Scargill v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant applies under s 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth)for orders in relation to a decision of the Migration Review Tribunal (the Tribunal) dated 3 May 2002 which affirmed a decision of a delegate of the Minister not to grant the applicant a Family (Residence) (Class AO) visa. The basis of the application for the visa was that the applicant claimed to be a "remaining relative" of his mother, Lynne Clara Scargill, who is an Australian permanent resident. 2 The applicant was born in the United Kingdom in 1974 and is a citizen of that country. His father deserted the family when he was only a few months old and the applicant has not had contact with him since. At the age of about 19 the applicant went to live in the United States. He stayed there until he was 24. He acquired permanent residence in the United States, married a US citizen and obtained a US social security number. However, he was divorced on 20 April 1998 in Wisconsin shortly before coming to Australia, where he arrived on 6 May 1998. 3 He had a visa valid until 6 August 1998 and has remained in Australia since that time on a bridging visa. He made his application for the visa with which this case is concerned on 24 July 1998. In that application he stated that his usual country of residence was the United States. 4 Regulation 1.15 of the Migration Regulations 1994 (Cth) defines "remaining relative" in terms which by reg 1.15(2)(a) disqualify an applicant if - "(a) the applicant or the spouse (if any) of the applicant: (i) usually resides in the same country, not being Australia, as an overseas near relative …" 5 It was not in dispute that the applicant's father was an "overseas near relative" or that the father resides in the United Kingdom, or at any event that it was open to the Tribunal so to find. The critical question was whether the applicant "usually resides" in the same country as his father, that is the United Kingdom. 6 The Tribunal said, on the basis of the decision in Minister for Immigration and Multicultural Affairs v Hughes (1999) 86 FCR 567, that it was charged with finding positively that the applicant "usually resided in the same country, not being Australia" as the overseas near relative. Notwithstanding a subsequent amendment to the regulations, the Tribunal accepted that Hughes applied. 7 The Tribunal noted that "resides" is not defined in the Migration Act 1958 (Cth) (the Act) or the Regulations. It referred to Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241, where the High Court indicated that there are two elements that must be present to find that a person is "usually resident". The first is a physical presence in a particular place and the second is an intention to treat that place as home for at least the time being but not necessarily forever. 8 The Tribunal noted that the applicant had retained his citizenship of the United Kingdom and that he had given evidence of having no ties with the United States and now believed that he had no entitlement to return. He had maintained a United Kingdom passport until it expired in 1999 because he could not afford to renew it, and had indicated his intention to retain it by obtaining the necessary forms from the British Consulate. The applicant had in the United Kingdom his maternal grandmother and step-uncle, whom he had named in his passport as a contact in an emergency. The Tribunal said: "Having regard to the evidence presented, including the evidence in the hearing, the Tribunal finds that the visa applicant left the United States without any ties to that country nor with any intention of returning to it and that this continued to be the situation as at the time of application. The Tribunal finds that the visa applicant did not at the time retain, nor does he currently retain, a continuity of association with the United States nor an intention to return there, nor did he regard the United States as 'home'. The ties are rather with the United Kingdom, which in the overall circumstances presented, the Tribunal finds is the country in which he usually resides." 9 The Tribunal went on to find that the applicant's father usually resided in the United Kingdom and that therefore the applicant was disqualified from being a "remaining relative". 10 Counsel for the applicant submitted that the Tribunal committed errors of law, and in particular it should have followed the approach of Gummow J in Gauthiez v Minister for Immigration and Ethnic Affairs (1994) 53 FCR 512. His Honour was there dealing with a regulation which included a provision not relevantly different from reg 1.15(2)(a)(i). His Honour said (at 521): "It was for the Tribunal to consider whether the disqualification imposed by reg 9 did not apply because, putting aside Australia, as it had to be put aside, the applicant did not usually reside in any country. Rather, as I have indicated, the Tribunal approached its task as if the legislation required a choice to be made between France and Belgium." 11 So, counsel argued, in the present case the Tribunal apparently considered it had to make a choice between the United Kingdom or the United States as the country where the applicant "usually resides". 12 There were, on the applicant's argument, other errors linked with this approach. It was said that the Tribunal failed to consider whether the applicant satisfied the criteria at the time of visa application, as well as at the time of the decision (see reg 806.21). At the time of the application there was a much stronger case for saying that the applicant "usually resides" in the United States. However, that does not seem to add much, because it seems clear that an applicant must fail if the visa criteria are not satisfied either at the time of the application or at the time of decision. 13 Likewise, the question whether, as counsel argued, the Tribunal wrongly imposed an onus on the applicant does not seem to add a great deal. 14 But the fundamental problem for the applicant's case arises from s 474(1) of the Act which was introduced in 2001. Section 474(1) provides: "(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." 15 It is common ground that the decision of the Tribunal in the present case is a privative clause decision. Also, it is accepted that s 474(1) is subject to the satisfaction of the pre-conditions of validity stated in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 616, namely that the decision-maker has made a bona fide attempt to exercise its power, that the decision relates to the subject matter of the legislation and is reasonably capable of reference to the power given to the decision-maker. 16 The recent decision of the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 makes it clear that once the authority of a body like the Tribunal is validly invoked by the making of a valid application for review to a validly constituted Tribunal, the manner and exercise of its authority and powers come within the expanded area of authority and powers conferred by s 474(1), with the consequence that the Tribunal's decision is lawfully made (see [37] and [639]). 17 In the present case it is not suggested that the application for review was not valid or that the Tribunal was not validly constituted, nor is it suggested that the alleged error involved a contravention of an "inviolable condition" of jurisdiction of the kind which the Full Court in NAAV said would enable judicial review notwithstanding s 474(1). Nor is it suggested that the alleged error was jurisdictional. 18 The majority of the Full Court in NAAV expressly held at [4], [277] and [639] that s 474(1) prevents judicial review of what would otherwise be jurisdictional error under the principles discussed in Craig v South Australia (1995) 194 CLR 163 at 179 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [39] to [44] and [82] to [83]. It would seem paradoxical, therefore, that legal error of a lower order could be judicially reviewed, notwithstanding s 474(1). In any event, in a decision of a Full Court subsequent to NAAV it was made clear that non-jurisdictional legal error was within the prohibition of s 474(1): SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [15]. I hold therefore that this Court is prevented by the express terms of s 474(1) from reviewing, quashing or calling into question the decision of the Tribunal the subject of the present application. 19 I do not enter into consideration of the merits of the contentions as to legal error because in my view s 474(1) itself forbids that course. Once it appears that the error alleged does not involve the absence of a Hickman pre-condition or the breach of an inviolable provision of the legislation of the kind discussed in NAAV the command of the section is clear. 20 Counsel submitted that I should adjourn the hearing of this case pending consideration by the High Court of applications for special leave to appeal in NAAV and appeals in other cases in which s 474(1) is under consideration. In NABV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1494 at [16] Hill J said that, if he thought that the applicant in that case did have a ground for relief under s 39B, he would defer a decision until the applications for special leave in NAAV were determined or, if determined in favour of the applicants, until the appeals were decided. 21 I do not think that is an appropriate course. The decisions in NAAV and subsequent Full Court cases bind me as a single judge. They do not operate as tentative or provisional decisions awaiting confirmation by the High Court. I have to apply the law as it is today, as I see it. 22 Counsel for the applicant also submitted that declaratory relief and certiorari was nevertheless available, but in my view s 474(1) expressly excludes such a possibility. In any case, such relief would not have utility. 23 The application will be dismissed with costs. I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.