Kan v Minister for Immigration & Multicultural & Indigenous Affairs

10 As is apparent from par 27 of its reasons under the heading "FINDINGS", the Tribunal determined that the applicant's visa should be cancelled for non-compliance with condition 8202(c)(ii) on the same irrelevant evidence upon which the primary decision-maker had acted, viz, the 71% attendance record as at a date several weeks prior to the end of the semester in question. Counsel for the respondent characterised this as a mere error of fact. That is so. But in the circumstances of this case, it nevertheless has some significance with respect to the reviewability of the Tribunal's decision. 11 Just before stating that conclusion in par 27, the Tribunal, in par 23 of its reasons, noted the evidence as to the applicant's attendance record over the period of the entire semester, ie, the period that alone was relevant to the task the Tribunal had to perform: it said that the facsimile from the applicant's education services provider of "5 February 2001" - it meant 2002 - showed that she "has an overall attendance of 82.17% taking into account the medical certificates submitted by" her. The evidence before the Tribunal, including the medical certificates, suggested that the applicant was unfit due to ill-health for the two weeks numbered 16 and 17 in the education services provider's facsimile. It can be inferred that she did not attend courses during those two weeks. The education services provider, however, awarded the applicant what appears to be a notional attendance level during each of these two weeks of 77%. That is the same level of attendance she in fact achieved in the previous week 15. It appears to have accepted she had a good medical excuse for non-attendance during these two weeks. The 82.17% attendance level over the nineteen weeks of the relevant semester is the arithmetical result of dividing the sum of the attendance percentages for each of these nineteen weeks set out in the facsimile by 19. 12 I was not directed to any evidence other than this facsimile that might have entitled the Tribunal to make an assessment of just what was the applicant's percentage level of attendance of "the contact hours scheduled". The applicant's education services provider does not, in its facsimile to which I have referred, identify just what was the total of "the contact hours scheduled" for the applicant for the semester commencing 16 July and 30 November 2001. The weekly attendance percentages set out in it may be percentages of "the contact hours scheduled" for each week for the applicant or they may be some other different measure of attendance. In so far as the Tribunal did look at the applicant's attendance over the whole of the semester, it appears it assumed that that facsimile recorded the applicant's attendance in relation to "the contact hours scheduled" for her. That assumption may not be well-founded. The point is not merely academic: the information obtained by the Tribunal from the applicant's education services provider was inconsistent with the 71% figure relied on by the primary decision-maker which the Tribunal uncritically accepted as both accurate and relevant to its own decision. The primary decision-maker notes in his decision that "information received from the provider is that [the applicant's] attendance for the period reported [ie, mid July to 9 November 2001] was 71%". The facsimile from the applicant's education services provider that was before the Tribunal suggests that the applicant achieved a 73.6% attendance level - not 71% - over the seventeen weeks ending 9 November 2001, if she is regarded as having nil attendance during weeks 16 and 17, the two weeks covered by the medical certificates. If the attendance levels which the applicant's education services provider assumed she would have achieved but for her ill-health in weeks 16 and 17 are taken into account, the Tribunal accepted that her attendance level over the nineteen weeks of the course rises to 82.17%. 