REASONS FOR JUDGMENT
WILCOX J:
278 In the last week of September 2001, in the wake of the Tampa affair (see Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297, 110 FCR 452; on appeal, Ruddock v Vadarlis [2001] FCA 1329, 183 ALR 1), Parliament passed eight Bills dealing with "border protection" and/or immigration law. One of those Bills ("the Judicial Review Bill") enacted the Migration Legislation Amendment (Judicial Review) Act 2001. This Act substituted a new Part 8 of the Migration Act 1958 ("the Act"). The common factor in these five appeals is that each raises questions concerning the constitutional validity, interpretation and application of that Part.
The new Part 8
279 The new Part 8 further restricted the already limited right to judicial review of decisions made under the Act. It commenced with a new s 474 that uses the term "privative clause decision" to refer to virtually all decisions under the Act. The exceptions are mostly decisions affecting property interests. Section 474(1) provides that:
"(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."
280 However, Parliament did not intend s 474(1) to mean what it says. That is clear from the remainder of the new Part 8, in which Parliament imposed rules governing applications to this Court under s 39B of the Judiciary Act 1903, and even, for the first time, allowed applications for review to be made to the Federal Magistrates Court.
281 As is common ground in these appeals, s 474(1) is a privative clause designed to pick up and apply what the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") (Mr P Ruddock MP) described, in his Revised Explanatory Memorandum on the Judicial Review Bill, as "a line of authority stemming from the judgment of Dixon J" in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. As other members of the Court have done so, I need not quote the words used by Dixon J. They include the three conditions, stated in a proviso, that are sometimes called the "Hickman conditions".
282 It is entirely understandable that Parliament should have thought it desirable to do something about the judicial review position that obtained in September 2001. In his Second Reading Speech on the Judicial Review Bill, on 26 September 2001, Mr Ruddock said the number of applications for review had increased from about 400 in 1994-95 to about 1640 in 2000-01; with a substantial increase in departmental expenditure on litigation.
283 However, the decision to seek salvation in a privative clause was curious. As the Government perceived the problem, it was not that too many applications for judicial review were succeeding, but that too many applications were being filed. In his Second Reading Speech, and referring to applications for judicial review, Mr Ruddock said:
"From experience we know that a substantial proportion of these cases will be withdrawn by the applicants prior to hearing. The percentage of applicants who withdraw fluctuates between one-third to one-half of applicants. Of the cases that go on to substantive court hearings the merits based decision is currently upheld in around 90 per cent of cases.
It is hard not to conclude that there is a substantial number who are using the legal process primarily in order to extend their stay in Australia, especially given that one-third to one-half of all applicants withdraw from legal proceedings before hearing."
284 No doubt this was one reason for the large number of unsuccessful applications. I believe there were others. At that time, the standard letter sent to unsuccessful applicants by the Refugee Review Tribunal told them they had "the right to seek review of this decision by the Federal Court". The letter contained no reference to the limited nature of the review that was available in the Court. It did not inform recipients that the Court had no power to review the Tribunal's findings of fact. Overwhelmingly, then as now, refugee applicants lacked legal advice. As was demonstrated by daily experience in this Court, most review applicants wished only to recanvass the facts. Sometimes they learned the limitations on the Court's role before the hearing and withdrew their application. More often, they learned at the hearing; but not before their misapprehension had caused expenditure to the Department of Immigration and Multicultural Affairs. Moreover, those who wished to soldier on, however hopeless the cause, had an unqualified right of appeal to a Full Court of this Court, the exercise of which caused further expense and delay.
285 The Tribunal's standard letter now informs unsuccessful applicants they "may have a limited right to seek review" of the Tribunal's decision "by the Federal Court, Federal Magistrates Court and/or the High Court". Recipients are still not told of the nature of the limitation. In fairness, it would not be easy to do this in a manner that was both accurate and easily comprehensible.
286 Despite the new Part 8, the volume of migration applications made to this Court remains much the same. During the nine months (January to September 2001 inclusive) immediately preceding the commencement of the new Part 8, 1072 applications for review were filed in this Court. In the nine months immediately after commencement (October 2001 to June 2002 inclusive) 1003 applications were filed. Full Court appeals actually increased (227 to 242).
287 A privative clause, in the form of s 474, does not relieve a court from the obligation to receive applications for review and to consider each case. People still have the right to file an application and come to court. Overwhelmingly, applicants are unaware of s 474. Overwhelmingly, they have no understanding of the Court's role. Most still wish only to recanvass the Tribunal's findings of fact. There is still an unrestricted right of appeal from a first instance decision.
288 To the extent that a privative clause is effective, it diminishes the rule of law. That is a significant matter. The rule of law is a concept that lies at the heart of our system of government.
289 Our system of government depends upon three fundamental principles: first, laws may be made only by democratically elected Parliaments (statutes), or by Executive officers acting pursuant to authority conferred on them by a Parliament (regulations); second, everyone, including Ministers and other public officials, must obey those laws; and, third, on application by an affected person, judges, who are independent of the Executive government, can, and normally will, enforce the law and with it that obligation.
290 To the extent that it is effective, a privative clause abrogates the third principle. Judges must allow to stand decisions that are not in accordance with the will of Parliament.. In the immigration area, this may have profound consequences for individuals. By definition, the people most directly affected will be non-citizens. But Australian citizens may also be impacted; as spouses, relatives, friends or employers of non-citizen visa holders or applicants. This is especially the case where the privative clause (as here) applies to all visa decisions, not just decisions about applications for protection visas by asylum seekers. For any one of us, the relevant non-citizen may be very close to home: the woman our son wishes to marry, the father of our daughter's child, a next door neighbour or key employee whose residence visa has been mistakenly cancelled.
