Darko v Minister for Immigration & Multicultural & Indigenous Affairs

The legislation 11 Before turning to that decision it is necessary to consider the relevant legislative provisions. Section 128 of the Act provides: "128 Cancellation of visas of people outside Australia If: (a) the Minister is satisfied that: (i) there is a ground for cancelling a visa under section 116; and (ii) it is appropriate to cancel in accordance with this Subdivision; and (b) the non-citizen is outside Australia; the Minister may, without notice to the holder of the visa, cancel the visa." 12 Section 129 provides: "(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice: (a) stating the ground on which it was cancelled; and (b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and (c) inviting the former holder to show, within a specified time, being a prescribed time, that: (i) that ground does not exist; or (ii) there is a reason why the visa should not have been cancelled; and (d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and (e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked. (2) The notice is to be given in the prescribed way. (3) Failure to give notification of a decision does not affect the validity of the decision." (Emphasis added) 13 In this proceeding, the Court is not concerned with the validity of the cancellation but with the validity of the decision not to revoke the cancellation. 14 It is common ground that the notice given to the applicant in this case did not comply with the requirements of s 129. In particular it did not state any ground on which the visa was cancelled. Nor did it give any particulars of any ground, or of any information because of which the ground was considered to exist. Because these important provisions had not been complied with, it was meaningless to invite the applicant to show that "the ground" did not exist or that there was some reason why the visa should not have been cancelled. Because of the basic defect in the notice there was no point in making the statements referred to in subpars (d) or (e) of s 129(1). The applicant was not in any position to make any response to the notice. 15 Section 130 of the Act provides: "Regulations prescribing a period for the purpose of paragraph 129(1)(c) may prescribe different periods and specify when a particular period is to apply, which, without limiting the generality of the power, may be to: (a) visas of a specified class; or (b) former visa holders in specified circumstances; or (c) former visa holders in a specified class of persons (which may be former visa holders in a specified place); or (d) former visa holders in a specified class of persons (which may be former visa holders in a specified place) in specified circumstances." 16 Section 131 is as follows: "(1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister: (a) if not satisfied that there was a ground for the cancellation; or (b) if satisfied that there is another reason why the cancellation should be revoked; is to revoke the cancellation. (2) The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled." (Emphasis added) 17 So far as the prescribed periods are concerned, Regulation 2.46 of the Migration Regulations 1994 (Cth) ("the Regulations") provides: "Time to respond to notice of cancellation (Act, s 129(1)(c)) For the purposes of paragraph 129(1)(c) of the Act (which deals with response to cancellation of a visa), the following periods are prescribed: (a) if the former holder of the visa is outside Australia when he or she is given a notice of the cancellation - 28 days; (b) if he or she is in Australia when he or she is given notice of the cancellation: (i) if he or she wishes the cancellation to be reconsidered while he or she is in Australia - 5 minutes; or (ii) … beginning when the former holder of the visa is given a notice of the cancellation." 18 In this case the prescribed period was five minutes. 19 Section 474(1) of the Act 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."

Wang 20 In Wang the applicant was given a notice of cancellation in the form of a letter which stated the grounds of cancellation in the following terms: "Your visa was cancelled on 18 July 2001 because documents attesting to your skills, qualifications and experience as a martial arts instructor have been found to be bogus." 21 The applicant in that case, through his migration agent, responded to the notice one month after the date of the notice stating detailed reasons in writing why the visa should not be cancelled and addressing the charge that the documents lodged with the Department had been false. The applicant in that case was then notified of the decision not to revoke the cancellation by letter dated 2 October 2001. The circumstances contrast markedly with the present case where the notice did not state any ground for cancellation and where the applicant was only given ten minutes within which to consider and respond to the cancellation in the absence of any reasons, particulars, or documents referred to in the notice in respect of which a response was sought. In this case it is clear that there was no opportunity to consult any adviser, consult any documents or make any response to the grounds (which were in fact not provided in the notice) for cancellation. It is equally clear, in my view, that the Act contemplated that this procedure would be followed before a decision is made that a cancellation of a visa should not be revoked. 22 The decision of Mansfield J in Wang was that the giving of a notice which complied with s 129 of the Act was a pre-condition to the empowering of the Minister to make a decision under s 131 and that this pre-condition was not satisfied because no notice under s 129 was given. The reasoning of his Honour is set out in the following passages at [33]-[35]: "33 In this matter, the precondition to the entitlement to making a decision under s 131 did not exist. There was no response to a notice under s 129 because no proper notice under s 129 was given. There is no contention that the letter given on 18 July 2001 constituted substantial compliance with that section, as the Reasons for Decision which would have provided the information required by s 129(1)(c) were not enclosed. As the applicant's response of 21 August 2001 shows, the absence of that information meant that the applicant's response was not a response to a notice under s 129. It did not properly engage the issue whether the ground for cancellation of the visa did not exist because the applicant was not given the information required so as to enable him to do so. 34 In my judgment, the circumstance is not simply one where a procedural prescription imposed as part of the process of decision-making has not been complied with. It is one where the jurisdictional fact prescribed by the Act, and one which is also the essence of the material upon which the Minister is entitled and obliged to make a decision, has been shown not to exist. The purpose of the decision-making process under s 131 has been frustrated. If I may paraphrase Stephen J in Green v Daniels (1977) 51 ALJR 463 at 465, the respondent has wrongly precluded himself from attaining the requisite state of satisfaction. 35 In view of my characterisation of the nature of the decision to be made under s 131, and my view that the existence of a response to a valid notice under s 129(1), or at least to a notice which is adequate to elicit a meaningful response to the reasons for the cancellation of the visa, is an essential pre-condition to a valid decision under s 131, I consider that it is not intended by the Act that s 474(1) should preclude the grant of appropriate relief under s 39B of the Judiciary Act in the present circumstances. The decision under challenge is really no decision at all, because the respondent was not empowered in the circumstances to form any satisfaction in terms of s 131(1)(a) or (b). He did not have before him to enliven that power, and to impose the obligation to exercise it, a response to a notice under s 129(1). The absence of such a response is not 'a mere defect or irregularity which does not deprive [him] of the power' to make the decision: Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Mason CJ at 180."