13 There are other inaccuracies in the facsimile. It shows that the applicant was required to attend classes during the period commencing with week 1 that started on 16 July 2001 and ended with week 19 that started on 12 November 2001. The facsimile indicates that the last two weeks of the course starting Monday, 19 November and ending Friday, 30 November 2001 were study and exam weeks. However, week 19 shown in this facsimile does not commence on 12 November, as there noted: it is week 18 that commences on that date. If this is right, the applicant was only required to attend classes over eighteen, not nineteen weeks. The discrepancies between the information provided to the primary decision-maker and that contained in the applicant's education services provider's facsimile which was before the Tribunal emphasise the importance of the Tribunal making proper inquiries in order to determine just what was the applicant's level of attendance for "the contact hours scheduled" within the meaning of that expression in condition 8202(c). It ignored this entirely. These criticisms of the Tribunal do not, of course, show error within the Hickman proviso. But they are not wholly irrelevant to that question. 14 As appears from par 10 of its reasons, the Tribunal accepted that "in the appropriate case" it remained open, in view of Shrestha, for the decision-maker to be satisfied that condition 8202(c)(ii) had been met, though the visa holder's attendance level was below the 80% level, if there were circumstances that prevented the visa holder from attending at least 80% of scheduled classes. In par 19, it noted the material proffered by the applicant that raised for consideration by the primary decision-maker and also the Tribunal itself whether this was, in fact, an appropriate case in which to apply Shrestha. In pars 21 and 22 it set out, in some detail, the reasons given for the primary decision-maker for disregarding the medical certificates. But the Tribunal did no more here than record the primary decision-maker's view about the medical evidence. That was of historical interest only. What the Tribunal was required to do was consider for itself this medical evidence and decide for itself whether it should, in the light of its stated understanding of Shrestha, accept that evidence as sufficient to justify a conclusion by the Tribunal that the applicant should be taken to have met the 80% attendance condition. It did not undertake that task. Instead of dealing with issues it had itself identified as those which it needed to consider in order to decide whether or not the applicant was disentitled to the visa for failure to comply with the attendance condition, the Tribunal thereafter ignored that task, went on to note in pars 24 to 26 some procedural matters and then moved straight to stating its conclusion in par 27 that the applicant had failed to comply with the attendance requirements of condition 8202 because "the evidence before the Tribunal indicates that the review applicant's attendance as at 9 November 2001 was 71%". 15 The issue whether the applicant had achieved the 80% level was the critical issue so far as condition 8202(c)(ii) was concerned. The Tribunal identified the issues and the evidence that it needed to consider to determine this issue. But it made no attempt to satisfy itself that there was material before it that identified what were "the contact hours scheduled … for" the relevant semester of the course undertaken by the applicant. Instead, it determined the case on this point against the applicant by reference to a wholly irrelevant attendance level part-way through the applicant's course. It was, moreover, an attendance level inconsistent with the information from the applicant's education services provider sought by the Tribunal upon which the Tribunal could have been expected to act: this shows her as having an attendance level of 73.6% over the seventeen weeks to 9 November, if the medical certificates are left out of account. Moreover, the reliability of that information is, for the reasons set out above, suspect. 16 In Daihatsu Australia Pty Ltd v Commissioner of Taxation (2001) 184 ALR 576, Finn J, in dealing with the first Hickman proviso relied on in that case to avoid the bar contained in s 177 the Income Tax Assessment Act 1936 (Cth), referred to a number of decisions of this Court, including the comments by the Full Court in Kordan Pty Ltd v Federal Commissioner of Taxation [2000] FCA 1807, to the effect that it would be a rare case where a taxpayer will succeed in showing that an assessment has, in the relevant sense, been made in bad faith and said, at [32] to [33]:

"This view resonates with observations of other judges of this court: see, for example, Dan v FCT 2000 ATC 4350 at 4356 affirmed in Kordan's case: 'proof of bad faith necessitates proof of extreme circumstances'.

It is unsurprising that the above view has been expressed. A premise of the rule of construction embodied in the Hickman principle is that, but for the privative clause in question (here s 175 with its s 177(1) overlay), a decision taken in the exercise of a power to which the clause relates might otherwise be invalidated in judicial review proceedings because, for example, the decision-maker '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': Hickman's case at 615. To the extent that it is effective the clause saves from invalidation an assessment that would otherwise be potentially reviewable for defect or irregularity …."

17 Finn J then observed that courts have not attempted a comprehensive exposition of what is and is not countenanced by the formula "a bona fide attempt to exercise [a] power"; rather have courts proceeded by giving illustrations, relevant to the particular context in which the issue has arisen, of what might or might not constitute such bad faith. 18 Authority nevertheless gives some guidance to the content of "bad faith" for the purposes of the first Hickman proviso. In O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 ("O'Toole"), Mason CJ, in dealing with the suggestion that this proviso excludes an examination of the subjective intentions or motivation of the decision-maker, said of the first Hickman proviso, viz, that the decision is not "a bona fide attempt to exercise" the power conferred on the decision-maker, at 249 - 250:

"When attention is given to the careful way in which Dixon J stated the first proviso in the Hickman principle, as it applied in that case, it is evident that he was looking, inter alia, to the bona fides of the decision-maker. His Honour said …

Later, in R v Murray, Ex parte Proctor, his Honour spoke of 'an honest attempt to deal with the subject matter confided to the tribunal'.

… No doubt Dixon J.'s formulation of the principle drew partly on the antecedent common law according to which decisions of administrative bodies are generally reviewable for mala fide or dishonest motivation. Decisions of arbitral bodies such as the Australian Conciliation and Arbitration Commission [whose decisions are commonly protected from judicial review by privative clauses] do not stand as exceptions to that rule. Having regard to the history of the Hickman principle and to the evident meaning of the first proviso to it, I am not prepared, in the absence of comprehensive argument, to hold that the scope and content of the first proviso are limited in the manner now suggested."

19 Brennan J, at 275, agreed with Mason CJ's comments. 20 Mala fides or dishonest motivation which exposes administrative decisions to review at common law and which Mason CJ, with Brennan J agreeing, identified as the source of the first Hickman proviso, though not particularly common, is by no means rare. There are many cases in the reports, some involving privative clauses, that go back to at least 1885, of decisions of administrative bodies being set aside on judicial review because they were made in bad faith. See the examples given in the discussion of "bad faith" as a ground of judicial review of administrative decision-making in De Smith et al Judicial Review of Administrative Action 5th ed 1995 at [13-013] and [13-014] and Aronson and Dyer Judicial Review of Administrative Action 2nd ed 2000 at 246 - 251. 21 Section 474 was enacted for the purpose of limiting the scope for judicial correction of errors made by the refugee and migration tribunals. But I can see nothing inconsistent with that legislative intention in holding that, eg, if a Tribunal, though not actuated by malice and intending only to achieve what it thought was a desirable public result, were knowingly to use its powers conferred by the Migration Act to achieve an object different from that to which those powers were directed, that would not be a bona fide attempt by the Tribunal to exercise its powers and so would be reviewable as within the first Hickman proviso. That is a common situation in which courts have invalidated administrative decisions because of bad faith. See, eg, Campbell v Municipal Council of Sydney (1923) 24 SR(NSW) 179 at 187 (on appeal [1925] AC 338). The general administrative law cases on bad faith will continue to be of assistance in illustrating the circumstances in which a decision of this Tribunal will be reviewable on the ground of bad faith within the first Hickman proviso. 22 Whether the decision of a decision-maker protected from judicial review by a privative clause is nevertheless open to challenge under the first of the Hickman principles, ie, on the ground that it is not a bona fide attempt to exercise the statutory power confided to the decision-maker, cannot, I think, be determined in the abstract. Regard must, I think, be had to the statutory setting in which the particular decision-maker performs its functions in order to determine whether a particular factual basis, said to show that the decision is reviewable under the first Hickman proviso, is sufficient for that purpose. Dixon J's formulation of the first proviso in Hickman at 615 requires an answer to the question whether the "decision is a bona fide attempt to exercise [the decision-maker's] power", ie, the particular statutory authority conferred on the particular decision-maker. In O'Toole, Deane, Gaudron and McHugh JJ said of the first Hickman proviso, at 286 - 287:

"The first of those conditions has been the subject of no detailed examination in this Court. There are some statements in the cases which support the approach that it refers to the subjective intentions or motivation of those purporting to exercise the relevant power: see, e.g., Reg. v. Commonwealth Industrial Court Judges; Ex parte Cocks. In our view, however, in the context of s. 60, it should be understood as referring to what is apparent on the face of the record since it would seem clear that an investigation into the subjective motivation of members of the Commission is the very type of inquiry which the Legislature was most concerned to preclude. So understood, the condition will, as a practical matter, be satisfied unless the purported exercise of power can be seen, on the face of the record, to be not bona fide. That being so, the cases in which that first condition is not satisfied in respect of an award purportedly made by the Commission will be rare and extreme." (emphasis added)

23 Their Honours appear to have considered that, though the Hickman principle might, in some statutory settings, permit examination of the subjective motivations of the decision-maker, the particular statutory setting before the Court in O'Toole, under which an award was made by the Australian Conciliation and Arbitration Commission, showed that the statutory intention in enacting the privative clause there in question was not to permit an examination of the decision-maker's subjective motivations, but instead to limit any challenge to the award based on the first Hickman proviso to what appeared on the face of the record. The justification for the observation by their Honours that the first Hickman proviso is only likely to be satisfied "in respect of an award purportedly made by the Commission in a rare and extreme" case is to be found in considerations particular to the statutory setting. 24 It is difficult to see why actual bias, a subjective motivation, should not come within the first Hickman proviso and permit review of the decision of an arbitral tribunal though protected by a privative clause. The other four members of the Court were of the view that the subjective intentions of the decision-maker were relevant to bad faith. But Deane, Gaudron and McHugh JJ appear here to have considered that the content of the first Hickman proviso, at least in so far as it permitted the Court on review to have regard to the subjective motivation of the decision-maker, would depend upon the statutory context in which the decision-maker operated. There is nothing in the majority judgments that throws any doubt on that view. 25 The proper effect to be given to a privative clause is a question of statutory interpretation, a question that can only be answered by construing the privative clause in its statutory context: Hickman at 615. To say therefore that the circumstances in which the decision of a public official such as the Tax Commissioner will be invalidated for bad faith are extremely rare or requires proof of extreme circumstances does not, in my opinion, necessarily require a conclusion that only in extreme and rare cases will the decision of this Tribunal come within the first Hickman proviso. 26 The consideration identified by Finn J in Daihatsu Australia as requiring restraint in finding bad faith within the first Hickman proviso is but one consideration to be taken into account in determining whether the particular case is within that proviso. Decisions on whether a particular administrative decision-maker, protected by a privative clause, has in fact breached the first Hickman proviso in a particular statutory context cannot control the outcome of such a challenge to a decision of the Tribunal, though they will be helpful in illustrating what can, in particular contexts, amount to the exercise in bad faith of a decision-maker's powers. 27 The Tribunal was established by the Parliament as a specialist decision-maker charged with merit review of lower level administrative decisions. In introducing the original bill to establish the Tribunal, the Migration Legislation Amendment Bill (No 4) 1997, on 25 June 1997, the Minister said in the second reading speech:

"Migration Review Tribunal members will be independent decision makers, able to reach their own conclusions on a decision under review, in accordance with the law. However, this independence does not amount to non-accountability.

Members will be accountable, on matters of procedure, to the parliament through the principal member for ensuring that they conduct reviews fairly and expeditiously. …

The bill also includes certain safeguards for applicants by introducing a code of procedure for both the Migration Review Tribunal and the Refugee Review Tribunal which is similar to that already applying to decisions made by the department."

