Wu v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2002-10-10|Before: Sackville J

REASONS FOR JUDGMENT 1 This is an application under s 39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act") for writs of mandamus, prohibition and certiorari in respect of the decision of the Migration Review Tribunal ("MRT") made on 4 March 2002. The MRT affirmed a decision of a delegate of the respondent ("the Minister") that the applicant was not entitled to a Change of Circumstances (Residence) class AG (subclass 806 - Family) visa (the "Visa").

background 2 The applicant is a national of the Peoples' Republic of China ("China"). She entered Australia in October 1996 on a temporary residence business visa and appears to have remained in this country ever since. 3 The applicant is the de facto partner of an Australian citizen. They have a child ("the nominator"), born on 9 November 1997. On 5 December 1997, the applicant applied for the Visa. At the relevant time, the criteria for the grant of the Visa were set out in the Migration Regulations 1994 (Cth) ("Migration Regulations"). Clause 806.213 required an applicant, relevantly for present purposes, to be a "special need relative" of a "settled" Australian citizen. This requirement was expressed to apply at the time of the application. However, cl 806.221 required the applicant to continue to satisfy the criterion specified in cl 806.213 at the time of the decision. 4 The expression "special need relative" was defined in reg 1.03 of the Migration Regulations as follows: "'Special need relative', in relation to an Australian citizen usually resident in Australia [or] an Australian permanent resident usually resident in Australia…means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if: (a) the citizen or resident has a permanent or a long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and (b) the assistance cannot reasonably be obtained from: (i) any other relative of the citizen or resident, being a relative who is an Australian citizen [or] an Australian permanent resident…; or (ii) welfare, hospital, nursing or community services in Australia". 5 On 24 March 1998, the Minister's delegate refused the application for the Visa. The applicant sought review of the delegate's decision in the MRT. The MRT affirmed the delegate's decision on 30 October 1999. An application for judicial review of this decision was dismissed by Branson J (Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 642). An appeal to the Full Court was allowed on 15 December 2000 and the matter was remitted to the MRT for reconsideration according to law: Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 ("Wu"). On 4 March 2002, the MRT again affirmed the delegate's decision. The MRT did so because it was not satisfied that the applicant was a "special need relative" of her son, the nominator, as at the date of the decision. 6 As the MRT noted in its reasons, the applicant is entitled to apply for a spouse visa. This, however, requires her to return to China in order to lodge the application and await the outcome. Before the MRT, the applicant claimed that she could not return to China with the nominator because, as an Australian citizen, he was not entitled to Chinese citizenship. She also claimed that even if the nominator was admitted to China, he would not be entitled to medical treatment or schooling.

grounds of the application 7 The grounds identified in the amended application are that the MRT exceeded its jurisdiction, or failed to exercise its jurisdiction, by committing four errors. These are said to be the following: 1. The MRT erred in law in construing the words "other serious circumstances" contained in the definition of "special need relative" in reg 1.03 of the Migration Regulations. The error is said to be that the MRT interpreted reg 1.03 as requiring that the applicant's son ("the nominator") had a need for assistance for reasons other than his age. 2. The MRT erred by taking into account irrelevant considerations when applying the definition of "special need relative" to the circumstances of the case. The irrelevant considerations taken into account are said to be the bonds between the nominator and his aunt in China, the nominator's past residence in China and his ability to live in that country and whether the nominator's survival is dependent upon the care of the applicant. 3. The MRT denied the applicant procedural fairness, by promising her that she would be given a further hearing if it was unable to come to a favourable decision on her case after receiving a response to a letter sent to her on 13 December 2001, but not providing the promised hearing. 4. The MRT erred in law by making a finding for which there was no evidence, namely that the nominator's father had travelled on an Australian passport when he visited China with the nominator, when the evidence before the MRT was that the father was travelling on a Chinese passport. 8 Mr Reilly, who appeared for the applicant, recognised that s 474(1) of the Migration Act 1958 (Cth) ("Migration Act")creates a difficulty for the applicant's case. Section 474(1) provides as follows: "474(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." There is no dispute that the MRT's decision is a "privative clause decision" for the purposes of s 474(1). 9 Mr Reilly accepted that, at least pending a decision by the High Court on the issue, the constitutional validity of s 474(1) of the Migration Act has been established by the decision of the five member Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 ("NAAV"). He also accepted that the majority in NAAV v Minister held that, in general, jurisdictional errors, including breaches of the requirements of procedural fairness, do not suffice to establish reviewable error in the face of s 474(1) of the Migration Act. Nonetheless, he submitted, on grounds that will be referred to later, that s 474(1) does not constitute an insuperable obstacle to the applicant's case in this Court.