Application of the Hickman principle
291 The reason why it remains necessary for a court to consider the particular case appears from Hickman itself. Despite his enunciation of the "Hickman conditions", in that case Dixon J joined the other four members of the High Court in holding invalid the impugned order of the Local Reference Board. He explained at 618 that he did so because the relevant regulation included the words "in the coal mining industry" which, he said, "are words of final limitation upon the powers, duties and functions of the Boards".
292 Two years later, in R v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Limited (1947) 75 CLR 361, Dixon J spelled out the situation even more clearly. The regulations in suit allowed the Controller to determine a rent upon application by a lessor or lessee or of his own motion. However, the Court held, the Controller could vary a determined rent only upon application by the relevant lessor or lessee. An application for variation of a determined rent was made by the tenant of one portion of a city building. There was no application for variation in respect of any of the other 38 tenancies in the building. Notwithstanding that fact, the Controller varied all the rents. The High Court unanimously held he had erred and granted prohibition in respect of the 38 tenancies.
293 Regulation 38 of the regulations said:
"Every determination of a Fair Rents Board or of the Controller shall, except as provided in this Part, be final and without appeal, and no writ of prohibition or certiorari shall lie in respect thereof."
294 In a joint judgment, Latham CJ and Dixon J said (at 369):
"When Commonwealth legislation confers powers upon an officer a provision such as reg. 38 cannot be construed as intended to provide that his powers are absolutely unlimited. Such a construction would raise questions of the validity of the legislation. Such a provision cannot help to give effect to any legislation which it is beyond the power of the Commonwealth Parliament to enact. Further, even where no question of validity arises, the effect of such a provision in a particular case depends upon the construction of the relevant statute taken as a whole. If a legislature gives certain powers and certain powers only to an authority which it creates, a provision taking away prohibition cannot reasonably be construed to mean that the authority is intended to have unlimited powers in respect of all persons, and in respect of all subject matters, and without observance of any conditions which the legislature has attached to the exercise of the powers. Such a provision will operate to prevent prohibition going in cases of procedural deficiencies where the authority whose powers are in question is in substance dealing with the matter in respect of which power is conferred upon it. But if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s. 75(v.) of the Constitution in a case of the latter description: see Hickman. It is therefore necessary to inquire whether the regulations now under consideration impose any condition which must be satisfied when it is sought to exercise the power to vary a determination of rent." (Emphasis added)
295 Their Honours went on to construe the regulations in suit. They concluded (at 370) that "as a variation can be made only upon an application to the Controller, and as a decision of the Controller to act of his own motion cannot be regarded as an application to the Controller, the Controller has no power to vary a determination of his own motion".
296 In Rent Controller, there was no question of constitutional invalidity. Neither was it suggested the regulation could not have been drafted in such a way as to empower the Controller to vary a rent of his own motion. Yet, despite Hickman, the Controller's decision was invalid; the reason being non compliance with a statutory condition precedent.
297 Subsequent cases show the concept of statutory limitation or condition has significantly limited the ability of the Hickman principle to immunise statutory decisions from judicial review. In the 57 years since Hickman, there has not been any case in which a majority of the High Court has applied Hickman to save from invalidity an order or decision, made under Commonwealth law, that would otherwise have been held invalid. Indeed, the High Court seems to have taken that step only once, in Coal Miners' Industrial Union v Amalgamated Collieries of Western Australia Limited (1960) 104 CLR 437, a case that turned on Western Australian law. There have been a few applications of Hickman at a level below the High Court, predominantly in relation to State legislation, but "Hickman hits" have been a rare phenomenon.
298 I have indicated misgivings about the enactment of s 474. I have taken this unusual step because the issue so intimately affects the rule of law and the work of the courts (especially this Court). However, that done, I must put my misgivings aside. Whether wisely or otherwise, Parliament has enacted s 474. Legislative policy is for Parliament to determine, not for the courts. It is the duty of judges to interpret legislation in good faith and, provided it is constitutionally valid, to give it full force and effect, whatever the judges' private views about its content. I can and will do that.
Constitutional validity of the amendments
299 Submissions of invalidity were made in the present appeals. Counsel for Mr Turcan, Mr T Hurley, contended s 474 of the Act fell outside the Commonwealth's legislative power - even adding together s 51(xix), s 51(xxvii) and s 51(xxxix) of the Constitution - because it purports to remove from the High Court and the Federal Court jurisdiction to determine the legality of "a decision which itself causes a person to be detained, or requires another decision or conduct whereby a person is detained". Counsel said a construction of s 474 that yielded that result "would be to introduce a lettre de cachet". He referred to Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 528 where Deane J said: "The common law knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action". This statement was adopted in Lim v Minister for Immigration (1992) 176 CLR 1 at 19-20.
300 As I understand the position, Mr Turcan is currently in immigration detention. So it is understandable that his counsel should have focussed attention on that fact. However, Mr Turcan is not being detained pursuant to an executive warrant; rather, it seems, pursuant to s 189(1) of the Migration Act. That subsection provides:
"(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person."
The subsection is one of the many provisions in Division 7 of Part 2 of the Act that regulate the detention, and release from detention, of specified categories of people.
301 The submission made by Mr Hurley points up the importance of correct decision-making in relation to the grant and cancellation of visas. Perhaps that is something that needs to be taken into account in assessing the proper construction, under Hickman principles, of statutory provisions concerning such decisions. However, the fact that the statute makes provision for detention of unlawful non-citizens, and people reasonably suspected of being unlawful non-citizens, does not, itself, mean that provisions limiting judicial review of decisions concerning such people are constitutionally invalid.
302 The solicitors for NAAV and Wang each filed notices under s 78B of the Judiciary Act. The notices raised two questions:
(i) whether s 474 of the Act is inconsistent with Chapter III of the Constitution in that it reserves to persons who are not judges the power to determine conclusively whether a duty to accord procedural fairness arises in a particular case, the content of the duty and whether it has been observed in the particular case; and
(ii) whether s 474 is inconsistent with s 75(iii) or (v) of the Constitution.
