Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs

The regulatory provisions 9 In order to understand the Tribunal's reasons, it is necessary to note some provisions of the Migration Regulations. 10 The prescribed criteria for both types of visa sought by Ms Boakye-Danquah include the criteria specified in that Part of Schedule 2 of the Regulations entitled "Subclass 820 - Spouse". That Subclass sets out two sets of criteria: criteria to be satisfied at time of application (item 820.21) and criteria to be satisfied at time of decision (item 820.22). 11 Item 820.21 includes clause 820.211, which relevantly reads: "(1) The applicant: (a) is not the holder of a Subclass 771 (Transit) visa; and (b) meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9). (2) An applicant meets the requirements of this subclause if: (a) the applicant is the spouse of a person who: (i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and (ii) is not prohibited by subclause (2B) from being a nominating spouse; and (b) [repealed] (c) the applicant is nominated by that Australian citizen, Australian permanent resident or eligible New Zealand citizen; and (d) in the case of an applicant who is not the holder of a substantive visa - either: (i) …or (ii) the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria." 12 It is, and always has been, common ground that the applicant is not the holder of a Subclass 771 (Transit) visa. It has also always been common ground that the applicant is the spouse of an Australian citizen (Mr Boakye-Danquah) who is not prohibited by subclause (2B) from being a nominating spouse; therefore para (a) of subcl (2) is satisfied. It is also, and has always been, common ground that the applicant does not satisfy Schedule 3 criteria 3001, 3003 and 3004. The issues, therefore, that were left for the Tribunal to determine, in relation to clause 820.211, were first, whether para (c) of subcl (2) was satisfied at the time of application and, second, whether the Tribunal (standing in the place of the Minister) "is satisfied that there are compelling reasons for not applying" the Schedule 3 criteria 3001, 3003 and 3004: see para (d)(ii) of subcl (2). 13 The only relevant criteria to be satisfied at time of decision are those set out in clause 820.221 viz: "820.221 (1) In the case of an applicant referred to in subclause 820.211(2), (3), (4), (5), (6), (7), (8) or (9), the applicant either: (a) continues to meet the requirements of the applicable subclause; or (b) meets the requirements of subclause (2) or (3). (2) An applicant meets the requirements of this subclause if the applicant: (a) would continue to meet the requirements of subclause 820.211(2), (3), (4), (5) or (6) except that the nominating spouse has died; and (b) satisfies the Minister that the applicant would have continued to be the spouse of the nominating spouse if the nominating spouse had not died; and (c) has developed close business, cultural or personal ties in Australia. (3) An applicant meets the requirements of this subclause if: (a) the applicant would continue to meet the requirements of subclause 820.211(2), (3), (4), (5) or (6) except that the relationship between the applicant and the nominating spouse has ceased; and (b) either or both of the following circumstances applies: (i) either or both of the following: (A) the applicant; (B) a dependent child of the nominating spouse or of the applicant or of both of them; has suffered domestic violence committed by the nominating spouse; …" 14 It is not contended that subcl (2) of cl 820.221 applies to this case. However, that subclause is relevant in considering the meaning of the term "nominating spouse". The term is defined by cl 820.111, for the purposes of the relevant Part of Schedule 2, as meaning "the Australian citizen, Australian permanent resident or eligible New Zealand citizen who nominated the applicant as his or her spouse when the application for the visa was made".