the mrt's letter to the applicant 10 The MRT held a hearing at which the applicant gave evidence on 24 July 2001. On 13 December 2001, the MRT wrote to the applicant. The letter was expressed to be sent in conformity with s 359A of the Migration Act, which requires the MRT to explain and invite comment on "particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review". 11 The letter invited the applicant to comment, in writing, on the following: ". Information from the Department's movement records that your child was out of Australia during the period 12 April 1999 to 17 June 2001. They also indicated you have been in Australia since 5 October 1996. . Information that you told the Full Federal Court that your child is not entitled to a Chinese passport and would not be entitled to basic human rights of health and education if he had to return to China with you". This information was said to be relevant to the review because it indicated that the applicant might not meet the definition of "special need relative" in reg 1.03, as the assistance needed by the nominator "may not amount to serious circumstances and may not be substantial and continuing". 12 The letter went on to say that written comments should be provided within twenty-eight days. The letter included this paragraph: "If you make comments, the Tribunal will consider your comments carefully. If the Tribunal is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the Tribunal". (Emphasis added.) 13 In response to this invitation, the applicant made supplementary written submissions, which were received by the MRT on 15 January 2002. It is common ground that the MRT did not offer the applicant an opportunity to appear at a further hearing prior to handing down its decision.

the mrt's reasons 14 The MRT said that the applicant's claim was that the nominator had a special need of assistance because of his young age and because his father had chronic hepatitis. It noted that the assistance said to be provided by the applicant was the normal care that a mother provides for a child of tender years, as well as extra care to ensure that the child was not infected with his father's disease. 15 The MRT referred to a number of decisions of this Court interpreting the definition of "special need relative". In particular, the MRT referred to the Full Court's decision in Wu (involving the applicant herself), which had held, according to the MRT, that "the definition of 'special need relative' could comprehend the situation where the nominator is a young child in need of substantial and continuing assistance from a relative and the need is a long-term one." 16 Next, the MRT found that the nominator was a relative of the applicant and that the nominator was an Australian citizen, usually resident in Australia at the time of the application. The MRT observed that it was also necessary for the applicant to establish that the nominator was "settled" in Australia at the time of the decision. There was evidence before the MRT that the nominator had departed Australia on 12 April 1999 and returned on 17 June 2001. The MRT did not find it necessary, however, to make a finding as to whether the nominator had been "settled and usually resident in Australia" at the time of the decision, because of its later finding that the applicant did not satisfy the definition of "special need relative". 17 Under the heading "The permanent or long term need for assistance", the MRT said that it was satisfied, at the time of the decision, that the nominator was four years of age and that he continued to have a long-term need for assistance, at least until he attained an age when he would be able to care for himself. 18 The MRT then considered whether the nominator's need for assistance was because of "death, disability, prolonged illness or other serious circumstances" within the meaning of reg 1.03(a). The MRT said this: "38. The question of whether the tender age of a child amounts to 'serious circumstance' is a question that has been examined by the courts on various occasions as discussed elsewhere. The approach of the courts has varied from a wide beneficial approach to one that was much narrower, but as discussed above has been expanded again in Wu's case so that the 'definition of 'special need relative' can comprehend a situation where the citizen is a young child in need of substantial and continuing assistance from a relative and the need is a long term one. 39. At the time of application he was one month old. At the time of this decision he is a young child of four years. The Tribunal needs to consider whether there are other factors beside from [sic] the age of the nominator that would constitute special circumstances." It should be noted that the MRT appears to have taken the expression "special circumstances" from the judgment of the Full Court in Wu. The expression used in reg 1.03(a) is in fact "serious circumstances". 19 The MRT's reasons record that the applicant had not informed it at the hearing that the nominator had lived in China for a period of two years and two months (April 1999 to June 2001). In her response to the letter of 13 December 2001, the applicant had told the MRT that her sister in China had cared for the nominator during that period. The applicant explained that she had sent the nominator to China because she was afraid that he would not be entitled to basic human rights in that country and she had wished to see whether "the child could have living right in China". She also claimed that the nominator's father had attempted to return with the child to Australia from China in September 1999, but had been prevented from doing so because he could not prove to the Chinese authorities that the nominator was in fact his son. The applicant submitted that, although the nominator had been living in China, she had still provided substantial and continuing care to him while he was there. The MRT found, however, that no evidence had been provided to it to support this claim. 20 The MRT said that it was satisfied that the nominator's father was suffering from chronic hepatitis and that he would have difficulty in providing full time care and support needed by his son. The MRT was not, however, satisfied that the applicant had been the primary carer of the nominator since his birth. Nor did it accept the applicant's assertions that the nominator had remained in China for such a long period because of circumstances beyond her control. The MRT was also not satisfied that the father, who (as the MRT found) had travelled to China on an Australian passport, would have been unable to leave China with his child, also an Australian citizen. The MRT continued as follows: "44. The [MRT] is not satisfied that the nominator's bond with his mother is stronger than with any other person in his life. The nominator has been residing with and being [sic] cared for by his aunt for a greater period of time than the time he has been residing with and being [sic] cared for by the visa applicant. There is no evidence before the [MRT] that the nominator was dependent on the visa applicant or her spouse during the time that he resided in China. The evidence before the [MRT] leaves it to find that the nominator's survival is not dependent on the care of the visa applicant. 45. There is evidence on the file which the [MRT] accepts, that the nominator is not entitled to a PRC passport. The visa applicant has argued that it would be difficult for the child to return to China to live with the visa applicant. However, the evidence before the [MRT] clearly indicates that the child was able to return to China and reside there for over two years….. The [MRT] is not satisfied that if the visa applicant were required to return to China that the nominator would not be able to accompany her. 46. The [MRT] is not satisfied that there are any other factors beyond the tender age of the child that would bring it within the definition of 'special need relative' in this particular case. 47. The [MRT] has considered the nominator's age and the difficulty his father may experience in providing full time care, however, the [MRT] is not satisfied that the nominator is not able to travel to China while the visa applicant applies for an appropriate visa to return to Australia. The [MRT] is not satisfied that in this case there are sufficient factors to constitute a 'special circumstance' which gives rise to a long term need for assistance. 48. Taking into account all of the evidence before [it] the [MRT] finds that the visa applicant is not a 'special need relative' of the nominator."

