Wang v Minister for Immigration & Multicultural & Indigenous Affairs

DID THE NOTICE OF CANCELLATION COMPLY WITH SECTION 129? 16 The applicant's migration agent (being the recipient of the notice of the cancellation of the visa pursuant to an appointment notified to the respondent) says that he did not receive the Reasons for Decision for cancelling the visa, but only the letter of 18 July 2001 itself. The letter of 18 July 2001 does not expressly refer to any enclosure. The delegate of the respondent has no specific recollection of the matter, but says (and I accept) that his usual practice would have been to send the letter of notification together with the Reasons for Decision, and that he has no reason to consider that he did not follow his usual practice and departmental policy by enclosing that document. The respondent, through counsel, in those circumstances sensibly adopted the view of being unable to dispute the positive evidence of the applicant's migration agent. 17 In those circumstances, I accept that evidence. I find that the Reasons for Decision of 18 July 2001 were not enclosed with the letter of notification of the cancellation of the visa of the same date. The respondent accepts that the issues raised in the application for review should be determined on the basis that a copy of the Reasons for Decision were not provided to the applicant. 18 I also find that the respondent did not comply with s 129 of the Act by giving to the applicant notice of the cancellation of the visa, of the ground of cancellation, and of the particulars of that ground and information because of which that ground was considered to exist. That deficiency in the notification of the cancellation of the visa is a significant one, as it impaired the applicant's ability to respond as s 129(1)(c) contemplates.

CONSEQUENCES OF THE NON-COMPLIANCE 19 The respondent's contention is that the decision of 2 October 2001 is a "privative clause" decision under s 474 of the Act so that, notwithstanding the failure to comply with s 129(1) of the Act, the Court has no power to grant the relief which is claimed. 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." The applicant accepts that the decision of 2 October 2001, if it had been made regularly in accordance with the Act, is a privative clause decision as defined in the Act. 20 Section 474(2) defines privative clause decision as follows: "privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)." Section 474(3) identifies the decisions to which reference is made in the definition of privative clause decision to include the " …revoking or refusing to make an order …", and the "doing or refusing to do any other act or thing": s 474(3)(a) and (g). As the applicant has acknowledged that, if regularly made, the decision of 18 July 2001 would be a privative clause decision, it is not necessary to explore further whether the decision under review does have that quality. 21 The respondent acknowledges that the Court has jurisdiction under s 39B of the Judiciary Act to review the decision of the delegate. He also accepts that, despite the literal width of s 474(1) apparently ousting the jurisdiction of the Court in circumstances such as the present, there are limited circumstances in which the Court may nevertheless review decisions under the Judiciary Act. That jurisdiction exists under s 39B at least because it relates to a matter arising under a law of the Parliament: s 39B(1A). 22 The reason why the respondent acknowledges that s 474(1) cannot operate fully according to its terms emerges from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 (Hickman): "It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution. … It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. But where the legislature confers authority subject to limitations, and at the same time enacts [a privative clause] it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity. In my opinion, the application of these principles [in this case] means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid." In R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 (Coldham) Mason ACJ and Brennan J at 418 said: "However, it has been established by a long course of judicial decisions in this Court that a privative clause in the form to be found in s 60 of the [Conciliation and Arbitration Act 1904 (Cth)] will validate an award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled … "namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (ie does not on its face go beyond the power) …" to use the words of Kitto J in Reg v Commonwealth Conciliation and Arbitration Commission; Ex Parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 252-253." [Further references omitted.] 23 In this matter the respondent points out that none of those three conditions are met. I accept that that is the case. There is no challenge to the constitutional authority of the Parliament to pass a provision such as s 474 or to authorise the delegate of the respondent to have made the decision which he made. There is no suggestion that the exercise of power by the delegate of the respondent was unrelated to the subject matter of the Act. It is clear that the delegate of the respondent was in fact considering whether to revoke his decision to cancel the visa, and that that was the relevant subject matter to which s 131 directed his attention. Nor has it been suggested that the delegate of the respondent, in making the decision under s 131 to refuse to revoke the cancellation of the applicant's visa, was acting other than in a bona fide attempt to act in the course of his authority. 