303 In their written outline of submissions counsel for both NAAV and Mr Wang argued for these questions to be answered affirmatively. However, they left the main burden of the argument to Ms D Mortimer, counsel for the intervenor, the Human Rights and Equal Opportunity Commission ("HREOC").
304 In its filed outline of argument, HREOC summarised its constitutional submissions in this way:
"1 The key concept underlying the Commission's submissions is the proposition that the Australian legal system recognises, in various ways, an obligation to provide an effective remedy to persons present in this country whose interests have been adversely affected by a decision of an officer of the Commonwealth, where the decision is otherwise than in accordance with law. In this case, the need for an effective remedy is a need of non-citizens affected by decisions made under the Migration Act …
2 As in Abebe v The Commonwealth (1999) 197 CLR 510, yet in a different context, the central question raised in these appeals is whether s 474 of the Act requires, or can require, a Chapter III Court to affirm and/or assume that there has been a due administration of the law where there may not have been.
3. The Australian legal system recognises the obligation to provide an effective remedy from such a failure to provide due administration of the law:
- In a constitutional sense, by according primacy to the role of the High Court in supervising, under s 75(v), the lawfulness of actions taken by officers of the Commonwealth;
- At common law, by the repeated acknowledgement of the role of Ch III Courts in determining, declaring and enforcing the law which prescribes limits and governs the exercise of power: Attorney-General v Quinn (1990) 170 CLR 1 at 37; Abebe at [37];
- In the exercise of executive power under the Constitution to bind Australia to obligations in international law in respect of human rights, which it is to be assumed are undertaken intending that they be complied with and be reflected in our legal system: Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 289; Mabo v Queensland (No 2) (1992) 175 CLR 1 at 30 per Brennan J (with whom Mason CJ and McHugh J agreed).
4. Section 474 of the Act has the potential to compromise this obligation significantly." (Original emphasis)
305 In developing these points, Ms Mortimer submitted that the Federal Court's jurisdiction under s 39B(1A) of the Judiciary Act is co-extensive with the jurisdiction of the High Court under s 75(v) of the Constitution. She argued it followed the "limitations which operate on Parliament's ability to affect the exercise of the powers of the High Court under s 75(v) must apply to the Federal Court". Ms Mortimer pointed out that s 75(v) "is construed to permit the High Court always to be able to correct unlawful usurpations of power by judicial and non or quasi judicial officers".
306 The submissions summarised in the preceding paragraph were not contested by counsel for the Minister. However, of course, the critical question is what is meant by "unlawful".
307 Ms Mortimer argued that, if s 474 is construed in such a manner as to protect decisions that involve jurisdictional error, it is invalid. Her reason was that "then the administrative decision makers under this Act … have been given authority by Parliament conclusively to determine questions of law which go to their authority to decide, and to make a decision otherwise than in accordance with law". She referred to the High Court's decisions in Craig v South Australia (1995) 184 CLR 163, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1.
308 The application of the Hickman principle to cases of jurisdictional error is a problem of importance and some difficulty. However, I do not think the problem justifies this Court in holding that a provision in the form of s 474 of the Act is beyond the legislative competence of the Commonwealth Parliament. The High Court has discussed similar provisions in numerous cases, without making any suggestion of general constitutional invalidity. If a particular application of s 474 would lead to invalidity (either because it confers judicial power on non-judges or conflicts with s 75(v) of the Constitution) the Court should read it down so as to exclude that application, not declare it to be wholly invalid: see s 3A of the Act.
309 Counsel for HREOC drew attention to the fact that the privative clause (s 474) is not contained in those Parts of the Act that confer powers upon decision-makers, but in the Part concerned with judicial review. She suggested this raises questions about the application of the Hickman principle: "it simply may not be possible to prescribe in advance the operation of s 474 on all the various decisions which can be made by the RRT and the MRT under the Act". Although Ms Mortimer did not put the argument in this way, it seems to me also to raise a constitutional issue, especially having regard to the provisions of the amending Act regarding the commencement of the new s 474. Part 2 of Schedule 1 of the Migration Legislation Amendment (Judicial Review) Act applied the new judicial review regime to privative clause decisions made on or after the date of commencement of Schedule 1 of that Act (2 October 2001). That step creates no particular problem. However, it also purported to apply the new regime to applications for judicial review made on or after the commencement of the Schedule in respect of decisions made before commencement of the Schedule. That being so, it is arguable that s 474 is not a provision expanding, to the furthest constitutionally-permissible limit, the jurisdiction of statutory decision-makers; but that it is a provision restricting review of decisions whose jurisdictional base remains limited to provisions other than s 474.
310 I have been troubled by this aspect of the case. However, in the absence of submissions specifically directed to the issue, it would not be appropriate for me to reach a conclusion about it.
311 I reject the submission that s 474 is constitutionally invalid.
Application of Hickman to the five appeals
(i) NAAV
312 The facts relating to NAAV's appeal are set out in judgments of other members of the Court. The critical questions are, first, whether the Refugee Review Tribunal denied natural justice (procedural fairness) to the applicant and, second, if so whether this is an available ground of review.
313 In relation to the first matter, I have no doubt. Early in the hearing, the Tribunal member, Mr Gibson, referred to independent "country information" and told the applicant and his representative, Mr McDonnell, that he would "be telling you what that information may mean in your case, and giving you an opportunity to make comments about it". Later in the hearing, Mr McDonnell asked Mr Gibson to make available "any independent country information that could have a bearing on the case". Mr Gibson replied that it (the independent country information) had none, "it has no bearing at all". Mr McDonnell accepted this as a satisfaction of his request.
314 At the conclusion of the hearing, Mr Gibson reinforced the message that he would not be considering undisclosed independent information. In the course of listing the material he would consider, he referred to "independent information, a little bit which I put to you during the oral evidence".