The Tribunal's decision 15 On 12 January 2000 Ms Boakye-Danquah applied to the Tribunal for review of the delegate's decision of 15 December 1999. Once again, there was a lengthy delay. Twenty-one months later, on 15 October 2001, the Tribunal published its decision affirming that decision. 16 In its reasons for decision the Tribunal set out the history of the matter and referred to evidence tendered at the Tribunal hearing. Much of this evidence was directed to the genuineness of the relationship between the applicant and Mr Boakye-Danquah before their separation in November 1999. The Tribunal seems to have been satisfied about that matter. The application for review was rejected on other grounds. They were set out in paras 21 and 22 of the Tribunal's reasons, as follows: "21. In order for this application to succeed the visa applicant must, among other things, satisfy regulation 820.21 at the time of application. Regulation 820.21 includes subclause 820.211 (2)(d)(ii). This means that Schedule 3 criteria 3001, 3003 and 3004 have to be satisfied unless the Minister is satisfied that there are compelling reasons for not applying those criteria. 22. It is not in dispute that the visa applicant lodged her application for this visa on 31 July 1996. Nor is it in dispute that the visa applicant last held a substantive visa on 16 May 1996. The meaning of the word 'compelling' has been discussed in several decisions of the Federal Court including in Minister for Immigration and Multicultural Affairs v Dunne (1999 FCA 204). In Dunne Branson, J stated that 'compelling reasons' … must involve something in addition to 'the basic prerequisite criteria for the grant of the visa' (at 28). This means that the visa applicant has to satisfy, among other things, criterion 820.211(2)(c) and in addition there must be 'compelling reasons' as envisaged by the regulations and decided case law. At the date of decision the visa applicant was not able to satisfy criterion 820.221(2)(c) of the Migration Regulations. This is because on 1 November 1999 the nominator had withdrawn his nomination of the visa applicant. The Tribunal notes that the visa applicant attempted to avail herself of the special provisions relating to domestic violence. The evidence alleges one incident of domestic violence which is said to have occurred on 23 November 1999. The 23 November 1999 is after the nominator had withdrawn his nomination. Based on the just cited evidence the Tribunal cannot make a finding that the visa applicant satisfied 'the basic prerequisite criteria for the grant of the visa'. The Tribunal is not satisfied that compelling reasons exist which would justify waiver of the Schedule 3 criteria. The visa applicant cannot establish compelling reasons for extending her stay in Australia. This is because her relationship with the original nominator has ceased. She does not appear to have any interests in Australia other than what she describes as 'all her friends'. It was not beyond her control to lodge this application within time. The visa applicant has three children all of whom reside in Ghana and all of whom are being cared for by a relative of the visa applicant. Having considered all the relevant evidence the Tribunal is not satisfied as to the existence of compelling reasons such as would justify waiver of the Schedule 3 criteria." (Emphasis added) 17 Counsel for the applicant, Mr Kofi Osei, argued the Tribunal erred in holding that the applicant needed to satisfy cl 820.221(2)(c) of the Migration Regulations. He said the applicant did not need to satisfy subcl (2); her case was that she satisfied subcl (3). Mr Geoffrey Kennett, counsel for the Minister, conceded this to be correct. He submitted that the (emphasised) reference in para 22 of the Tribunal's reasons to cl 820.221(2)(c) was a typographical error for cl 820.211(2)(c). 18 I think Mr Kennett's submission is correct. The reference immediately follows a statement that the applicant has to satisfy cl 820.211(2)(c) and it is followed by a statement that, on 1 November 1999, the nominator had withdrawn his nomination. Such a statement has nothing to do with cl 820.221(2)(c) but is arguably relevant to cl 820.211(2)(c). I propose to read para 21 as if the reference was to that paragraph.

(i) Submissions for the applicant 19 Mr Osei submitted that, on the assumption that the Tribunal intended to refer to cl 820.211(2)(c), rather than cl 820.221(2)(c), the Tribunal erred in law in saying the applicant could not satisfy this criterion "because on 1 November 1999 the nominator had withdrawn his nomination of the visa applicant". The Tribunal understood the applicant sought to rely on the domestic violence provision; that is, para (b) of subcl (3). However, Mr Osei argued, the Tribunal misdirected itself in law in dismissing from consideration the alleged act of domestic violence of 23 November 1999 on the basis that, by that date, "the nominator had withdrawn his nomination". Mr Osei's argument is that the cl 820.111 definition of "nominating spouse" must be applied. The effect of that definition, he says, is that the Australian citizen etc "who nominated the applicant as his or her spouse when the application for the visa was made" is the "nominating spouse" for the purposes of Subclass 820, whether or not the nominator continues to maintain the nomination. Accordingly, he contended, domestic violence committed by that person against the visa applicant is relevant, under subcl (3) of cl 820.221, whether or not the nomination was then still being maintained. 20 Mr Osei sought to support this argument by a reference to a document issued by the Department, apparently by way of instruction to staff involved in the assessment of visa applications depending on Subclass 820. That document contains the following comment on the definition of "nominating spouse" in cl 820.111: "Note that a person continues to be a 'nominating spouse' for the purposes of visa 820 criteria even if they cease to be a nominator ie by withdrawing the nomination they make in favour of the applicant. (Withdrawal of a nomination results only in the nomination itself ceasing to have effect.)" 21 Mr Osei also submitted that the Tribunal erred in applying Dunne, his reason being there was, there, at the time of decision, an ongoing relationship between the visa applicant and the nominator. 22 During the course of submissions, I put to Mr Osei that it might not matter whether the Tribunal erred in relation to cl 820.221(3); if the Tribunal was correct in holding that the applicant did not continue to meet the requirements of cl 820.211(2), that would be the end of the matter. 23 In response, Mr Osei submitted that the Tribunal erred in relation to cl 820.211(2). He said it was incorrect to treat the demand of cl 820.221(3)(a) that "the applicant would continue to meet the requirements of subclause 820.211(2)" as importing a requirement (under para (d)(ii) of cl 820.211(2)) that the applicant show compelling reasons for not applying the Schedule 3 criterion as at the date of decision. Mr Osei argued the requirement was directed only to the circumstances extant at the time of application.

