FEDERAL COURT OF AUSTRALIA

Awan v Minister for Immigration, Multicultural & Indigenous Affairs

[2002] FCA 594

MIGRATION – Application for student visa – Migration Review Tribunal decision – breach of s 359A(1) Migration Act – Mistakes of fact concerning the applicant’s financial status -  effect of privative clause in s 474 Migration Act – whether breach amounted to jurisdictional error – whether legislative intention that breach would lead to invalidity of a decision of the MRT.

PRACTICE AND PROCEDURE – Unrepresented applicant – expedited hearing – access to justice.

Migration Act 1958 (Cth) ss 65, 336A, 348, 353, 353A, 358, 359, 359A(1), 360, 362A, 365(1), 366C, 368(1), 368A, 474, 475A, 476.

Judiciary Act 1903 (Cth) s 39B

Migration Regulations 1994 (Cth) schedule 2 cl 560.224(1)

Australian Constitution s 75(v)

Minogue v Human Rights & Equal Opportunity Commission (1999) 84 FCR 438 referred to

R v Hickman & Ors; Ex parte Fox and Anor (1945) 70 CLR 598 applied

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

R v the Commonwealth Rent Controller and Ors; Ex parte National Mutual Life Association of Australasia Limited (1947) 75 CLR 361 considered

R v Murray and Ors; Ex parte Proctor and Ors (1949) 77 CLR 387 considered

R v Metal Trades Employers’ Association and Ors; Ex parte Amalgamated Engineering Union Australian Section (1950) 82 CLR 208 considered

R v Coldham and Ors; Ex parte The Australian Workers’ Union (1982) 153 CLR 415 considered

O’Toole v Charles David Proprietary Limited (1991) 171 CLR 232 considered

Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited (1994) 183 CLR 168 considered

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

Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 176 ALR 219 considered

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 considered

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

Greene v McElroy (1959) 360 US 474 considered

Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1 considered

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

Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 301 followed

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

Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 followed

Walton v Ruddock [2001] FCA 1839 referred to

NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 referred to

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

Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 followed

AHMED IRFAN AWAN v MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

V 1223 OF 2001

NORTH J

9 MAY 2002

MELBOURNE

THE COURT DECLARES THAT:

1.                  the decision of the Migration Review Tribunal dated 7 November 2001, affirming a decision of a delegate of the respondent, Minister for Immigration, Multicultural & Indigenous Affairs, to refuse to grant the applicant, Ahmed Irfan Awan, a student visa was made in excess of jurisdiction and is null and void.

THE COURT ORDERS THAT:

2.                  the respondent pay the costs of the applicant of and incidental to this application.

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

REASONS FOR JUDGMENT

1                     Before the Court is an application by Mr Ahmed Awan in relation to a decision of the Migration Review Tribunal (the Tribunal) which was made on 7 November 2001.  The Tribunal affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs (as he was then titled), to refuse Mr Awan a student visa – subclass 560.

Background

2                     Mr Awan is a national of Pakistan.  He was born on 8 January 1976.  He holds a combined degree in arts and science from Punjab University in Lahore, Pakistan.

3                     On 29 June 1996 he came to Australia.  At that time he held a student visa.  He commenced study for a Diploma of Textile Manufacturing Technology at the Melbourne Institute of Textiles. 

4                     It seems that the conditions attached to his student visa entitled Mr Awan to work for up to 20 hours per week while his course of study was in session.  He worked part time as a taxi driver.  Then, on 3 December 1996, he was severely assaulted whilst driving a taxi.  Following this incident he consulted a psychologist who reported symptoms of Post-traumatic Stress Disorder.  The psychologist expressed the view that Mr Awan was not fit psychologically to return to work until at least after 24 February 1997.  Mr Awan described the incident in a submission faxed to the Tribunal on 24 May 2001, as follows:

“But in December 1996 a drunken Guy attacked me.  He had an argument with me and while I was driving he put a big knife on my throught [sic] and before actually he applied that to cut my throught [sic] I grabbed it with my fingers and he cut my fingers.  He was sitting directly behind me.  Then some how I managed to stop the car and got out of it.  He chased me and then tried to [illegible] me with the same taxi he stole.  That incident had a very bad impact on me.  I was under phycological [sic] treatment for that life threatening assault for nearly one and half years.  Still sometimes it comes in my dream and disturbs me.  I consider myself very very lucky to be alive because that Guy besides drunk was also disabled.”

5                     In 1998 Mr Awan completed the Diploma of Textile Manufacturing Technology.

6                     He then undertook a Master of Information Systems degree at Central Queensland University.  He completed this course and the degree was conferred on 6 April 2001.  This course was undertaken during the currency of his student visa which had been renewed on several occasions.

7                     Mr Awan’s then current student visa was due to expire on 30 April 2001.

8                     On 19 April 2001, Mr Awan went to the Preston office of the Department of Immigration and Multicultural Affairs (the Department).  He wanted to apply for a further student visa in order to study for a Master of Business Administration at Central Queensland University.  This course was to commence on 16 July 2001. 

9                     Mr Awan was advised at the Preston office that the Migration Regulations and Departmental policy did not allow a student visa to be issued to him unless the proposed course started no more than one month after the end of the previous course.  He was told that, in the circumstances, it would be appropriate that he leave Australia and apply from offshore for a visa to allow him to pursue the Masters degree at Central Queensland University.

10                  Mr Awan then, on the same day, tried to apply for a student visa extension at the Melbourne CDB and Dandenong offices of the Department.  At each office he was given the same advice.  He did not proceed with the application on that day.

11                  On the following day, 20 April 2001, Mr Awan returned to the Preston office of the Department.  He submitted an application for a student visa, this time, in order to study for an Advanced Diploma of Business (International Trade: Marketing) at the Cambridge International College.  That course was to start on 30 April 2001.  In a written statement in support of the application Mr Awan said that he wanted to study marketing in order to return to work in the family textile business.  The staff then asked him to submit a business registration document to show that the family owned a textile business.  Mr Awan responded that the family had sold the business and no longer owned it.

12                  Mr Awan then demanded that the visa be granted immediately.  When told that the decision depended on Mr Awan providing further documents concerning the relevance of the course to future employment, Mr Awan threatened to douse himself with petrol and set himself alight. 

13                  Then Mr Awan walked out of the office.  The police were called.  They spoke to him as he removed a tin from the boot of his car. 

14                  Mr Awan returned to the office and paid the fee for the visa application.  He was then interviewed by Compliance Officers, Ms Amelia Politis and Mr Michael Edwards.  In a written report (the initial report), apparently made on 20 April 2001, they described the events which ensued:

“Officers Edwards and Politis later spoke to Mr Ahmed [Awan].  Also present was Mr Zaia [Manager – Preston Office].  The purpose of this discussion was explained to Mr Ahmed.  He was asked to illustrate what had occurred thus far.  Mr Ahmed described his educational background and what he had done since his arrival in Australia.  He demanded that a student visa be granted to him asap because he was a genuine student.  He said that if a visa was not given to him he ‘would do what he had to do’.  When I asked him what he meant by this and whether he was referring to suicide, he shrugged his shoulders and said that this was not suicide but that it was a sign of ‘protest’.  He referred to the fact that there existed racism in Australia if you were not ‘white’.  He made it quite clear that he was not leaving Australia and that he was staying here to study and that he was starting this course on 30/4/01.

Compliance officers explained processes and procedures regarding applications to Mr Ahmed.  They advised that each application was looked at individually and that different legislation applied to different classes of visa.  It was explained to him that client services staff were doing their duty and that if additional information was required, then in order to satisfy the requirements of visa grant, it was essential that the applicant do all that was requested to facilitate in the success of the application and in meeting the requirements of the specified visa class.

When it was evident that Mr Ahmed was not taking heed of practical advice regarding application procedures, and he continued to ignore attempts to find a solution to the dilemma at hand, I then explained what events could take place as a consequence.  Eg. Student application could be refused – client is viewed as difficult and unstable given that he has threatened to do bodily harm to himself and thereby subjecting fear to those around him at the time – leading to immigration detention pending some solution to events.

In the end, Mr Ahmed continued to show signs of aggression, stubbornness and a clear unwillingness to listen to any advice.  He exhibited defensive behaviour and indicated that the department was intent on making him depart the country and that he was in Australia to study.  He was told that he was showing no respect for the immigration laws of Australia and that he was in no position to demand that the Department grant him a visa that day.

He was told that he would be taken to the city office at Casselden Place where he would be questioned further and where his application for a student visa would be assessed.  He stated that he was not going anywhere.  At this time, officers Boulton and Khamly came into the interview room.  Mr Ahmed was given the opportunity to come quietly but was adamant that he would not and became more defensive.  He was then placed in immigration detention under s 192 of the Migration Act.

Officers departed Preston Office at @ [sic] 15.10hrs.”

15                  It seems that Mr Awan was then taken to the Melbourne CDB office of the Department where he was interviewed by Mr Windsor, State Manager, Client Services and Residence.  The interview occurred on Friday 20 April 2001.  Mr Windsor prepared a file note of the interview (the Windsor file note).  The note is dated on the following Monday, 23 April 2001. 

16                  The interview was conducted to assess the genuineness of Mr Awan’s application for a student visa.  After setting out the background to the case in one page, Mr Windsor makes the assessment in four paragraphs.  The first paragraph is narrative.  The balance is as follows:

“When he finished his latest course he decided he need [sic] to improve his people skills so he decided to do a Masters in Human Resource Management.  This was also a two year course.  He was concerned at the prospect of having to return to Pakistan to apply for a visa for this course.  He could not afford the travel expenses and was concerned about the delay in visa processing.  When told he would be unlikely to be granted a visa in Australia to study this course, he enrolled in a two year marketing course at Cambridge College commencing on 30 April.  I asked him about the content of this course and how it would help him, how it fitted in with his overall study plans and career goals.  He was unable to give any details of the course content.  He said he doesn’t really remember and had left the course content details in his car.  He was not able to say how the study would assist him other than to say it would help him at some stage.  He said he didn’t know what job he would be looking for when he completed his studies.  He further said that he was not sure whether he would keep going with the course for the full two years, implying that he might change to another course down the track.

Mr Awan left me with the very strong sense that what course he studied was not important, as long as he had a visa to enable him to remain in Australia.  He had no plan in mind in terms of undertaking a set of study to give himself particular skills focussed towards any career goals that he could articulate.  He commented that he likes Australia, likes living here, and gave the impression that he did not wish to leave Australia.  He indicated that he doesn’t tell his parents about his study choices but indicated that he receives financial support from his brother-in-law who lives in Japan and his father.

On the basis of my interview with Mr Awan I concluded that he is not a genuine applicant for a student visa, but simply wishes to remain in Australia indefinitely.”

17                  Mr Awan saw a doctor on 20 April 2001.  It is not clear if that was before or after the interview with Mr Windsor.  The doctor’s notes record in part:

“very anxious about it [the student visa application] – took 2

stubbies to ‘relax’ himself

actually felt quite drunk, felt

very angry when told couldn’t have

visa extension

says he said things he didn’t mean”

18                  Mr Awan explained the circumstances of the events of the 20 April 2001 in an hand-written submission faxed to the Tribunal in support of his application for a review of the decision to refuse to grant him a student visa, as follows:

“On 20^th April I went to Cambridge College paid them and got the Enrolement [sic] Advice form.  Then I drove toward Preston when I was in Clifton Hill I stopped at a drive through bottle shop at the corner of Queens parade and high street, just before the bridge in front of the Tram stop.  I requested for three stubbies of Victoria Bitter.  When I arrived at DIMA office in Preston I parked my car outside and started drinking beer I finished them in the span of about 15 or 20 minutes.  Then I got into the office I received the ticket and then seated infront [sic] of Lady officer and presented my documents, she looked at them and then asked me why I wanted to study marketing and to write down the reasons how this course will help me to my future employment.  At that time I was feeling bit dizzy due to beer plus I was very tired as well for not having enough sleep last time.  I wrote that this course will help me understand marketing and when I will go to Pakistan it will help me to expand our business nationally and internationally.  Then she talked with her collegue [sic] and then told me that I must show the proof of our business.  At that time I thought she has questioned me about my integrity.  I refused to do that and demanded her that I want to study marketing to know about it because it is very important part of business development and marketing knowledge will be helpful for me to understand latest techniques of marketing as I studied about International Marketing as an optional unit in my Master of Information Systems course at CQU.  At the time I was out of my mind.  I felt very angry that I am and have been genuine student as I proved that even I continued my studies during severe phychological [sic] problems and now I have been getting unfair treatment.  I told the officer to issue me the visa without showing her the proof of business. I was not thinking rationally.  I did make a threat to self harm but that was surely due to frustration.  I did not say anything to harm anyone else.  I went to toilet for a least four times.  Then Manager of Preston office interviewed me and he was very, very nice to me.  I requested him to call my brother in law in Japan and he will send me some documents for proof just now, he tried but mobile was switched off.  I had no control on my actions and emotions, after meeting with Joe I went back to office and then walked out, I was crying continuously during all this time like a kid, I opened the boot of the car and grabbed an empty can and I was intercepted by two police officers who asked me where I am going I told them I am going to buy petrol for my car but they did not believe and took the container of [sic] me.  I then went back to the office, received the ticket again and applied for the visa again.  EFTPOS did not work because I had already exceeded the daily limit.  Then the Lady officer (another one) this time asked me to go to the nearby Bank and get the money out and I did, they did not care about my threats probably the [sic] knew these are not genuine.”