the approach 21 One way of approaching this case would be to consider whether, assuming all the errors identified by the applicant are established, s 474(1) of the Migration Act nonetheless precludes the applicant obtaining relief under s 39B(1) of the Judiciary Act. If s 474(1), as construed by the Full Court in NAAV, has that effect, there would be no need to consider whether, independently of s 474(1), the MRT committed any jurisdictional errors in the sense described in Craig v South Australia (1995) 184 CLR 163, at 179, per curiam, and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, at 346, per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed). 22 I think the better approach, however, is to address first whether any of the alleged errors have been established independently of s 474(1) and then consider the application of that provision. I take this course for two reasons. First, the parties themselves approached the case this way. Secondly, the High Court has reserved judgment in proceedings in which the validity of s 474(1) has been challenged: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S 134/2002 (judgment reserved 4 September 2002). If the High Court challenge succeeds, or that Court takes a different view of the construction of s 474(1), any appeal from my decision may have to canvass the question of jurisdictional error without reference to the operation of s 474(1) as construed in NAAV.

error of law 23 The MRT correctly recognised that it was bound to apply the Full Court's decision in Wu. The MRT interpreted Wu as holding that the definition of "special need relative" can comprehend a situation where the nominator is a young child in need of substantial and continuing assistance from a relative and the need is a long term one (at [38]). However, the MRT also took the view that Wu required it to consider "whether there are factors beside from [sic] the age of the nominator that would constitute special [sic] circumstances" (at [39]). It ultimately concluded that there were no other factors beyond the tender age of the child that would bring it within the definition. 24 In Wu, the primary Judge had rejected a contention that the applicant could be a special need relative of a child "merely because the child was of tender years": Wu, at 42. In doing so, her Honour had followed an earlier decision of the Full Court in Huang v Minister for Immigration and Ethnic Affairs ("Huang") (1996) 71 FCR 95. The Full Court in Wu characterised the relevant question on the appeal to it as follows (at 43): "Whether the definition of 'special need relative' comprehends circumstances in which the relevant Australian citizen is a young child who, by virtue of its age and inability to fend for itself, has a need for assistance from the putative special need relative. This raises for consideration whether the expression 'other serious circumstances' comprehends circumstances of a baby, a young child or even a child. It also raises for consideration the correctness of the decision of the Full Court in Huang v Minister for Immigration and Ethnic Affairs". 25 In Huang, according to the judgment in Wu (at 46), the Full Court had concluded that the definition of "special need relative" "did not comprehend a person attending the needs of a young child, in so far as the definition spoke of a citizen (the child) having a permanent or long-term need for assistance because of 'other serious circumstances'". The Full Court in Wu considered (at 51) that it was free to depart from this conclusion since it did not form part of the ratio of Huang. The core of the Full Court's reasoning in Wu is contained in the following passages (at 53-55): "38 [T]he definition is intended to identify, as a criterion or an element of a criterion, a class of person who might remain in Australia to tend to the needs of a citizen who is unable to care for himself or herself for a lengthy period. It is, with respect, not self-evident that a child of tender years was intended to be excluded from the group who are unable to care for themselves. A child's needs are, in many respects, no different to those of a very elderly person or a seriously ill person. Their survival can be dependent on the support and attention of others. The argument that 'serious circumstances' cannot 'reflect merely the tender age of a person' rather misses the point. The age, whether of a very young or very old person, would rarely be the sole relevant circumstance. But age can be a factor which, along with other circumstances, adds up to special circumstances. … 41 [T]here is nothing about the expression 'other serious circumstances' nor its immediate statutory context which suggests that a necessary feature of the circumstances is that they be out of the ordinary or unexpected. In our opinion the word 'serious' is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term. That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness. In our opinion, if a citizen or a member of the citizen's family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression 'other serious circumstances'. There is no reason in logic or of policy that we can discern which might explain that the definition was intended to be enlivened in every circumstance where the requisite care of a citizen is required except young childhood and perhaps old age. We say perhaps old age because the long-term or permanent need for substantial and continuing assistance of an elderly person ordinarily arises through a disability or illness associated with old age." (Emphasis added.) 26 It must be said, with respect, that it is not altogether easy to reconcile the last two sentences of par [38] (on which the Minister placed considerable reliance) with the analysis in par [41] (on which the applicant founded her submissions). The former can be read as suggesting that the very young age of a nominator is not enough, of itself, to constitute "serious circumstances" for the purposes of par (a) of the definition of "special need relative". Paragraph [41], by contrast, seems to suggest that it is virtually inevitable that a young child's need for long term assistance will be because of "serious circumstances". This follows from the Full Court's observations that the word "serious" is merely intended to reinforce the nature of the assistance which is central to the definition and that a circumstance will be sufficiently serious if it requires assistance of the same sort as that required by a nominator who suffers from a disability or prolonged illness. It is difficult, on this analysis, to see how the needs of a four year old child could ever not arise out of serious circumstances, particularly if (as the Full Court held) there is nothing in the definition to suggest that "serious circumstances" must be out of the ordinary or unexpected. 27 In my opinion, the Full Court in Wu intended to hold that the critical question in determining whether a young child has a long-term need for assistance "because of…serious circumstances" is whether the circumstances of the nominator create a need for assistance of the same sort that would be required if he or she had a disability or prolonged illness. This interpretation of the Full Court's reasoning is supported by