(ii) Submissions for the Minister 24 Mr Kennett supported the Tribunal's view that the requirement of cl 820.221(1)(a) that the applicant "continues to meet the requirements" of cl 820.211(2) obliged the Tribunal to be satisfied that there are compelling reasons for not applying Schedule 3 criteria 3001, 3003 and 3004 having regard to the circumstances existing at the date of decision, as well as the date of application. On that basis, he said, the Tribunal was entitled not to be satisfied; there was no reason not to apply Dunne. The factual differences did not matter, Branson J's statement of principle was equally applicable to this case. 25 Mr Kennett also submitted there was no legal error in the Tribunal declining to find compelling reasons, having regard to the circumstances mentioned by the Tribunal in the last few lines of para 22 of its decision. In particular, Mr Kennett maintained that, for the purposes of the inquiry contemplated by cl 820.221(3)(a), the matter of compelling reasons had to be evaluated as at the time of decision, as well as at the time of application. 26 In relation to cl 820.221(3)(b), and despite the Department's own document of instruction, Mr Kennett at first maintained that a "nominating spouse" was a spouse who was maintaining the nomination at the time of decision. It followed, he said, that domestic violence committed by the nominator after withdrawal of the nomination was irrelevant. 27 I put to Mr Kennett that it would be usual to attribute to a defined term its defined meaning. On that basis, the Tribunal needed only to identify the person who had nominated the applicant; in this case, that was obviously Mr Boakye-Danquah. The Tribunal would be spared the task of determining the chronological relationship between the onset of violence and withdrawal of the nomination. Furthermore, the interpretation would avoid the apparent anomaly that domestic violence could be taken into account if it took place the day before withdrawal of the nomination but not if it occurred on the day following withdrawal. Moreover, I suggested it was difficult to treat the words "nominating spouse" in subcl (2) of cl 820.221 as requiring maintenance of the nomination; that subclause contemplated the possibility that the "nominating spouse" was deceased. 28 After some consideration, Mr Kennett withdrew his submission about the meaning of "nominating spouse". He conceded it referred to the person who had nominated the relevant applicant, whether or not that person continued to support the applicant's application, or was even still alive. However, he substituted a submission that the requirement of cl 820.221(1)(a), that the applicant "continues to meet the requirements" of cl 820.211(2), meant it was fatal to the present application that the applicant was not, at the time of decision, "nominated" by her husband, as required by cl 820.211(2)(c). He said this requirement subsisted even if the relationship had ceased, as contemplated by cl 820.221(3)(a).

(iii) Determinations 29 It seems to me clear Mr Kennett was correct in eventually conceding that the term "nominating spouse", in cl 820.221(2) and (3), bears its defined meaning, as set out in cl 820.111. This is for the reasons I put to Mr Kennett in argument, as set out in para 27 above. Accordingly, the term should be read, in the present case, as a reference to Mr Boakye-Danquah, whether or not he continued to support the nomination at the date of any particular act of domestic violence against the applicant. It follows that the Tribunal erred in law in excluding from consideration the claimed violence of 23 November 1999. 30 During the hearing before me, reference was made to the circumstances surrounding the introduction into the Migration Regulations of the concluding words of sub-para (ii) of cl 820.211(2)(d). Mr Osei referred to three media releases issued by the Department, dated 25 January 1996, 2 February 1996 and 30 May 1996. The last of these documents referred to amendments to the regulations intended to commence on 1 August 1996. 31 Statutory Rule No 75 of 1996 amended Schedule 2 of the Migration Regulations in various respects. One of the amendments, made operative from 1 August 1996, was the insertion of a new para (d) in subcl 820.211(2). The new paragraph was in substantially the same form as the present para (d). It was explained in an Explanatory Memorandum concerning the Statutory Rule issued by the Minister for Immigration and Multicultural Affairs in this way: "Subclause 10.1 omits paragraph 820.211(2)(d) of the Migration Regulations and substitutes a new paragraph which includes a waiver provision regarding the Schedule 3 requirements. The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds. The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas. The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise. It is expected that the waiver will be exercised only where there are reasons of a 'strongly compassionate' nature such as: - where there are Australian-citizen children from the relationship; or - where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer. In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived." 32 A new subcl (2) of cl 820.211 was substituted by Statutory Rule No 211 of 1996, operative from 1 October 1996. Paragraph (d) became para (c) but its terms were unchanged. However, that amendment was disallowed by the Senate: see Government Gazette 45 of 13 November 1996. Thereafter, on 11 December 1996, the Governor-General made Statutory Rule No 276 of 1996 which made certain amendments to the regulations as framed prior to the disallowed Statutory Rule. They included an amendment to subpara (i) of para (d), but not to subpara (ii). 