Hashimi v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 On 20 June 2000 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a Partner (Provisional) (Class UF) visa to the applicant's husband, Mr Obeidullah Hashimi. On 25 January 2002, the Migration Review Tribunal affirmed that decision. That decision was given orally, but not at the conclusion of the hearing, which took place on 19 September 2001. 2 Mrs Hashimi was a widow with five children at the time she met Mr Hashimi, a national of Afghanistan. They met at a wedding in October 1999 in Pakistan. They were married five days later under Islamic law. Mrs Hashimi returned to Australia on 10 November 1999. Mrs Hashimi again travelled to Pakistan in March 2001 and stayed for three months. She said she spent three weeks with her husband at the home of a friend and that they spent the balance of the time at her sister's home. Mrs Hashimi produced documentation including some letters from her husband, phone cards, a money order and some photographs. 3 Pursuant to the criterion for the visa in question, the Minister is to be satisfied that the married couple have a "mutual commitment to a shared life as husband and wife to the exclusion of all others" and "the relationship between them is genuine and continuing" (Reg 1.15A(1A)(b)(i)(ii) to the Migration Act 1958 (Cth)). The regulation goes on to specify what must be taken into account in forming an opinion as to whether the two persons are in a married relationship as so defined. In addition, the Tribunal considered that in this case it should have regard both to the nature of the relationship at the time of the application and to subsequent events. 4 The Tribunal's decision was based upon what it considered to be a lack of objective evidence to support the claims made. It found there was none with respect to their living as man and wife in the period of Mrs Hashimi's visit to Pakistan in 2001; the letters passing between them which were translated were very short and contained no reference to matters which one might expect a husband and wife to discuss. There was no other evidence to support the relationship claimed. There was none from friends or relatives and only Mrs Hashimi's statement that her children supported the marriage. There was little by way of evidence of the financial aspect of such a relationship, save for a transfer by her of A$100.00 to Pakistan in June 2000. 5 The Tribunal concluded that the evidence was "sketchy" and it was left in a state of uncertainty as to Mrs Hashimi's intention with respect to the marriage. In that event it considered that it was obliged to affirm the refusal. 6 Mrs Hashimi was represented before the Tribunal. As earlier mentioned, the Tribunal's decision was made later, and orally, on 25 January 2002. A copy of it was forwarded under cover of a letter dated 11 February 2002, and amended applications were filed thereafter. The respondent has filed a Notice of Objection to Competency on the ground that the application was not made within twenty-eight days of the applicant being notified of the decision as s 477(1) of the Migration Act requires. The basis for the ground is that Mrs Hashimi is deemed to have been notified when the oral decision was pronounced, even though there is nothing to suggest that she was in attendance. The respondent concedes that if Mrs Hashimi is taken to be first notified of the decision when her solicitor received the reasons for the decision by post, then her application was filed in time. 7 The respondent's submissions rely upon s 368D(1) of the Migration Act, which provides that an applicant is deemed to have been notified of an oral decision on the day it was made. I have previously expressed an opinion as to whether that subsection contemplates an oral decision being made at the conclusion of the hearing and in the presence of an applicant or their representative: Sochorova v Minister for Immigration and Multicultural Affairs [2002] FCA 817. That was the view earlier expressed by Lehane J in Raj v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 346, 349 [7] and I agreed with it. I adhere to that view. If the decision was to be given later it should have been "handed down" by the Tribunal (s 368B) and the procedures for that method followed, including inviting Mrs Hashimi or her representative to attend when it was to be handed down. It follows that notification of the decision was provided first to Mrs Hashimi's solicitor and the application is within time. 8 The further amended application asserts that the Tribunal committed errors which went to its jurisdiction to decide, namely: (i) it failed to consider relevant considerations in deciding the relationship is not genuine and committed; (ii) it exercised its decision making power unreasonably; (iii) it relied upon irrelevant considerations to conclude the relationship is not genuine and committed; (iv) there was no evidence to support the decision that the parties were not in a genuine and committed relationship; (v) the decision is based on mistaken presumptions and/or erroneous findings; It was also submitted, in the applicant's written argument, that the Migration Review Tribunal failed to comply with the requirements of s 359A Migration Act. 9 The Court has jurisdiction with respect to a privative clause decision under s 39B and s 44 of the Judiciary Act 1903 (Cth): ss 475A and 476 of the Migration Act. The Tribunal's decision is a privative clause decision as defined by s 474(2) of the Migration Act. Section 474(1) provides with respect to such a decision: "Decisions under Act are final (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. 10 There is a division of opinion in the Court as to the extent of the operation of s 474 and a decision of a Full Court is awaited. 11 In The King v Hickman; ex parte Fox & Clinton (1945) 70 CLR 598, 615, Dixon J held that a clause such as s 474(1) does not render a decision immune from challenge. It is interpreted as meaning that no decision shall be invalidated on the ground that it has not conformed to the requirements governing the proceedings or the exercise of its authority, or has not confined its acts within the limits laid down by the statute or instrument giving it authority. The conditions to this operation of the clause are that the decision is a bona fide attempt to exercise the power; it relates to the subject matter of the legislation; and it is reasonably capable of reference to the power given to the body. Where the legislature confers authority subject to limitations, and at the same time enacts such a clause, it is a question of interpretation whether a breach means that the decision is invalid (616). If there is a contradiction between the statutory provision which has not been followed and the privative clause, "effect must be given to the whole legislative instrument by a process of reconciliation" (617). 