the emphatic language the Court used in par [41];
the way in which the Court defined the issue for decision; and
the fact that in par [43] the Court implied that the matter was to be remitted to the MRT, not because it had any doubt that the nominator satisfied par (a) of the definition of "special need relative", but because the applicant had to satisfy other criteria that had not been addressed by the MRT. 28 It may be that the Full Court in par [38] of its reasons was merely intending to say that age itself does not establish "serious circumstances" in the sense that a finding that a nominator is a particular age does not, without more, demonstrate that par (a) of the definition has been satisfied. In other words, for the definition to be satisfied, the MRT has to find that the circumstances of the nominator create a need for a particular form of assistance that is of the same sort as would be required by a disabled or chronically ill person. The Full Court may have considered that the fact that a young child will virtually always be found to have such a need is properly characterised as an evidentiary question rather than a definitional one. 29 Whatever the explanation for par [38] of the Full Court's reasons in Wu, I think that the MRT erred in law in requiring the applicant to show serious circumstances in addition to establishing that the need for assistance is comparable to that of disabled or chronically ill persons. The MRT found that the nominator was aged four at the time of decision and had a long term need for assistance. This was not, in terms, a finding that his circumstances were sufficiently serious to require the same sort of assistance as would be required by a person suffering from a disability or prolonged illness. It is difficult to imagine, however, that such a finding would not flow inevitably from the circumstances the MRT found to exist. 30 It follows that the MRT erred on the question of whether par (a) of the definition of "special need relative" had been satisfied, by taking into account the factual matters referred to towards the end of its reasons. The MRT took into account, for reasons that are not fully articulated, its lack of satisfaction that
the applicant had been the nominator's primary carer since his birth;
the nominator's bond with his mother was stronger than with any other person in his life;
the nominator could not accompany the applicant if she had to return to China. These matters might or might not be relevant to the question of whether the applicant's need for assistance could not reasonably be obtained from other specified sources: see par (b) of the definition. They were not relevant, however, to the question of whether par (a) of the definition had been satisfied.

