The validity of the imposition of condition 8503
34 Counsel for the applicants contended that condition 8503 had not been inserted validly into either applicant's Visitor visa.
35 The decision to make the applicants' Visitor visas subject to condition 8503 was made on or before 24 December 1996. As the Migration Act stood at that time, assuming that such a decision was a 'judicially-reviewable decision' within the meaning of s 475, it could only have been reviewed by this Court pursuant to the exclusive code in Pt 8 of the Migration Act: see s 485(1) of the Migration Act as it then stood. By s 478(1)(b), an application to the Court could only be made within a 28-day time limit from notification of the decision to the person applying. There was no power to extend this time limit. Nor was a decision to impose a condition on the grant of a visa capable of being reviewed by the Immigration Review Tribunal, the forerunner of the Tribunal: see the definition of 'IRT-reviewable decisions' in s 346 of the Migration Act as it then stood.
36 A decision to impose a condition on the grant of a visa would now fall within the definition of 'privative clause decision' in s 474 of the Migration Act'; s 474(3)(d) makes it clear that a decision imposing a condition is a 'decision' for the purposes of that definition. As a consequence of s 476(1) and (6), this Court would not have jurisdiction to review such a decision.
37 At all times, it would have been open to the High Court of Australia, pursuant to s 75(v) of the Constitution, to entertain an application for the forms of relief referred to in that provision, in respect of a decision of an officer of the Commonwealth. In order to succeed, such an application would have to be based on jurisdictional error on the part of the decision-maker. Whether it would be possible to separate the decision to impose the condition from the decision to grant the visa subject to the condition, and to deal only with the former, might be an interesting question. Pursuant to s 39B of the Judiciary Act 1903 (Cth), the jurisdiction given to the High Court by s 75(v) of the Constitution is now available to this Court, the former s 485(1) of the Migration Act having been repealed.
38 In the present case, counsel for the applicants contended that the decision to impose condition 8503 on the applicants, as part of the grant of their Visitor visas, was the result of jurisdictional error on the part of the decision-maker. As a consequence, that decision was of no effect, and should have been ignored by the Tribunal. The jurisdictional error for which the applicants contended was the existence of an ulterior purpose for the decision, or the taking into account of irrelevant considerations, or the failure to take into account relevant considerations. At the heart of the contentions lay what was said to be a failure to apply, or to apply correctly, the guidelines laid down in PAM3. The argument relied in part on the failure to counsel the applicants as to the meaning of condition 8503, as required by cl 5.22 of PAM3.
39 To make this case, counsel for the applicants relied on the facsimile of 11 July 1997. He contended that the reference to the fact that the applicants came from 'a high risk and impoverished area of northern Lebanon' and to the fact that the Australian Embassy in Beirut was 'a high risk post under constant pressure to grant visas to people we have concerns about, we are big users of the 8503 condition' disclosed a failure to comply with cl 5.18 of PAM3. That is to say, counsel for the applicants argued that the condition had been imposed as an alternative to the officer concerned being satisfied that the applicants met the criterion of having a genuine intention only to visit Australia, or to the officer being satisfied that the applicants met relevant risk factor requirements. It was argued that this failure to comply with cl 5.18 of PAM3 revealed an ulterior purpose, of circumventing the criteria for the visa. Alternatively, it amounted to a failure to take into account a relevant consideration, namely cl 5.18 of PAM3, or a taking into account of irrelevant considerations, namely those excluded by cl 5.18 of PAM3.
40 This argument faces a number of difficulties. First, it would be necessary to be sure that the decision to impose the condition could be treated as a decision separate from the decision to grant a Visitor visa. This is not necessarily a technical quibble. If the officer concerned had the ulterior motive of granting a visa containing condition 8503, instead of being satisfied that the criteria for the Visitor visa were made out, it would follow that the officer was not satisfied that the criteria were made out. This would lead to the conclusion that s 65 of the Migration Act would have required the officer to refuse the visa. There is something profoundly unsatisfying about the notion that the applicants should be entitled to have the decision to impose condition 8503 treated as invalid by reason of a factual situation which, if true, would have resulted in the denial of Visitor visas to them. At the very least, if the applicants were otherwise entitled to an order, this would be a ground for refusing them relief in the exercise of the Court's discretion.
