Wang v Minister for Immigration and Multicultural and Indigenous Affairs

Section 116. Power to cancel "116 (1) …the Minister may cancel a visa if he or she is satisfied that: (a) any circumstances which permitted the grant of the visa no longer exist;" The Tribunal in paragraph 37 of its reasons said: "The Tribunal is satisfied on balance the applicant supplied misleading information to the Department at the time of application for his visa. The information supplied was that the applicant intended to do business as principal of JJ Wang Trading Company. Therefore the circumstances permitting the grant of the visa did not exist at the time of application. Therefore the Tribunal is satisfied the applicant has breached Section 116(1)(a) of the Act." 6 It is conceded by senior counsel on behalf of the Minister that the Tribunal erred in law in exercising the discretion to cancel the visa under s 116(1)(a). It is clear enough from the terms of the section that the question for the Minister and, on a review, the Tribunal is whether the decision-maker is satisfied that a circumstance which permitted the grant of the visa did not exist at the time of the hearing. Power does exist in s 116 to cancel a visa obtained by the supply of misleading information. That, however, was not the power which the Tribunal member purported to exercise. It is accordingly common ground that the Tribunal's decision was void and that the error made by the Tribunal member was one which went to the jurisdiction of the Tribunal: cf Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at paras 130-131 per Gummow J. 7 It is submitted however on behalf of the Minister that the Tribunal's decision is a privative clause decision as that expression is defined in s 474(1) of the Act. Accordingly it is submitted that the Tribunal's decision is final and conclusive and cannot be subject to challenge in this Court. It is further submitted that the Tribunal's decision is not subject to prohibition, mandamus, injunction, declaration or certiorari in this Court. 8 Counsel for the applicant submits that his client is entitled to the relief sought, notwithstanding the provision of s 474 of the Act. In particular, he makes the following submissions: 1. On the proper construction of s 474 and particularly in its relationship to Division 2 of Part 8 of the Act, the provisions of s 474 do not operate to oust the jurisdiction of the Court, at least in respect of a case which involves an error which goes to the jurisdiction of a Tribunal because the Tribunal has addressed the wrong question. 2. Alternatively, even if s 474 does apply in the present circumstances that section has to be construed in the place it occupies in Part 8 of the Act and properly construed the Court retains jurisdiction in the present circumstances, having regard to the line of cases which commenced with the decision of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615. 3. Alternatively, s 474(1) only operates in respect of a decision of an administrative character which is validly made and has no operation in respect of a decision such as the present which merely purports to have been made but in fact was void. 9 It is necessary to consider each of these arguments in turn.

SUBMISSION ONE: The QUESTION OF CONSTRUCTION 10 The first submission depends on the interpretation of ss 475A and 476 of the Act. It is perhaps best understood by quoting from the applicant's written submissions. "Relevantly s 474, on its face purports to exclude judicial review. However…it does not achieve this. Nor was it intended to…s 476 of the Act excludes the Court from jurisdiction that it would otherwise have, by reason of various statutory provisions, in relation to nominated decisions made under the Act. However s 475A carves out of those nominated decisions a subset of decisions in relation to which, relevantly, the court's jurisdiction is preserved under s 39B of the Judiciary Act 1903. More particularly the terms of s 475A provide that the Court retains jurisdiction under s 39B of the Judiciary Act 1903 in relation to a privative clause decision that is a decision made on a review by a Tribunal under Part 5 of the Act…It follows that, in the instant case, the Court has jurisdiction under s 39B of the Judiciary Act 1903 and that jurisdiction is not encumbered by the terms of s 474 of the Act." 11 In my view the argument is misconceived. Section 474 relevantly is concerned with excluding the jurisdiction of the court under s 39B of the Judiciary Act 1903 (Cth) in respect of decisions made by the Minister or a delegate that fall within the meaning of the expression "primary decision" in s 476(6). The decision of a Tribunal is not a "primary decision" as defined with the consequence that s 476(1), while precluding the court from reviewing directly the decision of the Minister or a delegate, has no relevance to the question whether the court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Tribunal. 12 Section 475A makes it clear that the Court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) in relation to a privative clause decision that is a decision made on a review by a Tribunal. However, the provisions of s 475A, as indeed the whole of Division 2 of Part 8 of the Act, do not limit the operation of s 474. While the court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) that jurisdiction is affected by s 474 which takes priority over Division 2 of Part 8 of the Act. The consequence is that the Court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) in respect of a privative clause decision of the Tribunal but only to the extent that s 474(1) does not preclude the Court from granting relief, a matter considered under the second submission. 13 In my view, it is not correct to say that the court's jurisdiction under s 39B of the Judiciary Act 1903 (Cth) is not encumbered by s 474 of the Act. It is. Otherwise, if the argument were correct, s 474 would have no real operation at all.