the procedural fairness issue 31 The Minister's written submissions conceded that the letter sent to the applicant on 13 December 2001 was apt to mislead her about the procedure the MRT intended to follow. This concession was clearly correct, as the letter told the applicant that if the MRT was unable to make a decision in her favour, having regard to her written responses to the issues raised, it would give her an opportunity to appear at a hearing. That opportunity was never provided. 32 Subject to one qualification, the Minister's written submissions also accepted that the fact that the letter was apt to mislead the applicant "could constitute a denial of procedural fairness in an appropriate case". The qualification was that the applicant at that stage had adduced no evidence that she had been misled or that she would have availed herself of the opportunity to appear before the MRT. 33 Doubtless alerted by the Minister's written submissions to the evidentiary gap, Mr Reilly read an affidavit from the applicant to the effect that she had understood from the letter that she would have an opportunity to attend an oral hearing before the MRT and that she would in fact have availed herself of that opportunity. The applicant was cross-examined, but I accept her affidavit evidence. Accordingly, had no further arguments been advanced by the Minister, the applicant would have made out her case that, independently of the effect of s 474(1) of the Migration Act, she had been denied procedural fairness by the MRT. 34 In the course of oral argument, however, Mr Lloyd advanced a further argument on behalf of the Minister. He submitted that, on the applicant's evidence, there was nothing that she wished to put to the MRT on the factual questions raised in the letter, beyond the matters in her written response. Accordingly, so Mr Lloyd argued, the applicant had not shown that the MRT would have come to any different conclusion. It followed that the applicant had not established that the MRT had breached its obligation of procedural fairness or, alternatively, that she should be denied relief on discretionary grounds. 35 The present claim is for relief pursuant to s 39B(1) of the Judiciary Act, the language of which mirrors s 75(v) of the Constitution. Mr Lloyd's argument requires reference to the High Court's decision in Re Refugee Review Tribunal, Ex parte Aala (2000) 204 CLR 82, which concerned a claim for constitutional writs brought in the original jurisdiction of the High Court pursuant to s 75(v) of the Constitution. The members of the Court seem to have taken two approaches to the question of whether prohibition lies for an apparent breach of the rules of natural justice, in a case where the decision maker might have reached the same result even if there had been no breach. 36 Gaudron and Gummow JJ (with whom Gleeson CJ agreed) adopted as correct (at 106) the statement of Gibbs CJ in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, at 194: "If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course." Gaudron and Gummow JJ said that this statement should be accepted as the correct general approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth pursuant to s 75(v) of the Constitution. Their Honours took the expression "want or excess of jurisdiction" in Gibbs CJ's judgment to include the consequences of failure to observe the rules of natural justice in the exercise of a power or authority conferred by statute. 37 Gaudron and Gummow JJ acknowledged that relief might be refused in a particular case on the ground of lack of utility, as where the decision-maker is bound by the governing statute to refuse the application irrespective of any question of procedural fairness. Their Honours observed, however, that (at 109): "the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures. Unless the limitation ordinarily implied on the statutory power is to be rewritten as denying jurisdictional error for 'trivial' breaches of the requirements of procedural fairness, the bearing of the breach upon the ultimate decision should not itself determine whether prohibition under s 75(v) should go. The issue always is whether or not there has been a breach of the obligation to accord procedural fairness and, if so, there will have been jurisdictional error for the purposes of s 75(v)." This passage suggests that a denial of procedural fairness may be treated differently from other cases of excess of power or jurisdiction in that the relationship between the breach and the ultimate decision should not of itself determine whether prohibition should be granted. Nonetheless, their Honours recognise that if an alleged breach of procedural fairness is trivial, in the sense that it occasions no injustice, the correct conclusion may be that, in the circumstances, the practical requirements of procedural fairness have been observed. 38 Gaudron and Gummow JJ ultimately held in Ex parte Aala that an inaccurate statement by the Tribunal that it had read all papers from the prosecutor's previous application, upon which the prosecutor had relied in deciding not to give evidence at a second hearing, justified the grant of relief under s 75(v) of the Constitution. Their Honours quoted with approval observations by Lord Diplock in Mahon v Air New Zealand Ltd [1984] AC 808, at 821, as follows: "The second rule [of natural justice] requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result." (Emphasis in original.) 39 Kirby J in Ex parte Aala approached the question in a somewhat different way. His Honour said this (at 130-131): "Once the applicable breach is proved, the victim of the breach is ordinarily entitled to relief. It is only where an affirmative conclusion is reached, that compliance with the requirements of procedural fairness 'could have made no difference' [Stead v State Government Insurance Commission (1986) 161 CLR 141, at 145] to the result, that relief will be withheld. This Court has emphasised that such an outcome will be a rarity. It will be 'no easy task' to convince a court to adopt it. This will especially be so where, as here, 'the issue concerns the acceptance or rejection of the testimony of a witness at the trial'. In this case, what was at stake could hardly have been more important, being the credibility of the prosecutor and whether his statements to the second Tribunal were, as it concluded, in a critical respect, a 'concoction' and so should be rejected. Many, if not most, cases of this kind turn on the assessment of the credibility of the applicant for refugee status. There are already enough obstacles to be overcome. Adding to these a mistake affecting the credibility of the applicant is not tolerable." (Some footnotes omitted.) On this approach, it would seem that relief may be denied in respect of a breach of the requirements of procedural fairness if the court affirmatively concludes that compliance with those requirements could have made no difference to the outcome. However, the test adopted by Kirby J to determine whether relief should be granted, founded on the reasoning of the High Court in Stead v SGIC, does not seem to differ materially from the test applied by Gaudron and Gummow JJ. 40 Callinan J's analysis in Ex parte Aala (at 153-154) is similar to that of Kirby J, as is that of McHugh J (at 122), although his Honour dissented as to the result. Hayne J (at 144) expressed general agreement with the conclusions reached by Gaudron and Gummow JJ. 41 The curious feature of the present case is that, if I have correctly identified the error of law committed by the MRT, the findings of fact unfavourable to the applicant, set out in pars [44]-[47] of the MRT's reasons, were irrelevant to the questions it was required to address. Nonetheless, those factual findings played an important part in the MRT's decision. In my view, to use the language of Lord Diplock in Mahon v Air New Zealand, the applicant was deprived of the opportunity to put probative material which might have deterred the MRT from making the unfavourable findings. If the correct approach is that adopted by Kirby J, I cannot affirmatively reach the conclusion that observance of the requirements of procedural fairness could have made no difference to the outcome. 42 Evidence was adduced in these proceedings from the applicant's husband that he had travelled to China on a Chinese passport, not on an Australian passport as the MRT found. That evidence was not before the MRT, which apparently considered the "fact" that the applicant had travelled on an Australian passport cast doubt on his account. Had the evidence been presented to the MRT, it might have reached a different conclusion as to whether the applicant or her husband could or would have taken the child back to Australia earlier than in fact happened. This in turn may have led the MRT to take a different view on other factual issues. Had a second oral hearing taken place, the husband may well have produced his Chinese passport. 43 I think it also important to recognise that had there been a second hearing before the MRT, the applicant would have had the opportunity to answer questions put to her by the MRT member. Those answers might, for example, have dissuaded the MRT from making the somewhat surprising finding that it was not satisfied that "the nominator's bond with his mother [was] stronger than with any other person in his life". While I do not think that this finding was relevant to the question of "serious circumstances", the MRT apparently regarded it as important. 44 Mr Lloyd submitted that the applicant's evidence in this Court showed that she would not have added anything beyond what was contained in the written submissions to the MRT following its letter of 13 December 2001. I do not think this is the correct inference from the evidence given by the applicant. She was plainly heavily reliant on her husband to present her case. There is no reason to think that he would not have encouraged her to give further evidence, as well as advancing his own account of his attempts to retrieve the nominator from China. Moreover, had there been a second hearing, it is very likely that the MRT would have asked the applicant questions on the factual issues that troubled it, not all of which were identified with precision in the letter of 13 December 2001. It is difficult to conclude that, had the applicant and her husband had a further opportunity to address the MRT's concerns, the MRT inevitably would have reached the same conclusion. 45 In my view, the applicant has established that she was denied procedural fairness by the MRT. Putting s 474(1) of the Migration Act to one side, that denial of procedural fairness would entitle her to relief under s 39B(1) of the Judiciary Act.

