The Minister's submissions of appeal
54 Counsel for the Minister contended that the appellant's case on appeal rose no higher than disagreement with the MRT's process of reasoning on issues of fact, and therefore no higher than a merits review of the MRT's decision within jurisdiction, citing in support the following passage appearing in one of the majority judgments in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 (Gleeson CJ and McHugh JJ):
"…We are not here concerned, for example, with the unreasonable exercise of a discretion, and it is difficult to characterise the Tribunal's decision, even on Hill J's view of it, as an abuse of power. Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence."
The "legal consequence" to which their Honours referred was that of entitlement in principle to administrative review. Therefore, so counsel for the respondent Minister continued, the weight to be attributed to aspects of the evidence emphasised by the appellant in submissions, including the documentary evidence such as the various medical reports, were matters for the MRT to resolve, and what the appellant was in reality seeking from the Federal Court was on true analysis a merits review.
55 The Minister submitted that the MRT paid "minute attention" in any event to the medical evidence concerning the emotional condition of Mrs Gamtcheff, with the consequence that when the MRT expressed the conclusion summarised in [21(ii)] above, it must have referred to and taken into account a global discussion of not only practical but also emotional matters. Moreover, so the Minister's submissions continued, a fair reading of that conclusion, together with the MRT's further evidentiary conclusions summarised in [21(iii)] above, indicated that the MRT did ask and answer the right questions, being questions which included emotional factors amongst other serious circumstances, albeit that those emotional factors were said by the Minster to be "…not of the magnitude that is required for the purposes of the need and assistance test". The Minister acknowledged that Mrs Gamtcheff has a need for assistance of a practical as well as emotional nature, but that those needs did not, in the circumstances of the case, require "substantial and continuing assistance" within Reg 1.03, and further that assistance of that dimension may include emotional support and companionship, in the light of the Full Court's reasons for judgment in Narayan v Minister for Immigration and Multicultural Affairs [2001] FCA 1745. The Minister contended however that Mrs Gamtcheff's needs did not require "substantial and continuing assistance" within Reg 1.03.
56 The Minister submitted that in any event, the privative clause provisions of s 474 duly operated upon the circumstances and scope of the MRT decision the subject of the present appeal. The starting point of the Minister's submission that the notion of jurisdictional error, in respect of which relief under s 75(v) of the Constitution would go, was that the same was narrowly defined, constituting as it does a failure to exercise jurisdiction or an excess of jurisdiction. So much was submitted to be evident from the recent decisions of the High Court in S157, and also in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicants S134 of 2002 (2003) 195 ALR 1.
57 Upon that footing, the Minister submitted that it appears from the reasoning in S157 and S134 of 2002 that the categories of jurisdictional error, beyond the protection of s 474, are the following, but no more:
(i) the decision exceeds constitutional limits;
(ii) the decision is not a bona fide attempt to exercise power;
(iii) the decision does not relate to the subject matter of the legislation;
(iv) the decision is made in breach of an inviolable statutory limit or condition upon a power which, as a matter of construction, notwithstanding s 474, must be observed for the effective exercise of the power; or
(v) the decision is made in breach of the requirements of procedural fairness where the circumstances are such that, notwithstanding s 474, procedural fairness is a necessary condition for the valid making of the decision.
58 In that context, the Minister mentioned that since s 39B of the Judiciary Act 1903 (Cth), subject to qualifications not here relevant, confers upon the Federal Court jurisdiction of the character conferred on the High Court under s 75(v) of the Constitution, the construction to be given to the term "privative clause decision" in s 474, as enunciated in S157 and S134, is equally applicable in relation to the operation of s 39B of the Judiciary Act 1903 (Cth), and the ambit of jurisdiction conferred thereby on the Federal Court. It follows from those High Court decisions, the Minister's submissions continued, that where a decision is tainted with jurisdictional error within the purview thereof, that decision is not protected in s 474.
59 It follows, so the Minister's submissions concluded, that s 474 applies to the circumstances found by the MRT in the present case, there having been no failure to exercise jurisdiction, and no excess of jurisdiction, on the MRT's part. Consequently, it was submitted that the jurisdiction otherwise conferred upon the Federal Court by the law specified by s 476(1) of the Act should apply according to its terms.
My conclusions
60 The primary judge correctly emphasised that it was not the Court's function to review the factual merits underpinning a visa application, nor to replace the MRT's decision with its own determination of the merits of the case. Counsel for the appellant did not contend to the contrary, but on close analysis, the reality and substance of his carefully framed submissions boil down to contentions of that character. The findings of the MRT, which I have earlier summarised, demonstrate that the MRT did substantially address the nature and scope, not just of Mrs Gamtcheff's disabilities and illnesses, but also of the other serious circumstances adversely affecting her, as set out in my summary of the evidence placed before the MRT, and additionally of the assistance which could be reasonably obtained from welfare, hospital, nursing and community services in Australia, and in particular, in the locality generally in which she resided. I am unable to distil any shortcomings in the reasoning of the primary judge which I have just summarised.
