The second issue
29 The respondent contends that, in any event, the Tribunal did not err in a way which exposes its decision to review under s 39B of the Judiciary Act 1993 (Cth). His contentions are:
(1) the decision of the Tribunal is a privative clause decision as defined in s 474(2) of the Act, and is therefore final and conclusive subject to the "Hickman" exceptions discussed by the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 391 (NAAV), and that none of those exceptions apply in the present circumstances;
(2) the Court should follow the course adopted by Gyles J in Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 (Lobo) of regarding the High Court decision in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (Plaintiff S157) as overruling NAAV only to the extent of determining that s 474, properly construed in the context of the Act as a whole, does not prevent the Tribunal from committing jurisdictional error if it fails to accord procedural fairness to the visa applicant (at least until the operation of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)) and the error of the Tribunal in this matter is not of that nature;
(3) alternatively, Plaintiff S157 decides that the operation of s 474(1) in any particular case will depend upon the construction of the Act as a whole and that the type of error which the Tribunal might be found to have committed in this case is not a jurisdictional error of the nature recognised in Plaintiff S157 because it does not amount to a failure to exercise jurisdiction or an excess of jurisdiction, but is simply an error of fact (the wider definitions of jurisdictional error discussed for example in Craig v State of South Australia (1995) 184 CLR 163 (Craig)and Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) are said not to properly describe jurisdictional error as recognised in Plaintiff S157. It is contended that the "narrow jurisdictional error", which will give rise to jurisdictional error so as to enliven the Court's power under s 39B, relates to limitations on the exercise of the Tribunal's power which are "indispensable" or "essential to valid action": see Plaintiff S157 at [20] and [26], and relates to a "fundamental requirement for the exercise of jurisdiction": see Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 at [38] (Applicants S134).
30 Having determined that Ms Ruykys met the criterion in subcl 832.212(4)(5) of Sch 2 to the Regulations, upon its proper construction, it is now necessary to identify the nature of the error on the part of the Tribunal which led it to reach a different conclusion. The identification of its error will then indicate whether it is jurisdictional in nature.
31 Under s 5 of the Act, a substantive visa is defined to mean, relevantly, a visa other than a bridging visa. The expression "entry permit" is defined in reg 1.03 of the Regulations to have the meaning given by s 4(1) of the Act as in force before 1 September 1994, which in turn is defined as meaning permission to enter or remain in Australia. A bridging visa clearly falls within the definition: ss 37, 72 and 73.
32 The data available to the Tribunal, identified by counsel for the respondent as being the "Movement Records", and apparently being that on which it based its findings, indicated that Ms Ruykys has been granted the following visas:
Visitor visa 17 October 1991 - 17 April 1992
Student visa 19 August 1992 - 15 January 1997
Bridging visa 1 September 1994
Bridging visa 15 January 1997 - 15 January 1997
Student visa 15 January 1997 - 24 December 1997
Bridging visa 10 December 1997 - 24 December 1997
Student visa 24 December 1997 - 16 February 2000
Bridging visa 28 January 2000 - 16 February 2000
Student visa 16 February 2000 - 15 March 2002
33 Ms Ruykys' passport was also before the Tribunal. It contained an entry visa stamp indicating she was issued with a visitor visa on 15 October 1991 valid for multiple travel until 12 October 1992, but permitting a stay of six months for each entry to Australia. It showed she entered Australia on 17 October 1991, so she held a valid visa until 17 April 1992. Subsequent stamps show four student visas granted from time to time covering the period from 19 August 1992 to 15 March 2002. A visitor visa is a substantive visa.