315 Judging by his concluding remarks, Mr Gibson initially expected to be able to announce the Tribunal's decision within about one month after the hearing, that is by about the end of August 2000. In fact the decision was made 13 months after the hearing, on 11 September 2001. For some unexplained reason, it was not published until 2 October 2001, the day on which the new Part 8 of the Act commenced to operate. No doubt because of the lengthy delay between hearing and decision, Mr Gibson must have forgotten the assurances he gave the applicant and his representative. Far from confining his use of independent information to whatever was put to the applicant during the course of his oral evidence, Mr Gibson took into account a large quantity of undisclosed material.
316 Counsel for NAAV described the relevant material to us, without contradiction, as "21 undisclosed documents, a particular atlas, (Mr Gibson's) undisclosed specialist knowledge of military training and an undisclosed map". The undisclosed material was important to the Tribunal's decision-making process. NAAV had claimed that, following a particular demonstration in March 1998, he was taken to Insein Jail, where he was interrogated and mistreated for two weeks and then held for two months in solitary confinement. Mr Gibson rejected that claim. He said (at para 120):
"I am unable to accept that the applicant was detained in Insein Jail. I have read reports compiled from first hand accounts of prisoners in Insein Jail (see Amnesty International, Myanmar Conditions in prisons and labour camps, September 1995; and ABSDF, Cries from Insein, 1996). I can find no reference to prisoners being hooded whilst being interrogated over the time (sic) as the applicant claims he was."
317 At the hearing before the primary judge, Gyles J, counsel read an affidavit in which NAAV deposed that, if he had known the Tribunal intended to use the Amnesty International and ABSDF documents for this purpose, he would have referred the Tribunal to a July 1998 publication of the All Burma Students' Democratic Front, Tortured Voices: Personal Accounts of Burma's Interrogation Centres, in which there are references to Insein prisoners being hooded. NAAV annexed relevant pages to his affidavit.
318 In his reasons for decision, Mr Gibson said he was unable to find on the Microsoft Encarta Interactive World Atlas certain villages mentioned by NAAV in his account of his flight from Burma to Bangladesh. The implication was that the villages did not exist. In this context, Mr Gibson referred to "the applicant's inconsistent and implausible evidence". In his affidavit, NAAV cited maps in which these villages are shown.
319 Mr Gibson's conclusions about these matters may have affected the outcome. At para 157 of his decision, he said he must consider NAAV's claims "both individually and cumulatively". He said he was not satisfied NAAV had a well-founded fear of persecution for Convention reasons "even when his claims are assessed cumulatively". Had Mr Gibson given NAAV and his representative the opportunity to respond to the independent information he was taking into account, he may have reached different conclusions about the important matters to which they related. In turn, this may have affected his overall assessment of NAAV's credibility and claim to a protection visa.
320 It is not necessary for me to express any general view as to the extent to which the Refugee Review Tribunal (or any other statutory decision-maker) is bound to disclose independent country information to an applicant. If nothing had been said, it might have been open to Mr Gibson to rely upon undisclosed independent information in respect of matters not personal to the applicant. However, something was said. Although I am confident Mr Gibson did not intend to mislead NAAV, in fact he did so. The situation is similar to that which obtained in Aala.
321 That conclusion brings me to the second question: is the requirement of procedural fairness excluded by s 474?
322 In Aala the High Court held that the Refugee Review Tribunal was bound to accord procedural fairness to a visa applicant. Although s 476(2)(a) of the then Act excluded breach of the rules of natural justice as a ground of relief in this Court, that did not affect the Tribunal's obligation to accord procedural fairness or the enforceability of that obligation under s 75(v) of the Constitution.
323 In Re Minister for Immigration and Ethnic Affairs; Ex parte Miah [2001] HCA 22; 179 ALR 238, the High Court took the same view about the obligation of a delegate of the Minister. McHugh J stated the relevant principle at [126]:
"It is now settled that, when a statute confers on a public official the power to do something which affects a person's rights, interests or expectations, the rules of natural justice regulate the exercise of that power 'unless they are excluded by plain words of necessary intendment'. An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from 'indirect references, uncertain inferences or equivocal considerations'. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice. As I pointed out in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 196:
'The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.'
The common law rules of natural justice are part of this background. They are taken to apply to the exercise of public power unless clearly excluded."
324 Gaudron J noted, at [95], the heading of the relevant subdivision of the Act, subdivision AB of Division 3 of Part 2. It read: "Code of procedure for dealing fairly, efficiently and quickly with visa applications". Her Honour said: "That being so, those powers are to be exercised to ensure procedural fairness, albeit in a manner that is quick and efficient". The obligation to accord procedural fairness was not excluded.
325 McHugh J, at [128], noted the same heading and commented it "assumes that the 'code' will operate fairly". He said:
"The subject matter of the Act, the fact that it implements Australia's international obligations, and the omission of words unambiguously pointing to an intention to exclude all the common law rules of natural justice indicate that the exercise of power under subdiv AB is conditioned on the observance of those rules except where the provisions of the Act specifically supersede them."
326 Counsel for NAAV, Mr B Walker SC and Mr L Karp, pointed out that procedural fairness has not been specifically excluded from Part 8 of the Act. They noted that a Bill to achieve that result, the Migration Legislation Amendment (Procedural Fairness) Bill 2001 was presented to Parliament on 27 September 2001, but not enacted. Counsel said:
"… legislation impinging on common law rights must be strictly construed. Section 474 says nothing about procedural fairness. The only provision in sec 474 which could possibly encompass procedural fairness is para 474(3)(h) which includes within preparatory conduct that which would ordinarily be considered to be conduct subject to the rules of procedural fairness. This is far from a specific excluding reference to natural justice. It is even further from clear words of necessary intendment that natural justice not apply. Subsection 474(1) cannot be read as a clear intention to exclude natural justice, because the subsection does not say so. Nor can Hickman jurisprudence make it so because one of the enquiries with which Hickman is concerned is whether there are requirements in the statute which proscribe the conduct in question notwithstanding the existence of a privative clause. Requirements in a statute are as powerfully conveyed by unexcluded implications as by express words. The express and implied requirements provided by a statute are indifferently requirements of the statute, and are equally binding on everyone (including courts)."
