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[2002] FCA 498
appellant. The Migration Review Tribunal’s decision of 9 October 2001 was set aside, the matter was remitted for reconsideration, and the respondent was ordered to pay the applicant’s costs.
The tribunal assessed Mr Kwan against a student visa condition that had not governed most of his previous visa period. The judge held that the legislative change did not retrospectively replace the earlier condition for that whole period. By failing to assess the condition that actually applied, the tribunal misunderstood the task it had to perform. The privative clause did not prevent the Federal Court from setting aside a decision affected by this kind of narrow jurisdictional error. The case was sent back to the tribunal for reconsideration.
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In Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498, Finkelstein J considered a refusal of a third student visa and the Migration Review Tribunal's assessment of whether Kar Lam Kwan had substantially complied with the conditions of his previous visa.
3 cited instruments linked from this judgment.
Mr Kwan's first student visa was granted on 1 October 1996 and remained valid until 26 February 1998. A second visa was issued on that date and expired on 15 March 2001 [3]. A student visa was subject to conditions, including condition 8202 in sch 8 to the Migration Regulations 1994 (Cth). In its original form, the condition required enrolment in a registered course, attendance at at least 80% of classes and tutorials, or, where attendance could not be evidenced, a satisfactory academic result, as well as compliance with fee-payment requirements [4].
The Migration Legislation Amendment (Overseas Students) Act 2000 commenced on 21 December 2000. It replaced the relevant condition for visas then in force with a new condition. Among other things, the new condition made attendance and satisfactory academic results cumulative requirements in the circumstances set out in the amended provision [5-6].
To qualify for a further student visa, cl 560.213 required Mr Kwan to have “complied substantially with” the conditions of his last visa [7]. The tribunal treated the replacement condition as though it had applied for the whole period of the second visa. It found that Mr Kwan had not substantially complied with that condition, particularly in 1999 and 2000. It did not investigate whether he had complied with the original condition during the period when it governed his visa [8].
Finkelstein J rejected that approach. He held that the amending provision changed the condition for the purposes of the later application, but did not say that the replacement condition applied retrospectively to the earlier period [9]. The tribunal's error was not insulated by s 474 of the Migration Act 1958 (Cth), the privative clause. The Court set aside the tribunal's decision and remitted the matter for reconsideration [11-13, 19]. The Minister was ordered to pay Mr Kwan's costs.
The first question was the temporal effect of the amendment. The Minister argued that the new condition replaced the old condition as if the old condition had never existed. Finkelstein J rejected that construction. He considered both the language and the apparent effect of sch 4 item 4(2). That item said that condition 8202 of each relevant visa was taken “for all purposes” to be the new condition “instead of” the old one. In the judge's view, those words did not specify when the replacement took effect [9].
The judgment gives a concrete reading of the provision. For Mr Kwan's third-visa application, the last visa was to be treated as subject to the new condition. But that did not mean the new condition governed the whole earlier period. The judgment also noted that, in practical terms, Mr Kwan was required to meet the new condition for only a short period after the new academic year began and before the second visa expired [7, 9]. The tribunal therefore tested most of the relevant period against a condition that did not then apply.
The second question was the consequence of that error in light of the privative clause. Section 474(1) described a “privative clause decision” as final and conclusive and stated that it could not be challenged or reviewed, or made subject to specified remedies, in any court [11]. Finkelstein J accepted that the provision raised a significant constraint on judicial review, but held that general privative clauses do not exclude relief for narrow jurisdictional error [12].
The judge relied on the line of authority discussed in the reasons, including Hockey v Yelland, Public Service Association (SA) v Federated Clerks' Union of Australia and Darling Casino. He treated those authorities as supporting the proposition that general language does not oust supervisory relief for jurisdictional error [12]. The judgment did not undertake a full analysis of the Hickman principle because the judge considered it unnecessary to decide the case [12].