33 Against this background, it is clear that the criterion was intended to be satisfied as at the time of application - as cl 820.211 itself requires - and only as at that date. The criterion is concerned with the circumstances in which an application is made. The decision-maker has to make a judgment about those circumstances, but that is all. There was obviously no intention that an applicant be required also to demonstrate compelling reasons arising out of the circumstances applying at the date of decision. 34 Mr Kennett put a contrary submission. He referred to the word "hardship" in the Explanatory Memorandum and said: "When the MRT comes to make its decision on a visa application, the only hardship that can be alleviated is that which would be caused by refusing the visa. The extent of that hardship can only be assessed in the light of the current circumstances of the visa applicant. (If the Schedule 3 criteria have not been complied with it follows that, at the time of application, the applicant has not suffered the hardship of leaving Australia in order to lodge an application offshore. Thus, the amendment cannot be seen as directly relieving applicants of that burden; rather, the amendment offered a prospect that an applicant's decision not to apply from offshore would not be held against him or her at the time of decision.)" 35 The submission demonstrates some confusion of thought. In support of the proposition that the extent of the hardship "can only be assessed in the light of the current circumstances of the visa applicant", Mr Kennett refers to the circumstances prevailing at the time of the application. More fundamentally, his reference to the use of the word "hardship", in the Explanatory Memorandum, ignores the context in which that word was used. The Minister referred to "the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas." He was addressing circumstances applying at the time of application, not those existing at the time of decision. 36 It seems clear that, in the present case, the Tribunal member misunderstood the purpose of para (d)(ii) of subcl 820.211(2). She did not consider the circumstances surrounding the lodgment of the visa application, in respect of which it would have been necessary for her to consider the relationship between the applicant and Mr Boakye-Danquah prior to, and at, that time. Rather, she considered the applicant's relationship with Mr Boakye-Danquah and others as at the date of decision. This was irrelevant. 37 I agree with Mr Kennett that, in considering whether there were "compelling reasons" at a relevant date, there was no reason for the Tribunal to decline to apply the decision of Branson J in Dunne. The flaw in the Tribunal's reasoning was not its application of Dunne, but that it applied the requirement of compelling reasons to the circumstances extant at the time of decision, rather than to those prevailing at the time of application. 38 Finally, I reject Mr Kennett's substituted submission that the requirement that the applicant "continues to meet the requirements" of cl 820.221(2) meant it was fatal that the applicant was not, at the time of decision, "nominated" by her husband. Paragraph (a) of subcl 820.221(3) says that an applicant meets the requirements of that subclause (and therefore satisfies para (b) of subcl 820.221(1)) if the applicant would continue to meet the requirements of cl 820.221(2) "except that the relationship between the applicant and the nominating spouse has ceased". This must include the fact that the nominating spouse is no longer willing to support the application. Were it not so, subcl (3) would be otiose. 39 In summary, it seems to me the Tribunal made two errors of law in considering the applicant's application for review of the delegate's decision: (a) the Tribunal asked itself the wrong question in relation to the issue whether there were compelling reasons for not applying the Schedule 3 criteria 3001, 3003 and 3004. The Tribunal asked itself whether there were such reasons arising out of the circumstances existing at the time of decision. It should have asked whether there were such reasons arising out of the circumstances at the time of application; (b) the Tribunal misconstrued the term "nominating spouse" and, as a result, wrongly failed to consider the application to the case of subcl (3) of cl 820.221, in particular para (b)(ii).