19                  On 21 April 2001, the Minister’s delegate determined that Mr Awan was not a genuine student.  The existing student visa was cancelled, even though it would have expired on 30 April 2001 in any event.

20                  On 23 April 2001, Mr Awan, then in detention at the Maribyrnong Detention Centre, was interviewed by Ms Politis in connection with his application for a student visa.  A record of this interview was made, and was signed by Mr Awan (the visa interview).

21                  On 26, 27 and 30 April 2001, Mr Awan rang Ms Politis about a possible release from detention and about the progress of his student visa application.  Ms Politis made a file note of these conversations dated 30 April 2001 (phone enquiries notes). 

22                  On 30 April 2001, Ms Melita Hoskin, as delegate of the Minister, determined to refuse Mr Awan the student visa.  It appears that her decision relied upon the initial report, the Windsor file note, and the visa interview.  After summarising the contents of these documents the delegate concluded:

“I am not satisfied that you are seeking to enter/stay in Australia for the purpose of study.  I am not satisfied that you will leave Australia at the end of your authorised stay.  I am not satisfied that the course you are seeking to undertake is consistent with, and appropriate to, your current level of education.  I am not satisfied that the study is relevant to your past or proposed future employment in your home country.  You do not meet Regulation 560.224(1)(d).

You have stated that you cannot afford the travel expenses associated with returning to Pakistan.  Your bank statements from your Bank of Melbourne account show only one deposit that is not from a salary payment in the period 21 December 2000 to 17 April 2001.  Although you submitted a statement from your father which states he is supporting you, there is no evidence of this in the form of deposits to your bank account.

You are being held in detention and therefore unable to work for a salary.  Therefore, you will not be earning an income from paid employment in Australia.  Given that you have received the majority of your financial support from salary payments in the past five months, I am not satisfied that you can support yourself financially in the future without access to paid employment.

Furthermore, I note that you have applied to the Migration Review Tribunal (MRT) for a waiver of the MRT application fee based on financial hardship.  I am not satisfied that you have the financial ability to undertake the course without contravening any condition of a student visa relating to work.  You do not meet Regulation 560.224(1)(a).

You do not meet all the criteria for the grant of a student visa.  Therefore I refuse you the grant of a student visa.”

23                  In the meantime, on 7 May 2001, the Tribunal constituted by Mr Graham Friedman conducted a hearing (the cancellation review hearing) in relation to Mr Awan’s application for review of the delegate’s decision to cancel the student visa.  Mr Awan gave evidence at that hearing.  On the same day the Tribunal determined to affirm the delegate’s decision to cancel the student visa.

24                  On 21 May 2001, Mr Awan applied to the Tribunal to review the refusal of the delegate, Ms Hoskin, to grant the student visa. 

25                  On 24 May 2001, Mr Awan faxed to the Tribunal the hand written submission referred to par 18 of these reasons. 

26                  On 3 August 2001, Weinberg J dismissed an application for review of the decision of the Migration Review Tribunal constituted by Mr Friedman made on 7 May 2001 affirming the cancellation of the student visa.

27                  On 1 October 2001, the Tribunal held a hearing in relation to Mr Awan’s application for review of the decision of Ms Hoskin refusing a student visa.

28                  On 7 November 2001, the Tribunal determined to affirm the decision of the delegate to refuse Mr Awan a student visa. 

the present application

29                  On 3 December 2001, Mr Awan filed an application in relation to the decision of the Tribunal made on 7 November 2001. 

30                  The application is hand written and was prepared by Mr Awan.  The grounds of the application state as follows:

“I want the student visa in Febuary [sic], because soon after I will finish summer that is probably in first week or most likely last week of January, I want to see my family by visiting Pakistan, so remember I want the visa in Febuary [sic] I want visa in Febuary [sic] I want visa in Febuary [sic], understand, Thanks.”

31                  When the application was filed it was endorsed, in the usual way, with a time and date for a directions hearing.  In this case the time and date was 10.15 on 4 February 2002.  When matter was called on that day, Mr Awan did not appear.

32                  In view of the non-appearance of the applicant, and apparent lack of substantial grounds of the application, I raised with Mr Brereton, who appeared as a solicitor employed by the Australian Government Solicitor, the solicitor acting on behalf of the respondent, whether it would be appropriate for the matter to be struck out. 

33                  In a submission for which Mr Brereton should be highly commended, he explained something of the background of the case.  In particular, he indicated that Mr Awan’s absence may have been connected with the psychological difficulties flowing from the knife attack in December 1996.  Now that I have a greater understanding of the background of this case, it is clear that Mr Brereton’s submission was both entirely appropriate and sensitive to the circumstances of the case.  He could have taken the opportunistic course and sought to encourage the Court to strike out the application.  Rather, he acted with propriety and humanity as is appropriate for an officer of the Court.  In the result, the directions hearing was adjourned until Friday, 8 February 2002.  On that occasion Mr Awan appeared for himself.

the directions hearing

34                  The purpose of the directions hearing was to set a timetable for the steps necessary to prepare the case for hearing.  The first step required in this case was to have Mr Awan enunciate the legal error committed by the Tribunal on which he relied.

35                  The purpose of the hearing was explained to Mr Awan.  Several of the exchanges with Mr Awan at this hearing need to be set out for the purpose of understanding some later references in these reasons.

36                  When appearances were taken, the following occurred:

“HIS HONOUR:         Are you Irfan Awan?

MR AWAN:                 Yes, I am.

HIS HONOUR:           Would you like to stand up when you talk to the court?

MR AWAN:                 I will not stand up.

HIS HONOUR:           Pardon?

MR AWAN:                 I can’t.  I have got a pain in my back.

HIS HONOUR:           I see.  Mr Awan, what is the basis of your complaint about the decision that’s under review?  What’s wrong with it?

MR AWAN:                 What’s wrong?  Everything the government has done was wrong.  I was put in custody, abduction, two months.  That was wrong.  I was a genuine student and I studied.  I proved that I’m a genuine student.  I should not have been put in detention for two months.  My visa should not have been cancelled.  This visa should have been granted on the day, last year.  So there are a lot of reasons.

…

MR AWAN:                 I was a genuine student and I am a genuine student and I will be a genuine student.  That’s what I want to put.  I am studying.  I’m doing this course at a university.  I’ve done two semesters and I’ve got four subjects to do (indistinct).

HIS HONOUR:           Well, the trouble with that …

MR AWAN:                 I don’t want to go into all this, whatever, what this book is, because I don’t believe in this stuff.  So this application when done by this court and other courts – I don’t believe.  I am a genuine student.  I’m studying and I want to study, and I want a student visa, and I want to see my family before 25^th of this month.”

37                  Shortly afterwards the following exchange occurred:

‘HIS HONOUR:          … What the law requires me to do is to look at the decision and see whether there’s legal error, whether there’s an error in terms of the Migration Act.  So that when you’re preparing that document, it really isn’t going to be of assistance, no matter how strongly you feel about it – and I can understand that you do – to say, “I am a student and please believe that I am”, because it’s not up to me to believe you or not believe you; it’s up to me to see whether the tribunal went about its process properly or not.  Because you’re not represented legally, I’m going to permit you to proceed with the case, even though the application is not in a form which normally would be accepted, because I doesn’t really say what the mistake that the tribunal made is.  It just says, ‘I want a visa, I want a visa, I want a visa,’ and that won’t work.

…

MR AWAN:                 But it should work before the 25^th of this month, because I have gone through this court before in the last hearing when Weinberg was – he decided, and I know what kind of court this is and I know what kind of laws you have got, and I know what kind of people you are, and I have seen all the – after September, what happened in America, I’ve seen all the court, all your dealings with the people like us, and I don’t believe in this court and I don’t believe in the ways you deal with the people.  So I’ve told you what I’ve told you.  That’s all I will talk.  I don’t have any legal representation.  I will not get any legal representation, I will not submit any other arguments.

…

HIS HONOUR:           Well, what you’ve told me doesn’t amount to an argument which would upset the decision of the tribunal.

MR AWAN:                 It did not last time as well, when I had the legal representation, right?  I wasted my money and it should have helped last time.  Why it didn’t help last time?  That’s why I did not stand up, because I’ve got no respect, because if you people are sitting there, you should make the right decision.  Last time, why he didn’t make the right decision?  With so many other cases – maybe you have done that Tampa case as well, and that’s according to laws – you didn’t do what your law says.  You do what the money says, what the (indistinct) says.  That’s what you people do.  That’s what you people are.  You don’t think about humanity.  You don’t think about someone is suffering, someone is right.  You have got the policy.  You use this court in the wrong ways.

…

Mr AWAN:                  … Prime minister is calling the court to tell them this is …

…

MR AWAN:                 That’s just politics.  No court, no rules, no laws.  You people don’t follow your own laws.”

38                  In the light of the insistence by Mr Awan of an early decision in the case, it was then indicated that the earliest hearing date would be the 26 March 2002.  Mr Awan demanded that the case be heard before the 25 February 2002.  He explained his position thus:

“MR AWAN:               My mother is in hospital.  This is not a reason.  I was supposed to go overseas last year in April, right, after one year.  I was graduated.  I did the masters degree in information systems.  I was graduated in April.  I was supposed to go overseas on 28 April last year.

…

MR AWAN:                 I got admission at this course.  I went for visa extension and they told me that I am not a genuine student, and they put me in detention for two months.

…

MR AWAN:                 The masters student, the one who has done master degree.  I was not a genuine student then.  Those are genuine students who are working here for the last 10 years and not studying at all.

…

MR AWAN:                 I was put in detention for two months and my parents know about, and my mother has been suffering from that time, April.  You can count how long is that.”

39                  The position appeared to be that if Mr Awan left Australia, the terms of his present Bridging Visa would not permit him to re-enter Australia.  The options, then, were to list the matter for hearing before 25 February 2002, or require Mr Awan to delay his trip.

40                  The only available date for the Court to hear the case before 25 February 2002 was 48 hours later on Sunday, 10 February 2002.  Mr Brereton was able to engage counsel at short notice and this date was fixed.  The exchange which occurred with Mr Awan when the hearing date was fixed is illuminating.  It went as follows:

“HIS HONOUR:         You understand that the court is doing this because you’ve said that you desire a result before you depart to see your mother, a trip which you say has been delayed.  So I hope you can understand that this is a highly unusual effort being made for the court, in the light of those unusual circumstances.

MR AWAN:                 It’s because of this court’s previous decisions – it should not have reached this stage initially.  It has been done all by their department, department mistakes, and then this court mistake, MRT mistake.  It’s not my fault.

HIS HONOUR:           Yes.

MR AWAN:                 The court and the government, it should say sorry to me for this.”

41                  In the result Mr Awan’s case received unusual expedition.  The result is that other cases will be delayed to accommodate the progression given to this case.  In deciding to give Mr Awan such special treatment, considerations relating to access to justice have been determinative.  They should be explained.

reasons for an expedited hearing

42                  Judges regularly determine the priority of hearing dates among cases on their dockets.  Some issues of priority are clear cut.  Traditionally, cases involving detention receive the highest priority.  Witness availability is often an important factor in determining the priority of cases.  Less critical, but nevertheless relevant, is the availability of counsel.  Sometimes the health of a party or witness will demand that the case be given a speedy hearing. 

43                  Mr Awan’s case does not exhibit any of the usual claims for a speedy hearing.  He has a strong subjective feeling that he has been unfairly treated by the Department, the Tribunal, and the Court.  He regards these institutions as simply following government policy directed against him.  At times he has said that he feels that the Australian community is racist and that he is treated badly because he is from Pakistan and or because he is a Muslim.  It may be that Mr Awan’s views are the result of a combination of his personality, background and the psychological scars of the very bad experience of assault in 1996.  Whatever their genesis, it is clear from my observations of Mr Awan in court, that these concerns are genuinely and strongly felt.  The question then is whether the genuine and strong subjective feelings of injustice and discrimination are a reason for giving special treatment in the management of a case involving such a person. 

44                  This issue is especially relevant to the jurisdiction of this Court in migration matters.  While litigants in ordinary commercial cases often have strong feelings about the deserving nature of their claims, migration cases concern the fundamental needs of human beings to have a secure and agreeable place to live – a place where they are accepted and where they are away from fear and hardship.  The personal impact of these cases is closer to family law litigation where, for instance, the custody of children is an issue, or personal injury litigation, where direct physical or mental harm has been occasioned to the person, than litigation which is primarily concerned with property.

45                  The claim to a speedy resolution by litigants in migration matters who have strong and genuine feelings of grievance with the legal system in Australia raises an issue of access to justice.  In recent times it has been accepted that improved access to justice is a goal to be pursued by the legal system.  Improvements in physical access to courts by the building of ramps for disabled people, the installation of hearing loops in courtrooms for hearing impaired people, and the installation of facilities to guide the blind have been undertaken.  A continuing challenge to the improvement in access to justice concerns people involved in the system who have psychological problems or mental illness which give them a feeling of anxiety and threat from the processes of the system well beyond the feeling of anxiety and threat held by others in the community involved in the system who do not suffer those disabilities. 

46                  It is necessary for the courts to make special efforts to accommodate people with genuine feelings of heightened anxiety directly related to the legal system.  Otherwise, those people will be denied equal access to justice because they will experience the detriment of involvement, or perhaps even be dissuaded from taking such involvement by reason of their particular psychological or mental state.  The foundational institutions of society, such as the courts, must demonstrate the values of our society in the way they go about their work.  One of the values in society which the courts must demonstrate is the need to accommodate the requirements of difference.  For instance, differences in religious beliefs are accommodated by providing various forms of oath taking, and differences in English language proficiency are accommodated by the use of interpreters.  Differences in psychological and mental capacities to interact with the legal system may sometimes need to be accommodated by making special arrangements in the management of cases. 