For the relevant kind of jurisdictional error, the judge relied on Craig v State of South Australia. The High Court's examples, as recounted in the reasons, included failing to take account of a matter that had to be considered and misconceiving the nature or extent of the decision-maker's task [13]. Finkelstein J regarded the tribunal's mistake as an instance of the latter. The tribunal assessed compliance with the new condition across the full visa period, instead of distinguishing the earlier period governed by the original condition from the later period governed by the replacement [8, 13].
The order was consequently not a finding that Mr Kwan had complied substantially, or that he qualified for a student visa. It was a finding that the tribunal had not properly carried out the assessment required of it. The matter was remitted for that assessment to be made afresh [19].
The judgment describes a distinction between “narrow jurisdictional error” and other errors of law. Before Anisminic, the judge said, narrow jurisdictional error referred to serious or manifest errors, including bad faith, denial of natural justice, failure to take account of a required consideration, reliance on a prohibited consideration, or misconstruing the power so as to decide a question not remitted to the decision-maker [14]. Finkelstein J described those as errors of “jurisdiction in the narrow original sense” [15].
The reasons then describe Anisminic as having extended the meaning of jurisdictional error for which prerogative relief was available to all errors of law, at least in England, making the expression “jurisdictional error” less relevant in that context [15]. That is the judge's account of the legal development, not an independent statement here about the present state of Australian law.
For the Australian issue before him, Finkelstein J focused on the narrower category. He held that even on that approach, the tribunal's misconception of its function was jurisdictional and the general privative clause did not prevent relief [12-13]. He also expressed a broader view in paragraph 17: if Boakye-Danquah was intended to preserve a distinction between narrow jurisdictional error and other errors of law for review purposes, he could not agree, citing his earlier reasoning in Edwards v Giudice. That broader statement was not necessary to the particular finding of narrow jurisdictional error that disposed of Mr Kwan's case [17].
The judgment also comments on what content a privative clause might retain if it does not protect jurisdictionally defective decisions. Finkelstein J rejected the view that limiting the clause's operation to errors of law on the face of the record would make it virtually useless. He reasoned that the historical remedies of certiorari and prohibition had developed to address defects appearing on the record, before their use expanded to jurisdictional excess [16]. This was a response to the reasoning discussed in NAAX, rather than a separate determination of every possible operation of s 474.
At paragraph 9, Finkelstein J said: “The item says nothing about the timing of the change.” In context, this explains why the words “for all purposes” did not make the amendment retrospective as to the period during which the earlier condition had governed. Put simply, the provision changed the condition applicable for the relevant purposes, but did not say that it rewrote the visa's past conditions.
At paragraph 12, the judge stated that a privative clause “is not effective to oust prerogative relief for what is sometimes referred to as narrow jurisdictional error.” The plain-English point is that the clause did not close the Court's supervisory role where the tribunal had committed the kind of fundamental error identified in the reasons.
At paragraph 13, the judgment described jurisdictional error as including a decision-maker who “misconceives the nature of the function which he is performing or the extent of his powers”. Applied here, the tribunal misunderstood what it had to assess: it used the replacement condition for years in which the original condition applied.
Paragraph 18 contains an important qualification. The judge said he “incline[d] to the view” that substantial compliance should be considered by identifying what the condition generally required and asking whether that requirement had been substantially met. This was not a final ruling on how every part of condition 8202 must be evaluated. The judge expressly noted that the point had not been argued, and observed that some components might be binary, such as obtaining certification of satisfactory academic results [18].
The decision is most directly relevant to a statutory or regulatory amendment that changes the conditions attached to a continuing visa, where a later decision-maker must assess compliance during a period spanning the commencement of the amendment. The key factual feature is a decision-maker applying the amended condition to an earlier period without determining what condition governed that earlier period [7-9].
It is also relevant where a statutory privative clause appears to bar review, but the alleged error is that the decision-maker misunderstood the scope of its task. The judgment treats misconceiving the function in the particular case as narrow jurisdictional error, and holds that the general privative clause did not prevent relief for that error [12-13].
The case does not determine that every incorrect interpretation of a condition, every assessment of substantial compliance, or every error made by a tribunal is jurisdictional. Its direct holding concerns the particular temporal mistake and the failure to consider the condition governing the relevant earlier period. The reasoning on the broader category of errors of law appears separately in paragraph 17 and should not be conflated with the basis on which the relief was granted.