(i) The problem 40 Under the old law, it would have followed from the above conclusions that the decision of the Tribunal must be set aside and the matter remitted to the Tribunal for redetermination. However, as the application for review of the Tribunal's decision was made after 2 October 2001, it is necessary to consider whether that course is open to the Court, having regard to the legislative amendments concerning judicial review ("the 2001 amendments") that took effect that day. 41 The pivotal provision is the new s 474 of the Migration Act 1958. This section is contained in Part 8 of the Act, headed "Judicial Review". Division 1 of that Part contains only s 474, subss (1) and (2) of which read as follows: "(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)." 42 Subsection (3) sets out a list of the types of decision that may be a "privative clause decision". The list includes "refusing to give a certificate, direction, approval, consent or permission (including a visa)". 43 Subsection (4) lists decisions under various sections of the Act that are not privative clause decisions. None of the listed sections is relevant to this case. 44 Subsection (5) empowers the making of regulations listing other non-privative clause decisions. No relevant regulation has been made. 45 Under these circumstances, obviously, a visa refusal decision of the Tribunal falls within the definition of "privative clause decision". Notwithstanding this fact, and the apparent comprehensiveness of s 474(1), it is clear there are circumstances under which a legal challenge may be made against a decision refusing a visa. Indeed the Act recognises this. Division 2 of Part 8 is headed "Provisions Relating to Privative Clause Decisions". It prescribes procedures applicable to proceedings in respect of a privative clause decision. Although s 476 provides that the Federal Court and the Federal Magistrates Court "do not have any jurisdiction" in respect of some specified privative decisions (not including a decision of the Tribunal refusing a visa application), s 475A says this section does not affect the jurisdiction of the Federal Court, under s 39B or s 44 of the Judiciary Act 1903 or s 39 of the Federal Magistrates Act 1999, in relation to "a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500" or "another decision in respect of which the court's jurisdiction is not excluded by section 476". Moreover, s 477 provides that an application to either court, under s 39B of the Judiciary Act, for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a decision not excluded by s 476, must be made to the relevant court within 28 days of the notification of the decision. Section 478 specifies who may make such an application and ss 479 and 480 deal with other parties and intervention. Section 483A gives the Federal Magistrates Court the same jurisdiction as the Federal Court in relation to a matter arising under the Act. Section 484(1) makes the "jurisdiction of the Federal Court and the Federal Magistrate's Court in relation to privative clause decisions" exclusive of the jurisdiction of all other courts, other than the jurisdiction of the High Court of Australia under s 75 of the Constitution. 46 The apparent contradiction between Division 1 and Division 2 of Part 8 of the Migration Act seems to stem from Parliament's awareness of the terms of s 75(v) of the Constitution. That paragraph gives to the High Court original jurisdiction in "all matters in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth". A Minister is, of course, an officer of the Commonwealth. The situation was explained by Dixon J in The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614-615. "The jurisdiction of this Court under s. 75(v.) of the Constitution is invoked upon the footing that the Board are officers of the Commonwealth and are persons to whom a writ of prohibition lies. Regulation 17 provides that a decision of a Local Reference Board shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever. The 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. … 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." (Emphasis added) 47 The three conditions stated by Dixon J in the emphasised proviso in this passage have often been called "the Hickman conditions". In several decisions since Hickman, the High Court has affirmed the statement of Dixon J; sometimes with elaboration. Thus in Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 (a case that arose under State, not federal, law) Gaudron and Gummow JJ referred at 632 to the distinction between power and jurisdiction. They pointed out that s 75(v) of the Constitution confers "jurisdiction" in "all matters" in respect of which mandamus, prohibition or an injunction is sought against an officer of the Commonwealth. Their Honours went on, at 633: "Mandamus and prohibition are remedies which are granted in cases of jurisdictional error - refusal to exercise jurisdiction, in the case of mandamus, and excess of jurisdiction, in the case of prohibition. The terms of s 75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law. However, there is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law to ensure that the impugned decision or conduct or refusal or failure to exercise a power is in fact valid and lawful." (Emphasis added)

(ii) Decisions in this Court 48 So far as I am aware, there is not yet a decision of either the High Court or a Full Court of this Court dealing with the extent of the jurisdiction left to this Court under the 2001 amendments to the Migration Act. The matter is mentioned in numerous first-instance decisions of the Court but I am aware of only four decisions in which it is discussed in depth. There are substantial differences in the views expressed. 49 In Walton v Ruddock [2001] FCA 1839, Merkel J noted the above passage in Darling Casino and commented at para 31: "Jurisdictional errors, to which their Honours were referring, include errors of the kind described by Brennan, Deane, Toohey and McHugh JJ in Craig v The State of South Australia (1995) 184 CLR 163 at 179: 'If…an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'" 50 On the other hand, in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263, Gyles J (at para 31) indicated a belief that Gaudron and Gummow JJ did not have in mind what he called "the kind of extended jurisdictional error identified in Craig". Gyles J commented that recognition that the Hickman principle is one of statutory construction was "of no assistance to the applicants in the present case" as there is "no express provision of the Act inconsistent with s 474(1) which arises in the present case". He referred to a further statement of Dixon J, in Hickman 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." 