327 In their written submissions on NAAV's appeal, counsel for the Minister, Mr D Bennett QC, Mr S Gageler SC and Mr S Lloyd, acknowledged "the giving of procedural fairness will generally be an implied precondition on the valid exercise of the power". However, they said that position is subject to any express statutory provision to the contrary. They contended s 474(1) of the Act constitutes such a provision. Counsel said a privative clause "necessarily excludes the application of the rules of procedural fairness except to the extent that they are incorporated into one of the Hickman provisos". Counsel referred to Mr Ruddock's Second Reading Speech and said:
"Given this clear statement of the object and desired effect of the legislation and given that the privative clause was inserted as an amendment to an existing Act, there is no scope to contend that limitations previously existing in the Act are 'inviolable' and not subject to the effect of the privative clause."
328 If counsel meant, by this submission, to contend that the amendments should be construed in isolation from the remainder of the Act, I do not think that is correct. Amendments are designed to vary the terms of a previously existing statute; but the principal Act, as amended, remains to be considered as a whole. The relevant task, for present purposes, is to determine whether the Act, as it now stands and considered as a whole, evinces a Parliamentary intention to exclude the obligation of the Tribunal to afford natural justice or to exclude the power of a court to enforce that obligation.
329 Unlike the situation in Miah, NAAV's appeal does not arise out of a decision by a delegate of the Minister, but, rather, a decision of the Refugee Review Tribunal. The heading of subdivision AB of Division 3 of Part 2 of the Act is not relevant to a decision of the Tribunal. However, s 420 of the Act applies to the Tribunal. It uses a similar collocation of words. Section 420(1) requires the Tribunal, in carrying out its functions under the Act, to "pursue the objective of providing a mechanism for review that is fair, just, economical, informed and quick". Section 420(2)(b) says that the Tribunal, in reviewing a decision, "must act according to substantial justice and the merits of the case". These are not the words of a Parliament that wishes to exclude the obligation to provide procedural fairness.
330 None of the Bills enacted by Parliament expressly excluded the obligation of natural justice that had been recently upheld by the High Court in AalaandMiah. The Government may have wished to achieve such an exclusion, but it did not receive the necessary Parliamentary support.
331 Under those circumstances, I conclude that Aala and Miah continue to apply; persons who make decisions under the Act affecting the visa entitlement of particular individuals are bound to accord to them procedural fairness.
332 I do not think this obligation is affected by the Hickman principle. As Latham CJ and Dixon J pointed out in Rent Controller, an element of that principle is that, if, upon the construction of the legislation as a whole, it appears that powers are exercisable only in certain cases, and not exercisable in other cases, a privative clause will not preclude relief. I agree with counsel for NAAV that this rule extends to common law obligations implied by a statute, as much as to obligations expressly imposed by the statute.
333 I would order that the appeal by NAAV be allowed, the orders of Gyles J be set aside and, in lieu thereof, it be ordered that the decision of the Refugee Review Tribunal be set aside and the matter be remitted to that Tribunal (differently constituted) for rehearing and determination.
(ii) NABE
334 The facts concerning this appeal have also been recounted by other members of the Court. The Refugee Review Tribunal accepted that NABE was a Sri Lankan national of Tamil extraction who was born in Jaffna. He was affected by the long-running civil war between the LTTE and the Sri Lankan government. NABE claimed to have been taken by the "authorities" (presumably Sri Lankan government forces) while engaged in choir practice at his church, and removed to a camp. The Tribunal did not make a clear finding about this claim but commented:
"… the episode occurred several years ago while he resided in the vicinity of the main trouble-spot in Sri Lanka. The fact that he was released from custody and was later able to travel to Colombo indicates that he was not of any continuing interest to the authorities, and the Tribunal finds accordingly."
335 The Tribunal noted claimed later incidents but was not persuaded of the truth of all those claims. After referring extensively to country information the Tribunal member concluded:
"There is no doubt that Tamils have often been at risk of persecution in Colombo and elsewhere in recent years. The evidence also indicates, however, that almost half the population of Colombo is Tamil and that the risk of persecution is very far from universal. Aforementioned information indicates that, apart from those who have fled the authorities in the north, those most at risk are recently arrived young people without established links to Colombo.
In the present case the applicant has a history of residence in Colombo of at least a year and no credible claims of harm there for any Convention reason. His sister resided there with him, at least for a time. The applicant registered with the authorities, thus indicating he established a valid purpose for residing in Colombo, as well as indicating he was not regarded as a security risk. The Tribunal is not satisfied that he has no work history or significant family or personal contacts still in Colombo. In all the circumstances the Tribunal finds it would be reasonable for the applicant to again take up residence in the capital where he does not face any real chance of persecution for any Convention reason."
336 The submission put to the primary judge, Tamberlin J, was that the Tribunal erred in failing to deal with a separate claim of mistreatment, not by the "authorities" but by the People's Liberation Organization of Tamil Eelam ("PLOTE"), a pro-government militant organisation. This mistreatment was said to have occurred at Vavuniya in early 1999. It was contended that the failure to deal with the claim of persecution by PLOTE was a jurisdictional error.