47                  In the United Kingdom a very comprehensive Equal Treatment Bench Book [www.jsboard.co.uk] has been published.  It provides practical guidelines to courts “on a variety of topics which may lead litigants, victims, witnesses, or legal representatives to feel that they may be disadvantaged in dealing with our legal system”.  In the Forward the Lord Chief Justice, Lord Bingham, said:

“The cardinal principle which underlies the [judicial] oath is that of equality before the law.  In deciding guilt or innocence, or in weighing the merits of claims between private individuals or between individuals and the state, judges must have reference only to the facts (so far as they can be established), the merits of each party’s position and the relevant law.

But this does not mean the judges should ignore factors such as ethnic origin, gender, or disability.  On the contrary, justice requires that judges must understand all the factors relevant to the factual situation they are considering, including those which may affect the way those present in the courtroom behave, or perceive the trial process.”

48                  One reason why the courts may have been reluctant to accept the demands of people with psychological or mental difficulties is that those people sometime engage in confronting conduct during the proceedings.  For instance, in the present case the exchanges extracted earlier in these reasons demonstrate that Mr Awan’s conduct was at times apparently petulant, intemperate, offensive, and disrespectful.  Once it is appreciated that such conduct is a manifestation of the very problem which the litigant is experiencing, it becomes possible for the court to focus on the underlying issue.  Then, the court will not be deflected by conduct which would, in other circumstances, be regarded, and treated, as unacceptable.  Rather than treating the conduct as a reason for refusing to deal with the case until the conduct has improved, the conduct might been seen as the very reason why the case should be treated differently.

49                  In the present case it appeared to me that to delay the hearing of this application, even for the relatively short period until 26 March 2002, would place an undue strain on Mr Awan, which the system should not require if at all possible.  Consequently the matter was heard two days after the directions hearing, and on a weekend.  It is unfortunate that the decision has been delayed.  However, this delay resulted from the complexity of the issues in the case, and the absence of legal representation of Mr Awan which would have assisted the Court in determining the novel and difficult issues.

50                  It is now necessary to turn to the statutory framework in which the decision was made and to the decision of the Tribunal.

The Statutory Framework

51                  The question before the Tribunal was whether Mr Awan satisifed the criteria for the grant of a Student (Temporary) (Class TU) subclass 560 visa.  Section 65 of the Migration Act 1958 (Cth) (the Act) provides:

“(1)     After considering a valid application for a visa, the Minister:

(a)               if satisfied that:

(i)         the health criteria for it (if any) have been satisfied; and

(ii)               the other criteria for it prescribed by this Act or the regulations have been satisfied; and

(iii)             the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

(iv)             any amount of visa application charge payable in relation to the application has been paid;

is to grant the visa; or

(b)        if not so satisfied, is to refuse to grant the visa.”

[emphasis added]

52                  Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations)sets out the criteria that a visa applicant must satisfy in relation to particular subclasses of visa before the Minister can grant the visa pursuant to s 65.  The relevant criteria considered by the Tribunal were set out in subclauses 560.224(1)(a) and (d) of Schedule 2 of the Regulations as follows:

“(1)     … the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard:

(a)               to the financial ability of the applicant to undertake the course without contravening any conditions of the visa relating to work; and

…

(d)               to any other relevant matter.”

the decision of the Tribunal

53                  The decision of the Tribunal is divided into sections.  The two sections of significance to this proceeding are headed “Evidence” (pars 7 – 29) and “Findings” (pars 30 – 37).

54                  The Tribunal outlined (pars 8 – 25) the background, including the visas previously held by Mr Awan, the studies he had completed, the visit to the Department offices on 19 April 2001, the events of 20 April 2001, the cancellation of the visa on 21 April 2001, the Windsor interview (wrongly recorded as having occurred on 23 April – in fact, it was held on 20 April 2001), the phone enquiries notes, and the delegate’s decision refusing the student visa. 

55                  Then the Tribunal recorded (pars 19 – 23) the evidence given by Mr Awan to the MRT in the cancellation review hearing on 7 May 2001.  The passage comprises about 25 per cent of the “Evidence” section of the Tribunal’s decision. 

56                  This emphasis immediately strikes one as an unduly detailed reference to a prior proceeding before another Tribunal member.  Indeed, the account of the evidence of Mr Awan given to the previous Tribunal is taken, without acknowledgment, directly, and without alteration, from the decision of the MRT constituted by Mr Friedman which considered the decision to cancel the then existing student visa.  The transposition of the evidence includes the mistake in the reference to the date of the interview held by Mr Windsor on 20 April 2001. 

57                  Further, the recitation of the background facts set out in pars 8 – 18 are also taken directly, without acknowledgment, and without alteration from the decision of the previous Tribunal.

58                  The remaining paragraphs of the evidence section (pars 24 – 29) are new, that is to say, not taken from the previous decision.  Paragraph 24 is a further, apparently repeated, reference to the Windsor interview.  Then, in par 25, there is a six line reference to the decision of the delegate under review.  Paragraphs 26 – 28 summarise the evidence given at the hearing on 1 October 2001.  In the context, this seems a surprisingly brief record of the evidence, because, one would imagine, the hearing in relation to the review would be the primary source of evidence for the determination of the review. 

59                  Because of this paucity in the description of what occurred at the hearing before the Tribunal, the reliance by the Tribunal on an adverse assessment of the credibility of Mr Awan, and the assertion by Mr Awan, before me, that the hearing before the Tribunal had taken about ten minutes, I was concerned to have the transcript of that hearing as part of the evidence before the Court.  After the hearing before me, the respondent produced the transcript of the proceedings before the Tribunal in response to my concerns.

60                  The transcript of Mr Awan’s evidence before the Tribunal occupies ten pages of a total transcript of the substantive hearing of thirteen pages.  The remaining three pages are taken up with the record of the short submissions made by counsel appearing for Mr Awan.  Whilst it would probably have taken about half an hour for Mr Awan to give his evidence, rather than the ten minutes he recalled, the essence of his recollection, namely, that the hearing was very short, was substantiated by the transcript. 

61                  The next section of the decision is entitled “Findings”.  Apart from introductory matters, which need not be reproduced now, the “Findings” occupy four paragraphs.  It is best to set them out in full.

“33.     The decision record shows that the delegate found that the visa applicant did not satisfy paragraphs (a) or (d) [of clause 560.224(1) of the Regulations].  The delegate noted that the visa applicant claimed he did not have sufficient funds to return to Pakistan, that from December 2000 until April 2001 all but one credit entry related to salary, and that the visa applicant applied to waive the Tribunal application fee on the ground of financial hardship.  The delegate concluded that the visa applicant did not have the financial ability to undertake the course without contravening any condition of the visa relating to work.  At this hearing the visa applicant stated that he was supported by his father and did not need to work, but at the hearing on 7 May 2001 he gave evidence that his father paid for his education expenses but other expenses were met through part time employment.  The evidence given under oath by the visa applicant at the two hearings is inconsistent.  In addition the statement by the visa applicant that he could not afford to return to Pakistan to apply offshore is not consistent with the statement that he wanted to travel widely in Australia or that he wanted to apply for a visa to tour and play cricket in England.  The Tribunal finds that the visa applicant is not a credible witness and is prepared to say whatever at the time he believes will best help his application.  PAM provides the following guidance in respect to financial ability:

9.2.1        Criterion 560.224(1)(a) takes into consideration ‘the financial ability … to undertake the course without contravening any conditions … relating to work’.  In assessing this ‘genuineness’ factor, whether for offshore or onshore students, officers should have regard to which conditions are imposed on which Student visas – see Schedule 2 560.611 provision and section 14.2 below.  (The table in section 14.1 below summarises these various student visa conditions.)

9.2.2        This criterion cannot, under policy, be satisfied if the student proposed to rely solely on potential income earned from working within the work rights (if any) that may be granted to them in Australia after commencing studies.  Under policy, such ‘work rights’ are intended only to supplement a student’s income.

In view of the conflicting evidence given by the visa applicant the Tribunal cannot accept the statement that he is fully supported by his father and therefore is not able to find that visa applicant can undertake the course without contravening work conditions.  Consequently the visa applicant fails to meet subclause 560.224(1)(a).

34.       The delegate also found against the visa applicant under subclause 560.224(1)(d).  The delegate took into account the events of 19 – 23 April 2001, with the rapid change of courses and educational institutions, as evidence of the fact that study was just an excuse to remain in Australia.  The delegate also took into account the fact that the visa applicant had little idea of the content of the course or its relevance to future employment or what the employment might be.  By the time of the hearing on 7 May 2001 the evidence of future employment was stronger in that the visa applicant talked about returning to the family cotton business.  By this hearing the visa applicant had improved his evidence and now was sure that he was to be employed in the business.  However on being questioned it transpired that the family business was that of landlords and cotton growers and not textile manufacturers, although they did have an equity share in a textile business that is managed by a friend of his fathers and where he may find employment.

35.              PAM has the following guidance on this paragraph:

9.5.2    In all cases, and regardless of whether the student is applying in or outside Australia, factors that may, under policy, be taken into account include

·        the student’s situation in their home country, for example, personal, financial, employment and other commitments that may induce the applicant to return to their home country and circumstances (e.g. military service commitments) that may induce the applicant not to return to their home country;

·        the student’s immigration history e.g. previous compliance with immigration laws and whether the student has previously applied for entry to Australia;

·        the student’s academic record (see paragraph 9.5.4 below);

·        the student’s links with Australia;

·        whether the student saftisifes officers that they will leave Australia at the end of any authorised period of temporary stay (see also paragraph 9.5.7 below);

·        whether the proposed course of study will commence within a reasonable time of the student’s proposed date of arrival in Australia;

·        whether the student’s stated purpose in studying in Australia and the proposed duration of stay is consistent with the applicant’s circumstances;

·        whether the student is seeking to undertake a course consistent with, and appropriate to, their current level of education;

·        whether the study is relevant to the student’s past or proposed future employment (as appropriate) in their home country (see paragraph 9.5.5 below);

·        if a similar course is already available in the home country, whether the student has sound reason for not undertaking the study there; …

36.       Dealing with each of the above factors in summary form the Tribunal has difficulty in assessing the future position of the visa applicant in Pakistan as has [sic] found that the visa applicant is not a credible witness.  The visa applicant has complied with immigration laws in the past and has a good academic record.  The visa applicant claims that he will leave on the completion of his course in June 2002 but he may find another course that he wishes to study and thus prolong his stay in this country.  He could also renew his application for permanent residence.  The course at Cambridge has commenced and the visa applicant is studying but the level of the course namely TAFE is not consistent with his academic achievement, which was a Master of Information Systems at CQU.  Taking these other factors into account the Tribunal finds that the visa applicant fails to meet subclause 560.224(1)(d).  The Tribunal therefore finds that the visa applicant does not meet subclause 560.224(1) and is not a genuine applicant for entry and stay as a student.”  [emphasis added]

the DUTY of the court dealing with an unrepresented litigant

62                  The applicant was self-represented.  His application to the Court did not state any grounds upon which it was alleged that the Tribunal erred in law.

63                  The task of the Court in such circumstances is made especially difficult.  This is particularly so when the issues of law raised by the case are complex and novel, as they are in the present case. 

64                  Very properly the respondent did not seek a summary dismissal of the application, and, indeed assisted the Court in resolving the questions before it consistent with the interests of the respondent.  The Court is bound to protect the rights of the unrepresented litigant but, at the same time, it is bound to ensure that it does not prejudice the impartial function which it must fulfil in adjudicating between the parties:  Minogue v Human Rights & Equal Opportunity Commission (1999) 84 FCR 438.

65                  Consistent with this obligation, I will now consider whether the Tribunal made any errors in arriving at its decision, and then consider whether any such errors entitle Mr Awan to a remedy in this application.  The application should be treated as an application under s 39B Judiciary Act 1903 (Cth) (Judiciary Act).  The argument by the respondent was put on this basis.

Errors made by the Tribunal

Breach of Section 359A(1) of the Migration Act

Inconsistency in the evidence concerning financial support by Mr Awan’s father

66                  Section 359A of the Act provides:

“(1)     Subject to subsection (2), the Tribunal must:

(a)               give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and

(b)               ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)                invite the applicant to comment on it.

(2)   The information and invitation must be given to the applicant:

(a)               except where paragraph (b) applies – by one of the methods specified in section 379A; or

(b)               if the applicant is in immigration detention – by a method prescribed for the purpose of giving documents to such a person.

(4)   This section does not apply to information:

(a)   that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)   that the applicant gave for the purpose of the application; or

(c)    that is non-disclosable information.”

67                  The Tribunal found an inconsistency in the evidence given by Mr Awan concerning the financial support received by him from his father as follows:

“At this hearing the visa applicant stated that he was supported by his father and did not need to work, but at the hearing on 7 May 2001 he gave evidence that his father paid for his education expenses but other expenses were met through part time employment.  The evidence given under oath by the visa applicant at the two hearings is inconsistent.”

This inconsistency was one of the two inconsistencies in the evidence of Mr Awan upon which the Tribunal relied to find that Mr Awan was not a reliable witness.  The Tribunal based its conclusion to reject Mr Awan’s application on the finding that Mr Awan was not a credible witness.  In other words, the finding was critical to the decision.  Hence, the need to comply with s 359A(1) was of particular significance in the determination of this case. 