51 Gyles J commented at para 29: "Prohibition does not lie save for jurisdictional error. Anything less than jurisdictional error will not found prohibition. On the other hand, it is clear that if Hickman is correct, then there are jurisdictional errors and jurisdictional errors, in the sense that some will, whilst others will not, be affected by a privative clause. The work which Hickman does is to define those jurisdictional errors which will found the prerogative writs notwithstanding the privative clause." 52 Tamberlin J discussed the same issue in NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281. Inthat case the errors of the Refugee Review Tribunal, detected by the judge, appear to have been solely errors of fact. Nonetheless, his Honour considered the effect of the new s 474. He referred to Hickman and also the later judgment of Dixon J in The King v Murray; Ex parte Proctor (1949) 77 CLR 387. Tamberlin J also quoted a passage from the judgment of McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1. Their Honours were there dealing with a submission, on behalf of the Minister, "that the use of overarching concepts, such as 'jurisdictional error', is inconsistent with a statutory scheme which enumerates both specific grounds of review that are available in the Federal Court, and others that are not". At para 82 their Honours said it is necessary "to understand what is meant by 'jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error". They then quoted the passage from the decision of the Full High Court in Craig that is set out at para 49 above.

53 McHugh, Gummow and Hayne JJ went on, in Yusuf at para 82: "'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision‑maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." (Emphasis added) 54 In NABE at para 24, Tamberlin J made three observations about this extract from Yusuf: "The first is that Yusuf was decided before the 2001 amendments to the Act inserting s 474 and the other amendments. The second is that Craig is cited in Yusuf in relation to the meaning of the expression jurisdictional error under the general law. The third is the observation by their Honours that there is nothing in the Act to suggest that the Tribunal is given authority to make a decision otherwise than in accordance with the Act." (Original emphasis) 55 Tamberlin J referred to the Explanatory Memorandum to the 2001 amendments to the Migration Act. He noted the Minister intended, by the proposed s 476, that the Federal Court would have no jurisdiction whatsoever in relation to a "primary decision", that is a decision that was subject to review by the Migration Review Tribunal, under Part 5 of the Act, or the Refugee Review Tribunal, under Part 7. Tamberlin J also noted the intention to restrict the jurisdiction of the Federal Court in connection with review of Tribunal decisions in accordance with the Hickman principle. Tamberlin J then commented, in an apparent reference to the last sentence of the cited passage in Yusuf: "As a consequence of the 2001 amendments to the Act, in particular s 474, it can no longer be said that nothing in the Act suggests that the RRT is given authority to determine questions of law or make a decision otherwise than in accordance with law." 56 At para 30 Tamberlin J concluded: "Section 474 in terms makes it evident that the decision of the RRT is intended to authoritatively resolve questions of fact and law before it. That principle is qualified by the authorities to the effect that a privative clause will not apply to prevent judicial review where the decision is unconstitutional or in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, or where the empowering statute makes it clear that compliance with a condition is essential to the exercise of jurisdiction. Indeed, Hickman itself is an example of the latter situation in so far as the Court held that the privative clause did not operate to protect the Board's decision because the activity was not 'in the mining industry', an expression which delineated the area of jurisdiction conferred. Accordingly, in this case, as a consequence of the 2001 amendments, the generalised statements as to jurisdictional error enunciated in Craig, are not determinative of the present proceedings." 57 Hill J discussed the effect of s 474 in Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311. That was a challenge under s 39B of the Judiciary Act to a decision of the Migration Review Tribunal. His Honour held that, even if the Tribunal made an error of law, that error could not have affected the ultimate result; accordingly, irrespective of s 474, the application must be dismissed. 58 Notwithstanding this conclusion, Hill J referred to the cases mentioned above, and some other material, before offering this opinion, in paras 50-51: "In my view, the question of construction which is raised by s 474 requires the Court to reconcile the broad language of the privative clause with the specific language of the Act, particularly the conferral of jurisdiction (and the imposition of a duty) upon the Tribunal to review a decision. The obvious legislative purpose (and the Court is required to give effect to the legislative purpose, at least so long as in the present context it is express or arises by necessary implication from the language used), is to expand the validity of decisions made in purported exercise of jurisdiction, so that they are to be treated as validly made, notwithstanding that there may be some error which would otherwise justify the decision being set aside. On the other hand, the privative clause is not to be interpreted so that a real failure to exercise jurisdiction nevertheless permits the decision to be validated. The clearest example of such a real failure to exercise jurisdiction is the case where a Tribunal simply fails to address the issue it is required to address, or, while purporting to do so, takes into account some quite irrelevant matter. In my view, however, the privative clause is not to be ignored so as to permit this Court to treat the decision as invalid merely because the Tribunal has made a wrong finding of fact (that would not be judicial review in any case) or even had proceeded upon a wrong basis in law. In particular, prohibition may only be invoked where there is jurisdictional error. Neither error of law, or error of fact are, of themselves, necessarily jurisdictional error. For my part I am inclined to agree with Gyles J [in NAAX] that s 474 would preclude the Court (the question may be different where the High Court is involved, for this would raise the constitutional question) from making an order for prohibition absolute where there had been a denial of natural justice. … On the other hand, there is nothing in s 476 [sic: s 474?] which would prevent the Court from setting aside in judicial review proceedings a decision made in excess of jurisdiction under one or other of the heads of review (eg, error of law) and so there is no reason to believe that Parliament would thus have limited this Court's power to grant prohibition where there was jurisdictional error."

