Collateral challenge
102 In view of my finding that the appellants do not have standing, it is not strictly necessary to address this question, however the Minister submits that the effect of ss 479(a) and 486C(2)(a) is not just relevant to the question of standing but also addresses the issue of whether a party can challenge a decision which, properly understood, is a collateral challenge.
103 The appellants' dispute there is a collateral challenge but even if there is, ss 479 and 486C do not preclude such a challenge.
104 The appellants refer to Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 in submitting that the primary judge's refusal to set aside the Nomination Decision does not afford that decision any legal effect it would not otherwise have had.
105 Bhardwaj concerned a decision by the Immigration Review Tribunal which was made at a hearing in the absence of the applicant but in circumstances where a letter by the applicant's representative to the Tribunal seeking a later hearing date was not brought to the attention of the Tribunal. Once the error had been identified, the Tribunal held a further hearing on the application and made a second decision. The High Court held that the second decision was valid, on the basis that the Tribunal had not given effect to its own intention and had failed to conduct a review in accordance with the legislation: Gleeson CJ at [11], [14]-[15]; and that since the Tribunal's first decision was made in jurisdictional error it was not binding or having legal effect unless and until set aside. Accordingly it was a decision that lacked legal foundation and is properly regarded in law, as no decision at all: Gummow and Gaudron JJ: at [51],
106 The appellants refer to the passage in Bhardwai at [46] (Gaudron and Gummow JJ):
In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as "void", "voidable", "invalid", "vitiated" or, even, as "nullities". To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made. Further, the use of the term "appeal" and the proposition that an administrative decision must have sufficient vitality to provide the subject matter of such a curial proceeding should not obscure the fundamental proposition that such an "appeal" or other proceeding for judicial review is an exercise of original jurisdiction by the court concerned …
(footnotes & citations omitted)
107 The Minister submits that Bhardwaj does not stand for the universal proposition that jurisdictional error on the part of the decision-maker will inevitably lead to that decision having no consequence at all but that ultimately the legal and factual consequences of such a decision depend on the statutory scheme pursuant to which a decision is made: Plaintiff S297 v Minister for Immigration and Border Protection [2015] HCA 3; (2015) 255 CLR 231 at [31]-[33]; Minister for Immigration and Border Protection v CLV16 [2018] FCAFC 80; (2018) 260 FCR 482 at [64]; Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1. I accept that submission.
108 The Minister also submits that Bhardwaj concerned the re-exercise of power by the same decision-maker in the particular statutory context then in issue and is not the issue raised in this matter. I accept that submission.
109 The Minister submits that legislation can attach consequences to a decision which is affected by jurisdictional error: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; (2021) 273 CLR 21 at [18]-[19]. Consequently, the Minister submits the effect of its proposed construction is that the refusal of the nomination application by the delegate and the affirmation of that refusal in the Nomination Decision is required to be considered by the Tribunal deciding the visa application as valid unless and until the side by a court.
110 The appellants submit nothing can be drawn from Moorcroft in the circumstances of this matter.
111 In Moorcroft, the relevant statutory scheme referred to certain acts that the High Court regarded as "decisions" in the sense that they were "legal acts [that] … can be quashed or reversed by a court with the result that there is no decision": at [17]. These were where a non-citizen: (a) has been convicted of a crime and sentenced to death or to imprisonment for at least one year; or (b) has been convicted of 2 or more crimes and sentenced to imprisonment for periods that add up to at least one year where certain other conditions are met; or (c) has been charged with a crime and certain conditions are met.
112 The High Court also referred to a contrasting category of acts that it described as "events rather than decisions about events" and that removal or deportation from Australia or another country fit within this second category: at [18]. The "historical fact" of removal from Australia in Moorcroft was "a separate event from the event of the purported cancellation decision": at [19]. Certiorari was not available to the respondent in that case to quash the act of her removal from Australia.
113 The High Court held that this distinction was supported by the "theory of the second actor", and referred to Gageler J's reasoning in New South Wales v Kable (2013) 252 CLR 118 at [52] (Kable No 2):
[a] thing done in the purported but invalid exercise of a power conferred by law, … remains at all times a thing in fact. That is so whether or not it has been judicially determined to be invalid. The thing is, as is sometimes said, a "nullity" in the sense that it lacks the legal force it purports to have. But the thing is not a nullity in the sense that it has no existence at all or that it is incapable of having legal consequences. The factual existence of the thing might be the foundation of rights or duties that arise by force of another, valid, law. The factual existence of the thing might have led to the taking of some other action in fact. The action so taken might then have consequences for the creation or extinguishment or alteration of legal rights or legal obligations, which consequences do not depend on the legal force of the thing itself. For example, money might be paid in the purported discharge of an invalid statutory obligation in circumstances which make that money irrecoverable, or the exercise of a statutory power might in some circumstances be authorised by statute, even if the repository of the power acted in the mistaken belief that some other, purported but invalid exercise of power is valid.
114 In Moorcroft the act of removal was an historical fact. The respondent's case on appeal in that matter was, in effect, to treat that historical fact as a non-fact. The High Court reasoned that on its terms, the definition of "behaviour concern non-citizen" as a whole facilitated what Parliament should be taken to understand would, at least typically, be speedy decision-making by delegates of the Minister at Ports. The interpretation of "removed from Australia" as removed from Australia in fact, promoted the statutory purpose of fast and simple decision-making about whether to grant special category visas.
115 Although the legislative scheme in this matter reveals that the visa criteria (at cl 187.233) speaks to the fact of the decision by the Minister to approve the nomination, nonetheless, it is an administrative decision which only has such force and effect as is given to it by the law pursuant to which it was made: Bhardwaj (supra) at [40] (Gaudron and Gummow JJ). Unlike the fact of removal in Moorcroft, the refusal of the nomination application refers to a decision about an event.