For “substantial compliance”, the judgment may be relevant where a condition comprises multiple requirements and the decision-maker treats every component as a separate all-or-nothing test. But paragraph 18 is a tentative observation only. It does not settle the correct test for every condition or resolve how the proposed general approach interacts with a component that can only be satisfied or unsatisfied.
The judgment itself does not report how later courts treated Kwan. Its date is 23 April 2002, and the supplied text does not include subsequent judgments applying, distinguishing, or criticising it. It would therefore be unsupported to describe any later treatment or to claim that the decision remains authoritative in its original form today.
Within its own reasoning, Finkelstein J discussed several contemporaneous authorities. He said his conclusion was not directly inconsistent with NAAX, although he did not agree with all of Gyles J's reasoning on whether privative clauses protect decisions affected by jurisdictional error [14, 16]. He also referred to Boakye-Danquah and stated that he could not agree if it stood for preserving a general distinction between narrow jurisdictional error and other errors of law [17]. The reasons refer to Bhardwaj in support of the proposition that purported decisions affected by narrow jurisdictional error are, with few exceptions, not decisions at all [15].
Those references explain the legal context in which Finkelstein J reasoned; they do not supply evidence of subsequent treatment of Kwan. Assessing its later status would require later case law not included in the judgment text provided here.
The judgment leaves the application of “complied substantially with” unresolved. Paragraph 18 signals a possible method, assessing the condition's general requirement as a whole, but the point was not argued and the judge expressed only an inclination. It remains open from this judgment alone how that approach would apply to a particular condition composed of several distinct obligations, especially where one component is inherently binary.
The reasons also do not decide the full scope of s 474 or comprehensively analyse the Hickman principle. Finkelstein J said there was no need to examine the scope and content of the Hickman conditions because the case could be resolved on narrow jurisdictional error [12]. The decision therefore addresses one limit on the privative clause, rather than every category of decision or error potentially affected by it.
The judgment's discussion of whether all errors of law should be reviewable is broader than necessary to resolve Mr Kwan's application. The Court found narrow jurisdictional error on the facts before it. Paragraph 17 records Finkelstein J's disagreement with a possible reading of Boakye-Danquah, but the supplied reasons do not show that the broader proposition was necessary to the orders.
Finally, the Court did not decide whether Mr Kwan had in fact complied substantially with either version of condition 8202. Nor did it determine that he qualified for the third visa. Those matters were left for the tribunal's reconsideration under the correct temporal approach [19].
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REASONS FOR JUDGMENT 1 The applicant, Mr Kwan, sought, but was unable to persuade a delegate of the Minister that he was entitled to, the grant of a Student (Temporary) (Class TU) visa. His application to the Migration Review Tribunal for review of the delegate's decision was unsuccessful. He now asks for a writ of prohibition to prevent the Minister acting upon the tribunal's decision, and implicitly seeks the issue of a writ of certiorari to quash the decision, with an order requiring the tribunal to rehear the application. 2 As its name implies, a student visa is available to a non-citizen who wishes to enter and remain in Australia for the purpose of undertaking studies at an appropriate educational institution. It is granted for a limited period and is subject to conditions, including conditions relating to attendance at class and the achievement of satisfactory academic results. It will be necessary to look at these conditions in a little more detail in a moment, for they lie at the heart of this case. 3 It seems that it is not unusual for a non-citizen who seeks to undertake his (or her) education in Australia to require more than one student visa, because the length of time for which a student visa is granted is not always sufficient for the non-citizen to complete his chosen course of study. That is what occurred in the case of Mr Kwan. Originally he had been granted a student visa on 1 October 1996 which was valid until 26 February 1998. On that date a further visa was issued with an expiry date of 15 March 2001. This proceeding is concerned with Mr Kwan's application for a third student visa. 4 According to cl 560.611(1) of the second schedule to the Migration Regulations 1994 (Cth), one condition to which Mr Kwan's first visa was subject when it was granted was condition 8202 which was set out in Sch 8 of the Regulations. Condition 8202 was in the following terms: "The holder must: (a) be enrolled in a registered course; and (b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and (c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and (d) comply with any requirement of the education provider in relation to payment of fees for the course." 