68                  The inconsistency was between evidence given to the Tribunal conducting the cancellation review hearing on 7 May 2001, and later evidence given on 1 October 2001 before the Tribunal which made the decision presently under consideration.

69                  The evidence given to the cancellation review hearing was information which the Tribunal considered was part of the reason for affirming the decision under review.  The Tribunal was, therefore, bound to give particulars of the information to Mr Awan, to explain to him that the evidence was inconsistent with the evidence given to the Tribunal, and to invite him to comment on it.  The Tribunal failed to do any of these things, and it thereby acted in breach of s 359A(1). 

Inconsistency in the evidence concerning Mr Awan’s travel plans

70                  The second inconsistency in the evidence given by Mr Awan related to his travel plans.  The finding of this inconsistency was the other reason for the Tribunal’s conclusion that Mr Awan was not a reliable witness.  The Tribunal said:

“In addition the statement by the visa applicant that he could not afford to return to Pakistan to apply offshore is not consistent with the statement that he wanted to travel widely in Australia or that he wanted to apply for a visa to tour and play cricket in England.”

71                  There are two references in the section of the decision which outlines the evidence before the Tribunal which seem to be the basis of the Tribunal’s finding of inconsistency in the evidence relating to travel.  Those references are:

“On 23 April 2001 the visa applicant was interviewed in relation to the subclass 560 visa application he had lodged on 20 April 2001.  In the record of interview the visa applicant stated that he could not afford to travel overseas to lodge a visa application and had enrolled in the course at Cambridge which was starting earlier than the proposed course at CQU.”

72                  And then:

“A hearing was held on 7 May 2001 in relation to the cancellation decision at which the visa applicant gave evidence. …He stated that when he applied for a new student visa at Preston on 19 April 2001 he was upset that he would have to leave Australia to apply for the visa offshore, as he planned to apply for a tourist visa for the United Kingdom to enable him to play cricket in England before starting his MBA course.”

73                  It can be seen that the inconsistency relied upon here was between a statement at the interview with Mr Windsor on 20 April 2001 (wrongly stated as 23 April 2001, which was the date Mr Windsor made the file note), and evidence given at the cancellation review hearing. 

74                  The evidence given at the cancellation review hearing was information which, by reason of its inconsistency with the statement made to Mr Windsor, was considered by the Tribunal to be a part of the reason for affirming the decision under review.  The Tribunal was, therefore, bound to give Mr Awan particulars of the information, to explain to him why it was relevant to the review, and to invite him to comment on it.  The Tribunal failed to do any of these things, and it thereby acted in breach of s 359A(1).

Mistakes of Fact

Alleged inconsistency of evidence concerning the financial ability of Mr Awan

75                  The Tribunal found that there was an inconsistency between Mr Awan’s statement that he was supported by his father and did not need to work, and the statement that his father paid for his education expenses but other expenses were met through part-time employment.

76                  The inconsistency only exists if the statements, assuming for present purposes that they were made, related to the same period of time. 

77                  The first statement was said to have been made on 7 May 2001 and the second on 1 October 2001.  The statements relate to the time when they were made.  They were made at different times, and hence, there is no necessary inconsistency.  In apparently assuming that the statements related to the same period of time, the Tribunal mistook the facts.

78                  But, in any event, the Tribunal mistook the facts and hence created a false inconsistency, when it said that Mr Awan had given evidence on 1 October 2001 that he had no need to work and was supported by his father.

79                  The evidence before the Tribunal given by Mr Awan on 1 October 2001 on this subject is short and can be reproduced in full.  It was as follows:

“MR DECKER: [Counsel for Mr Awan]          Also if he can be asked with regards – what sort of finances do you have to finance your study whilst in Australia?  Now, you’ve said it will finish in June 2002? – Yes.

What sort of finances do you have? – I’ve got like $8,000 in the bank today, so it is …

You’re doing okay? – Yes

MR MAHONEY: [The Tribunal member] I’m assuming that … ? – This is like my friend will submit 2,000 today I’m getting from overseas so it will be 8,000.

The funds are coming in from OS, so your father’s financing it? – Yes

MR DECKER:             That’s the current status, you’ve got $6,000 – odd in the bank? – Yes, which is actually the fees I am required to pay, that’s for 2,000 that 1,000 I get every month, so that would be just for accommodation and that sort of thing.

MR MAHONEY:          So, you don’t work here at all? – I was working, but …

Yes, you were working as a taxi driver at one stage? – I did when I came here in Australia part-time like in December but then after that I didn’t work a lot.

MR DECKER:             And it’s fair to say that there was an incident there with a taxi driver and then you never returned back? – Yes.”

[emphasis added]

80                  Mr Awan did not give a responsive answer to the question whether he was working at the time.  Rather, he began to explain that, in the past, he had worked.  The Tribunal interrupted his answer and directed the focus to Mr Awan’s work as a taxi driver.  Mr Awan then answered that he had worked as a taxi driver until December, presumably in 1996.  This is when he was assaulted.  His answer continued that he worked thereafter but “not a lot”.  His reference to not returning to work was a reference to not returning to work “there”, that is, with that taxi company.  The subject was Mr Awan’s past work, not his present work.

81                  On the evidence given by Mr Awan, the Tribunal had no basis to find that Mr Awan was not working part-time to support himself.  And yet this finding was the foundation for the conclusion of the Tribunal that Mr Awan had given inconsistent evidence and was therefore unreliable.  The Tribunal made a mistake of fact when it concluded, on the evidence upon which it relied, that there was an inconsistency between the evidence given by Mr Awan to the Tribunal and the evidence given to the cancellation review hearing on this subject.

82                  Finally, the Tribunal made a further mistake of fact on this subject when it found that:

“The evidence given under oath by the visa applicant at the two hearings is inconsistent.” [emphasis added]

83                  The sworn evidence, which was said by the Tribunal to have been given by Mr Awan on 7 May 2001 at the cancellation review hearing to the effect that his father provided funds for educational expenses but that other costs were met through part-time employment, was not evidence given under oath.  The statement was contained in the application for review of the cancellation decision.  This is shown by the decision of the Tribunal made on 7 May 2001 in which it is stated:

“In his application the visa applicant stated that his father provided funds for education expenses but that other costs such as accommodation and food were met through part-time employment.” [emphasis added]

84                  It follows that the Tribunal wrongly identified the source of this statement.  Instead of recognising that it was an unsworn statement contained in an application, the Tribunal wrongly regarded it as sworn evidence given at the cancellation review hearing.  As the statement was the basis for the finding that Mr Awan had given inconsistent evidence and that he was therefore an unreliable witness, the unsworn source of the statement may have been important.  This is particularly so when the Tribunal identified that the inconsistency was between two sworn statements.

85                  There are other mistakes of fact made by the Tribunal.  These mistakes are a matter of concern as they reflect upon the quality of the decision making in this case.  However, for reasons which will appear later in this judgment, there is no purpose in further cataloguing these errors. 

86                  The major legal issue which arises from the analysis of the errors made by the Tribunal is the consequence of the breaches of s 359A(1) of the Act.

consequence of Breach of Section 359A(1)

87                  Since 2 October 2001, a new Part 8 regulating judicial review of decisions made under the Act has been in operation.  Under the new regime, there are three provisions of particular relevance as to the whether a Migration Act decision will be subject to review by the Federal Court.

88                  The starting point is s 474 of the Act, which provides:

“(1)     A privative clause decision:

(a)               is final and conclusive; and

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

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

(2)              In this section:

            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).”

89                  It is not disputed that the decision of the Tribunal in question in this case is a privative clause decision within the meaning of s 474(2) of the Act.

90                  Section 476(1) of the Act confirms that the Federal Court does not have any jurisdiction in relation to a primary decision, which is defined by s 476(6) to mean a privative clause decision that is either reviewable or has been reviewed under Part 5 or Part 7 of the Act.  However, s 475A provides that s 476 does not affect the Federal Court’s jurisdiction under s 39B of the Judiciary Act in relation to a privative clause decision made on a review by a Tribunal under Part 5 or Part 7 of the Act.

91                  Therefore, whether the applicant is entitled to relief arising from a breach of a requirement of the Act depends on the extent to which the Court is empowered to make an order under s 39B of the Judiciary Act given the terms of s 474.

92                  Section 39B of the Judiciary Act vests the Court with original jurisdiction in identical terms to the jurisdiction given to the High Court under s 75(v) Australian Constitution (the Constitution).  That jurisdiction is “with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”.

93                  In a number of decisions the High Court has formulated some limits on the effectiveness of privative clauses to prevent legal challenges, including under s 75(v) of the Constitution and, thus, under s 39B of the Judiciary Act.

The Hickman Case

94                  In R v Hickman & Ors; Ex parte Fox and Anor (1945) 70 CLR 598 (Hickman) a Local Reference Board was empowered to settle disputes in the coal mining industry.  The Board made orders that the prosecutors and their employee truck drivers were engaged in the coal mining industry, and that they were obliged to pay such drivers under a specified general award applicable to the coal mining industry.  The prosecutors sought prohibition on the ground that the truck drivers were not engaged in the coal mining industry, and hence, the Board had acted outside its jurisdiction.  A privative clause (regulation 17) provided that the decision of the Board “shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever.”

95                  Dixon J said at 614-5:

“The presence of this provision in the Regulations makes it necessary to say whether and to what extent it is ineffectual to protect the decision of the Board from invalidation. In the first place, it is clear that such a provision cannot, under the Constitution, affect the jurisdiction of this Court to grant a writ of prohibition against officers of the Commonwealth when the legal situation requires that remedy. But a writ of prohibition is a remedy that lies only to restrain persons acting judicially from exceeding their power or authority. It is therefore necessary to ascertain before issuing a writ whether the persons or body against which it is sought are acting in excess of their powers; and that means whether their determination, when made, would be void. The Board derives its power from Regulations of which reg. 17 forms a part, and that regulation must be taken into account in ascertaining what are the true limits of the authority of the Board, and whether its decision is void.

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 decision 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.”

96                  He continued at 616:

“It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution. The relevant subject matter in the present case is naval and military defence. It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg. 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity. In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid.

In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them. Further, if there is an opposition between the Constitution and any such provision, it should be resolved by adopting any interpretation of the provision that is fairly open.”

[emphasis added]

97                  Dixon J considered that the grant of prohibition was justified because the power of the Board was limited to the settlement of the disputes, and yet the orders made purported to determine the applicability of the general award to the employees of the prosecutors.  That action was outside the power of the Board.  Although consistent with Dixon J’s findings, the remaining members of the High Court based their decision that prohibition should lie on the basis that the Board could not determine, wrongly, that an employer was within the coal mining industry because that would purport to make an authoritative finding as to the limits of the coal mining industry which they were not empowered to make.

98                  The approach to privative clauses which Dixon J outlined in Hickman has sometimes been called a “principle”.  To so see it may be to deflect attention from its substance, and to tempt a mechanical application of formulae used in later cases as if they constituted fixed and rigid classes of cases in which privative clauses are or are not effective. 

99                  In truth, Dixon J explained that the presence of a privative clause gives rise to a need for statutory interpretation in order to attempt to reconcile the requirements stipulated for the exercise of statutory power on the one hand, and the apparent freedom from challenge of a failure to comply with the statutory requirements.  A key passage in Hickman at 616 states:

“But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg. 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity.”

100               His Honour recognised that decisions, subject to the type of privative clause there in question, which were not made bona fide and which did not bear on their face an appearance of an attempt to exercise the power were not intended to be free from challenge.  However, the reason for this conclusion is not stated, and it probably does not need to be.  It is obvious that a decision which is so utterly divorced from the power granted would not be intended by the legislature to be protected from challenge unless such a consequence was expressed unambiguously.  As to other transgressions as to the limits of power, his Honour explained that the inquiry is whether the legislature intended by the entire legislative scheme to “spell invalidity”, that is to say, whether such transgressions were to be regarded as leading to an invalid decision which could be challenged.

101               It was not necessary for Dixon J to illustrate the types of transgressions which might demonstrate an intention that a decision would remain open to challenge, because he found that the action of the Local Reference Board did not bear on its face an appearance of the exercise of the power bestowed.  In any event, his Honour’s starting point was that the question was one of statutory interpretation – an exercise which is specific to a particular statutory regime under examination. 

102               In subsequent cases, the Court has approached the matter as one of statutory interpretation, and has asked the question whether the statute as a whole demonstrates an intention that the circumstances in which the particular decision was made would be free from challenge, or whether it was intended that the decision would still be open to challenge.

103               Some of the cases following Hickman are said to establish a further category of cases in which a challenge is permitted despite the presence of a privative clause.  These are cases in which the decision is made in breach of inviolable conditions or restrictions on jurisdiction or is in breach of imperative duties. 

104               In truth, this category merely describes the construction given to particular statutes under consideration in the individual cases.  In each case, the underlying question was whether the legislature intended that the particular circumstances in which the decision was made would attract legal challenge, or whether the decision made in such circumstances was to be free from challenge.

105               Before reviewing certain of the authorities subsequent to Hickman, it is useful to refer to a recent authority which explained the scope of Hickman, after the passage of more than 40 years, in a way which brought together much of the evolved jurisprudence.

106               In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the High Court dealt with two issues which bear upon the interpretation of privative clauses, although the case itself did not involve a privative clause. 