submission two: the effect of the privative clause where jurisdictional error 14 There is, however, considerably more substance in the second submission made on behalf of the applicant. 15 There has been a long line of cases in the High Court which have considered the operation of privative clauses in legislation or in Regulations. They include: R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australia Ltd (1947) 75 CLR 361, 369, R v Murray; Ex parte Proctor (1949) 77 CLR 387, 388-400, R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (1967) 118 CLR 219, 252-3, R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208, 249, R v Members of the Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd (1959) 101 CLR 246, 255, Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437, 442-3, R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415, 418, O'Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232, 285-8, Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602, 631 and Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168. 16 These cases support four propositions: 1) A privative clause will be strictly construed. One reason why this is so is that a privative clause operates to cut down important common law rights to the grant of prerogative writs. To achieve this (and subject to any argument which may be grounded on s 75(v) of the Commonwealth Constitution if the jurisdiction of the High Court were evoked) the privative clause must expressly or by necessary implication clearly oust the common law rights. 2) The privative clause does not, because it can not, operate to circumscribe the jurisdiction of the High Court under s 75(v) of the Constitution. However, what a privative clause does, (and to date, it has not been suggested by the High Court that this offends s 75(v)) is to direct the way a court must treat the purported awards. So the privative clause prescribes "the legal effect to be attributed to an award in the exercise of the court's jurisdiction." (per Brennan J in O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 271). It was, at least, the view of Dawson J, with whom Toohey J agreed, in O'Toole at 308 that just as privative clauses can not be read literally, so they should be construed so as to avoid conflict with constitutional requirement, including, presumably, s 75(v). No submission is made in the present case to the effect that s 474(1) is either wholly or partially invalid as offending s 75(v) of the Constitution. 3) There will always be a tension in legislation which on the one hand contains detailed prescriptions for the making of decisions under the legislation and also a privative clause which purports to make decision even if made wrongly, final, conclusive and non-challengeable. The resolution of this tension involves a question of interpretation. Hence if a statute or a regulation requires that a Tribunal can only act provided there is a nominated quorum and also contains a privative clause, as a matter of interpretation, it would not be concluded that Parliament intended the privative clause to render immune from challenge a decision of the Tribunal made contrary to the quorum requirement. It is necessary to arrive at the true intention of Parliament as expressed in the legislative document considered as a whole and containing the two apparently inconsistent provisions. The illustration which I have given is taken from the facts of R v Murray; Ex parte Proctor (1949) 77 CLR 387 and see Dixon J at 399-400. There is an analogy which may be drawn with cases which have considered the distinction between requirements of a statute which are mandatory so that non compliance with them leads to invalidity and requirements which are directory only, so that non compliance with them will not usually lead to invalidity. That distinction is discussed, although criticised, by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. No doubt it can usually be said that if the statutory requirement is mandatory it will more readily be the case that non compliance with the requirement will not be protected by the privative clause than where the statutory requirement is merely directory. However, the distinction, as is evidenced in the present case, may not be at all clear cut. 4) The classic formula for resolving the issue of interpretation between, on the one hand, a privative clause and on the other, provisions which seem to limit the power of decision makers is that found in the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615. That formula says that a privative clause will protect from challenge by a prohibitive writ or otherwise an administrative decision so long as three conditions are satisfied: (a) The decision maker has made a bona fide attempt to exercise the power given by statute or regulation. (b) The decision relates to the subject matter of the legislation under which the power is granted. (c) The decision is reasonably capable of reference to that power. A possible fourth formulation (although it can be seen, perhaps, as but a reformulation) was added to the three tests stated in Hickman by Mason CJ and Brennan J in Coldham where their Honours referred to provisions which the privative clause was unable to affect as being those which impose "inviolable limitations or restraints". 