5 On 21 December 2000 the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) came into force. One consequence of the amending Act was to bring about a change in the conditions which attached to student visas. In particular, for all student visas that were in force on 21 December, condition 8202 was replaced by a new condition. The new condition was as follows: "(a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student - the holder is enrolled in a full-time course of study; and (b) in any other case - the holder is enrolled in a registered course; and (c) in the case of a holder whose education provider keeps attendance records - the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term and semester of the course; and (d) in any case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course." See item 4(3) of Sch 4 of the amending Act. 6 There are obvious differences between the old and the new condition. For present purposes, it is only necessary to note one difference. In the original condition, the holder of the visa was required to attend at least 80% of his classes or achieve a satisfactory academic result. Under the new condition, those requirements are cumulative. 7 To obtain his third student visa, Mr Kwan was required, at the time of his application, to satisfy the criteria set out in cl 560.21 of Sch 2 of the Regulations. One criterion was that Mr Kwan had "complied substantially with" the conditions to which his last visa was subject: cl 560.213. So, Mr Kwan had to show that he had complied substantially with the original condition 8202 while his visa was subject to that condition (that is until 21 December 2000), and thereafter he had to show that he had complied substantially with the new condition. In substance, Mr Kwan was only required to meet the new condition for ten days, namely from 5 March 2001, when the new academic year commenced, until 15 March 2001, when his previous visa expired. 8 The tribunal affirmed the decision of the delegate because it was of opinion that Mr Kwan had not substantially complied with condition 8202 in relation to his last visa. The tribunal reached this conclusion by making the assumption that the new condition applied to Mr Kwan's visa from the time of its grant. It found that Mr Kwan had not substantially complied with that condition, particularly in the years 1999 and 2000. The tribunal made a serious mistake in adopting this approach. It rejected the application for the reason that Mr Kwan had not satisfied a condition to which his visa was not subject, except for a period of ten days. It made no inquiry as regards whether Mr Kwan had satisfied the original condition 8202 during the period in which his visa was subject to that condition. 9 The Minister argued that all student visas that were current when the amending Act came into force not only became subject to the new condition, but that condition had retrospective effect, thereby replacing the old condition as if it had never existed. I reject this submission. In the first place there is nothing in the language of the amending Act which would produce that result. In the second place, I would not attribute to Parliament such a perverse intention unless I was compelled to do so by unambiguous language. In my opinion not only is the language of the amending legislation not ambiguous in that sense, it is to the opposite effect. The Minister drew particular attention to item 4(2) of Sch 4 of the amending Act which provides that "[c]ondition 8202 of each visa to which this item applies is taken for all purposes to be as set out in [the new provision] instead of as set out in [the old provision]". A useful example of how this provision has effect is the instant case. That is, for the purposes of Mr Kwan's third application, his last visa is to be treated as subject to the new condition. The item says nothing about the timing of the change. 10 This brings me to the consequences of the tribunal's legal error, for it is apparent that it has fallen into legal error, although it provided no explanation for adopting the approach that it did. I suppose it is possible that the tribunal made a mistake in its construction of the amending Act. Perhaps it did not consider the matter at all. Whatever be the cause of its error, however, it does not bear upon the legal consequences that will result from its mistake. 