107               The Court considered the need to reconcile apparently conflicting statutory provisions.  The existence of an apparent inconsistency between statutory provisions is the situation in which the Hickman analysis applies.  The majority (McHugh, Gummow, Kirby and Hayne JJ) said at par 69:

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.  In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’.  Thus, the process of construction must always begin by examining the context of the provision that is being construed.”  [citations omitted]

108               The Court also considered the effect on the validity of an act done in breach of statutory requirement.  The discussion is relevant to the construction of statutory duties and requirements where the issue arises as to whether a privative clause is effective to prevent challenge to the decision made.  The majority said at par 91:

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect.  Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition.  The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.  Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment.  The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances.  There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on this issue.” [emphasis added] [citations omitted]

109               Their Honours then said that the traditional distinction between directory and mandatory provisions had outlived its usefulness as a test for determining the validity of action taken in breach of a statute.  They continued at par 93:

“In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not.  They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid.  The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds.  The classification is the end of the inquiry, not the beginning.  That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision.  A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.  This has been the preferred approach of courts in this country in recent years, particularly in New South Wales.  In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute”.  [emphasis added] [citations omitted]

110               As the passage extracted in par 108 of these reasons states, the cases following Hickman are of some assistance in understanding the proper approach to the construction issues which arise in relation to privative clauses.  The assistance is limited because the cases do not provide a bright line test.  Rather, the circumstances of the decided cases can be applied by way of analogy to the cases which now arise.  It is for that reason that it is useful to consider the authorities subsequent to Hickman.

Subsequent authorities

111               In R v the Commonwealth Rent Controller and Ors; Ex parte National Mutual Life Association of Australasia Limited (1947) 75 CLR 361 (Rent Controller) the High Court was concerned with a decision of the Commonwealth Rent Controller.  The Rent Controller had fixed the fair rent for the National Mutual building.  One tenant, Dorothy Clifford, sought a variation of the rent of her basement premises on the basis that the rent had previously been set on the assumption that the owner provided for the cleaning of the premises but, in fact, she paid for the cleaning herself.  The Controller revoked the original determination and redetermined the rent of Ms Clifford, but also redetermined the rents of the thirty-nine other tenants.  The owner of the building sought prohibition on the ground that the Controller had no statutory power to vary the rents of the other tenants in the absence of an application or applications by those other tenants.  The Court held that the Controller acted without statutory power.  It then had to consider the effect of regulation 38 which provided:

“Every determination of a Fair Rents Board or of the Controller shall, except as provided by this Part, be final and without appeal, and no writ of prohibition or certiorari shall lie in respect thereof.”

112               Latham CJ and Dixon J (with whom Rich J at 373 and Williams J at 377 agreed) said at 369:

“When Commonwealth legislation confers powers upon an officer a provision such as reg. 38 cannot be construed as intended to provide that his powers are absolutely unlimited.  Such a construction would raise questions of the validity of the legislation.  Such a provision cannot help to give effect to any legislation which it is beyond the power of the Commonwealth Parliament to enact.  Further, even where no question of validity arises, the effect of such a provision in a particular case depends upon the construction of the relevant statute taken as a whole.  If a legislature gives certain powers and certain powers only to an authority which it creates, a provision taking away prohibition cannot reasonably be construed to mean that the authority is intended to have unlimited powers in respect of all persons, and in respect of all subject matters, and without observance of any conditions which the legislature has attached to the exercise of powers.  Such a provision will operate to prevent prohibition going in cases of procedural deficiencies where the authority whose powers are in question is in substance dealing with the matter in respect of which power is conferred upon it.  But if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s 75(v.) of the Constitution in the case of the latter description:  see R v Hickman; Ex parte Fox, at pp. 614-617.  It is therefore necessary to inquire whether the regulations now under consideration impose any condition which must be satisfied when it is sought to exercise the power to vary a determination of rent.”  [emphasis added] [citations omitted]

113               The Court granted relief by way of prohibition.

114               Then, in 1949, in R v Murray and Ors; Ex parte Proctor and Ors (1949) 77 CLR 387 (Proctor), a Local Reference Board in the coal industry was again the subject of attention.  The Board held a meeting concerning a particular dispute about whether employee miners or contract miners should do certain timber work at the mine.  Regulation 13 of the National Security (Coal Mining Industry Employment) Regulations (S.R. 1941 No. 25 – 1948 No. 45) provided:

“(1)     A Local Reference Board, when meeting to exercise its powers under these Regulations, shall be constituted from time to time, by the Chairman and not less than two and not more than three members representative of employers and of employees, respectively, to be selected by the Chairman according to the subject matter to be dealt with by the Board.

(2)               The Chairman and half of the other members of the Board as constituted for the time being in accordance with the provisions of this regulation shall form a quorum and when a quorum is present the Board may validly function notwithstanding that the representatives of one party have failed to attend.”

115               At the time of the relevant meeting the Board was constituted by the Chairman, three employer representatives and one or two employee representatives.  The employer representatives decided to stay away from the relevant meeting.  That left one or two employee representatives plus the Chairman.  On any view, a quorum was not present. 

116               The mine operators sought prohibition against the orders made at the meeting. 

117               The respondents were the relevant members of the Board.  They resisted the grant of prohibition in reliance on the terms of a privative clause (regulation 17) which was in the same terms as the privative clause in Hickman (see par 94 of these reasons).

118               The Court rejected the respondent’s argument, and held that regulation 17 was not effective to prevent a challenge to the order of the Board. 

119               Latham CJ relied on his joint judgment with Dixon J in Rent Controller.  He cited a passage which included, at 395, the following:

“But if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s 75(v.) of the Constitution in a case of the latter description:  see R v Hickman; Ex parte Fox and Clinton.”  [citations omitted]

120               He continued at 396:

“When a quorum is prescribed in relation to a body it means imperatively that no business shall be transacted by the body unless the prescribed number at least is present.  In In re Alma Spinning Co. (Bottomley’s Case), atp. 689 Sir George Jessel, M.R., said this:

‘When you say “the quorum of directors shall be three”, what does that mean?  Stated in full, it amounts to this, that ‘no business shall be transacted unless there shall be three directors present.’ That is the meaning of a quorum.  If it is said that is directory only, the answer is, it is not: it is of the very essence of the authority that there shall not be less.’

The necessity of a quorum in the present case is emphasized by the words of the second part of par (2) of reg. 13:

‘when a quorum is present the Board may validly function notwithstanding that the representatives of one party have failed to attend.’

The regulation, therefore, makes the presence of a quorum essential to valid action by the Board.”  [emphasis added] [citations omitted]

121               Dixon J also repeated the approach taken in Hickman, but added a further consideration relevant to the particular and different circumstances of the case in question.  He said at 399-400:

“There is necessarily an appearance of inconsistency between a provision which defines and restricts the power of a tribunal and prescribes the course it must pursue and a provision which says that the validity of its decrees shall not be challenged or called in question on any account whatever. 

The apparent inconsistency should be resolved by an attempt to arrive at the true intention of the legislative document containing the two provisions considered as a whole.  The first step in such a process of interpretation is to apply to a provision like reg. 17 the traditional or established interpretation which makes the protection it purports to afford inapplicable unless there has been an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province.  There is nothing artificial in such an interpretation.  For it could hardly be supposed, to take perhaps an extreme example, that it was intended that reg. 17 should give validity and protection to the awards of a tribunal established in relation to one industry when the tribunal intentionally stepped outside its allotted industrial field and proceeded to regulate an entirely different industry.  A second step in interpreting the whole legislative instrument must be to consider whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action.  For a clearly expressed specific intention of this kind can hardly give way to the general intention indicated by such a provision as reg. 17.” 

[emphasis added]

122               He then posed the relevant question at 400-1 as follows:

“[T]he question is whether the provision contained in reg. 13(2) as to a quorum is imperatively expressed or may on the contrary yield to the general policy or intention indicated by reg. 17.  In the latter event it would be necessary to construe it as stating what number should form a quorum but not as making the presence of a quorum essential to the validity of what is done.

In my opinion the language of reg. 13(2) is too clear and specific to allow of such an interpretation .  It says ‘when a quorum is present the Board may validly function notwithstanding that the representatives of one party have failed to attend.’  This cannot possibly be construed as meaning that, in the contingency of the absence of one side’s representatives, the Board may validly function although a quorum is not present.  The word ‘validly’ shows that the sub-regulation is addressed to the question of validity.  It states the conditions and to disregard them would be to set at nought the specific intention of the regulations.  The general intent disclosed by reg. 17 does not justify such a process of interpretation. 

…

But in my opinion reg. 13(2) distinctly makes the presence of a quorum a necessary condition of the valid exercise of the Local Reference Board of its functions.”  [emphasis added] [citations omitted]

123               In short judgments McTiernan, Williams and Webb JJ each agreed that prohibition should issue. 

124               Dixon J made further reference to this issue in R v Metal Trades Employers’ Association and Ors; Ex parte Amalgamated Engineering Union Australian Section (1950) 82 CLR 208, in relation to two aspects of that case. 

125               The proceedings concerned an award of the Commonwealth Court of Conciliation and Arbitration which required employees to work reasonable overtime as requested by their employer.  The award also prohibited an organisation, party to the award, being directly or indirectly party to or concerned in any ban, limitation, or restriction on the working of overtime in accordance with the requirements of the employer. 

126               The first aspect arose under s 29(b) of the Conciliation and Arbitration Act 1904-49 (Cth) (the C & A Act), which empowered the Court of Conciliation and Arbitration to order compliance with an award.  In purported exercise of this power, the Court ordered a union, which was a party to the award, to cause or procure its members to work overtime in accordance with the award free of any bans, limitations, or restrictions. 

127               The Court (Dixon, McTiernan, Webb and Kitto JJ, Latham CJ dissenting) held that the order was beyond power because the award did not require the union to cause or procure its members to work overtime.  The majority (McTiernan, Webb and Kitto JJ) held that prohibition should issue.  Dixon J held that the order was saved by a privative clause.  He said at 248:

“The prosecutor’s complaint is simply that the order goes beyond the power which the statute has actually conferred.  Now it cannot be denied that the order impugned was made by the Arbitration Court in purported pursuance of s 29(b), that it is an attempt to exercise that power and that upon its face the order appears to be an exercise of the power.  It is only when you look behind it at the terms of the award that any ground is disclosed for denying that the order falls within s 29(b).

In my opinion in such a case s 32 [the privative clause] operates to give validity to the order.  The general policy of the Act is to give efficacy to the completed proceedings of the Arbitration Court and no doubt also of the conciliation commissioners.  This can be seen from the provisions contained in s 32 and in s 16.  No doubt there are instances in the Act where imperative duties or inviolable limitations or restraints are imposed by the Act on the Arbitration Court or the commissioners.  When that is the case invalidity affects any transgression of the limitation or restraint and a mistaken decision that the duty is less extensive than it is does not relieve the court or the commissioner from its imperative obligation.  In such cases prerogative writs will issue for the enforcement of the duty or restraint.”  [emphasis added]

128               The second aspect arose under s 29(c) of the C & A Act which empowered the Court of Conciliation and Arbitration to enjoin a union from committing or continuing a breach of the C & A Act.  Acting pursuant to this power the Court enjoined the union from acting in breach of the award.  The High Court (Latham CJ dissenting) held that the order was beyond power.  Dixon J referred to the application of the privative clause at 253, as follows:

“Section 32 will not save the validity of the order now under discussion because on its face that order is bad.  The videlicet shows that it is outside the power of the Arbitration Court in the sense that it professes to do what the court has no power at all to do, namely to grant an injunction against a breach of the Act constituted by failure to comply with an award and that it is not an attempt to exercise the court’s actual jurisdiction.”  [emphasis added]

129               R v Coldham and Ors; Ex parte The Australian Workers’ Union (1982) 153 CLR 415, concerned a decision of the Australian Conciliation and Arbitration Commission to order that the Builders Labourers’ Federation have the exclusive right to represent workers constructing the Worsley Uranium Mine.  The statutory power to make the order depended on the existence of the jurisdictional fact, namely, that the employees were eligible to be members of the union given the right to exclusive representation.  The Australian Workers’ Union sought prohibition and mandamus on the ground that the employees were not eligible to be members of the Builders Labourers’ Federation, but were eligible to be members of the Australian Worker’s Union. 

130               Section 60 of the C & A Act provided:

“Subject to this Act, an award (including an award made on appeal)

(a)               is final and conclusive;

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

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

131               The Court (Mason ACJ, Brennan, Deane and Dawson JJ, Murphy J dissenting) held that the employees were eligible to be members of the Australian Workers’ Union.  The majority rejected the argument that s 60 was a bar to the grant of prohibition and mandamus.  Mason ACJ and Brennan J said at 418-9:

“As Dixon J explained in Murray, and in other cases it is a matter of reconciling the prima facie inconsistency between one statutory provision which seems to limit the powers of the Tribunal and another provision, the privative clause, which seems to contemplate that the Tribunal’s order shall operate free from any restriction.  The inconsistency is resolved by reading the two provisions together and giving effect to each.  The privative clause is taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which prohibition lies.

The object of a provision of this kind is generally to protect the award or order from challenge.  Consequently, the making of the award or order is the occasion for taking the privative clause into account in interpreting the Tribunal’s authority or power more liberally.  Before the award or order is made the Tribunal will be held to a strict construction of its powers uninfluenced by the clause, thereby enabling the grant of prohibition, notwithstanding that had the proceedings reached the stage when an award or order was made prohibition could not have been obtained.