24 Dixon J in R v Murray Ex parte Proctor (1949) 77 CLR 387 at 399-400 (Murray) pointed out that the apparent inconsistency between provisions which define and restrict the power of a Tribunal by prescribing the course it must pursue, and a provision which says that the validity of its determinations shall not be challenged or called into question on any account whatever, should be resolved by an attempt to arrive at the true intention of the legislative instrument. His Honour pointed out that the first step in such a process is to apply to the privative clause the established principles which preclude the legislature from ousting the jurisdiction of the Courts, that is the three matters or conditions referred to in Hickman above. It should not be supposed that the legislature would intend to contradict the constitutional power of the High Court under s 75(v) of the Constitution to ensure that legislative instruments are in accordance with the constitutional power from which they are derived. His Honour then continued at 400: "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. For a clearly expressed specific intention of this kind can hardly give way to the general intention indicated by [the privative clause]." The respondent acknowledges that that is a matter which the Court should address. That is, the respondent acknowledges that, if the Court were to find (as it has) that the delegate of the respondent did not comply with s 129(1) of the Act, it should then ask whether, construing the statutory scheme as a whole and giving proper weight and emphasis to the privative clause in s 474 of the Act, compliance with s 129 was intended to be an essential pre-condition to the exercise of power. In other words, the respondent contends, the appropriate question for the Court is whether Parliament intended that such a contravention would render the decision invalid notwithstanding the terms of s 474(1) of the Act. 25 In Coldham Mason ACJ and Brennan J at 419 said: "But a clause like s 60 cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal. In the face of such a provision, a clause like s 60 is ineffective to prevent prohibition going when the Tribunal transgresses those limitations or restraints." [References omitted.] In that case, the Court found that the jurisdiction of the Australian Conciliation and Arbitration Commission under the Conciliation and Arbitration Act 1904 (Cth) depended upon the existence of the jurisdictional fact that employees were eligible for membership of the organisation in whose favour a representation order under s 142A(1) of that Act was made. The Commission did not have power to determine that jurisdictional fact under that Act, so the privative clause in s 60 did not confer conclusive character upon the Commission's finding about the existence of the jurisdictional fact. That is a different circumstance from the present matter. 26 The respondent submits that the appropriate question to be asked in this matter is whether, despite the general terms of the privative clause, the obligation to comply with s 129(1) was intended to be an essential pre-condition to the exercise of the power. He submits that the question which the Court should address is the same as that identified in Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 at 390 per McHugh, Gummow, Kirby and Hayne JJ, namely: " … to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid." I do not think there is a significant difference in the manner of identifying the question to be addressed which, as Dixon J pointed out, is ultimately a question of construction. See also per Gaudron and Gummow JJ in Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 (Darling Casino). Their Honours said at 633: "Mandamus and prohibition are remedies which are granted in cases of jurisdictional error - refusal to exercise jurisdiction, in the case of mandamus, an excess of jurisdiction, in the case of prohibition. The terms of s 75(v) would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law. However, there is no constitutional reason, in our view, why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law to ensure that the impugned decision or conduct or refusal or failure to exercise a power is in fact valid and lawful." Merkel J cited that passage in his Honour's reasons for decision in Walton v Ruddock [2001] FCA 1839 at [30]. His Honour at [32] concluded that, consistent with the observations of Gaudron and Gummow JJ in Darling Casino at 632-633: "A privative clause does not validate a decision: · made in breach of an "indispensable condition" (Murray at 399), "imperative duties" or which goes beyond "inviolable limitations or restraints" (R v Metal Trades Employers Association: Ex parte Amalgamated Engineering Union, Australian Section) (1951) 82 CLR 208 at 248); · which involves a refusal to exercise jurisdiction or an excess of jurisdiction by officers of the Commonwealth." 