28 The Minister repeated these comments in the second reading speech on the Migration Legislation Amendment Bill (No 1) 1998 on 2 December 1998. The Tribunal is, by s 353, directed to provide a mechanism of review that is fair, just, economical, informal and quick. It is required by Div 5 of Pt 5 to conduct reviews in accordance with the code of procedure set out therein, a code described by the Minister as constituting "certain safeguards for applicants". Section 368 further shows that the Parliament expects the Tribunal to be capable of giving a coherent and informative explanation for how it reaches its ultimate conclusion for or against a visa applicant. The statutory framework within which the Tribunal must operate lends no support for any suggestion that the Parliament intended that review by the Tribunal should be a cursory process in which careful attention need not be given by the Tribunal to issues requiring consideration before a decision was made on whether a visa should be granted or cancelled. 29 It is one thing to say that a decision protected by a privative clause that is made by a tax official charged with determining a taxpayer's liability to tax by a process of evaluation of information available to that official can be challenged on the basis of the first Hickman proviso only in an extreme case. It is a different thing to say that the same restraint should be shown before finding that this Tribunal which, unlike the tax official, is bound, in making its decision, to comply with a statutory code of procedure intended by Parliament to give a visa applicant a fair hearing by way of independent review, has made a decision reviewable for bad faith though also protected by a privative clause. If the Parliament says that a tribunal is to comply with the standards of fairness it sets, then, though the Court has no power to enforce compliance with those standards and though the Parliament has protected such a tribunal's decisions by a privative clause, that is, I think, a consideration telling against a court showing extreme restraint before finding bad faith. A clear departure from the kind of fair, independent review intended by Parliament to be conducted by this Tribunal may well be capable of showing bad faith, as the decision of Mansfield J in SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 illustrates. 30 There is no authority binding on me to hold that the first Hickman proviso can only be established, where a decision of the Tribunal protected by s 474 is sought to be reviewed, in an extreme or rare case. This is not to say that bad faith, in the relevant sense, will be an easy matter to establish. But the hurdle the requirement imposes before the Tribunal's decision can properly be set aside is not one which will never, or hardly ever, be surmounted. 31 While it is true, as Heerey J said in Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 at [47], that mistake of fact or law does not constitute bad faith, his Honour did not purport to hold that, in order to show Hickman bad faith, it was necessary to establish that the decision-maker was animated by some personal bias against the applicant or had in mind some purpose other than the purpose of cancelling a visa only when a ground for doing so appeared to her to exist. His Honour here was doing no more than providing illustrations in the context of the particular case of what might constitute bad faith in the same way that judges in various cases have not attempted to define the content of Hickman bad faith, but have instead illustrated circumstances which might or might not be sufficient, in the context of the particular case, to show bad faith. 32 I accept that an allegation of bad faith must in general be clearly alleged. But, though the applicant was represented by a migration agent before the Tribunal, she was unrepresented in the proceedings in this Court. The applicant did not deal in her written submissions with the issues raised by s 474; but the complaints she does make about the Tribunal's decision focus on considerations which are, in my opinion, relevant to whether this privative clause decision of the Tribunal is nevertheless judicially reviewable within the first Hickman proviso set out above. If there is a clear basis in the material before this Court for holding that a decision of the Tribunal is not protected by the privative clause because of the availability of one or more of the Hickman provisos, I do not think the failure of an unrepresented applicant to raise such a subtle point should prevent the Court acting on the point, provided of course the respondent is given a proper opportunity to deal with it. No such opportunity was sought here, counsel being content to deal with the issue in the course of submissions at the hearing, supplemented by some written submissions provided later. 33 The Tribunal set out the provision of critical importance, condition 8202(c). It referred to Shrestha and to the medical evidence that shows that it was alert to the relevance to the decision it had to make in that case. It noted the evidence capable of showing that the applicant had satisfied condition 8202(c)(ii), if the Tribunal chose to follow Shrestha and if it undertook the task of evaluating that evidence. That is, it identified all the tasks thrown up by the material before it that it was necessary for it to perform in order to discharge its duty of deciding whether or not the applicant's visa should be cancelled for non-compliance with condition 8202(c)(ii). The Tribunal then proceeded to ignore those tasks. Instead of dealing with the legal issues and evidentiary issues it had identified as relevant to its decision, it determined that the applicant had not complied with condition 8202 on the basis of evidence that was manifestly irrelevant to that question and which, in any event, required examination, because it was inconsistent with information from the applicant's education services provider prepared specifically for the Tribunal, which the Tribunal apparently was prepared to accept. 