337 Tamberlin J accepted this submission. He noted that, in his first statement, NABE referred to the mistreatment at Vavuniya in 1999 without identifying who was responsible for it. NABE referred only to "they". However, his Honour also noted that the decision of the delegate recorded NABE's claim that, whilst in Vavuniya, "he was arrested by PLOTE people". He said (at para 37):
"This statement in the delegate's decision clearly indicates that the applicant's claim was not detention and torture by the authorities, but by PLOTE. It was the decision of the delegate that was the subject of the review by the RRT and this statement as to the nature of the claim was before the RRT when considering the decision. Other material before the RRT did not specify clearly who detained and tortured the applicant. On the material I have referred to, other statements by the applicant and the relevant part of the transcript of the hearing before the RRT which was tendered in evidence, I am satisfied that there was an error by the RRT which could have affected the outcome because it bears directly on the question whether there were grounds, based on past persecution, for the applicant believing there is a real risk of persecution if returned." (Original emphasis)
338 I have not read all the material to which his Honour referred; in particular, the relevant part of the transcript of the hearing before the Tribunal. However, I accept this material supports the contention that NABE had claimed to have been mistreated at Vavuniya by PLOTE, rather than by government authorities. Even so, I have difficulty in concluding that the Tribunal fell into a jurisdictional error.
339 At his initial interview, NABE was asked whether he had any reasons for not wishing to return to his country of nationality. He replied:
"I came in here because it was impossible to live there so how can I go back there. I have come to Colombo three times. I have been sent back to Jaffna three times. If I return I will be arrested again. Many people who have been arrested disappeared in the past. As a Tamil person, if I return I will be arrested. Tamil are persecuted race in Sri Lanka."
340 The persecution NABE claimed to fear was arrest, obviously by government authorities. That was the case put to the Department, in a supporting submission, by his immigration consultant, Rasan Selliah. Mr Selliah wrote:
"The situation in the country for Young Jaffna Tamils is very dangerous. The Jaffna Peninsula is expecting an outbreak of war at any time. Young Tamils in particular are persecuted by the authorities and by the LTTE. If they refuse to join the LTTE, they often go missing and many are ultimately killed. The authorities regularly detain and kill many youths.
Therefore, the applicant's fear of being persecuted (torture, detention, extortion, and compulsory recruitment) for conventions reasons of race, political opinion (or imputed political opinion) and particular social group (being a young Tamil of Jasffna [sic]) is well founded.
The applicant genuinely fears to return to the Jaffna Peninsula. He cannot reasonably relocate to other parts of the country in order to avoid persecution. He had been arrested, tortured and had paid money to the authorities in Colombo. The applicant cannot speak Singhalese language. Therefore, relocation is impossible in the applicant's case.
The applicant provided a full explanation to the interviewing officer.
The applicant truly believes that if he returns to Sri Lanka he will be arrested and tortured.
Therefore, we submit that the applicant is a refugee under the convention."
341 In a letter sent to the Tribunal shortly before the hearing of NABE's application for review of the delegate's decision, Mr Selliah repeated the same argument, in almost identical words.
342 So far as I can ascertain, at no time did NABE claim a fear of persecution at the hands of PLOTE, as distinct from the "authorities". The claimed mistreatment at Vavuniya was one of a long list of alleged incidents. As PLOTE was a body sympathetic to the Sri Lankan government, evaluation of that incident was relevant to the claim made by NABE, and the only claim made by him, of feared persecution by Sri Lankan government authorities. But it was not a separate claim requiring separate evaluation. The Tribunal may have overlooked the delegate's reference to NABE having claimed the mistreatment occurred at the hands of PLOTE, rather than the army or government officials. If so, however, it seems to me that was merely an error of fact.
343 I accept the Tribunal is not limited to the formal claims made by an applicant for a protection visa. Sometimes the evidence suggests a risk of future persecution by some person, or in some manner, that falls outside an applicant's formal claims. In that case and despite the absence of a claim, the Tribunal may come under an obligation to evaluate the situation. However, for that obligation to arise, there must be some reason for fearing a future problem. Whatever the truth about the Vanuniya incident, having regard to the Tribunal's other findings of fact, there was no reason to apprehend future mistreatment of NABE by PLOTE.
344 As I respectfully disagree with Tamberlin J's view that the Tribunal fell into jurisdictional error, I do not find it necessary to consider the correctness of his conclusion that s 474 saves the Tribunal's decision from invalidity.
345 I would dismiss the appeal of NABE.
(iii) Ratumaiwai
346 This is an appeal against a decision of Hill J dismissing an application to review a decision of the Migration Review Tribunal. Once again, the facts are recounted by others.
347 It was common ground before Hill J that, in order to obtain relief and regardless of the operation of the new s 474 of the Act, it was necessary for Mr Ratumaiwai to demonstrate that the Tribunal had fallen into jurisdictional error. Hill J held he failed to do this. Accordingly, it was unnecessary for him to consider submissions concerning s 474 of the Act. Notwithstanding this, his Honour made some observations about the section.
348 I agree with Hill J that Mr Ratumaiwai failed to demonstrate jurisdictional error by the Tribunal. I am content to adopt the reasons set out by Hill J in paras 20 to 32 of his judgment. On that basis, I would dismiss the appeal. As it is unnecessary for me to do so, I make no comment about Hill J's observations regarding s 474.
(iv) Turcan
349 The application before the primary judge, Heerey J, sought review of two decisions. The first decision, made under s 128 of the Act, was to cancel a "permanent spouse class 801" visa held by Mr Turcan. This decision was made on 6 July 2001. No application for review was made until 27 February 2002, when a proceeding was instituted in this Court. That was done four days after the second decision, on 23 February 2002, to detain Mr Turcan under s 189(1) of the Act.
350 The first decision was made before the new Part 8 was enacted. If Mr Turcan had promptly applied for judicial review of that decision, he would not have confronted the privative clause that is now s 474 of the Act. But he did not do this, presumably because he was overseas from 3 May 2001 until 23 February 2002. When he did make his application, he was met by an objection as to competency. The objection was based upon the fact that the application was not made within the time fixed by the new s 477(1) of the Act. Section 477 relevantly provides:
"(1) An application to the Federal Court under section 39B of the Judiciary Act 1903 for:
(a) a writ of mandamus, prohibition or certiorari; or
(b) an injunction or a declaration;
in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision.
…
(2) The Federal Court of the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or (1A) outside the period specified in that subsection."