11 Ordinarily one would expect the tribunal's decision to be set aside as of course, so that it can reconsider the matter in the manner it was required to do. But this is not an ordinary case. Now limitations have been imposed upon the ability of the court to set aside decisions made under the Migration Act or the Regulations. These decisions are divided into two categories, privative clause decisions and decisions that are not privative clause decisions. The decision of the tribunal affirming the delegate's refusal to grant the student visa is a "privative clause decision" by virtue of the definition in s 474(2). According to s 474(1) "[a] privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 12 Notwithstanding its apparent breadth, a provision such as s 474(1) is subject to significant limitations. Indeed privative provisions of this type have had limited success in protecting administrative decisions from judicial review. The leading case is R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. In that case it was held that such a clause requires an "invalid" decision to be treated as valid if the three conditions stated by Dixon J are satisfied. However, as Mason CJ pointed out in O'Toole v Charles David Pty Ltd (1990) 171 CLR 232, 249, the scope and content of the conditions in the Hickman principle, have not been examined in any detail. And there is no need to conduct that examination in the present case. I can dispose of this case by applying the principle that a privative clause such as is found in s 474(1) is not effective to oust prerogative relief for what is sometimes referred to as narrow jurisdictional error. As to the inability of a privative clause to oust this court's jurisdiction in the case of narrow jurisdictional error see Hockey v Yelland (1984) 157 CLR 124, 130 per Gibbs CJ ("[A] provision that a decision shall be final does not prevent the issue of certiorari for excess of jurisdiction or error of law on the face of the record, and in my opinion the addition of the words 'and conclusive' does not have that effect"); Public Service Association (SA) v Federated Clerks' Union of Australia (1991) 173 CLR 132, 141 per Brennan J ("[T]his Court construes general privative clauses as impliedly exempting certiorari for jurisdictional error from the ouster of supervisory jurisdiction"), 160 per Dawson and Gaudron JJ ("[A] clause which is expressed only in general terms may be construed so as to preserve the ordinary jurisdiction of a superior court to grant relief by way of the prerogative writs of mandamus or prohibition in the case of jurisdictional error constituted by failure to exercise jurisdiction or by an act in excess of jurisdiction"); Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602, 633-634, per Gaudron and Gummow JJ ("[A] clause which merely provides that a decision is to be final and conclusive is construed as not excluding certiorari for error of law on the face of the record. So, too, a clause which provides only that a decision may not be called into question in a court of law is construed as not excluding review on the ground that the decision involved jurisdictional error"). 13 The meaning of jurisdictional error in the sense now under consideration was explained in Craig v State of South Australia (1995) 184 CLR 163. There the High Court said (at 177-178) that one way in which an administrative decision maker may fall into jurisdictional error is by disregarding a matter which it was required to take into account in deciding the case. Whether or not Mr Kwan satisfied the original condition may be such a matter. Another way a decision-maker may fall into jurisdictional error is if he misconceives the nature of the function which he is performing or the extent of his powers in the circumstances of the particular case. This is precisely what occurred when the tribunal considered Mr Kwan's case. It applied the new condition as if Mr Kwan's last visa had always been subject to it, even though the condition, in its practical operation, had applied to him for only ten days. 14 I do not think that the conclusion I have reached is directly inconsistent with NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, a case which concerned the failure by the tribunal to comply with the rules of natural justice. That is not to suggest that I agree with all that Gyles J said, especially as regards whether a privative clause will protect decisions that suffer from jurisdictional error. Prior to 1969 there was a distinction drawn between what some lawyers referred to as "narrow jurisdictional error" and other errors of law in relation to an act done by an administrative body the doing of which was within its general power but which was done in error. "'Jurisdiction' in the narrow original sense" (here I use the language of Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171) involved a serious or manifest error of law and included errors such as the following: giving a decision in bad faith, making a decision which the decision maker had no power to make, failing to accord natural justice, refusing to take into account something which the decision maker was required to take into account, basing his decision on something the decision maker was not permitted to take into account and situations where the decision maker has, as in this case, "in perfect good faith…misconstrued the provisions giving [him] power to act so that [he] failed to deal with the question remitted to [him] and decided some question which was not remitted to [him]": Anisminic at 171. 