17 In R v Murray to which reference has already been made, Dixon J discussed the Hickman formulation for resolving the conflict where privative clauses have been enacted. His Honour said at 399 - 340: "The first step in such a process of interpretation is to apply to a provision…the traditional or established interpretation which makes the protection it purports to afford inapplicable unless there has been an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province…A second step in interpreting the whole legislative instrument must be to consider whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action." 18 It may be noted that in the passage just quoted Dixon J referred to the need for there to be "an honest attempt to deal with a [relevant] subject matter". That would seem to be another way of expressing the first of the three Hickman tests, which require that the decision maker make a "bona fide attempt" to exercise the power. 19 Later in O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 there was discussion of the question whether the reference to bona fides in Hickman excluded from the protection of a privative clause a decision made subjectively in bad faith. Nothing in that discussion suggests that absence of good faith cannot be determined from the record itself. The question addressed was rather whether, in deciding whether there was an absence of good faith, regard could be had to matters outside the record. A conclusion reached from the face of the record that the decision was not a bona fide attempt to exercise a power meant that the decision was not protected by a privative clause. The matter on which views differed was whether the Court could go outside the record to examine the subjective intentions or motivation of the decision maker: see per Mason CJ at 249. Both Mason CJ and Dawson J were of the view that subjective motivation could be found outside the record of decision. Brennan J, observed merely that he was not, in the absence of further argument, prepared to hold that the first Hickman test was necessarily satisfied when the face of the record revealed no want of bona fides in the attempt to exercise the power: see at 275. Deane, Gaudron and McHugh JJ, on the other hand were of the view that the first of the Hickman matters was to be demonstrated by reference to the face of the record alone and that a Court should not go outside that. It is not suggested in the present case that there was any subjective bad faith to be found. Rather what is argued here is that there was no real attempt to exercise the power of revocation because the Tribunal addressed itself to the wrong test, and did not on the face of the decision attempt to exercise the power by reference to the question which the statute required to be addressed. 20 At least as at the time of writing there have been only four decisions in this Court where s 474 has been raised and where the question of interpretation, viz the question of resolving the tension between the specific provisions of the Act relating to visas and the privative clause has formed the ratio of the decision. To date, most of the decisions have been able to be resolved on the ground that there was, in any event, no error committed by the Tribunal which went to jurisdiction, see, by way of example, Ratumaiwai v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 311. 21 Of the four decisions, one, a decision of Gyles J in NAAX v Minister for Immigration and Multicultural Affairs [2002] FCA 263 held that s 474 operated to protect from relief a decision of the Refugee Review Tribunal which was argued to have been given in denial of natural justice. However, it was an additional ground of decision in that case that, in fact, the Tribunal had not denied natural justice to the applicant. The Second, was a decision of Mansfield J in NABL v Minister for Immigration and Multicultural Affairs [2002] FCA 102 where it was held that failure of the Tribunal to comply with mandatory time limits prescribed by the Act was not protected by s 474 of the Act. A third decision of Tamberlin J in NABE v Minister for Immigration and Multicultural Affairs [2002] FCA 281 held that s 474 did grant protection to the decision in that case and in the course of so doing held that the fact that the Refugee Review Tribunal had misconstrued the applicant's claims and in so doing had made a jurisdictional error did not mean that the case fell outside the protection of s 474. In fact, however, his Honour was of the view that the Tribunal had not actually made a jurisdictional error and thus the privative clause was but one of two alternative bases of the decision. A fourth decision of Heerey J in VBAH v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 388 followed the construction given to s 47(1) by Gyles and Tamberlin JJ and found that no jurisdiction existed for the grant of a prerogative writ or otherwise to review the Minister's decision. 