The grounds of the application and the applicant's contentions
6 The applicant acknowledged that the two decisions made under s 501 of the Act (i.e. cancellation of his Special Category Visa and refusal of a bridging visa) are reviewable only under s 476 of that Act. However, he contended that the decisions under s 502 of the Act fall for review under the wider grounds contained in the ADJR Act, including provisions relating to natural justice and taking into account relevant considerations. In that regard, the applicant contended that neither of the decisions under s 502 was a "decision relating to a visa" within the meaning of s 475 of the Act. The applicant acknowledged that if those decisions were decisions relating to a visa then they fell for consideration under the more limited grounds of review listed in s 476 of the Act.
7 The applicant was represented by Mr Cameron Jackson, through the Legal Assistance Scheme of the New South Wales Bar Association. The Court records its appreciation of Mr Jackson's assistance to it and to the applicant. Mr Jackson submitted that, as a matter of construction, the respondent's decisions under s 502 should be held not to fall within the expression "a decision relating to a visa". The substance of the decisions to declare the applicant to be an excluded person was, so it was put, that they precluded review of the two decisions made under s 501. Alternatively, the decision to declare was a decision relating to a decision relating to a visa and was thus not a decision relating to a visa. He contended that where a decision is taken to preclude avenues of review of an earlier decision, otherwise available as of right, the legislature could not have intended to preclude what he described as "fundamental safeguards" ensuring that the applicant was accorded natural justice in relation to that decision.
8 Mr Jackson said that this submission was supported by a further proposition which he advanced. That proposition was that s 502 also made provision for the situation in which if the Minister, acting personally, intended to make a decision under s 200 of the Act (i.e. to order the deportation of a non-citizen to whom Division 9 of Part 2 of the Act applied) then he could, as part of that decision, include a certificate declaring the person to be an excluded person. In those circumstances, so Mr Jackson contended, the decision so to declare would not be a decision relating to a visa. The result was, so the applicant submitted, that a decision to declare under s 502 when made as part of a decision under s 200 would be reviewable under the more expansive provisions of the ADJR Act, but not when the Minister makes the same decision as part of a decision under s 501. [The respondent accepted that a decision under s 200 of the Act was not a judicially-reviewable decision within the meaning of s 475(1)(c) and pointed out that, by the operation of s 82(4), the visa of a person deported under s 200 ceases to be in effect when the holder leaves Australia because of a deportation order made under s 200. There was thus, so it was put by the respondent, no "decision" relating to the visa.]
9 In respect of the decisions to cancel the applicant's visa and to refuse him a bridging visa, Mr Jackson submitted that the respondent had based those decisions on a fact which did not exist: see s 476(1)(g) and (4)(b). The fact was said to be a statement, contained in the relevant minute submitted to the respondent, that "the Department is not aware of any recent good conduct that Mr Tuli may have performed in the community". The applicant argued that this was an error of fact, because the respondent's Department had on file two documents. The first was a report dated 11 November 1998 from the Probation & Parole Service of the Department of Corrective Services of the State of New South Wales, which referred to the applicant's sporting activities and his attempts to find employment. The second was a letter from his de facto wife's parents which was said to document a positive relationship with his wife and child. The applicant contended that none of those matters was alluded to anywhere within the record of decision. He argued that positive conduct towards one's de facto wife and conduct as a parent clearly constitutes good conduct within the community. Given that the object of enquiry was the applicant's character, the applicant submitted that this was a material error of fact, reviewable under s 476(1)(g).
10 In relation to the decisions made under s 502, and on the assumption that the wider grounds of review applied, the applicant contended that he had been denied natural justice. This was because he had not been informed that the respondent did not intend to treat the best interests of his daughter as a primary consideration and accord him an appropriate opportunity to respond: Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. The applicant also submitted that the respondent had failed to take into account relevant considerations. The relevant considerations were said to be those aspects of the national interest which militated against the decision, namely:
· the national interest in excluding the applicant from the right to apply for review in the Administrative Appeals Tribunal, such as the importance of maintaining procedural safeguards, and the impact of denial of such safeguards to permanent residents and consequent effect on related Australian citizens (such as the applicant's child and de facto spouse); and
· the national interest involved in honouring Australia's international treaty commitments. One of those commitments was to give paramount consideration to the best interests of children, the other was Australia's treaty commitments and international obligations generally.
11 In the event that the decisions under s 502 could only be reviewed under the Act, the applicant submitted that the respondent had too narrowly construed the concept of "national interest" by failing to consider the issues on that topic, referred to immediately above, which failure amounted to an error of law.