the no evidence point 46 The short answer to the applicant's contention that there was no evidence to support the finding that the applicant's husband (the nominator's father) had travelled to China on an Australian passport is that there was some evidence, albeit slight, to that effect. A document headed "Personal Particulars for Character Assessment", lodged by the applicant with the Department on 28 November 1997, stated that her husband was an Australian national. The form required "all details" of citizenship or nationality "if more than one". No other information was provided. In particular, the form did not reveal that her husband retained his Chinese citizenship. It was open, on that evidence, to the MRT to find that the applicant's husband had travelled to China in 1999 and 2001 on an Australian passport. The fact that the finding has subsequently been shown to be wrong does not establish that there was no evidence to support it.

the effect of the privative clause 47 In NAAV, the five members of the Full Court delivered separate judgments. Three members of the Court (Black CJ, Beaumont and von Doussa JJ) took a different approach to the construction and operation of s 474(1) of the Migration Act from that of the minority (Wilcox and French JJ). There were also divergences of opinion within the majority, since Black CJ reached different conclusions from those of Beaumont and von Doussa JJ in two of the five appeals determined by the Full Court. I have examined the reasoning in NAAV v Minister at some length in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108 ("Zahid"), and I do not repeat the detailed analysis here. 48 Despite their disagreements, all members of the Full Court accepted (as summarised in Zahid at [36]) that: "s 474(1) operates to insulate the decision-maker against what would otherwise be unlawfulness in the decision-making process:…. In the language of Dixon J in [R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598] at 614-615, a privative clause: 'is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its act within the limits laid down by the instruments giving it authority'. In consequence of the process of statutory construction referred to earlier, this principle is subject to the three Hickman provisos. That is, the decision must be ' a bona fide attempt to exercise its power, …relate to the subject matter of the legislation, and…[be] reasonably capable of reference to the power given to the body'." (Citations omitted.) Their Honours also accepted (Zahid at [37]) that: "in addition to the Hickman provisos, there is another limitation on the validating effect of a privative clause. The purported exercise of power by the decision-maker must not be one that contravenes a "final limitation upon the powers, duties and functions of the decision-maker"…, an "inviolable limitation or restraint"… or a "structural" element in the operation of the Migration Act…. It follows that what is involved in applying a privative clause is a process of statutory construction, whereby apparently inconsistent statutory provisions are to be reconciled: that is, one statutory provision that seems to limit the powers of the decision-maker must be reconciled with another, the privative clause, which seems to contemplate that the decision-maker's order is to operate free from any restriction". 49 In considering the effect of s 474(1) of the Migration Act in the present case, it is necessary to bear in mind a number of concessions properly made by Mr Reilly on behalf of the applicant. He accepted that, generally speaking, s 474(1), as construed by the majority in NAAV, validates a decision of the MRT that otherwise would be affected by jurisdictional error. In particular, Mr Reilly accepted that s 474(1) prevents either