27 In discerning the legislative intention as to the proper relationship between a decision purportedly made under s 131 where the notice required by s 129(1) of the Act has not been given and the terms of s 474(1), I observe first that s 474 must be intended to operate in the face of certain departures from procedural prescriptions in relation to decisions under the Act, and adopting the "interpretation" qualification in Murray, in respect of all but "inviolable limitations or restraints" imposed by the Act itself. Brennan J in O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 274 (O'Toole) used that question as a "fourth condition", a question also so described in Coldham at 419. I note that in the passage cited above from Darling Casino, Gaudron and Gummow JJ referred to the decision maker acting in excess of jurisdiction, inter alia, by reason of "the limited terms of a valid law". 28 Where the decision maker is claimed to have acted in excess of jurisdiction by reason of the limited terms of a valid law, rather than by reason of constitutional limitations upon the exercise of the jurisdiction (e.g. O'Toole), it is the terms of the enactment itself which will indicate whether they impose jurisdictional limitations or restraints upon the exercise of the powers which are "inviolable". In that situation, the expression "inviolable" must mean that the Parliament has intended that those limitations or restraints must be complied with if the decision in question is to be immune from judicial control under s 39B of the Judiciary Act, notwithstanding the provisions of the privative clause. As their Honours said in Darling Casino at 633, the Parliament is not restricted by any constitutional imperative from enacting a privative clause which would ensure that an impugned decision is in fact valid and lawful. It must be noted, however, that their Honours added the qualification that that can be done only "within the limits of the relevant legislative powers". 29 In this matter, the applicant accepts that s 474 of the Act is a valid provision. Moreover, he accepts that position even if it were found that the effect of s 474(1) of the Act were to be construed so as to exclude from the Court's jurisdiction the power to make any order under s 39B of the Judiciary Act in respect of a failure to give notice as required by s 129(1). He does not contend in this matter that s 474, even if it had that effect, would be beyond the legislative power of the Parliament. The issue, as presented, is therefore one of ascertaining the intention of the Parliament. 30 Section 474(2) defines a privative clause decision as one made "under" the Act. However, in the particular circumstances, I do not consider it helpful to take the view that a decision which is made without compliance with the procedure in s 129(1) of the Act is not a decision "under" the Act because it is only a purported decision under the Act. That would give s 474(1) little practical effect, as that approach would expose many decisions under the Act to review where the procedures prescribed were not complied with. I do not consider that that result was intended by Parliament. To the extent that the applicant, through his counsel, so contended I reject that submission. Counsel for the applicant did not explore the full purport of the observations of Gaudron and Gummow JJ in Darling Casino at 635 adverting to the expression "under" an enactment as distinct from the expression "under or purporting to be under" the enactment. 31 As a starting point, it can be seen that the very purpose of the decision under s 131 is to reconsider the cancellation of a visa in the light of the response of the person whose visa has been cancelled. Section 129(1) directs that person be given certain notice, and requires that person be given the opportunity to respond to the reasons for cancellation within the specified time: s 129(1)(c). Absent any such response, the respondent does not have to proceed to any reconsideration under s 131 of the Act. It is only by reason of that response to the notice that the respondent is obliged by s 131 to reconsider his decision. Although s 131 does not expressly oblige the respondent to consider the response, in my view it is clear that that is what it provides for. Accordingly, the jurisdictional fact which s 131 prescribes, and upon which the decision under s 131 is to be made, is the response of the applicant to the notice under s 129(1). It is only upon the response that the respondent can then address whether he is satisfied that a ground existed for the cancellation of the visa (s 131(1)(a)) or whether he is satisfied that there is another reason why the cancellation of the visa should be revoked (s 131(1)(b)). The material that s 131 requires the respondent to address in making that decision is the "response to a notice under s 129 of the cancellation of a visa". 