(iii) Conclusions 59 It is well-settled that the application of Hickman to particular legislation is an exercise in construction of the particular legislation. It is important to bear this in mind when considering whether the Federal Court retains jurisdiction, under s 39B of the Judiciary Act, in respect of all jurisdictional errors made by the Migration Review Tribunal and the Refugee Review Tribunal (as Merkel J, and apparently Hill J, thought) or only some, as Gyles J and Tamberlin J have suggested. 60 Approaching the problem as an exercise in construction of the Migration Act, it seems to me the contrast between s 474, on the one hand, and ss 475A, 476, 477, 483A and 484, on the other, is instructive. Section 474 seemingly excludes any challenge whatsoever to a "privative clause decision". However, ss 475A, 476, 477, 483A and 484 recognise that s 474 does not strip away the Federal Court's jurisdiction to consider an application under s39B of the Judiciary Act, evenin relation to a privative clause decision. Section 39B(1) provides that, subject to the presently irrelevant subss (1B) and (1C), "the original jurisdiction of the Federal Court of Australia includes jurisdiction 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." Section 39B(1A) confers other original jurisdiction on the Federal Court, but it is not necessary to deal with that conferral in this case; the present applicant relies only on subs (1). 61 It is clear that Parliament was prepared, by s 476, to remove that part of the jurisdiction of this Court that involved challenges to a "primary decision". That course was open to Parliament; this Court's jurisdiction is entirely statutory. However, Parliament was not prepared to remove that part of the jurisdiction that was concerned with challenges to decisions of the Migration Review Tribunal and the Refugee Review Tribunal. Instead, it sought (by ss 477 to 484) to regulate the exercise of that jurisdiction. It seems unlikely that Parliament followed this course because it relished court review of Tribunal decisions. It is much more likely that Parliament recognised it could not validly exclude applications to the High Court, under s 75(v) of the Constitution, for writs of mandamus or prohibition or injunctive relief against Commonwealth officers, including members of the tribunals; and it preferred to allow this Court (and the Federal Magistrates Court) to share the burden of such applications, rather than leave the entire burden with the High Court. It is surely significant that the jurisdiction under s 39B of the Judiciary Act described by s 477(1) of the Migration Act reflects the terms of s 75(v), although using more modern terminology. 62 It is not clear why Parliament did not take the same approach to applications in respect of primary decisions. Perhaps the reason was that s 75(v) applications in relation to primary decisions are relatively rare; and usually foredoomed to failure on discretionary grounds, a right of merits review being available to applicants. 63 Whatever the reason for Parliament's distinction between challenges to primary decisions and challenges to tribunal decisions, it seems to me the 2001 amendments to the Migration Act should be construed as intending that this Court will retain jurisdiction to grant relief, under s 39B of the Judiciary Act, in relation to tribunal decisions, in those cases in which the High Court might grant relief under s 75(v) of the Constitution. Any other construction, which left the jurisdiction of this Court in non-s 476 cases narrower than that of the High Court under s 75(v) of the Constitution, would defeat the apparent Parliamentary intention to enable this Court (and the Federal Magistrates Court) to assist the High Court in dealing with challenges to tribunal decisions. After all, Parliament could have entirely abrogated the Migration Act jurisdiction of this Court (and the Federal Magistrates Court) if it had so wished. Alternatively, it could have expressly limited the grounds available under s39B, as it had done under the legislation repealed on 2 October 2001. 64 If this is so, there is no scope for a concept of "jurisdictional errors and jurisdictional errors" as Gyles J suggested. A particular error of law is either a jurisdictional error or it is not. If it is a jurisdictional error, the High Court may grant relief under s 75(v) of the Constitution; so this Court also has jurisdiction to grant relief, under s 39B(1) of the Judiciary Act. If the error is not jurisdictional, s 75(v) relief is unavailable; the exception to s 474 implied by the existence of Division 2 of Part 8 of the Migration Act has no application and s 474 excludes relief. 