15 With few exceptions, purported decisions that suffer from narrow jurisdictional error are not decisions at all: see generally Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117. Subject to an important qualification, it was only in respect of that kind of error that prerogative relief would go, until Anisminic extended the meaning of jurisdictional error for which prerogative relief was available to all errors of law, so that now, at least in England, the expression "jurisdictional error" no longer has relevance in this context. Anisminic is regarded as a decision of fundamental importance. The Lord Chief Justice, Lord Bingham of Cornhill referred to it as one of the "two decisions which, more than any other, showed that the courts were willing once again to recognise and discharge their historic responsibilities": see his article "The New Despotism", Israel Law Review, Vol 33, No 2, 169 at p. 189. The examples of jurisdictional error given by the High Court in Craig in the passage to which I referred earlier concern errors of "jurisdiction in the narrow original sense". 16 One reason that moved Gyles J to conclude that purported decisions flawed by jurisdictional error could be rendered effective by a general privative clause was that to hold otherwise would leave "privative clauses virtually devoid of content": NAAX at par 30. This approach ignores the fact that the remedies of certiorari and prohibition were developed by the King's Bench to quash, or prevent the enforcement of, decisions which suffered from defects of form on the record; that is for error on the face: Holdsworth "History of English Law" vol VI, 112, 263 and vol X, 115; R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338. It was not until much later that the remedies were used in relation to decisions that suffered from excess of jurisdiction. If a general privative clause is confined to "prevent prohibition going in cases of procedural deficiencies" (R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361, 369 per Latham CJ and Dixon J, a case upon which Gyles J relied), that is, if the privative clause is confined to errors of law on the face of the record, it can hardly be said that the clause is given virtually no operation. 17 I should also make passing reference to Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438. In that case, which was also concerned with a decision of the tribunal, Wilcox J said "[a] particular error of law is either a jurisdictional error or it is not. If it is a jurisdictional error, the High Court may grant relief under s 75(v) of the Constitution; so this Court also has jurisdiction to grant relief, under s 39B(1) of the Judiciary Act. If the error is not jurisdictional, s 75(v) relief is unavailable". I accept that it might be necessary to retain the distinction between an error of law and a jurisdictional error of law when considering the effect of a privative clause, as the High Court has done in the cases to which I have referred. Perhaps that is the only point that Wilcox J was making. If, however, Wilcox J was expressing the view that in Australia there should still be maintained the distinction between narrow jurisdictional error of law in respect of which judicial review will be granted, and other errors of law, where judicial review is not available, I am unable to agree with him. For the reasons I gave in Edwards v Giudice (1999) 94 FCR 561, whenever an administrative decision maker commits an error of law his decision should be amenable to review, unless that right is removed by a lawful enactment. 18 Before leaving this case there is one final point I wish to mention, lest it be thought that I have overlooked it. Clause 560.213 requires the tribunal to determine whether an applicant for a student visa has "complied substantially with" the conditions of his last visa. On one view, if the various components of condition 8202, either in its original or new form, are looked at individually, it may not be possible to comply substantially with each of these. In some cases (for example the requirement to obtain certification of satisfactory academic results) they are either complied with or they are not complied with: compare Hunter Resources Ltd v Melville (1988) 164 CLR 234, 248. Although the point was not argued, I incline to the view that the way compliance with a condition such as condition 8202 should be approached is to determine generally what is required by the condition and see whether or not there has been substantial compliance with that general requirement. If the tribunal adopts that approach, cl 560.213 can be given its full scope. In this case it does not appear that this is what the tribunal did. 19 In the result I will quash the purported decision of the tribunal and remit the matter back for its reconsideration. Mr Kwan will have his costs of the proceeding. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.
Associate: Dated: 23 April 2002 Counsel for the Applicant: Ms S Frederico
Solicitor for the Applicant: Wayne Wong & Associates
Solicitor for the Respondent: Blake Dawson Waldron
Kwan
Minister for Immigration & Multicultural Affairs
(1995) 184 CLR 163
(1997) 191 CLR 602
(1999) 94 FCR 561
(1988) 164 CLR 234
(1984) 157 CLR 124
(2002) 187 ALR 117
(1990) 171 CLR 232
(1991) 173 CLR 132
(1947) 75 CLR 361
(1945) 70 CLR 598
The Migration Review Tribunal’s decision of 9 October 2001 was set aside, the matter was remitted for reconsideration, and the respondent was ordered to pay the applicant’s costs.