22 On the one hand, it can be said that where the Act provides that a visa can be terminated if certain conditions exist, Parliament did not intend that the visa could be cancelled if other conditions existed which were not prescribed and only intended that it could be cancelled where the conditions prescribed did exist. After all, the consequence of cancellation of a visa is that the person who was previously a visa holder becomes, on the visa being cancelled, illegally present in the country and liable to removal. On the other hand the language of s 474, on its face, appears to render the Tribunal's decision immune from attack, at least in this Court. 23 Of the Hickman conditions only one can, even remotely, be said to have any operation here and that is the requirement that the decision be a bona fide attempt to exercise (the Tribunal's) power or, to use the alternative language from Murray whether there was an honest attempt by the Tribunal to exercise the power. There is nothing to suggest that there was bad faith on the part of the Tribunal, whether, as I have already noted, by evidence of subjective intention gained from outside the Tribunal's reasons, or from those reasons themselves. It can be said, however, that the reasons disclose there was no real attempt to exercise the power by reference to the legislative criterion. The issue for decision is whether that in itself is sufficient to remove the decision from the protection of s 474 in a case where there is nothing to suggest that the Tribunal member approached his task with any lack of honesty or in bad faith. 24 If one takes an extreme case, for example, a case where the Tribunal states that it is satisfied of some wholly irrelevant fact, such as, for example, that an applicant for a visa came from a particular country or had red hair and then concludes that it is satisfied that the requirements of s 116(1) of the Act are made out so that the visa is to be cancelled it can readily be said that the Tribunal has not made an honest attempt to exercise the power under s 116(1). That is because the matter taken into account is so irrelevant to the subject matter of the decision that the decision may be said to lack good faith or perhaps to display that the Tribunal just has not even attempted to address the issue before it. But a less extreme case, such as here, involves considerable difficulty. The matter on which the Tribunal was satisfied (misrepresentation) could easily be a ground for cancellation of a visa. In fact it is a relevant ground for other action which the Tribunal might take under different provisions. What has happened here is that the Tribunal has made what may be thought to be an honest mistake either thinking that it was addressing the issue arising under another section or believing that the issue for consideration under s 116 involved forming a state of mind on the question whether the applicant misrepresented the situation at the time of application. 25 I find the question very difficult. It is obvious that Parliament clearly intended that this Court's jurisdiction to grant judicial review, now limited to jurisdiction to grant prerogative writs, should be circumscribed at least to the extent that is constitutionally possible. The Second Reading Speech to the Bill which, when enacted, became the Migration Legislations Amendment (Judicial Review) Act 2001 (Cth) and the Explanatory Memorandum introduced with that Bill make it clear that judicial review was to be limited to exceptional circumstances. It is also clear that Parliament recognised that the Hickman formulation would prescribe the cases which s 474 would not protect. What is not clear is the operation of that formulation in a case where, as here, the Tribunal did not in purporting to exercise the power conferred upon it actually address the statutory issue posed by the section granting the power. 26 Since the case was argued and the above discussion was written Wilcox J has delivered judgment in Boakye-Danquah v Minister for Immigration & Multicultural and Indigenous Affairs [2002] FCA 438 (judgment delivered 11 April 2002). In that case his Honour found two errors which went to jurisdiction. The Tribunal asked itself the wrong question and misconstrued a particular term in the Migration Regulations and thus wrongly failed to consider the application of a particular criterion relevant to the case. His Honour turned to consider the effect of s 474 of the Act. 27 His Honour formed the view that Parliament did not intend to remove that part of this Court's jurisdiction that was concerned with challenges to decisions of the Migration Review Tribunal or the Refugee Review Tribunal having regard to the fact that it could not validly exclude the jurisdiction of the High Court to grant prerogative writs under s 75(v) of the Constitution. His Honour was of the view that Parliament intended that this Court should retain jurisdiction under s 39B of the Judiciary Act 1903 (Cth) in relation to Tribunal decisions in those cases where relief could be granted under s 39B and hence share with the High Court the burden of applications made under that section for prerogative writs to set aside Tribunal decisions. His Honour rejected the views taken by both Gyles and Tamberlin JJ. Presumably he thought the view of their Honours to be "clearly wrong". 