34 The Tribunal was not performing some routine administrative task that could be carried out more or less automatically. It had a statutory duty to conduct a fair, independent merit review of the primary decision. The case cannot be described as one in which a Tribunal has done nothing more than make a number of factual errors. The features of the Tribunal's performance I have referred to show that it went about making the decision in this case without making any attempt to deal with issues of both fact and law that it knew it needed to deal with if it were to perform its duty. The Tribunal's reliance on the manifestly irrelevant evidence concerning the 71% level of attendance to justify rejection of the applicant's claim when it had identified evidence that might entitle her to succeed on the attendance issue, but failed to deal with that evidence, creates the impression that the Tribunal was looking for a reason, any reason, to reject the applicant's case. To paraphrase what Mansfield J said in SAAG at [36], one of the cases in which an applicant has succeeded in challenging a Refugee Review Tribunal decision for Hickman bad faith, the Tribunal's reasons here, considered overall, show that it did not deal with the applicant's claims that relevant case law and medical evidence entitled her to a finding that she had satisfied the 80% attendance requirement, but in substance dealt with the case by seeking to find evidence, no matter how manifestly irrelevant it was for the task in hand, to enable it to find a ground for rejecting the applicant's claim. 35 For a Tribunal to proceed in such a fashion, in my opinion, amounts to its exercising its power to affirm cancellation of a visa in bad faith. 36 There is no suggestion that the Tribunal member was actuated by any corrupt motive or any actual bias against the particular applicant. But the way the Tribunal conducted itself in making the decision here in question shows such a conscious disregard for the task it was statutorily bound to perform, that it cannot, I think, be said to be "an honest attempt to deal with a subject matter confided to the Tribunal": cf O'Toole at 249. 37 If the Tribunal had based its decision only on the applicant's failure to comply with condition 8202(c)(ii), I would, for these reasons, hold that the decision was not a bona fide exercise of its statutory power of review and that, despite s 474, appropriate relief should be granted. 38 However, the Tribunal also relied on another ground in justification of its cancellation decision. In par 27, the second reason the Tribunal gave for holding that the applicant had failed to comply with condition 8202 was that the applicant sat only for three of her end of year exams out of five scheduled and failed all of them. This was not relied on by the primary decision-maker. 39 It is sufficient to require the decision-maker to cancel a visa of the kind held by the applicant if she does not satisfy condition 8202(d)(ii), viz, if she does not achieve "an academic result that is certified by the education provider to be at least satisfactory … for each term or semester (whichever is shorter) of the [relevant] course". No such certificate of satisfactory academic effort was before the Tribunal. Nor was there any ground for the Tribunal to inquire as to whether such a certificate might be obtainable. The Tribunal referred briefly in par 23 to advice from the applicant's education services provider that she sat only for three of her five exams and failed all. In par 25, the Tribunal referred to the letter it sent the applicant in accordance with s 359A on 7 February 2002 which referred, among other things, to her poor exam performance and advised her that this information "is relevant to the review because if found to be correct may lead a decision-maker to find that you have breached condition 8202 of your visa. This would result in your visa remaining cancelled". The letter invited the applicant's comments. It was addressed to the migration agent who acted for her before the Tribunal: that appears to have been sufficient compliance with s 379A(4). As the Tribunal recorded in par 25, the applicant made no response to this letter. In her written submissions, the applicant asserts that she did not receive this letter. But there is no evidence or other material to support this assertion. Nor has the applicant suggested that there is any material upon which she would have relied to show compliance with condition 8202(d)(ii), if she had received the letter she now asserts she never got. 40 There is nothing in the material before the Tribunal to suggest any argument may be open to the applicant that the decision, in so far as it is based on non-compliance with condition 8202(d)(ii) and is protected by s 474, is open to challenge in this Court. 41 The application will therefore be dismissed. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Counsel for the Applicant: The applicant appeared in person.

Solicitor for the Respondent: Blake Dawson Waldron