34 I was told she also holds a bridging visa pending determination of her present application.
35 It is difficult to understand the Tribunal's reasons. It has wrongly concluded that Ms Ruykys did not hold a substantive visa for "periods" before turning 18. It did not identify the periods it referred to. There was only the one such period when Ms Ruykys did not hold a substantive visa: 18 April 1992 to 18 August 1992. That appears upon consideration of the Movement Records or of the visa stamps on the passport. Indeed, if the visitor visa stamp on the passport was the source of any misunderstanding by the Tribunal (as it was in respect of Ms Ruykys' advisers and the respondent's advisers until shortly before the present hearing), the finding would have been that Ms Ruykys held a substantive visa at all times from her entry on 17 October 1991 until after her application for the Close Ties visa. The Tribunal found, correctly, that Ms Ruykys has held bridging visas on four occasions before she turned 18, but did not apparently appreciate they overlapped with her substantive student visas. It did not say what those occasions were. But, by reference to the information before the Tribunal they can be seen to be after the period when she did not in fact hold a substantive visa or a bridging visa, that is after 18 August 1992. It is unclear how it understood that Ms Ruykys had "not ever become unlawful", as it did not identify the periods she held a bridging visa or a substantive visa. It is also unclear how it understood that it was to apply the policy in Policy Advice Manual 3 (PAM 3). Its reference to PAM 3 is apparently to discern whether Ms Ruykys came within subcl 832.212(4). How it used PAM 3 to conclude the subclause could not be applied favourably to Ms Ruykys is not explained. The passage it quoted from PAM 3 was from the overview, under the heading "Formative years", and there is then a detailed test explaining the policy underlying that expression. It provides no warrant for the Tribunal to use PAM 3 to inform the proper construction of subcl 832.212(4)(b). Nor does it entitle the Tribunal to depart from the application of subcl 832.212(4)(b) on the basis that it thinks there are cogent reasons to do so.
36 I do not think the Tribunal can be understood as saying there was no scope to apply the policy in PAM 3 because Ms Ruykys "had not ever become unlawful", as it specifically addressed whether there is a cogent reason to depart from the policy. Thus the Tribunal appears to have considered that, if there were grounds to do so, it could depart from "the policy". That comment must reflect its understanding that Ms Ruykys in her circumstances might have fallen within the criterion in subcl 832.212(4)(b).
37 In my judgment, the Tribunal's error extended beyond merely an error of fact as to whether Ms Ruykys ceased to hold a substantive visa or an entry permit before turning 18. In a way which I am not able to discern from my consideration of its reasons, I am satisfied it has misconstrued subcl 832.212(4)(b). It is not clear whether its misconstruction has contributed to its finding that Ms Ruykys has "not ever become unlawful" because it is not clear whether it apprehended the hiatus in Ms Ruykys' lawful status whilst in Australia, although its reference to her having held four bridging visas and the periods of her four bridging visas before turning 18 suggest it was aware of the hiatus. If it was not aware of the hiatus, by reason of a misreading of the visitor visa stamp on her passport, then she would have appeared to have had substantive visas then at all material times. But that is not what the Tribunal found. Its consideration of PAM 3, including its recognition that there may have been scope to depart from its policy, also suggests it was aware of a period when Ms Ruykys held neither a substantive visa nor a bridging visa before turning 18. I conclude that somehow, but in a way I am unable to clearly discern, the Tribunal erred in law in the way it understood and applied subcl 832.212(4)(b).
38 I am also satisfied that its error of law is a jurisdictional error sufficient to enliven the Court's power to make an order under s 39B of the Judiciary Act notwithstanding s 474(1) of the Act. The Tribunal's duty was to consider the case before it in the light of the words in the regulation. It was erroneous to use the policy to determine whether Ms Ruykys fell within the sub-paragraph or not: cf Ali v Minister for Immigration, Local Government & Ethnic Affairs (1992) 38 FCR 144 at 151.
39 It is plain that Plaintiff S157 denotes that s 474(1) is not a primary provision to which all other provisions of the Act are subject. It is necessary to interpret the Act as a whole to determine whether a transgression of a relevant provision is intended to lead to invalidity. Gleeson CJ at [19] and the judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [60] described the process of statutory construction as "reconciliation". To paraphrase what Gleeson CJ said at [26], the question is whether, on the true construction of the Act as a whole, including s 474, the requirement of the proper application of the law is a limitation upon the decision-making authority of the Tribunal of such a nature that is inviolable. At [29]-[33], Gleeson CJ then stated established principles which are relevant to the resolution of that question and at [71]-[74] Gaudron, McHugh, Gummow, Kirby and Hayne JJ stated rules of constitution and other considerations relevant to the scope of operation of s 474. Their Honours concluded at [78]:
"The effect of s474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft Order Nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a "privative clause decision" as defined in s 474(2) of the Act."