61 The unfortunate circumstances attending Mrs Gamtcheff, at the time of the MRT's decision, being the circumstances which have been earlier summarised, are such as to engender a measure of sympathy, and it is conceivable that since the handing down of the MRT's reasons for decision nearly 18 months ago, those circumstances might conceivably have changed to an extent appropriate to merit further departmental consideration. The spectre of this elderly Bulgarian woman surviving on her own after her son's pending return to Bulgaria, pursuant to the rejection of his visa application, is an unfortunate one, particularly in the light of the present medical evidence earlier reproduced, and which was virtually non-controversial. Perhaps it was unfortunate that the MRT was not afforded the opportunity of receiving testimony from Mrs Gamtcheff in person, because of her then very recent discharge from hospital. Though irrelevant to the issues which the MRT was called upon to determine, I would observe that the added cost to the Australian Community to be incurred, by reason of Mrs Gamtcheff being no longer in the constant company and care of her only relative (her son) in Australia, received unanimous emphasis in the doctors' reports extracted in [7-10] above.
62 It was not enough for the appellant to establish in the MRT merely that some of the "serious circumstances" enumerated in his counsel's submissions, and in particular those enumerated in [33] above, were not explicitly addressed in the MRT's reasons for decision, notwithstanding in particular that the Full Court in Narayan considered that "assistance" within the ambit of Reg 1.03 may extend to emotional support and companionship. An omission of the MRT to refer in its reasons for decision to evidence of relevance in relation to a review of the delegate's decision does not necessarily demonstrate an error of law on the MRT's part, such as to vitiate its decision. I am unable to describe any of the complaints enumerated by the appellant as justiciable, bearing in mind for instance the passage cited above from Eshetu. The MRT's apparent acceptance of what was earlier said in Carreno Arreno, as to more being relevantly required than companionship, emotional and convenience (see [14] above), necessarily engenders a measure of concern, particularly as that tribunal decision has been since accorded the status of Departmental policy (see [16] above). All that may have the potential to lead the MRT into error, but I am unable to conclude that such occurred in the present MRT proceedings.
63 In the result, the appeal from the primary judge must be dismissed, and accordingly it becomes strictly unnecessary to address the Minister's reliance alternatively upon s 474 of the Act. In deference to the submissions of both parties to the appeal, it is nevertheless appropriate that I should do so.
Should the appeal be dismissed in any event by virtue of s 474 of the Act
64 For ease of reference, I set out below the full text of subs 474(1) and (2) of the Act:
"(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)."
65 On 15 August 2002, a Full Court of the Federal Court comprising five judges, in the context of five appeals involving the Refugee Review Tribunal ("RRT"), the MRT and delegates of the Minister respectively, held that s 474 of the Act was constitutionally valid, with the consequence that the privative clause the subject thereof operated to deny review of the respective decisions of the RRT, the MRT and the delegates. The five appeals were heard together and are reported at (2002) 193 ALR 449, the first appeal being NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 195 ALR 449. In that appeal, the majority (Black CJ, Beaumont and von Doussa JJ), held that the appeal should be dismissed, notwithstanding that a breach of the rules of procedural fairness had occurred, the breach comprising the taking into account by the RRT, in the course of its decision-making, of a number of matters adverse to the appellant for review without disclosure to the appellant that it would do so or had done so in the course of its decision-making. In two of the remaining four appeals, the appellants being NABE and Ratumaiwai, that Full Court decided unanimously that certain errors made by the RRT and MRT were not jurisdictional errors for the purposes of the Minister's purported application of s 474, the same respectively involving an error which could have adversely affected the outcome of the RRT's decision, and an error by way of failing to consider, in the course of deciding that the appellant was not a "special need relative", whether the appellant had provided financial and emotional assistance to his brother (ie the kind of issue involved in the present proceedings).
66 In the course of his dissenting judgment in NAAV appearing under the heading "Jurisdictional error", French J referred at 564 to the passage in Craig extracted in [34] above, and subsequently at 566 to a passage in the joint judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351-2, which comprised part of what I now set out below:
"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…
If a tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant materials or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out."
(Emphasis highlighted twice).
67 Yusuf thusinvolved the review of an RRT decision pursuant to par (e) of subs (1) of the now repealed s 476 of the Act, and not proceedings for prerogative relief pursuant to s 39B of the Judiciary Act 1903. It is significant that their Honours' discussion of Craig occurred in the context of the repealed s. 476 (1)(e); it is worth repeating the full text of that par (e) below:
"476(1)(e) that the decision, involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision."
There is not of course any similar ground of review in the present statutory scheme.