But a clause like s 60 cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal.  In the face of such a provision, a clause like s 60 is ineffective to prevent prohibition going when the Tribunal transgresses those limitations or restraints (see per Dixon J in R v Metal Trades Employers’ Association; and per Latham CJ and Dixon J in R v Commonwealth Rent Controller; Ex parte National Mutal Life Association of Australasia Ltd, at p 369).  The present is just such as case.  The terms of s 142A(1) are quite explicit.  The Commission is authorized to make an order that an organization of employees shall have the right to represent a class or group of employees who are eligible for membership of the organization to the exclusion of any other organization.  Section 142A neither expressly nor impliedly confers jurisdiction on the Commission to give a binding decision on the question whether persons are eligible for membership of an organization.” 

[emphasis added] [citations omitted]

132               Deane and Dawson JJ said at 427-9:

“The Commission’s power to make an order, under s 142A(1), that an organization of employees shall have the right to represent, in respect of all or some industrial interests under the Act, a class or group of employees is dependent upon the existence of a jurisdictional fact, namely, that the employees of the particular class or group are eligible for membership of the relevant organization.

…

[T]he provisions of s 60(1) do not operate to confer any conclusive or quasi-conclusive character on the Commission’s finding or opinion on the preliminary question whether the employees in respect of whose representation an order is sought are eligible for membership of the particular organization.  In that regard, the position is similar to that which was under consideration in Hickman.

…

It follows that a purported order by the Commission involving representation by an organization of a class or group of employees who are not eligible for membership of that organization is beyond the powers of the Commission and liable to be corrected by this Court by writ of prohibition.  Likewise, a refusal by the Commission to make an order under s 142A(1) in favour of an applicant organization on the ground that it lacks jurisdiction to make the order sought for the reason that the relevant employees are not eligible for membership of that organization when, in truth, they are, constitutes a failure by the Commission to perform its function in accordance with law and is liable to be corrected by this Court by writ of mandamus.”

133               In O’Toole v Charles David Proprietary Limited (1991) 171 CLR 232, Brennan J summarised the effect of the authorities at 274-5 as follows:

“Thus a purported award, supportable by the Constitution but made outside the powers conferred on the Commission, must be treated as valid where it is a bona fide attempt to exercise the award-making power, relates to the subject matter which an award might legitimately address, is reasonably capable of being referred to the award-making power and does not transgress ‘inviolable limitations or restraints’ which the statute imposes on the powers of the Commission.

134               At 305 Dawson J explained the meaning of the reference to inviolable limitations or restraints as follows:

“Whilst it must be possible to call evidence in support of a contention that an award has not been made bona fide (I would take the requirement of bona fides to embrace at least some aspects of natural justice) or in support of a contention that it does not relate to the subject-matter of the legislation, this does not open an award to attack upon the basis of some mere defect or irregularity which is not such as to deny the power to make it.  This, I think, is what was meant by Mason ACJ and Brennan J when in Reg v Coldham; Ex parte Australian Workers’ Union, they referred to the provisions which s 60 is unable to affect as being those which impose ‘inviolable limitations or restraints’.  Similarly, it is what Deane J and I had in mind in the same case when we said, that ‘[s]uch a statutory provision is effective to exclude any general judicial review of the proceedings of the Commission.’”

[citations omitted]

135               In Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited (1994) 183 CLR 168, Mason CJ explained the effect of the authorities at 180:

“What emerges from the decisions of this Court applying the Hickman principle to privative clauses, especially to s 60 (and its predecessor s 31) of the Conciliation and Arbitration Act 1904 (Cth), is that they are effective to protect an award or order from challenge on the ground of a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order.  Thus, in R v Coldham, Deane and Dawson JJ, with reference to s 60, said: 

‘Such a statutory provision is effective to exclude any general judicial review of the proceedings of the Commission.’”

[citations omitted] [emphasis added]

136               And Brennan J said at 194:

“The Hickman principle has been invoked where a privative clause in a statute is expressed to exclude the jurisdiction of a court judicially to review a purported exercise of a power which, by virtue of other provisions of the statute, can be validly exercised only if the repository complies with prescribed conditions.  The privative clause treats an impugned act as if it were valid.  In so far as the privative withdraws jurisdiction to challenge a purported exercise of power by the repository, the validity of acts done by the repository is expanded.

When the general provisions of a statute prima facie condition the valid exercise of a power and are found together with another provision which confers validity on a purported exercise of the power despite a failure to comply with the general provisions, the problem of reconciling the general provisions and the validating provision is indistinguishable from that which arises when a privative clause withdraws jurisdiction to review.”

[citations omitted]

137               Finally, a recent example of the consideration and application of these authorities in the context of the Act is Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167.  The Minister refused to revoke the cancellation of a visa.  The Act required that a person whose visa had been cancelled had to be notified of the cancellation and given the opportunity to respond.  Mansfield J observed, at par 31, that, under the Act:

“Absent any such response, the respondent does not have to proceed to any reconsideration under s 131 of the Act.  It is only by reason of that response to the notice that the respondent is obliged by s 131 to reconsider his decision”

138               In that particular case there had been no response because no proper notice of cancellation had been given.  Hence, the precondition to the exercise of the power to decide did not exist.  His Honour said at pars 34-5 that the case:

“.. is one where the jurisdictional fact prescribed by the Act, and one which is also the essence of the material upon which the Minister is entitled and obliged to make a decision, has been shown not to exist.

…

In view of my characterisation of the nature of the decision to be made under s 131, and my view that the existence of a response to a valid notice under s 129(1), or at least to a notice which is adequate to elicit a meaningful response to the reasons for the cancellation of the visa, is an essential pre-condition to a valid decision under s 131, I consider that it is not intended by the Act that s 474(1) should preclude the grant of appropriate relief under s 39B of the Judiciary Act in the present circumstances.  The decision under challenge is really no decision at all, because the respondent was not empowered in the circumstances to form any satisfaction in terms of s 131(1)(a) or (b).  He did not have before him to enliven that power, and to impose the obligation to exercise it, a response to a notice under s 129(1).  The absence of such a response is not “a mere defect or irregularity which does not deprive [him] of the power” to make the decision:  Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Mason CJ at 180.”

Legislative intention regarding s 359A(1)

139               It follows from this review of the authorities that the question in this case is whether the legislature intended a decision made in breach of s 359A(1) to be invalid and, thus, subject to challenge despite s 474, or whether it intended s 474 to immunize such a decision against challenge.

140               It will be recalled that in the original formulation in Hickman Dixon J said that a decision is beyond challenge if it is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and is reasonably capable of being referred to the power.  That means that a decision which is not bona fide, does not relate to the subject matter of the legislation, or is not reasonably capable of being referred to the power is not intended to be protected by the privative clause.  Ultimately the reason for this approach is to give scope and meaning to two inconsistent provisions which would otherwise result in the nullification of one of them.  Thus, it is assumed that the legislature intended both to operate to the greatest degree possible given the presence of the other.  The area which Dixon J marked out as remaining open to challenge concerned serious and fundamental errors relating to jurisdiction.  It is useful, although not conclusive, to consider how the Courts have viewed breaches of requirements at common law analogous to the requirements contained in s 359A(1).

Breaches of procedural fairness at common law

141               It now clearly established that a denial of procedural fairness constitutes jurisdictional error for the purpose of the grant of prohibition.  In Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 176 ALR 219 (Aala), the High Court held that where an officer of the Commonwealth exercises power conferred by statute and fails to accord procedural fairness the officer exceeds jurisdiction in the sense necessary to attract prohibition under s 75(v) of the Constitution. 

142               The particular factual circumstances of the denial of procedural fairness in Aala warrant some reference.  Mr Aala, a citizen of Iran, claimed a fear of persecution for imputed political opinion.  He claimed to have been involved in the illegal sale of the assets of the Shah in collaboration with his business partner, Tehrani.  His application was rejected by the Refugee Review Tribunal (RRT).  The RRT did not accept that Tehrani had told the authorities of Mr Aala’s involvement in the transactions.  Mr Aala then filed an application for review in the Federal Court.  He sent four hand written statements to the Court claiming that he had agreed with Tehrani that if Tehrani was sought by the authorities after Mr Aala had left Iran, Tehrani was free to implicate Mr Aala in order to save himself.  The statements also detailed the circumstances of the arrest of Tehrani.  The primary judge dismissed the application for review, but an appeal against his decision succeeded.  The matter was remitted to the RRT for a further hearing.  At that hearing, the RRT member told Mr Aala that she had read all the papers which were before the Federal Court.  The RRT again affirmed the decision of the delegate to reject Mr Aala’s application.  One reason given by the RRT for this conclusion was that Mr Aala had not claimed, prior to the second RRT hearing, that he had agreed with Tehrani that Tehrani should disclose Mr Aala’s illegal actions to the authorities, and that he knew of the circumstances of Tehrani’s arrest.  The High Court held that Mr Aala had been denied procedural fairness because the RRT had misled him by stating that the four hand-written statements had been taken into account when they had not been taken into account.  Gleeson CJ said at par 3:

“… the statement [of the Tribunal] in question covered a matter which had a bearing upon the credibility of the prosecutor.  It misled the prosecutor, as a consequence of which he was deprived of the opportunity to answer, by evidence and argument, adverse inferences which were based in part upon a misunderstanding of his previous conduct.  Had he been given an opportunity to correct the misunderstanding, a different view might have been taken as to his credibility.”

143               In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 (Miah) the High Court confirmed that the constitutional writs were available to correct a denial of procedural fairness on the basis that such a denial amounted to jurisdictional error.

144               The majority (Gaudron, McHugh and Kirby JJ) held that the delegate of the Minister had denied procedural fairness in rejecting the prosecutor’s claim for a protection visa.  The prosecutor, a citizen of Bangladesh, claimed that he would be persecuted on return because he actively supported opposition to the Islamic fundamentalists who were favoured by the government party, the Bangladesh Nationalist Party.  The delegate rejected the application for a visa on the ground that the Bangladesh Nationalist Party had been defeated in recent elections, and the fundamentalists had lost popular support.  The elections had been held after the visa application was made.  The delegate did not invite the prosecutor to comment on the significance of the change in circumstances. 

145               McHugh J said at par 147:

“The delegate had a duty to exercise his power in accordance with the rules of natural justice.  He failed to do so.  He did not question the prosecutor’s claims about what he experienced in Bangladesh or doubt his credibility.  He relied on information that he obtained pursuant to powers conferred by subdiv AB.  The information concerned events that occurred after the prosecutor applied for a visa.  The delegate consulted that information well after the date of the application.  The information was equivocal.  The delegate relied on it in relation to the core issue for determination and his reliance on it was decisive of the outcome of the application.  In those circumstances, the delegate ought to have informed the prosecutor of the new material and offered him an opportunity to respond to it before acting on it.”

See Gaudron J at pars 87-105 and Kirby J at pars 189-96.

146               The form of the Act applicable in Miah set out a number of specific natural justice obligations.  For instance, s 57 required the Minister to give an applicant information which would be a reason for refusing a visa and which was about the applicant personally, and required the Minister to give the applicant an opportunity to comment on that information.  The fact that certain requirements of procedural fairness were specified in the statute gave the foundation to the Minister’s argument that there were no further requirements of procedural fairness.  The majority rejected this argument.  The provisions of the Act were not a code containing all the requirements of natural justice.  There was an obligation to provide the applicant with adverse material in the hands of the delegate which may have been adverse to the applicant’s case, and there was an obligation to give the applicant an opportunity to respond to this material.  These obligations arose even though they were not specified in the Act, and even though the Act did specify some other similar obligations.

147               It is instructive to examine why the majority took this view.  Both Gaudron and McHugh JJ describe the need to give a person an opportunity to respond to adverse matters which the decision maker intends to take into account as a “basic principle”:  see Gaudron J at par 99 and McHugh J at par 140.

148               Kirby J said at par 192:

“[O]f the many principles of natural justice that govern the exercise of statutory power by repositories entrusted by the Parliament with that exercise, few are more important than the obligation to give those affected an opportunity to be heard before an adverse result is reached in a significant decision on the basis of undisclosed materials.  The explanation of the theoretical reason why this is so – because it is imputed to the Parliament; because it upholds the legitimate expectations of individuals; or because it is part of the justice of the common law – is less important than that it represents a legal rule deeply embedded in our legal system.”

[citations omitted]

149               It followed from this approach that the principles of natural justice are presumed to apply unless expressly and clearly excluded by statute.  Thus, Kirby J said at par 183:

“[O]rdinary presumptions which run so deep in the common law may be given effect.  In the absence of the clearest possible indication to the contrary, courts will normally assume that an Australian parliament does not intend to work serious procedural injustice upon persons whose interests are adversely affected by legislation.  This is not a presumption that challenges the authority of such parliaments.  It is one respectful of the assumption that, in Australia, parliaments ordinarily act justly and expect the repositories of power under legislation to do likewise.”

150               In NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263Gyles J expressed the view, at par 26, that Aala was neutral on the question of the application of Hickman because, in the former case, there was no question of the operation of a privative clause in contention.  That approach, however, does not give sufficient significance to the fact that there is some overlap in the relevant questions in both cases.  In determining whether prohibition lies, the Court must determine the jurisdiction of the decision maker, and then decide whether the action of the decision maker was taken in excess of that jurisdiction.  The Court must decide what are the limits on the power of the decision maker.  In determining whether a privative clause operates, the Court must determine the limits on the power of the decision maker.  It is only after those limits have been defined that the operation of the privative clause can be ascertained.  Thus, the task of identifying the limits of the jurisdiction of the decision maker are common to both exercises.  It is therefore significant, even though not determinative, that the failure to accord procedural fairness has been held by the High Court to be an act beyond the jurisdiction of the decision maker for the purpose of the grant of prohibition.  If the obligation to accord procedural fairness is, as Hayne J described it in Aala “a limitation on the power to decide”, it bears that character for all purposes.