351 After investigation of the relevant facts, Heerey J held that Mr Turcan was not notified of the decision of 6 July 2001, within the meaning of s 477(1), until his detention at Melbourne airport on 23 February 2002. On that basis, he held the new privative clause applied to the decision. It seems to me his Honour was correct in holding the new clause applied. But I would adopt a different reason. As Mr Turcan had not instituted any proceeding before 2 October 2001, he had no "right" to obtain relief on the basis of the law that existed before that date: see s 8(c) of the Acts Interpretation Act 1901 and the discussion in Pearce and Geddes, Statutory Interpretation in Australia (5th ed) at paras 6.7 to 6.9.
352 On the basis that the new s 474 applied to both decisions, Heerey J held it was inappropriate to do more than consider whether any of the three Hickman conditions applied to either of them. Having held they did not, he dismissed the application for review.
353 At para 46 Heerey J explained his approach in this way:
"In my view, the correct approach is to first consider whether s 474 applies. If it does, the Court need not, indeed should not, go any further. The Court should not assess the case as if s 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the Court's jurisdiction and is to be applied at the threshold."
354 I respectfully disagree with two aspects of that statement. First, I do not think it is correct to say that s 474 "in its terms goes to the Court's jurisdiction". Although a reader uninstructed in the mysteries of privative clauses might read it that way, it is clear (and common ground in these appeals) that s 474 is code for an instruction to apply the line of authority stemming from Hickman. As the High Court has pointed out, the underlying theory of Hickman is that a privative provision is to be used as an aid to construction of the relevant statute; it may affect the availability of relief in the particular case, but it does not affect any court's jurisdiction.
355 Second, it has not been the practice of the High Court simply to take a privative clause, to consider whether the case exhibited any of the Hickman conditions and, if not, dispose of it without considering other legal issues. In Hickman itself, Dixon J first considered whether the prosecutors were engaged in the coal mining industry. Only after reaching a conclusion about that matter (at 614) did he turn to a consideration of the Court's jurisdiction under s 75(v) and the significance of the privative provision, reg 17. A similar methodology can be seen in other cases. Indeed, it is necessary to take this course if effect is to be given to that part of the Hickman doctrine that excludes application of a privative provision to a decision that ignores a statutory condition precedent or an inviolable limitation or restraint upon the powers of the decision-maker.
356 It follows that I respectfully think Heerey J erred in going straight to s 474. He should first have considered the other factors bearing on the validity of each of the decisions. That exercise not having been done, it is necessary for this Court to undertake the task.
357 Once again, the facts have been recounted by others. It will be recalled that Mr Turcan was the holder of a permanent class 801 onshore visa at the time of his departure for Moldova on 3 May 2001. As at that date, he had been separated from his wife for some five months, she having left the apartment they were sharing in December 2000. On 6 July 2001, Ms A Faulkner, an officer of the Department of Immigration and Multicultural Affairs, cancelled Mr Turcan's visa on the ground that it "should not have been granted because its grant was in contravention of this Act". This ground is set out in s 116(1)(f) of the Act. Ms Faulkner's reason was that the relationship claimed by Mr Turcan on 17 November 2000 "for the purposes of your application for permanent residence on spouse grounds, was in fact no longer in place".
358 The visa cancellation was effected pursuant to Subdivision F of Division 3 of Part 2 of the Act, Mr Turcan being a non-citizen who was then outside Australia. Section 128, which leads that Subdivision, provides:
"If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non-citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa."
359 It will be noted that s 128 expressly provides that the cancellation may be effected without notice to the holder of the visa. In that regard, Subdivision F stands in contrast to Subdivision E, which governs the cancellation of visas of persons not known to be outside Australia. That Subdivision requires notice of a proposed cancellation (s 119), the provision of certain information (s 120) and an opportunity for the visa holder to comment (s 121).
360 Counsel for Mr Turcan, Mr Hurley, accepted that s 128 does not require prior notice of a possible cancellation of a visa on a s 116 ground. However, he argued that the consequences of a cancellation under s 128 are severe; for that reason Parliament has required compliance with each of the three pre-conditions in s 128. Mr Hurley contended Ms Faulkner's satisfaction about the first condition ("there is a ground for cancelling a visa under section 116") involved error of law. He relied upon a Departmental assessment of the case that contains this analysis:
"7.7.6 Section 116(1)(f) does not allow for substantive visas to be cancelled where the delegate was satisfied at the time of grant that the criteria were met, but it is later found that those criteria were not met. This is because substantive visas are granted under s 65 of the Act. Unlike s 73, which allows the grant to occur only where the applicant actually meets the criteria, s 65 provides that the Minister must grant the visa 'if satisfied that' the criteria for the visa have been satisfied. That is, if the Minister or his delegate is satisfied that the applicant meets the criteria, the visa is lawfully granted, even it [sic] is later found that the applicant never actually met the criteria. Therefore, such a decision is not in contravention of the Act.
7.7.7 Conversely, if a delegate grants a visa when he or she is in fact not satisfied that the applicant meets the criteria (for example, in the case of fraud or misconduct by a delegate), the grant will contravene the Act. This is because the power to grant in s 65 is limited to cases where the delegate is satisfied the relevant criteria are met. In practice, establishing that a delegate was not satisfied that a criterion was met will be difficult as it depends on having probative evidence about the delegate's state of mind at the time of grant."
The writer of the assessment recommended reconsideration of the case by Ms Faulkner.
361 Mr Hurley argued "that the requirement that a decision-maker be lawfully 'satisfied' that proceeding under Subdivision F is appropriate is an inviolable limitation or restraint upon the jurisdiction or power given by s 128. It is a limitation on the power to decide".
362 Counsel for the Commonwealth put a number of submissions in response to this argument. Their broadest submission was that s 474 of the Act leaves no room for consideration of inviolable limitations; it requires courts to consider only the existence of the three Hickman conditions. I do not think that submission can be sustained, having regard to the jurisprudence developed by the High Court in respect of other privative clauses.