65 That leaves the question: what is a jurisdictional error? This Court must look to the High Court to provide the answer. The High Court has addressed the question in two recent cases, Craig and Yusuf. I see no reason for rejecting the guidance those cases provide. With respect to Tamberlin J, the enactment of the new s 474 provides no justification for that course. As I have sought to explain, the 2001 amendments to Part 8 of that Act recognise the exception to the principle embodied in s 474 that is forced upon Parliament (at least insofar as the High Court is concerned) by the existence of s 75(v) of the Constitution. 66 Tamberlin J attached significance to the reference made by the Minister, in the Explanatory Memorandum for the 2001 amendments, to the "Hickman conditions"; that is, the three circumstances identified by Dixon J in the proviso emphasised in para 46 above. However, as with any case, what is important about Hickman is its underlying rationale, the principle it enunciates; not the circumstances under which that principle will provide a particular result. If the Minister had wished to propose legislation that confined the jurisdiction of this Court to the three circumstances mentioned by Dixon J, he could have done so. 67 Application of more recent decisions of the High Court may mean that court intervention is now available in circumstances wider than those identified by Dixon J in Hickman. If so, that is the effect of the development of the law over the intervening 57 years. It is not a reason for refusing to apply the more recent decisions. While it is certainly correct, as Gyles J pointed out in NAAX at para 29, that Dixon J was aware that prerogative writs are available in cases of constructive failure to exercise jurisdiction, it can hardly be denied that the rules of administrative law have developed significantly since 1945, including in relation to constructive failure to exercise jurisdiction.

(iv) Application to this case 68 At para 39 above, I identified two errors of law made by the Migration Review Tribunal in this case. Error (b), misconstruction of the term "nominating spouse", may be a non-jurisdictional error of law. If so, it is not capable of attracting prerogative or injunctive relief, and that is the only relief sought in this case. 69 However, as I explained above, error (a) resulted in the Tribunal asking itself the wrong question. The Tribunal's exercise of powers was thereby affected. In Craig the Full High Court clearly identified such a situation as one in which the relevant tribunal "exceeds its authority or powers". The Court said such an error "is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it". 70 Although I do not think this matters, in terms of the relevant principle of administrative law, Craig did not arise under federal law. It had nothing to do with the administration of the Migration Act. But Craig was followed in Yusuf, which had both those characteristics. The passage from the judgment of McHugh, Gummow and Hayne JJ, emphasised at para 53 above, leaves no doubt, in the context of a decision by a tribunal operating under the Migration Act, that the identification of a wrong issue or asking a wrong question, in a way that affects the exercise of power, is an error of law that results in the tribunal exceeding its jurisdiction. As their Honours went on to point out (in para 85), this circumstance would mean the High Court had original jurisdiction to grant relief under s 75(v) of the Constitution. On my analysis of the situation, that means this Court has jurisdiction to grant relief under s 39B(1) of the Judiciary Act.

Orders 71 Mr Kennett does not contend that relief should be refused on discretionary grounds. I see no reason to refuse relief. The applicant has suffered two clear errors of law by the Tribunal; both of them, incidentally, being interpretations of the regulations contrary to pronouncements, by the Department or Minister, of which Tribunal members might have been expected to be aware. The applicant is entitled to have her visa application considered on a correct legal basis. 72 However, there is a question about the form of relief. The Tribunal is not a respondent to the application. So it may be inappropriate to order the issue of writs of mandamus or prohibition directed to the Tribunal. The most convenient course is to make a declaration. That course is open to the Court under s 21 of the Federal Court of Australia Act 1976, the original jurisdiction of the Court having been invoked by an application falling with s 39B(1) of the Judiciary Act. The necessary consequence of that declaration will be that the applicant's application for review of the delegate's decision must be reheard and determined according to law. For this purpose the Tribunal ought to be differently constituted. 73 The Minister must pay the applicant's costs of this application. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Solicitor for the Respondent: Blake Dawson Waldron