Privative clause 23 In his reasons for judgment, when reviewing the decision in the light of s 474 of the Act, Mansfield J considered the relevant authorities relating to the operation of similar privative clauses, dating from the leading decision of R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; see also R v Coldham; Ex parte Australian Workers Union (1983) 154 CLR 415, R v Murray; Ex parte Proctor (1949) 77 CLR 387, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 and Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602. It is not necessary for me to repeat the relevant passages from those decisions relied on by his Honour. These authorities lend support to the submission that a protective clause will not apply in circumstances where the legislature has placed inviolable limitations or "restraints" on the exercise of legislative power or has expressed a "specific intention" that limitations and compliance with requirements are essential to a valid action. The ascertainment of whether these requirements have been met is a matter for the Court. 24 The question is essentially one of interpretation directed to ascertain the importance and operation which should attach to compliance with the conditions imposed on the exercise of legislative powers by paying detailed attention to the specific express language selected by Parliament to manifest its intention. 25 In Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, Dixon J at 391 said: "It cannot be denied that, if the legislature sees fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid." 26 Here the facts upon which the power of the Minister is contingent is that there be consideration of a response by the applicant to the particulars contained in the notice. 27 Other cases in which the concept of a condition precedent to the exercise of legislative power, and the need for an objective determination of a factual situation existing before that power can be exercised, are illustrated in the decisions of Sutherland Shire Council v Finch (1969) 123 CLR 657 at 665 and 667 per Gibbs J (with whom other members of the Court agreed) and Attorney-General v City of Geelong [1989] VR 641 at 660. 28 On a correct construction of s 131, I consider that the power of the Minister does not arise until "after" he has considered a response to a notice, under s 129, of the cancellation of a visa. Until this occurs the Minister's power, specifically framed in s 131, does not exist. Where there is no notice in accordance with s 129, there can be no "response" to the notice and accordingly the power will not arise. In those circumstance a general protective clause cannot operate to confer power on the Minister to make a decision which is contrary to the manifest intention expressed in the specific language used in the particular section. Put another way, I do not consider that the general protective clause is designed to operate in such a way that the power of the Minister can arise without satisfying the conditions precedent to the exercise of that power prescribed by Parliament in s 131. This is not a case which raises principles of common law or legislative natural justice but is rather a case where the words spelt out in the section prescribe the circumstances in which the power arises. It is not a case concerning procedural requirements. It goes to the basis of the Minister's power. The Minister's power is circumscribed to the limited circumstances where he or she has received and considered a response to a notice under s 129. The words "after considering" are, on their natural interpretation, indicative of a condition precedent pursuant to which the power comes into existence. It is not a case of exercising a power which has come into existence without following the procedural requirements. The conditions laid down delimit the power of the Minister to refuse to revoke. 29 For the above reasons I agree with the conclusion and orders made by Mansfield J in Wang and I propose to follow and apply the principles set out by his Honour to the present circumstances. In any event, if I had any reservations as to the correctness of that decision, they are not so great that I would depart from the salutary approach that unless the decision is clearly shown to be erroneous it should be followed by a subsequent Judge at first instance in the interests of consistency and certainty. 30 Accordingly, in my view, the decision of the Minister not to revoke the cancellation in this case is invalid and must be set aside. The orders which I make therefore are that the application is granted. The decision of the delegate not to revoke the cancellation is set aside. The matter is remitted for consideration of the question whether the cancellation of the visa should be revoked in accordance with the reasons in this decision. The respondent is to pay the costs of the applicant. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Counsel for the Respondent: J Basten QC G Kennett

Solicitor for the Respondent: Australian Government Solicitor