151               Gyles J expressly left open the operation of s 474 where, as in this case, there is a breach of an express prescriptive provision of the statute governing the procedure of the Tribunal.  I agree with his Honour, and have approached the question on the basis he suggests in par 34, as follows:

“In the case of a breach of any of those express provisions, a question of statutory construction would arise as to reconciliation of that provision with s 474.”

152               The fundamental nature of the right to procedural fairness at common law which was recognised by the High Court in Aala and Miah as a basis for the grant of prohibition had earlier been recognised by Spigelman CJ in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78as the basis for concluding that a privative clause did not prevent challenge to a planning scheme made in breach of the requirements of procedural fairness.  His Honour said at 109-111:

“His Lordship [Lord Reid in Smith v East Elloe Rural District Council [1956] AC 736] continued (at 764-765):

‘… There are many cases where general words in a statute are given a limited meaning. That is, not only when there is something in the statute itself which requires it, but also where to give general words their apparent meaning would lead to conflict with some fundamental principle. Where there is ample scope for the words to operate without any such conflict it may very well be that the draftsman did not have in mind and Parliament did not realise that the words were so wide that in some few cases they could operate to subvert a fundamental principle. In general, of course, the intention of Parliament can only be inferred from the words of the statute, but it appears to me to be well established in certain cases that, without some specific indication of an intention to do so, the mere generality of words used will not be regarded as sufficient to show an intention to depart from fundamental principles.’

Amongst the fundamental principles which are secreted within the law of statutory interpretation are the right of access to the courts and the duty to accord procedural fairness to persons affected by administrative decisions.

Lord Reid's reasoning is consistent with Hickman and the Australian cases that have applied it. The reasoning of the majority in Smith v East Elloe, as applied in R v Secretary of State for the Environment; Ex parte Ostler and R v Cornwell Country Council; Ex parte Huntington, is not consistent with Australian authority.

To say that a particular statutory provision must be ‘strictly construed’ is not to invoke any specific body of rules. There are degrees of strictness. One formulation of what ‘strict construction’ requires was stated in Anisminic by Lord Reid (at 170):

‘… It is a well established principle that a provision ousting the ordinary jurisdiction of the court must be construed strictly - meaning, I think, that, if such a provision is reasonably capable of having two meanings, that meaning shall be taken which preserves the ordinary jurisdiction of the court.”

However, as Lord Reid’s reasoning in Smith v East Elloe shows, the principle that a privative clause must be construed strictly does not apply only to a clause containing words which have more than one meaning and are in that sense ‘ambiguous’. The principle is also to be applied to identify the particular circumstances to which the general words chosen by parliament were intended by parliament to apply. As Jordan CJ put it when identifying the categories of error of law which vitiated a decision making process: ‘... there are mistakes and mistakes’.  Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; 64 WN (NSW) 107 at 109.

The High Court has quoted with approval the following passage from Maxwell on Statutes, 4th ed:

‘It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.’

(See Potter v Minahan (1908) 7 CLR 277 at 304; Bropho v Western Australia (1990) 171 CLR 1 at 18).

To similar effect are two observations of Isaacs J in Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36 at 91 and 93:

‘… But once concede the tractability of a phrase, then the extent of tractability depends entirely on its surroundings, including extraneous circumstances.

            …         the full literal intention will not ordinarily be ascribed to general words where that would conflict with recognised principles that Parliament would be prima facie expected to respect. Something unequivocal must be found; either in the context or the circumstances to overcome the presumption.’

As the six member joint judgment put it in Bropho (at 18):

‘The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear.’

With respect to abrogation of fundamental rights and immunities express words are generally required. See Coco v The Queen (1994) 179 CLR 427 at 436-438 where the formulation adopted in the joint judgment of the High Court was ‘unmistakable and unambiguous’. See also Kartinyeri v Commonwealth (Hindmarsh Island Bridge Act case)  (1998) 72 ALJR 722 at 743; 152 ALR 540 at 569 [89].

The right of access to the courts and, of equal significance in the present case, the common law right to procedural fairness, is a ‘deep rooted principle of the law’: Commissioner of Police v Tanos (at 395-396); see also Lisafa Holdings v Commissioner of Police (1988) 15 NSWLR 1 at 12-14, per Kirby P; (at 22), per McHugh JA. As I have said above, these principles are secreted in the law of statutory interpretation.

In England a denial of natural justice has been held to be equivalent to jurisdictional error, which prevents the operation of a privative clause:  see Attorney General v Ryan [1980] AC 718 at 730). English decisions must be treated cautiously, because of the effective abolition of the distinction between jurisdictional and non-jurisdictional errors of law, a distinction which still exists in Australian law. However, in Attorney General v Ryan, (at 730), the Privy Council applied the following reasoning of Lord Selborne in Spackman v Plumstead District Board of Works (1885) 10 App Cas 229 at 240:

‘No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice.’

This passage assimilates a breach of the obligation to afford procedural fairness with the kind of error to which the R v Hickman in principle applies. It does, in my opinion, represent the law in Australia.

Breach of the requirement of procedural fairness has generally been assimilated with jurisdictional error in its original narrow sense:  see, eg, Forbes v NSW Trotting Club Ltd (1979) 143 CLR 242 at 277; Calvin v Carr [1980] AC 574 at 590; Macksville & District Hospital v Mayze (1987) 10 NSWLR 708 at 716-719; Kopuz v District Court (NSW) (1992) 26 NSWLR 232 at 245; Totalisator Agency Board of NSW v Casey (1994) 54 IR 354 at 359-360; Stock v Grubb (1985) SASR 1 at 19 and 22).

Indeed, breach of the common law obligation of procedural fairness may fall within the R v Hickman principle, as it has been interpreted and extended beyond the original threefold formulation of Sir Owen Dixon. In O'Toole,Deane J, Gaudron J and McHugh J contemplate that rules of procedural fairness could be encompassed within the third R v Hickman principle, that is ‘reasonably capable of being referred to the power’ (at 287.5). Dawson J suggested that some aspects of procedural fairness fell within the concept of bona fides (at 305.5).

Furthermore, the requirements of procedural fairness which the common law attaches to the exercise of all public power, fall within the scope of the general description of the R v Hickman principle found in some recent judgments. Subject to ‘express words of plain intendment’ (the Commissioner of Police v Tanos formulation), procedural fairness can be described as an ‘inviolable limitation or restraint’ (Coldham (at 419); O'Toole (at 274-275)); or as a defect which does ‘deny the power’: O'Toole (at 305); Deputy Commissioner of Taxation (Cth) v Richard Walter (at 180).”

[emphasis added]

153               The foundational importance to the rule of law of the right of a person to be confronted with evidence to be used by the government against that person was acknowledged in the United States by Chief Justice Warren delivering the opinion of the Supreme Court in Greene v McElroy (1959) 360 US 474 at 496-7 as follows:

“Certain principles have remained relatively immutable in our jurisprudence.  One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.

…

This Court has been zealous to protect these rights from erosion.  It has spoken out not only in criminal cases, … but also in all types of cases where administrative and regulatory actions were under scrutiny.  E. g., Southern R. Co. v Virginia, 290 U.S. 190; Ohio Bell Telephone Co. v Public Utilities Commission, 301 U.S. 292; Morgan v United States, 304 U.S. 1, 19; Carter v Kubler, 320 U.S. 243; Reilly v Pinkus, 338 U.S. 269.”

154               It is obvious from the approach of the common law reflected in Australian, UK, and US decisions that the opportunity to be told of adverse information to be used by a government against a person in administrative decision making, and the opportunity for that person to respond to such information, is regarded as a fundamental requirement of fair process.  If further confirmation is needed, it is provided in a very recent decision of the Supreme Court of Canada.

155               In Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1 the Supreme Court considered a number of questions concerning the deportation of Mr Suresh to Sri Lanka.  He was a senior figure in the Liberation Tigers for Tamil Eelam.  He had been granted refugee status several years before this case was heard.  The migration legislation, however, allowed for deportation where the Minister formed the view that the person was a danger to the security of Canada.  Where the Minister formed that view, the person could be deported even if the person faced the risk of torture on return.  The Minister received a written recommendation from a departmental officer that Mr Suresh should be deported.  Mr Suresh was not entitled to an oral hearing under the statute.  One question was whether he was entitled to a copy of the departmental recommendation and to an opportunity to respond to its contents.  It is useful, first, to record the approach which the Court took to the issues raised by the case in general.  At pars 2, 3 and 4 the court said:

“The appeal requires us to consider a number of issues:  the standard to be applied in reviewing a ministerial decision to deport; whether the Charter precludes deportation to a country where the refugee faces torture or death; whether deportation on the basis of mere membership in an alleged terrorist organization unjustifiably infringes the Charter rights of free expression and free association; whether ‘terrorism’ and ‘danger to the security of Canada’ are unconstitutionally vague; and whether the deportation scheme contains adequate procedural safeguards to ensure that refugees are not expelled to a risk of torture or death.

The issues engage concerns and values fundamental to Canada and indeed the world.  On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear.  Government, expressing the will of the governed, need the legal tools to effectively meet this challenge. 

On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society – liberty, the rule of law, and the principles of fundamental justice – values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed.  In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values.  Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitutional and our international commitments.”

[emphasis added]

156               The question of the entitlement of Mr Suresh to a copy of the recommendation and to an opportunity to respond is particularly relevant to the present case as it raises the same question of principle.  The issue in Suresh was whether the Canadian Charter of Rights and Freedom (the Charter) required Mr Suresh to be provided with such procedural protections.  Section 7 of the Charter provides:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

[emphasis added]

157               Mr Suresh argued that the chance to see and respond to the recommendation was necessitated by “the principles of fundamental justice”.  The Court said at par 113-4:

“This appeal requires us to determine the procedural protections to which an individual is entitled under s. 7 of the Charter.  In doing so, we find it helpful to consider the common law approach to procedural fairness articulated by L’Heureux-Dubé J. in Baker, supra.  In elaborating what is required by way of procedural protection under s. 7 of the Charter in cases of this kind, we wish to emphasize that our proposals should be applied in a manner sensitive to the context of specific factual situations.  What is important are the basic principles underlying these procedural protections.  The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty.  As Professor Hogg has said, ‘The common law rules [of procedural fairness] are in fact tenets of the legal system, and they have evolved in response to the same values and objectives as s. 7’:  see P.W. Hogg, Constitutional Law of Canada, (loose-leaf) Vol. 2, at para. 44.20.  In Singh v Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13, Wilson J. recognized that the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness.  Section 7 protects substantive as well as procedural rights:  Re B.C. Motor Vehicle Act, supra.  Insofar as procedural rights are concerned, the common law doctrine summarized in Baker, supra, properly recognizes the ingredients of fundamental justice.

We therefore find it appropriate to look to the factors discussed in Baker in determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of s. 7.  In saying this, we emphasize that, as is the case for the substantive aspects of s. 7 in connection with deportation to torture, we look to the common law factors not as an end in themselves, but to inform the s. 7 procedural analysis.  At the end of the day, the common law is not constitutionalized; it is used to inform the constitutional principles that apply to this case. 

[emphasis added]

158               The court then examined the context in which the ministerial decision had to be made.  A number of features pointed to the need for procedural protections.  For instance, there was no right of appeal from a decision, and no right to make any further requests to remain in Canada.  Further, the right to stay in Canada was of great significance to Mr Suresh because he faced the danger of torture upon return to Sri Lanka.  This factor was particularly important because the Executive had bound itself to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36.  The court concluded at pars 122-3:

“We find that a person facing deportation to torture under s. 53(1)(b) must be informed of the case to be met.  Subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents, this means that the material on which the Minister is basing her decision must be provided to the individual, including memoranda such as Mr Gautier’s [the departmental officer] recommendation to the Minister.  Furthermore, fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister.  While the Minister accepted written submissions from the appellant in this case, in the absence of access to the materials she was receiving from her staff and on which she based much of her decision, Suresh and his counsel had no knowledge of which factors they specifically needed to address, nor any chance to correct any factual inaccuracies or mischaracterizations.  Fundamental justice requires that written submissions be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her.  The Minister must then consider these submissions along with the submissions made by the Minister’s staff.

Not only must the refugee be informed of the case to be met, the refugee must also be given an opportunity to challenge the information of the Minister where issues as to it’s validity arise.  Thus the refugee should be permitted to present evidence pursuant to s. 19 of the Act showing that his or her continued presence in Canada will not be detrimental to Canada, notwithstanding evidence of association with a terrorist organization.  The same applies to the risk of torture on return.  Where the Minister is relying on written assurances from a foreign government that a person would not be tortured, the refugee must be given an opportunity to present evidence and make submissions as to the value of such assurances.

[Emphasis added]

159               The court remanded the case to the Minister for reconsideration in accordance with the procedures set out in the reasons.

160               Of course, this case depends on its own particular constitutional, statutory, and factual circumstances.  However, its significance is that the court treated the constitutional principles of fundamental justice as informed by the requirements of procedural fairness at common law.  The approach is of particular significance because it was enunciated very recently by the highest court in Canada.  The decision was a unanimous decision of nine justices.  It was made against the background of the statutory and governmental responses to the recent threats of terrorism.  The case was clearly treated as an important test case.  There was representation not only on behalf of the parties, but also on behalf of the United Nations High Commissioner for Refugees, Amnesty International, the Canadian Bar Association, and the Canadian Council of Churches.  Even at this time of much heightened sensitivity to the threat of terrorism, the Supreme Court of Canada recognised that the right to receive and respond to adverse information is one of the “values fundamental to our democratic society”.