28 With respect to his Honour, the policy he attributes to Parliament is in my view rather charitable both as expressed in the language used by Parliament and in the extrinsic material to which I have referred. Accordingly I propose to follow the views of Gyles and Tamberlin JJ rather than those of Wilcox J. In so doing I am conscious that not all of what I have said in the present judgment can be reconciled with the views, expressed as dicta, which I wrote in Ratumaiwai v Minister for Immigration and Multicultural Affairs [2002] FCA 311 to which Wilcox J has referred in Boakye-Danquah. 29 Not without considerable doubt I am of the view that the provisions of s 474 preclude me from granting relief to the applicant. I realise that in reaching this conclusion I am accepting that Parliament by enacting a privative clause can denude of any real content the ability of Courts to grant relief by way of prerogative writ so that no remedy will be available to a person whose future may be greatly affected by a decision made on entirely the wrong basis. Only Chapter III of the Constitution stands in the way of the increasing use of privative clauses to subvert the adherence to law by Tribunals and other decision makers.

Submission THREE: PURPORTED DECISIONS 30 The third submission may be disposed of shortly. It seeks to rely upon comments by Gaudron and Gummow JJ in Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 635. Their Honours said: "There is one point we should add, because the Court of Appeal appears to have proceeded on a contrary view. It concerns the content of the phrase in s 155(1), "a decision of the Authority under this Act". The phrase is not 'under or purporting to be under this Act". … Section 155 cannot fairly be construed as declaring an intention of the legislature that the Authority is empowered and protected in respect of determinations under s 18 reached other than upon satisfaction of the conditions which enliven its power. Those decisions would not have been made "under this Act"." 31 So, it is argued that s 474 only operates to include within the category of privative clause decisions, those decisions which are made, proposed to be made or required to be made under the Migration Act, but not decisions which merely purport to have been made under that Act but because the wrong issue was addressed were not validly made. Their Honours' comments in that case, which are dicta, would seem inconsistent with the comments of Deane, Gaudron and McHugh JJ in O'Toole where their Honours made it clear that the privative clause in that case had to apply to at least some "purported" awards, otherwise the privative clause would have no real operation, see particularly at 286. Further it seems the matter was not argued in Darling Casino and the comments of Gaudron and Gummow JJ were not joined in by the other members of the Court. It can also be argued that the privative clause in that case can be distinguished, not only because it was contained in State legislation but also because it simply provided that the decision of the NSW Casino Control Authority was to be final and not subject to appeal or review. 32 I think that s 474 cannot be interpreted as only protecting decisions not void, for if such decisions only were the subject of protection of the privative clause, then the section would have little work to do. It would apply only to cases not involving jurisdictional error. Clearly since the jurisdiction to grant prerogative relief largely turns upon the existence of jurisdictional error and jurisdictional error will almost invariably result in the decision being void, to exclude all void decisions from protection under s 474 would effectually render the section nugatory. It cannot be assumed that that was Parliament's intention. Indeed, the contrary was the clearly the case. It may be noted that the same argument was rejected in Wang v Minister for Immigration and Multicultural Affairs [2002] FCA 167, see at para 30. 33 I would accordingly dismiss the application and order the applicants to pay the Respondent Minister's costs of it. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate: Dated: 17 April 2002 Counsel for the Applicant: M Henry SC

Solicitor for the Applicant: Yandell Wright Stell

Counsel for the Respondent: N J Williams SC with G R Kennett