41 Further, if it could be established that the decision to impose condition 8503 were tainted by jurisdictional error on the part of the officer who made it, there would be questions as to the effect on the decision of the making of such a finding by the Court now. It might be necessary to determine whether the decision should be regarded as having been a nullity, or as having had some force and effect, unless and until set aside. In Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597 at [51], Gaudron and Gummow JJ said:
'There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.' [Footnotes omitted]
42 At [53], their Honours repeated the proposition that 'a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all.' This proposition was accepted by a majority of the High Court, Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 211 CLR 476 at [76]. There is nevertheless an open question as to what effect can be attributed to a decision affected by jurisdictional error that is unchallenged, or that is challenged but not set aside by a court because of discretionary considerations. In a given case, the answer might depend upon the application of the principles laid down by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388 - 389, as to the ascertainment of a legislative purpose to invalidate an exercise of statutory power not complying with a statutory condition. See the discussion in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 (2003) 204 ALR 55 at [28] - [42].
43 In the present case, assuming that condition 8503 had been included in the applicants' Visitor visas without proper statutory authority for its inclusion, there would be a question as to whether the condition, appearing as it did in the applicants' passports, had any effect. That question may not be one for the Tribunal. As I have said, the Tribunal's jurisdiction is limited to reviewing certain decisions. It does not have jurisdiction to determine generally that any decision other than that which it is reviewing is a nullity. See Sevim v Minister for Immigration and Multicultural Affairs [2001] 1597 (2001) 114 FCR 126 at [46] - [47] and [57]. To establish jurisdictional error on the part of the Tribunal in the context of the present case, the applicants would have to show that the presence of condition 8503 in their Visitor visas did not operate to deprive the Tribunal of jurisdiction to deal with their applications to review the decision of the Minister's delegate refusing to grant them Family visas. The Minister's delegate had not found condition 8503 to be a barrier to consideration of the applications for Family visas, and had treated those applications as valid applications, despite the presence of condition 8503 and the provisions of s 46(1)(e) as they then stood. Section 69(1) of the Migration Act operated to give the Tribunal jurisdiction to review the decision of the Minister's delegate, even if the delegate had acted wrongly in disregarding the presence of condition 8503 in the applicants' Visitor visas. Of course, the Tribunal then had to determine for itself whether the applications for Family visas were valid applications. See Sevim at [57] - [63]. One aspect of determining whether there were valid applications in the present case was the presence of condition 8503 in the Visitor visas. The question whether the Tribunal could treat the decision to impose condition 8503 as invalid was therefore a vital one in determining the limits of the jurisdiction of the Tribunal. This question was not argued fully in the present case, and it is unnecessary for me to answer it. I prefer to express no concluded opinion on it without full argument.
44 The greatest difficulty faced by the applicants in the present case is to make good their contention that the decision to impose condition 8503 on their Visitor visas was subject to jurisdictional error. The only evidence they have to support the proposition is material from the facsimile of 11 July 1997. Even supposing the information about the approach of the Australian Embassy in Beirut to the imposition of condition 8503 could be regarded as based on some appropriate level of knowledge on the part of the author of the facsimile, the fact is, it is general information. The facsimile says nothing about the specific cases of the applicants. In particular, it falls well short of establishing that the officer who granted the Visitor visas was not satisfied that the applicants fulfilled all of the necessary criteria, and was using condition 8503 as a substitute for such satisfaction. The fact that the applicants were not in fact counselled about the effect of condition 8503, but were merely asked to sign their undertakings, suggests that the officer was in fact satisfied of their genuine intention only to visit Australia for a short term, and for a particular purpose. It should not be supposed that a particular officer granted visas without such satisfaction, but for an ulterior purpose, without evidence relating to the individual cases. The applicants have failed to make out their case that the officer did not comply with cl 5.18 of PAM3.
45 In any event, PAM3 is not a binding document. PAM3 is intended by its own terms to be nothing more than procedural and policy guidance to officers applying the Migration Act and the Migration Regulations. See Xie v Minister for Immigration and Multicultural Affairs [2000] FCA 230 (2000) 61 ALD 641 at [28] - [29] and Soegianto v Minister for Immigration & Multicultural Affairs [2001] FCA 1612 at [15] - [16]. PAM3 does not have the effect of a direction pursuant to s 499 of the Migration Act, which would bind a person or body having functions or powers under the Migration Act as to the performance of those functions or the exercise of those powers. Because the PAM3 guidelines are not binding on a decision-maker, they cannot be relevant considerations, in the sense of considerations that the decision-maker is bound by legislation to take into account. See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 39 - 40 per Mason J, with whom Gibbs CJ and Dawson J agreed. A failure to apply the guidelines may have significance in establishing some error on the part of a decision-maker, but it is not of itself a jurisdictional error.
46 The applicants have failed to establish that the Tribunal was in error in treating the applicants' Visitor visas as containing condition 8503. It is therefore necessary to turn to the second argument put on behalf of the applicant, which raises the question of the effect of condition 8503 on the validity of the applications for Family visas.