161               Section 359A(1) mirrors the particular common law obligation enforced in Aala, namely the duty of an administrative decision maker to give adverse information and an opportunity to comment to an applicant before it.  The fact that a breach of such a requirement is regarded as an excess of jurisdiction for the purpose of the grant of prohibition does not necessarily mean that the same breach falls outside the operation of a privative clause.  However, the fundamental nature of the requirement bears upon the likelihood that a breach was intended to carry a remedy.  The nature of the obligation, as explained in Aala and Miah, albeit for a different purpose, and as recognised in the international jurisprudence referred to above, suggests that a decision made in breach of that obligation was not intended to be valid.  If the failure to have a quorum in Proctor was not intended to lead to a valid decision, it is difficult to imagine that the breach of s 359A(1) was not intended to lead to invalidity.

162               It is the basic nature of the common law obligation to accord procedural fairness which means that it applies to a decision made under statute unless expressly and clearly excluded.  It follows that where the same obligation is found in a statute it should be presumed that, absent an unmistakable intention to the contrary, a decision made in breach of the obligation is an act of the decision maker taken outside jurisdiction.  The nature of the obligation is so fundamental that compliance is a prerequisite to a valid decision. 

Second reading speech to the Migration Legislation Amendment (Judicial Review) Bill 2001

163               Before going to the terms of the Act reference should be made to the Minister’s second reading speech on the Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth) which introduced s 474.  The Minister explained that the policy objective of the government in introducing the amendment was to restrict judicial review to exceptional cases. 

164               In passing, it may be wondered whether this policy objective required any change to the legislation.  The Minister stated “[o]f the cases that go on to substantive court hearings the merits based decision is currently upheld in around 90 per cent of cases” (Commonwealth, Parliamentary Debates, House of Representatives, 26 September 2001, 31560).  On those figures it might be thought that only exceptional cases succeeded under the pre-existing system.  It is fair to regard ten per cent as a figure representing exceptional cases.  The problem appears to be that non-exceptional cases are commenced and fail, rather than that non-exceptional cases succeed. 

165               The second policy objective referred to was the need to make the jurisdiction of the Federal Court and the High Court coextensive.  This is to avoid the “potential to erode the proper role and purpose of the High Court” by burdening that court with the trial of a large number of migration cases falling within its constitutional jurisdiction but falling outside the jurisdiction of the Federal Court.  The Minister said:  (Commonwealth, Parliamentary Debates, House of Representatives, 26 September 2001, 31561):

“The options available to the government were very much shaped by the Constitution.  While the government accepts that the precise limits of the privative clauses may need examination by the High Court, there is no other practical option open to the government to achieve its policy objective.”

166               Taking both objectives into account, the government introduced s 474.  It expressly accepted that this clause was subject to the law as formulated by the High Court in the cases following Hickman.  Thus, whatever result the application of Hickman produces in respect of the policy objectives, the government clearly meant that s 474 would be construed in accordance with Hickman and the jurisprudence which has been established on the basis of that case. 

The statutory context of s 359A(1)

167               Consideration of the context in which s 359A(1) appears in the legislation is central in assessing the significance of the right given by the section, and in assessing the intended consequence of any breach.

168               The Tribunal is bound to conduct a review of a decision if an application is properly made (s 348).  The applicant is entitled to provide a written statement of the facts and a written statement of the arguments relating to the decision under review (s 358(1)).  The Secretary of the Department is entitled to give the Tribunal a written argument in relation to the decision under review (s 358(2)).  The Tribunal may get additional information which it considers relevant (s 359(1)), and may invite a person to give additional information to the Tribunal (s 359(2)).  Section 359A(1) requires certain adverse personal information to be provided to the applicant and requires the Tribunal to give the applicant an opportunity to comment on it.  The manner in which additional information sought under s 359 is to be given, for instance, whether it is to be given in writing or at an interview, is at the discretion of the Tribunal.  Similarly, the way in which an applicant is permitted to comment on adverse material provided under s 359A(1) is at the discretion of the Tribunal (s 359B).  The Tribunal must invite the applicant to appear to give evidence and present arguments relating to the decision under review (s 360).  Subject to certain exceptions, the applicant is entitled to access to any written material given to the Tribunal for the purpose of the review (s 362A).  The applicant is entitled to have an assistant present at the hearing, but the assistant may not present argument or address the Tribunal except in exceptional circumstances (s 336A(1) and (2)). 

169               When the Tribunal has arrived at a decision, the Tribunal must prepare a written statement setting out the decision on review, the reasons for the decision, the findings on any material questions of fact, and referring to the evidence or any other material on which the findings of fact were based (s 368(1)).  Generally, the Tribunal must invite the applicant to be present when the decision is handed down (s 368A(1)).  The Tribunal is bound to carry out its functions with the objective of providing a mechanism of review that is fair, just, economical, informal and quick.  It is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case (s 353). 

170               The outcome of the process provided by these provisions is a reasoned decision based on an analysis of material before the Tribunal.  The provisions contemplate an explanation of the decision making process similar to the outcome expected in judicial proceedings.  However, the process which is prescribed is very different to ordinary judicial proceedings.  There is no provision for a contradictor before the Tribunal.  The applicant is limited in the way such a person may present a case.  An applicant is not entitled to legal or other assistance at the hearing except in exceptional circumstances.  The Tribunal is given an inquisitorial function.  It is entitled to seek information for itself, and has a wide discretion as to the manner in which the material is to be provided to the Tribunal.  In this context the obligation of the Tribunal to permit the applicant an opportunity to comment on adverse personal information can be seen as essential to the fairness of the process provided by the statute. 

171               In Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 301 Merkel J described the significance of s 359A(1) at par 35 as follows:

“The statutory entitlement of an applicant under ss 359A and 362A to have access to the information upon which the MRT may act in any particular case is the means by which the legislature has ensured that an applicant is afforded an opportunity to address and deal with information that is relevant to that applicant’s claim.  In the absence of those statutory provisions an applicant would have no statutory entitlement to be informed of the material upon which the MRT may act.  The extent of the protection afforded by ss 359A and 362A to an applicant therefore assumes fundamental importance to the fair operation of the statutory scheme of review by the MRT.”  [emphasis added]

172               Although the Full Court disagreed with Merkel J’s conclusion that there had been a breach of the section, it did not take issue with the above description of the function of the provision.

173               Finally, it is relevant to the consequences flowing from a breach of the duty provided for in s 359A(1) to note that the hearing to which the duty attaches is the final merits review provided for by the statute.  The applicant has no other opportunity to answer adverse material.  That contextual factor again supports the conclusion that the legislature did not intend that the decision maker had power to make a valid decision without observing the requirements of s 359A(1).

174               In Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 Heerey J may have expressed the opposite view.  He said at par 41: 

“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.”  [emphasis added]

175               This statement is general in its terms.  It does not refer to the particular statutory provisions in question in this case, or to the other provisions which use contrasting language and to which I refer in the next section of these reasons.  In my view, the mere fact that s 474 was introduced by way of amendment does not change the nature of the provisions or the consequences for their breach.

176               The statutory context of s 359A(1) strongly points to the conclusion that compliance with the section is a precondition for the exercise of the power to determine a review.

The language of s 359A(1)

177               Support for the conclusion just expressed is to be found in the language of s 359A(1).  This section provides that the Tribunal “must” give certain information to the applicant.  This is language of compulsion.  The language can be contrasted to the language of s 359(2) which relates to the Tribunal obtaining additional information for itself.  In that situation, the Tribunal “may” invite a person to give additional information.  Gaudron J in Miah at par 94 describes an earlier similar provision (s 57(2)) as “mandatory” and specifies “what the Minister must do”.  She describes other provisions similar to s 359(2) as “permissive” or “facultative”.  The same mandatory language is used in relation to other obligations which one would regard as essential to a fair process of adjudication, namely, the obligation to invite the applicant to a hearing (s 360(1)), the obligation of the Tribunal to have regard to the applicant’s request to call witnesses (s 361(3)), the obligation to conduct the hearing in public (s 365(1)), and the obligation to provide an interpreter (s 366C). 

178               Section 359A(1) is part of Division 5.  Section 360 is also found in that Division and provides that:

“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

179               It can hardly be thought that the legislature intended a decision made in breach of s 360(1) to be a valid decision. 

180               Such an approach is reflected in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 where the High Court held that a failure to conduct a hearing required by statute was a jurisdictional error which could be corrected by the grant of mandamus.  In that case Mr Bhardwaj sought review by theImmigration Review Tribunal (IRT) of a decision of the delegate to cancel his student visa.  The hearing date was fixed.  Mr Bhardwaj was invited to attend.  On the evening before the date fixed for the hearing the IRT received a letter stating that Mr Bhardwaj was ill, could not attend, and sought an adjournment.  By an administrative oversight the letter did not come to the attention of the IRT member.  Consequently, the IRT member rejected the application on the basis that Mr Bhardwaj had not provided any information to challenge the cancellation.  Then, the member learned of the letter seeking an adjournment.  A new hearing date was arranged.  After conducting that hearing, at which Mr Bhardwaj gave evidence, the IRT found in his favour and revoked the cancellation of the visa.  The question then arose whether the IRT had power to proceed with the hearing after it had made the initial decision.  The High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that the IRT did have such power.

181               The majority decided that the initial decision was not a decision on a review as contemplated by the Act, and thus, did not prevent the IRT from conducting the subsequent hearing and making a decision on the review.  The initial decision was made in breach of the requirement of the Act to give Mr Bhardwaj an opportunity to be heard.  As a result, the IRT failed to perform the duty imposed on it by the statute.  This failure amounted to a jurisdictional error which would have justified the grant of mandamus or prohibition under s 75(v) of the Constitution (Gaudron and Gummow JJ at par 44, McHugh J at par 67, Hayne J at par 147-149).  For instance Hayne J elaborated at par 149 as follows:

“The error committed by the Tribunal in reaching its September decision [the initial decision] was a jurisdictional error.  What it did was not authorised by the Act and did not constitute performance of its duty under the Act.  As the availability of mandamus demonstrates, the September decision was not a decision of the review that the respondent had sought in relation to the decision of the Minister’s delegate.  The error made by the Tribunal in this case must be contrasted with other, non-jurisdictional, errors that a decision-maker may commit.  In particular, a jurisdictional error of the kind made in relation to the September decision is fundamentally different from a case where, for whatever reason, a decision-maker has second thoughts about such matters as findings of fact.  No doubt the word ‘error’ can be applied to the circumstances last mentioned, but the legal significance of such error is, for the reasons given by Brennan J in Attorney-General (NSW) v Quin, radically different from the significance of a jurisdictional error.  As his Honour said:

‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. … The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’

[emphasis added] [citations omitted]

182               The right to notice of a hearing is so basic that it would take express and unambiguous language to disclose a legislative intention that a decision made without inviting the applicant to a hearing would be valid.  Section 359A is closely positioned to s 360 in the Act because it reflects the same fundamental requirements for a fair process.

183               Furthermore, the statute employs a variety of techniques to indicate duties of lesser importance and lesser consequence than the duty imposed by s 359A(1).  For instance, applicants are entitled to notify the Tribunal that they want the Tribunal to obtain oral evidence from a person (s 361(2)).  Section  361(3) relevantly provides:

“If the Tribunal is notified by an applicant … the Tribunal must have regard to the applicant’s notice but is not required to comply with it.”

184               On the other hand, s 366C(2) provides:

“The Tribunal must comply with a request [for an interpreter] made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English.”

185               The legislature was well aware of the way in which to express an intention that non-compliance would not lead to invalidity.  Thus, s 353A(1)-(3) provides:

“(1)     The Principal Member may, in writing, give directions, not inconsistent with this Act or the regulations, as to:

(a)               the operation of the Tribunal; and

(b)               the conduct of reviews by the Tribunal.

(2)               In particular, the directions may relate to the application of efficient processing practices to the conduct of reviews by the Tribunal.

(3)               The Tribunal should, as far as possible, comply with the directions.  However, non-compliance by the Tribunal with any direction does not mean that the Tribunal’s decision on a review is an invalid decision.”

[emphasis added]

186               It follows that the legislature intended a decision made in breach of s 359A(1) to be subject to challenge despite the existence of s 474.

187               For the same reasons, the decision made in breach of s 359A(1) is made in excess of jurisdiction, in the sense required for the grant of a writ of prohibition.  Further, there are no discretionary reasons for refusing relief. 

mistake of fact

188               As Mr Awan is entitled to relief arising from the Tribunal’s breach of s 359A(1) it is not necessary to consider further whether the mistakes of fact identified earlier in these reasons would also entitle him to relief. 

189               However, in the event that I am wrong in granting Mr Awan relief in relation to the Tribunal’s breach of s 359A(1), it is useful for me to indicate my view of the consequences of the mistakes of fact referred to earlier in these reasons.

190               There is a divergence of views in very recent cases as to the circumstances which will amount to jurisdictional error such that s 474 will not operate to exclude challenge.  See Walton v Ruddock [2001] FCA 1839; NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263; NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281; Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311; Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438; and Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397.

191               Whatever view one takes in this debate, the mistakes of fact made by the Tribunal in this case did not amount to jurisdictional errors.  They were errors of fact made within jurisdiction.  Hence, they do not provide any right to relief.

orders

192               As the Tribunal is not a party to this proceeding it is not appropriate to order the issue of writs of mandamus or prohibition directed to the Tribunal.  The appropriate course is to make a declaration that the decision of the Tribunal is null and void:  see Boakye-Danquah at par 72.

Associate:

Dated:              9 May 2002