68 It may further be observed that French J in NAAV articulated the critical distinction between the different levels of jurisdictional error (at 566):
"As discussed earlier the term "jurisdictional error" has historical roots related to the initial application of prerogative writs against orders of inferior courts. The extension of that application to administrative tribunals and other officers or bodies has carried the terminology with it. There is a distinction still to be drawn in Australia between jurisdictional error, in the narrow sense, and error within jurisdiction for the purposes of the issue of writs to inferior courts. Despite the persistence of the historical terminology it is not clear that anything more than the question whether a decision has been made in excess of power need be posed where administrative bodies are concerned. Aronson and Dyer observe that most judgments today use ultra vires and jurisdictional error interchangeably or differentiate between them on grounds of common usage only."
(Again my emphasis is highlighted).
69 In Darling Casino Ltd v NSW Casino Control Authority (1996-1997) 191 CLR 602, support may be found for the distinction drawn by French J in NAAV between "jurisdictional error in the narrow sense", and "error within jurisdiction for the purpose of the issue of writs to inferior courts", in the following passage in the joint judgment of Gaudron and Gummow JJ 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."
70 In the reasons for judgment of Gleeson CJ in S157, his Honour made reference to an earlier passage in the judgment of French J in NAAV which was however unrelated to what I have extracted above, and the Chief Justice added the following observation at 35:
"In that case, and a number of related cases heard at the same time, the Full Court of the Federal Court dealt with several different kinds of challenge to decisions under the Act, and the operation of s 474 in relation to each of them. Here we are concerned with only one kind of challenge, involving a claim of denial of natural justice. A rejection of the Commonwealth's global approach to the operation of s 474 does not mean that the opposite conclusion follows in relation to every possible kind of challenge to a decision."
No reference was made by the Chief Justice to any species of jurisdictional error, other than that of denial of procedural fairness, and no observation was made by his Honour to the distinction drawn by French J between jurisdictional error in its so-called narrow sense and error within jurisdiction for the purposes of the issue of writs to inferior courts. Moreover no reference was made by the Chief Justice to Craig, and in particular, the passage extracted in [34] above.
71 Similar observations may be made in relation to the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in S157, except that no reference was made therein to NAAV at all. Apart from referring to jurisdictional error by reason of denial of procedural fairness, the joint judgment made explicit reference to vitiating factors of fraud, dishonesty or other improper purpose, but not to the matters the subject of administrative review enunciated in Craig. However in the reasons for judgment of Callinan J, a limited reference was made to Craig at 59, but only in relation to what his Honour described as his concern as to "…any extensive use of certiorari to correct non-jurisdictional error of law by inferior courts". The issue in Craig was whether there could be jurisdictional error, or error on the face of the record, in District Court proceedings, such that certiorari might lie, as in the case of an administrative tribunal. At 68, Callinan J spoke of jurisdictional errors as involving no less than some grave, or serious breach of the rules of natural justice, and at 69, he spoke of the availability of prerogative relief pursuant to s 75(v) of the Constitution where "…proof that an error of jurisdiction of a sufficient degree of gravity has been made". As in the case of the other members of the Court, no reference was made by his Honour to NAAV.
72 It may be borne in mind that the s 474 privative clause was framed with the intention of embodying the Hickman principle which Dixon J (as he then was) expounded in Re Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614-5 (Commonwealth, House of Representatives, Australian Parliamentary Debates (Hansard), 26 September 2001 at 31,561). The joint majority judgment in S157 recognised that the Hickman provisoes (i.e. there must be a bona fide exercise of power, the decision must relate to the subject matter of the legislation and be reasonably capable of reference to the power given to the body) represented a minimum for judicial review so that the "protection which the privative clause 'purports to afford' will be inapplicable unless those provisoes are satisfied" (at 42). This requires the court to "have regard to the terms of the particular clause in question" (at 42) and to thereupon undertake a process of interpretive reconciliation upon which the cannons of "statutory construction are engaged" (at 33). The High Court in S157 did not overrule Hickman but rather construed the privative clause to be inoperative where the Hickman provisoes were not satisfied, or in circumstances where a contravention of an inviolable limitation or imperative duty required to be observed under the Act has occurred (at 42, 45-6). Consequently, although there are different shades of jurisdictional error, as recognised by French J in the passage in NAAV set out in par [54] above, whether a decision is protected by the privative clause falls to be determined by construing the relevant provisions in the Act through the maze of the s 474privative clause (at 45-46).
73 In the light of the matters to which I have referred, I think that it would be unsafe to deny s 474 an operation beyond what has been explicitly provided in S157, and similarly beyond what was provided in Bhardwaj to which reference has earlier been made, and therefore unsound to authorise the exclusion of any operation of s 474 by reason of the existence of any one or more of the vitiating circumstances enumerated in Craig, unless and until the High Court may hold otherwise. It follows that I am in agreement with what has recently been observed by Gyles J in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 144, to the effect that the Full Court's decision in NAAV should not be disregarded beyond what the High Court has necessarily stipulated in S157. In the result, I am of the view that the appellant's purported reliance upon Craig cannot be sustained, such as to allow s 474 to be obviated in circumstances attracting merely the traditional grounds for administrative relief. The appeal must therefore be dismissed with costs.
I certify that the preceding fifty-nine (59) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.