116 I do not consider Moorcroft assists the Minister.
117 Further, whether an administrative decision ought be presumed to be valid until set aside by a court will depend upon the particular case, having regard always to the particular legislation under which the decision was made. The passage from Bhardwaj at [46] which the appellants rely, refers to an administrative decision having only such force and effect as is given to it by the law pursuant to which it was made.
118 However, in Bhardwaj, Gaudron and Gummow JJ continued in relation to the expression "judicial review" at [57]-[58]:
In the context of administrative decisions, the expression "judicial review" tends to obscure the fact that the reviewing court is not simply examining the decision in question to see whether it is affected with error of the kind that requires it to be set aside or varied. Judicial review is an exercise of judicial power. As such, it is an exercise directed to the making of final and binding decisions as to the legal rights and duties of the parties to the review proceedings.
When an administrative decision is challenged in judicial proceedings, the question that is ultimately decided is not whether the decision was affected by error but whether the rights of the party to whom the decision relates are determined by that decision which, they will not be, if the decision must be set aside. And that question is answered by application of the relevant body of law to the decision in issue.
119 The fundamental point is that as at the date of this appeal, the Nomination Decision has been affirmed on judicial review in Harsinco FCCA and until such time as that decision is reversed, it remains final and binding on the parties.
120 Charlesworth J has noted that the Minister did not raise before the primary judge that the Nomination Decision was a decision "in fact" such that the applicant for judicial review in Singh FCCA would have no utility. Given I do not accept that the Nomination Decision was a decision in fact, I need not address that matter further, however I observe that it does not appear that any issue was raised in Singh FCCA that the Nomination Decision was invalid. The focus of the parties was on Harsinco FCCA as primary judge expressly recorded: at [1], [2]
[1] At the commencement of the hearing of this matter before the Court, the parties agreed that the outcome of the Originating Application for Review filed by the applicant on 24 July 2019 in this proceeding was dependent upon the success of the application for review filed on behalf of Harsinco Pty Ltd in ADG 264 of 2019 (being Harsinco FCCA) ... (Brackets provided)
[2] For the reasons given by this Court in its judgment in ADG 264 of 2019 handed down today, the application for review filed in the registry of this Court by Harsinco Pty Ltd was dismissed.
121 It seems the parties proceeded on the basis that Singh FCCA depended on the result of Harsinco FCCA and there was no disagreement on that course. Accordingly, it is not a matter where a different position was adopted by the Minister or the appellants.
122 The grounds of appeal challenge the validity of the Nomination Decision by raising jurisdictional error, notwithstanding Harsinco FCCA and the absence of an appeal against that decision. That challenge is a collateral challenge.
123 That being the case, the issue is whether it should be permitted on this appeal.
124 In Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69, the High Court considered whether an accused person could challenge the validity of a warrant at a voir dire in their criminal trial. Each of Toohey, Gaudron and Gummow JJ (at pp 85, 95 and 128 respectively) limited a collateral challenge to the warrants to those cases in which jurisdictional error appeared on the face of the warrant. McHugh J held that because the issue of a warrant is an administrative act, the validity of a warrant may be challenged collaterally in the course of the criminal trial: (at p 105).
125 Ousley was considered by Besanko J in Jacobs v OneSteel Manufacturing Pty Ltd [2006] SASC 32; (2006) 93 SASR 568. His Honour was considering the question of whether the South Australian Workers Compensation Tribunal had jurisdiction to consider a collateral challenge to the validity of some of its own rules and if valid, whether those rules were inconsistent with terms of regulations made pursuant to the relevant legislation.
126 At [93] his Honour observed:
I do not think there is any doubt that in some cases there are good reasons to allow a collateral challenge and in other cases there are good reasons to deny it. On occasions there may be cases in which a statutory provision will provide a clear answer to the question whether a collateral challenge is permitted in a particular case. Other possible factors which might be relevant in deciding that question have been discussed in the authorities and in the academic literature. I refer to two articles for a helpful discussion of the relevant factors: M Aronson, "Criteria for Restricting Collateral Challenge" (1998) 9 Public Law Review 237 and Professor Enid Campbell, "Collateral Challenge of the Validity of Governmental Action" (1998) 24 Monash University Law Review 272. The factors identified include the following:
1. Are the grounds of challenge likely to involve the adducing of substantial evidence?
2. If a collateral challenge is permitted, will all proper parties be heard before the court or tribunal in which the collateral challenge is to be heard?
3. In the particular case, does the allowing of a collateral challenge by-pass the protective mechanisms associated with judicial review proceedings such as the rules as to standing, delay and other discretionary considerations?
4. Is there a statutory provision that bears in one way or another on the question of whether a collateral challenge should be permitted?
5. Is the issue raised by the collateral challenge clearly answered by authority?
6. Are there other cases pending which raise the same issue?
7. (Possibly) Is there a more appropriate forum in terms of expertise and perhaps court procedures such that a collateral challenge should not be permitted?
127 When the factors set out by Besanko J in Jacobs, which are not exhaustive, are considered:
(a) All proper parties were not heard on the appeal (Factor 2). That is significant because in the event the appeal was allowed, there is no evidence that Harsinco still has a desire or capability to employ Mr Singh; and
(b) Sections 479 and 486C and the consequent lack of standing on the part of the appellants, is such that those statutory provisions provide a clear answer to the issue as to whether a collateral challenge should be allowed in this matter. Those sections prohibit a collateral challenge of the type sought to be advanced (Factors 3 and 4).
128 It is for these reasons that the appellants should not be permitted to raise a collateral challenge to the Nomination Decision and/or Harsinco FCCA on this appeal.