12 Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 [36] and [37] held that Hickman remains authoritative and exhaustive and that the process of construction there referred to is necessary to be undertaken with respect to s 474(1). His Honour held, in that case, that s 474 operated according to its terms, and that they are inconsistent with the existence of an implied duty to afford procedural fairness by supplying information beyond that referred to in Div 4 of Part 7 of the Act. His Honour considered that conclusion to be reinforced by passages from the Revised Explanatory Memorandum and the Second Reading Speech relating to s 474(1) (see at [20] and [21]). It is plain from the Second Reading Speech, in particular, that the Hickman conditions were sought to be applied. His Honour's reasoning has been followed in a number of other cases. It is not necessary to list them. I respectfully add my agreement to them. 13 In this case the alleged jurisdictional errors listed in the application were taken up in submissions. I infer that there was not considered to be a proper basis for most of them. Submissions based upon those grounds would have met with the argument that Hickman does not hold, in the context of a privative clause, that every jurisdictional error will found prohibition (see NAAX [29] and Allsop J in NAAG of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCA 713). It would follow that the task of the Court is not simply to identify jurisdictional errors, but to undertake the process of construction Dixon J referred to. 14 The principal submission for the applicant centred upon the alleged breach of s 359A(1) of the Migration Act which 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 a 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." 15 The applicant placed reliance upon the decision of North J in Awan v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 594, which was concerned with the effect of a breach of s 359A(1). His Honour considered that Hickman had marked out, as open to challenge, "serious and fundamental errors relating to jurisdiction" [140]. His Honour was of the view that s 359A(1) mirrored the common law obligation referred to in Re Refugee Review Tribunal & Anor; ex parte Aala (2000) 204 CLR 82 and which is regarded by the cases as fundamental (at [161]). In his Honour's opinion the nature of the obligation was such to suggest that a decision made in breach of it was not intended to be valid. It was, his Honour held, of fundamental importance to the fair operation of the process of review (adopting Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301 [35]). His Honour therefore considered that compliance with it was a precondition of the power to determine a review [176]. This conclusion was supported by the mandatory language of the subsection and by the approach taken in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 where it was held that a failure to conduct a hearing as required by the statute would justify the grant of mandamus or prohibition. 16 Fundamentally the question would seem to be what the principles expressed in Hickman require. His Honour in Awan accepted that it remained authoritative (at [166]). In my respectful view Hickman requires that the provisions of s 474(1) be read with s 359A(1). It is not sufficient to consider only how important the latter provision might be. To do so would be to ignore s 474(1), the operation of which is confirmed by the materials referred to at [12] above. 17 In my view the only way in which the provisions can be reconciled is to read s 359A as imposing an obligation upon the Tribunal with respect to the provision of information during the course of the review proceedings; but that a breach of it was not intended to invalidate the decision, so far as this Court is concerned. No provision is made in s 359A(1) or elsewhere for the consequences of a breach. None of the conditions referred to in Hickman are present. Section 474(1) operates in its terms. 18 The applicant also placed reliance upon the views expressed by Merkel J in Walton v Phillip Ruddock, Minister for Immigration and Multicultural Affairs [2001] FCA 1839. His Honour observed (at [37]) that there may be an argument whether s 474(1) provides a clear legislative intention to abrogate or exclude the rules of natural justice. On the other hand, there would seem to be some difficulties in the path of a conclusion, generally speaking, that the Parliament intended to reinstate that jurisdiction in this Court, when at the same time, it introduced a privative clause provision (see the observations of Heerey J in Turcan v Minister for Immigration and Multicultural Affairs [2002] FCA 397 and SBAP v Refugee Review Tribunal [2002] FCA 590). 19 The decision of Finkelstein J in Kwan v Minister for Immigration and Multicultural Affairs [2002] FCA 498, upon which the applicant also relies, does not have regard to the process of construction referred to in Hickman. The cases there referred to, where privative clauses have been construed as impliedly excepting certiorari, are concerned with clauses in more general terms. 20 The applicant also submitted, in reliance upon observations made by Gaudron and Gummow JJ in Darling Casino Ltd v NSW Casino Control Authority (1997] 191 CLR 602, that the decision is not one made "under this Act", as s 474(2) defines a privative clause decision. The argument requires one to read s 359A(1) as a condition necessary to be fulfilled before the Tribunal's power was enlivened. In my view no warrant has been shown for reading the subsection as conditioning the exercise of the Tribunal's decision-making power in this way. 21 In the background of some disagreement in the Court concerning s 474(1) I had considered deferring a decision in this matter until that of the Full Court was to hand. The views I have briefly expressed do not add in any substantive way to the jurisprudence on the topic. The applicant however seeks a determination of the matter and it seems to me that it may be resolved without reference to controversial questions. 22 Assuming for present purposes that a breach of s 359A(1) might invalidate a decision, the applicant has not established such a breach. Section 359A(1) requires that information, facts and other material available to the Tribunal, but not to an applicant, be provided to the applicant for comment (see Carlos at [14]). In this case, as the submissions themselves demonstrate, it is said that the Tribunal should have identified its reasoning and opinions on the information put forward by the applicant. Putting it another way, it is contended that the Tribunal ought to have warned the applicant that there was insufficient material put forward by her to have requested further material. That is not what s 359A(1) requires. Whilst the Tribunal has the power to obtain further information, it is not obliged to do so in every case, nor to fill in gaps in the material put forward to support the claims. This was a case where the necessary material would have been known to and able to be produced by the applicant or her representatives, if it was available. 23 The application will be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.