the error of law committed by the MRT in construing the definition of "special need relative"; or
the breach of the MRT's obligation to afford the applicant procedural fairness, constituting, of itself, a reviewable error in this Court. 50 Mr Reilly also expressly eschewed any suggestion that the MRT had been affected by actual bias or had acted dishonestly. Specifically, he readily acknowledged that the MRT's failure to provide the applicant the promised oral hearing was the product of administrative error and did not demonstrate malevolence by the MRT to the applicant. 51 Nonetheless, Mr Reilly submitted that s 474(1) does not "validate" the decision made by the MRT in this case. He advanced three arguments to support this submission. 52 First, Mr Reilly contended that the MRT's failure to comply with the requirements of procedural fairness amounted to a breach of an "inviolable statutory condition" or structural element in the legislation. He identified the relevant statutory condition as s 359B(1) of the Migration Act. Section 359B(1) provides as follows: "(1) If a person is: (a) …; or (b) invited under section 359A to comment on information; the invitation is to specify the way in which the additional information or the comments may be given, being the way the Tribunal considers is appropriate in the circumstances." In my opinion, there are two answers to this submission. 53 The first answer is that the reasoning of the majority in NAAV is inconsistent with the proposition that s 474(1) of the Migration Act, as a matter of construction, yields to s 359B(1). According to the majority, s 474(1) is intended to amend the procedural provisions of the Migration Act attending decision-making processes by expanding the authority and power of decision-makers: see at [631]-[636], esp at [633], per von Doussa J (with whom, on this issue, Black CJ and Beaumont J agreed). The procedural provisions include s 359B of the Migration Act. 54 The second answer is that s 359B(1) merely requires the invitation issued by the MRT to an applicant "to specify the way in which the additional information or the comments may be given". The letter of 13 December 2001 did specify how the additional information was to be given, namely in writing within twenty-eight days of the applicant being notified of the invitation. The MRT's offer of a further oral hearing was not required by s 359B(1), although it was open to the MRT to make the offer if it thought that course was appropriate. The failure of the MRT to afford the applicant the promised further hearing did not constitute a breach of s 359B(1) of the Migration Act, whatever other consequences may have flowed from it. 55 Mr Reilly's second argument in relation to s 474(1) of the Migration Act was that the MRT had not satisfied the first of the so-called "Hickman conditions": that is, the MRT had not made a bona fide attempt to exercise its power. Mr Reilly contended that the MRT fails to satisfy the first Hickman condition if the number and severity of factual, legal and procedural errors justify the conclusion that the MRT has been reckless or incompetent in the purported exercise of its powers. 56 In O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, Mason CJ (with whom Brennan J agreed) remarked (at 249) that the scope and content of the three Hickman conditions have not been examined in any detail in subsequent decisions of the High Court. Mason CJ pointed out that Dixon J's formulation of the principle in Hickman drew partly on the antecedent common law, according to which decisions of administrative bodies are generally reviewable for mala fides or dishonest motivation (neither of which is alleged in the present case). He also pointed out (at 249) that Dixon J himself had said, in R v Murray; Ex parte Proctor (1949) 77 CLR 387, at 400, that the condition requires an "honest attempt to deal with the subject matter confided to the Tribunal". Nothing in the joint judgment of the majority (Deane, Gaudron and McHugh JJ) in O'Toole v Charles David is inconsistent with these observations: see at 287. 57 In NAAV, the approach taken by the majority to the first Hickman condition is consistent with the observations of Mason CJ in O'Toole v Charles David. Beaumont J (at [107]) agreed with the following comments of Allsop J in NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713, at [24]: "Dixon J in R v Murray; Ex parte Proctor, supra at 400, made it clear that the phrase involves an 'honest' attempt to deal with the subject matter conferred to the executive. Bad faith is not just a matter of poor execution or poor decision-making involving error. It is a lack of an honest or genuine attempt to undertake the task in a way meriting personal criticism of the Tribunal or officer in question." (Emphasis added.) 58 von Doussa J, with whom Black CJ agreed, gave (at [630]) as an example of a decision that is not a bona fide attempt to exercise the power conferred by the Migration Act one affected by actual bias. Later in the judgment (at [639]) he expressed general agreement with the views of Allsop J in NAAG of 2002 v Minister, presumably including the comments quoted above. Towards the end of his judgment (at [674]), von Doussa J addressed the significance of a failure by a tribunal to follow procedures that have been made merely directory (as distinct from mandatory) by the operation of s 474(1): "A failure by a decision-maker to follow directory provisions in the Act may in the circumstances of a particular decision be important in determining whether its making was 'an honest attempt to deal with a subject matter confided to the Tribunal and to act in pursuance of the powers of the tribunal…': R v Murray; Ex parte Proctor per Dixon J at 400. A blatant disregard of statutory directions about a decision making process laid down in the Act is unlikely to meet the Hickman proviso that the decision be one that is a bona fide attempt to exercise the relevant power. Unless that requirement is met, s 474(1) cannot validate the decision." 59 The touchstone that emerges from the judgment in NAAV is that a decision of the MRT will satisfy the first Hickman condition if it is the consequence of an honest attempt to act in pursuance of the powers of the tribunal. There may be cases where the disregard of statutory requirements or, indeed, of the evidence, is so "blatant" (to use von Doussa J's word) that an inference can be drawn that the decision-maker has not honestly attempted to exercise the relevant statutory power. There may also be cases where the decision-maker has knowingly exercised a power for an improper purpose: Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) 184 ALR 576, at 587, per Finn J. But the fact that the tribunal has misconstrued the legislation or committed procedural errors will not, of itself, ordinarily establish that it has not honestly attempted to exercise its power: Daihatsu v FCT, at 590. 