40 In my judgment, the decision in Plaintiff S157 obliges the Court to undertake, in relation to the way in which the Tribunal might be found to have erred in its consideration of a particular claim, the task described in the passage quoted above.
41 There have been several decisions of the Court in which that task has been undertaken. In Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 24 (Zahid), the Full Court (French, Lindgren and Finkelstein JJ) allowed by consent an appeal from a decision of a judge at first instance. The learned judge at first instance had found that the Migration Review Tribunal had failed to address the correct question posed by the relevant Regulation, but that the decision in NAAV insulated its decision from invalidity. The Full Court in the light of Plaintiff S157 considered it appropriate to allow the appeal. In NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 19 (NADH of 2001) the Full Court (Moore, Tamberlin and Hely JJ) concluded, in the light of Plaintiff S157, that an error of construction may amount to jurisdictional error [at 4].
42 In WADK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 48(WADK) Hill J (with whom Marshall J agreed) described the issues raised in NAAV as "no longer of great significance" following the decision in Plaintiff S157. His Honour said at [26]:
"What is now clear is that, despite the terms of the Migration Act 1958 (Cth), the jurisdiction of the High Court to grant prohibition, and in aid thereof certiorari, and it would follow of this court, through s 39B of the Judiciary Act 1903 (Cth) has not been ousted by the use of the privative clause. Accordingly, both the High Court and this court may grant prohibition and consequent relief in a case where the Tribunal has committed jurisdictional error. While the High Court did not seek in that case to define the boundaries of jurisdictional error, it had to some extent earlier done so in cases such as Craig v South Australia (1995) 184 CLR 163 and, more recently in Minister for Immigration and Multicultural and Indigenous Affairs v Yusuf (2001) 206 CLR 323."
43 At the more general level, the decisions of the Full Court (Kiefel, North and Allsop JJ) in NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 25 at [4] and of the Full Court in NADH of 2001 at [1] recognise that the High Court in Plaintiff S157 decided that the approach to the construction and application of s 474 adopted in NAAV is incorrect. See also per Lindgren and Stone JJ in NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 52 at [17].
44 I note that both VBAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 205 and NAMO of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 266 referred with approval to Lobo, but the alleged jurisdictional error in each case was that the Tribunal had failed to accord procedural fairness to the visa applicant. Consequently, the extent to which, by reason of Plaintiff S157, the Court should no longer follow NAAV did not arise. In the light of the decisions referred to, and as it appears that Gyles J at the time of his decision in Lobo did not have the benefit of the views of the Full Court in some of the cases referred to as to the effect of Plaintiff S157, I do not feel obliged to follow the decision in NAAV in all cases except those where the jurisdictional error involves the failure to accord procedural fairness to the visa applicant.
45 In this matter, for the reasons I have expressed, I consider the Tribunal erred in law by somehow not addressing the issue posed by subcl 832.212(4)(b). I think the error is of the kind referred to by the Full Court in Zahid, NADH of 2001, and in WADK. It is not necessary to go so far as to accept that error as described in Craig and Yusuf still defines the boundaries of jurisdictional error under the Act. The Tribunal's error means its decision was not made "under this Act" as that term is used in s 474(2) because the Tribunal's error of law has resulted in it failing to exercise jurisdiction in the particular circumstances. I accordingly conclude that, on the proper construction of the Act including s 474, the Tribunal's error is jurisdictional.
46 In my view, the error of the Tribunal is a jurisdictional error of a fundamental nature. The Tribunal was bound to make a finding as to whether Ms Ruykys met criterion 832.212(4)(b). It did not do so in terms of that criterion because it misinterpreted the law. It thereby identified a wrong question. It did not address the issue which the sub-paragraph required it to address: see Plaintiff S157 at [21], [26], [67]-[70], and [160] and Applicants S134 at [72]-[85].