32 It is the scheme of subdivision F of Div 3 of Pt 2 of the Act that it is only by consideration of a response to a notice under s 129 that a valid decision may be made: see e.g. Tickner v Chapman (1995) 133 ALR 226 per Black CJ at 238 and per Kiefel J at 268. Black CJ said: "The meaning of 'consider' used as a transitive verb referring to the consideration of something is given in the Oxford English Dictionary, 2nd ed, as 'to contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of'. Consideration of a document such as a representation or a submission … involves an active intellectual process directed at that representation or submission." Kiefel J said: "The scheme of the Act is such that it is only after a consideration of both the report and the representations that the minister may proceed to make a declaration. Matters contained in them may influence whether the minister is satisfied as to the matters in s 10(1)(b) … the consideration of the representations is expressed as a precondition to the making of any declaration." 33 In this matter, the precondition to the entitlement to making a decision under s 131 did not exist. There was no response to a notice under s 129 because no proper notice under s 129 was given. There is no contention that the letter given on 18 July 2001 constituted substantial compliance with that section, as the Reasons for Decision which would have provided the information required by s 129(1)(c) were not enclosed. As the applicant's response of 21 August 2001 shows, the absence of that information meant that the applicant's response was not a response to a notice under s 129. It did not properly engage the issue whether the ground for cancellation of the visa did not exist because the applicant was not given the information required so as to enable him to do so. 34 In my judgment, the circumstance is not simply one where a procedural prescription imposed as part of the process of decision-making has not been complied with. It is one where the jurisdictional fact prescribed by the Act, and one which is also the essence of the material upon which the Minister is entitled and obliged to make a decision, has been shown not to exist. The purpose of the decision-making process under s 131 has been frustrated. If I may paraphrase Stephen J in Green v Daniels (1977) 51 ALJR 463 at 465, the respondent has wrongly precluded himself from attaining the requisite state of satisfaction. 35 In view of my characterisation of the nature of the decision to be made under s 131, and my view that the existence of a response to a valid notice under s 129(1), or at least to a notice which is adequate to elicit a meaningful response to the reasons for the cancellation of the visa, is an essential pre-condition to a valid decision under s 131, I consider that it is not intended by the Act that s 474(1) should preclude the grant of appropriate relief under s 39B of the Judiciary Act in the present circumstances. The decision under challenge is really no decision at all, because the respondent was not empowered in the circumstances to form any satisfaction in terms of s 131(1)(a) or (b). He did not have before him to enliven that power, and to impose the obligation to exercise it, a response to a notice under s 129(1). The absence of such a response is not "a mere defect or irregularity which does not deprive [him] of the power" to make the decision: Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Mason CJ at 180. 36 I do not consider that in relation to a decision under s 131, there is any administrative consideration which points to an opposite conclusion. There is no administrative inconvenience in adopting the view expressed above, because s 129(3) provides that the validity of the decision to cancel the visa is not affected by any failure to give the notice required by s 129(1). The cancellation of the visa operates, notwithstanding the failure to give a proper notice under s 129. That cancellation of the applicant's visa continues to operate. 37 For those reasons, I have reached the view that the proper construction of the Act, in the circumstances as I have found them, means that no valid decision under s 131 of the Act has taken place. I have also reached the view that s 474(1) of the Act is not intended to preclude the Court from granting appropriate relief under s 39B of the Judiciary Act. There are no other reasons apparent to me, nor any put forward by the respondent, why I should not exercise my discretion to grant appropriate relief. 38 I therefore declare that the decision made by a delegate of the respondent on 2 October 2001 declining to revoke the cancellation of the visa, a cancellation decision made under s 128 on 18 July 2001, is invalid and of no effect. In view of the decision I have reached, the respondent should now give to the applicant the notice which s 129(1) required. On the assumption that the applicant responds, the respondent will have to consider that response and then, in the light of that consideration, address the alternative matters identified by s 131(1)(a) and (b) to decide whether to revoke the cancellation of the visa. At this point, I do not see it as necessary to make any further orders to require the respondent to give notice to the applicant under s 129(1) of the Act. I will give the applicant leave to apply for further orders if the respondent, in the light of this decision, does not now give to the applicant a proper notice under s 129(1) of the Act. If the applicant then responds, that will enliven the obligation of the respondent to make a decision under s 131 of the Act. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 27 February 2002 Counsel for the Applicant: Mr G Patel