60 Mr Reilly relied on two cases, each decided before NAAV, to show that the courts are prepared to give a broad interpretation to the first Hickman condition. But each case was markedly different from the present. In the first, SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547, Mansfield J held that a decision of the Refugee Review Tribunal ("RRT") had not been made in good faith. His Honour reached this conclusion by inference from the RRT's reasons as a whole, taking into account a number of "inexplicable" factual findings and the RRT's selective and unfair use of the opinions of an expert. Mansfield J expressed the conclusion this way (at [36]): "In my judgment, its reasons go beyond the Tribunal making findings of fact or making observations which involve it making errors of fact or law, or simply reaching views which lack logic or which are wrong. The firm persuasion which I hold is that the Tribunal approached its review of the applicant's claims on the basis that it should look for reasons why it could reject those claims. In other words, in my judgment, its reasons overall show that it did not address the applicant's claims by asking whether he has a well-founded fear of persecution for a Convention reason, but in substance by asking whether there was evidence which would enable it to reject the applicant's claims." 61 In the second case, Kan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 923, Drummond J rejected a suggestion (at [30]) that a breach of the first Hickman condition can only be established in "an extreme or rare case". Nonetheless, on his findings, the MRT had not merely made a series of errors, but had deliberately failed to discharge its statutory responsibilities to consider the applicant's case for a student visa. Drummond J expressed his conclusions as follows (at [34]): "The Tribunal's reliance on the manifestly irrelevant evidence concerning the 71% level of attendance to justify rejection of the applicant's claim when it had identified evidence that might entitle her to succeed on the attendance issue, but failed to deal with that evidence, creates the impression that the Tribunal was looking for a reason, any reason, to reject the applicant's case. To paraphrase what Mansfield J said in SAAG at [36], one of the cases in which an applicant has succeeded in challenging a Refugee Review Tribunal decision for Hickman bad faith, the Tribunal's reasons here, considered overall, show that it did not deal with the applicant's claims that relevant case law and medical evidence entitled her to a finding that she had satisfied the 80% attendance requirement, but in substance dealt with the case by seeking to find evidence, no matter how manifestly irrelevant it was for the task in hand, to enable it to find a ground for rejecting the applicant's claim." (Emphasis added.) 62 The circumstances of the present case are different from those in SAAG and Kan. The errors made by the MRT involved a misconstruction of the definition of "special need relative" and a failure to accord the applicant procedural fairness. The former was the result, if I may say so, of a pardonable misreading of the reasoning of the Full Court in Wu. The second, as Mr Reilly fairly conceded, was the product of an administrative error. Although there was no direct evidence as to how the error occurred, the obvious inference is that the person responsible (not necessarily the MRT member) mistakenly used a form of letter appropriate for a case where the hearing had not taken place, rather than one suited to a case where the hearing had already been held. 63 I think it fair to say that some of the MRT's factual findings adverse to the applicant appear to be harsh. It is clear, however, that the MRT was very concerned about the applicant's failure at the hearing to reveal a fact that the MRT considered to be important, namely that the nominator had lived most of his life in China, not Australia. The MRT perhaps may have overreacted to what it clearly enough considered to be the applicant's lack of frankness. But I think the MRT's approach is a far cry from a deliberate effort to find evidence or manipulate evidence in order to defeat the applicant's claim. Nor has the applicant established some other improper or dishonest purpose on the MRT's part. In short, the applicant has not established that the MRT did not make a bona fide attempt to exercise its power and discharge its functions. 64 The applicant's third argument was founded on the proposition, affirmed by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117, that a failure by a tribunal to conform to the rules of natural justice may amount to a failure to conduct a review as required by the Migration Act and that, in consequence, a purported decision made by the tribunal may be a nullity: see at [14]-[15], per Gleeson CJ; at [43]-[44], [51]-[53], per Gaudron and Gummow JJ (with whom McHugh J agreed); at [153]-[155], per Hayne J; at [163]-[165], per Callinan J. Mr Reilly submitted that the failure to accord procedural fairness in the present case similarly constituted a failure by the MRT to discharge its statutory functions and therefore the decision was a nullity. In such circumstances, so he argued, a privative clause like s 474(1) could not protect the decision: Re The Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513. 65 The principal difficulty with this contention is that Bhardwaj was concerned with the Migration Act in the form it took prior to the introduction of s 474(1). For that reason, the judgments do not address the relationship between s 474(1) and provisions such as s 348, which requires the tribunal (now the MRT) to review certain kinds of decisions. It is difficult to see how Bhardwaj can assist on the critical question of construction which was resolved, so far as a single Judge is concerned, by the Full Court's decision in NAAV.

conclusion 66 Although the MRT made an error of law and denied procedural fairness to the applicant, its decision is protected by s 474(1) of the Migration Act from review pursuant to s 39B(1) of the Judiciary Act. 67 Mr Reilly invited me to defer judgment until the outcome of the High Court challenge to the validity of s 474(1) is known. In my opinion, that is not the appropriate course. The law applicable to the present case is that laid down by the Full Court in NAAV. The applicant, if she wishes to preserve her position in the event of a favourable High Court decision, may do so by filing a notice of appeal. 68 The application must be dismissed. The applicant must pay the Minister's costs. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE .

Associate: Dated: 10 October 2002 Counsel for the Applicant: Mr T Reilly

Solicitor for the Applicant: Christopher Levingston & Associates

Solicitor for the Respondent: Blake Dawson Waldron

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