363 At a more specific level, counsel argued that s 128 of the Act does not contain a "clearly expressed specific intention" to impose a limitation. The phrase is taken from R v Murray; Ex parte Proctor (1948) 77 CLR 387 at 400.
364 I think s 128 does include a clearly expressed intention to impose limitations, being the three conditions stated in para (a)(i), para (a)(ii) and para (b). The condition stated in para (b) was clearly satisfied in this case; Mr Turcan was outside Australia.
365 An issue arises in relation to para (a)(i) and para (a)(ii). The relevant limitation in relation to those conditions is that the Minister is "satisfied" of a particular matter. Ms Faulkner, acting on behalf of the Minister, was apparently subjectively satisfied of both these matters. However, in being so satisfied she seems to have fallen into an error of law. I agree with the analysis of the position set out in para 7.7.6 of the departmental assessment.
366 A statutory formula requiring an official to be "satisfied" of something, before exercising a power adversely to the interests of a particular individual, means lawfully, or validly, satisfied: see R v Connell; Ex parte Hetton Bellbird Collieries Limited (1944) 69 CLR 407 at 432 per Latham CJ. Ms Falkner was not so satisfied. Accordingly, she was not "satisfied" within the meaning of s 128(a) of the Act.
367 Mr Hurley did not put any separate argument in relation to the second decision, to detain Mr Turcan pursuant to s 189(1). He assumed the validity of this decision directly depended upon the validity of the first decision. That is not strictly correct. The power to detain under s 189(1) may be enlivened by an officer reasonably suspecting that a person is an unlawful non-citizen. Reasonable suspicion is not necessarily negatived by the fact that, unbeknown to the suspecter, an earlier decision is legally invalid. However, if the first decision relating to Mr Turcan is quashed, he will no doubt promptly be released from detention: see s 191.
368 I would uphold Mr Turcan's appeal. I would set aside the orders made by Heerey J and, in lieu thereof, quash the delegate's decision to cancel Mr Turcan's visa. Prohibition should issue to restrain further action upon that decision.
(v) Wang
369 The remaining appeal is that of the Minister against the decision of Mansfield J in relation to Jian Zhong Wang.
370 This case also arises under Subdivision F of Division 3 of Part 2 of the Act. However, although there was a suggestion to the contrary from counsel for Mr Wang, Mr S Tilmont and Mr A Collett, it does not turn on s 128. I say that because it is clear that Mr Wang was overseas at the time of cancellation, and that the delegate of the Minister was satisfied, first, of the existence of a ground of cancellation under s 116(1)(d) of the Act and, second, that it was appropriate to cancel Mr Wang's visa under Subdivision F.
371 Mansfield J accepted that the visa was validly cancelled under s 128. However, he held that the Minister had failed to comply with the requirements as to notice of cancellation contained in s 129; in particular, by failing to give adequate particulars of the ground of cancellation: see s 129(1)(b). In his view, that failure invalidated the delegate's subsequent decision, under s 131 of the Act, not to revoke the cancellation. In paras 34 and 35 of his reasons Mansfield J said:
"In my judgment, the circumstance is not simply one where a procedural prescription imposed as part of the process of decision-making has not been complied with. It is one where the jurisdictional fact prescribed by the Act, and one which is also the essence of the material upon which the Minister is entitled and obliged to make a decision, has been shown not to exist. The purpose of the decision-making process under s 131 has been frustrated. …
In view of my characterisation of the nature of the decision to be made under s 131, and my view that the existence of a response to a valid notice under s 129(1), or at least to a notice which is adequate to elicit a meaningful response to the reasons for the cancellation of the visa, is an essential pre-condition to a valid decision under s 131, I consider that it is not intended by the Act that s 474(1) should preclude the grant of appropriate relief under s 39B of the Judiciary Act in the present circumstances. The decision under challenge is really no decision at all, because the respondent was not empowered in the circumstances to form any satisfaction in terms of s 131(1)(a) or (b). He did not have before him to enliven that power, and to impose the obligation to exercise it, a response to a notice under s 129(1). The absence of such a response is not 'a mere defect or irregularity which does not deprive [him] of the power' to make the decision: Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Mason CJ at 180."
372 I agree. I would dismiss this appeal.
Conclusion
373 In Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 I expressed the view, first, that the jurisdiction of this Court under s 39B of the Judiciary Act, in relation to privative clause decisions, is co-extensive with the jurisdiction of the High Court, under s 75(v) of the Constitution, in respect of those decisions; and, second, that this Court ought to apply decisions of the High Court like Craig and Yusuf in determining the reach of s 474.
374 Nothing that has been said in relation to the present appeals causes me to depart from the first of the above two views. However, argument on these appeals suggests to me that my second view may go too far. Although the matter will ultimately be one for the High Court to determine, it may give inadequate weight to the intended operation of the Hickman principle if this Court were to set aside decisions that merely demonstrate jurisdictional error such as a failure to address the correct question; as distinct from a case where there is a failure to comply with a condition precedent or limitation expressed (Turcan and Wang) or implied(NAAV)by a relevant statute.
375 In the result I would uphold the appeals of Mr Turcan and NAAV and make the consequential orders set out above. I would dismiss each of the other appeals. In each case, the successful party should have an order for payment of his costs by the unsuccessful party.
Postscript
376 I note two events that have occurred since the above reasons were drafted. First, Parliament has enacted the Migration Legislation Amendment (Procedural Fairness) Act 2002. I see no reason to believe this Act will be any more effective than the 2001 legislation in reducing the number of applications for judicial review of migration decisions. What other effect it may have must be left for other cases to resolve. As is common ground, the recent statute has no application to any of the present appeals.
377 Second, I have read in draft form the reasons for judgment of the other members of the Court. French J reaches conclusions similar to my own. He does so by application to each appeal of legal principles which he has explained. I respectfully concur with both his Honour's exposition of the relevant principles and his application of them to these appeals.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.