’s “residential or business address last known to the Minister” as at 6 July 2001.

29                  Senior Counsel for the Minister argued that the applicant had not advised the Department of a change of address.  He had simply approached an arm of the Department having no administrative or functional relationship with that to which the delegate belonged to take advantage of a free service made available to visa holders during a specified period after grant. It was not his purpose to notify the Department of a change of address at all, much less to do so for any purpose under the Act.  He gave a mailing address for the sole purpose of being able to receive back the documents and the translations.  This did not have the effect of altering the “business or residential address last known to the Minister” from that which had previously been supplied for the purpose of the Act, and specifically for the purpose of his visa application.  Senior Counsel further submitted the contents of the document translation application form would not normally, and did not in fact, come to the attention of delegate of the Minister or any other “relevant” officer of the Department.

30                  The expression “known to the Minister” is of course not confined literally to what is in the mind of the person who happens to hold office.  To go to the other extreme, the mere fact that an officer of the Department, acting in the course of employment, becomes aware of a visa holder’s address would not necessarily make that address something “known to the Minister”.  An example would be a commercial transaction where a visa holder supplies goods or services to the Department and renders an invoice containing a residential or business address.

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

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

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

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

35                  I should add that counsel for the applicant also submitted that reg 5.03(1)(a), as in force in July 2001, was ultra vires.  This regulation provided:

“(1)     For the purposes of the Act and these Regulations, and subject to the Act and specific provision elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document is sent, which is either:

(a)       if the document is sent from a place in Australia to an address in Australia7  days after the date of the document; or

(b)       …

(2)       Subregulation (1) does not apply to a document unless it is sent within 3 days after the date of the document.”

36                  An earlier version of this regulation, in which the period in sub-reg 2 was seven days, was held invalid by a Full Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 171 ALR 53.  However, the present regulation is not in my opinion ultra vires, for the reasons given by Sackville J in Al Adwan v Minister for Immigration & Multicultural Affairs [2001] FCA 706 at [44] and by Emmett J in Joshi v Minister for Immigration & Multicultural Affairs [2001] FCA 1765 at [28] – [50].

The July 01 decision – the applicant’s case

37                  By par 2 of his further amended application the applicant seeks an order in the nature of certiorari to quash the July 01 decision

“because the person who made it did not have jurisdiction to make it because the decision involved jurisdictional error being:

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

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

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

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

(ii)     the Applicant had had no opportunity to respond to the allegation that he had been involved in “atrocities”;

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

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

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

(vi)    the Respondent concluded it was “appropriate” to cancel the visa to reverse an administrative error whereby not all of the file concerning the Applicant had been before, or seen by, the officer who granted the Applicant his visa of 15 November 2000.

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

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

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

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

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

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

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

The operation of s 474

38                  Section 474(1) of the Act was introduced by the 2001 amendments.  It 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.”

39                  Despite the literal words of s 474(1), the Minister accepts that the provision does not prevent judicial review based on the absence of one or more of the essential elements of validity identified by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615, namely that the decision of the decision maker “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 (decision maker)”.

40                  The operation of s 474 has been the subject of detailed consideration in a number of recent decisions of single judges of this Court: Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839 (Merkel J), Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 (Mansfield J), NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 (Gyles J), NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 (Tamberlin J) and Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 (Hill J).  To the extent that there are differing views expressed in these decisions, I would agree with and adopt the reasoning of Gyles J in NAAX.

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

42                  The recent history of legislative changes to the Act’s judicial review regime is instructive.  Prior to 1992, decisions under the Act were, broadly speaking, subject to judicial review on general administrative law grounds at common law or under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth).  In 1992 amendments to the Act seemingly truncated those grounds severely.  Under s 476, as then amended, decisions under the Act were no longer reviewable by the Federal Court for

·        Apparent bias

·        Breach of natural justice

·        Being an exercise of power so unreasonable that no reasonable person could have so exercised the power

·        Taking an irrelevant consideration into account

·        Failing to take a relevant consideration into account

·        Exercising a discretionary power in bad faith

43                  I say “seemingly” because on 31 May 2001 the High Court handed down its decision in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. The questions directly at issue in Yusuf  were whether, as the Minister argued, s 430(1)(c) of the Act only required the Refugee Review Tribunal to make findings on those questions of fact which it, as distinct from the Federal Court on review, considered material and whether in any case a failure to make a finding on a material question was a failure to observe a procedure required by the Act within the meaning of s 476(1)(a).  The Minister succeeded on both issues, but the victory was a somewhat Pyrrhic one.  Observations of four members of the majority suggest that the doctrine of jurisdictional error would support judicial review of decisions of the Tribunal on grounds little, if any, different from what would be available at common law.  The recent restatement of that law in Craig v South Australia (1995) 184 CLR 163 at 179 was treated as applicable: see per Gaudron J at [39] - [44] and per McHugh, Gummow and Hayne JJ at [82] - [83].

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

45                  Moreover, the Minister’s Second Reading speech on 26 September 2001 confirms a Parliamentary intention that judicial review is to be confined strictly to Hickman grounds.  The Minister 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 bill introduces a new judicial review scheme for decisions made under the Migration Act relating to the entry to, and stay in Australia, of non-citizens of Australia.  The key mechanism in the new scheme is the privative clause provision at new section 474.

The privative clause, and the related provisions, will replace the existing judicial review scheme at part 8 of the Migration Act.  Unlike the existing scheme, the new judicial review scheme will also apply to the High Court and not just the Federal Court.

…

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

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

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

In practice, the decision is lawful provided:

the decision maker is acting in good faith;

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

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

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

…

Although the measures in this bill will limit judicial review, many applicants who consider that they have received a decision from the department which is wrong will of course still have access to independent merits review by the Migration Review Tribunal and the Refugee Review Tribunal.  It is the government’s intention that all bona fide applicants meeting the criteria for the grant of a particular visa be granted that visa – and that is particularly so in the case of those seeking protection visas.  The independent merits review tribunals act as a safeguard in that respect.

As an additional safeguard, under the Migration Act the minister has special public interest powers enabling the minister to grant a visa even where the non-citizen does not meet the prescribed criteria for the grant of that visa set out in the migration regulations.”

Application of s 474 to the July 01 decision

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

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

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

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

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

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

The February 02 decision – the applicant’s case

52                  By par 3 of his further amended application the applicant challenges the validity of the February 02 decision.  He seeks an order to prohibit the Minister from acting on the “purported performance” by the Departmental officer at Melbourne Airport on 23 February 2002 of his duty under s 189(1) to detain the applicant as an unlawful non-citizen on the grounds

“that the performance of the duty involved a jurisdictional error being:

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

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

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

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

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

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

Application of s 474 to the February 02 decision

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

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

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

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

57                  Section 474 is conclusive against review of the February 02 decision.

Orders

58                  The application will be dismissed with costs, including reserved costs.

Associate:

Dated:              18 April 2002