Zahid v Minister for Immigration & Multicultural &

the court: 1 The parties' legal representatives forwarded to the Court a form of consent order signed by them, reading as follows: "1. The appeal be allowed. 2. The orders made by the trial judge be set aside. 3. A writ of certiorari issue to quash the decision of the Migration Review Tribunal dated 9 January 2002. 4. The matter be remitted to the Migration Review Tribunal to be determined according to law. 5. The respondent pay the appellant's costs of the application as agreed or taxed. 6. The respondent pay the appellant's costs of the appeal as agreed or taxed." 2 The form of consent orders gives no indication of the basis on which the trial Judge's orders are to be set aside, or the error which the Migration Review Tribunal ("the MRT") is to avoid in order to determine the matter "according to law". 3 A written submission by counsel for the appellant makes this clear. It refers to the following matters. 4 The primary judge who, on 10 September 2002, dismissed the application for review of a decision of the MRT made on 9 January 2002, stated as follows (Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1108 at [27]): "As I have explained, it ultimately was common ground that the MRT had failed to address the correct question posed by the definition of 'remaining relative'. Nor was there any dispute that this error, independently of s 474(1) of the Migration Act, would be regarded as a jurisdictional error as that term has been used by the High Court in Craig v South Australia and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, at 21, per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed)." His Honour examined the reasons for judgment in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. He concluded that he was bound by that Full Court decision to hold that subs 474(1) protected a decision from invalidity, where the alleged invalidity flowed from a failure on the part of the decision-maker to ask the correct question. His Honour concluded (at [87]): "The applicant has lived in Australia for over seventeen years. Had the MRT taken, say, one instead of two years to deal with his application to review the delegate's decision (which itself took three and a half years to be made), his application for judicial review would have been instituted before 2 October 2001 and thus not have been affected by s 474(1) of the Migration Act. Under the law applicable at the time the MRT made its decision, as the Minister's representative conceded, the MRT failed to ask the correct question. Had the MRT asked that question it is not easy to see how the answer could have been unfavourable to the applicant. Yet, unless the High Court takes a different view as to the validity or operation of s 474(1), this Court (or any other court) is powerless to intervene. It is not apparent to me how this result is consistent with the ideals underlying the concept of the rule of law, let alone the dictates of fairness." 5 On 4 February 2003 the High Court delivered judgment in Plaintiff S157/2002 v Commonwealth [2003] HCA 2. In that case, the High Court construed subs 474(1) of the Migration Act 1958 (Cth). The joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ in that case stated (at [76]): "the expression 'decision[s] ... made under this Act' must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all'." 6 That holding was generally similar to a submission which had been made by counsel for the appellant to the primary Judge, as follows: "Undoubtedly, too, this is a case where the Tribunal's error is properly characterised as jurisdictional. The Tribunal never asked the question the Act required to be asked: Craig v South Australia (1995) 184 CLR 163 at 179; MIMA v Yusuf (2001) 180 ALR 1 at [82]. Subject to the effect of the private clause, the decision is a nullity: MIMA v Bhardwaj (2002) 187 ALR 117 at [51], [53] per Gaudron and Gummow JJ with whom McHugh J on this issue agreed; at [151]-[152] per Hayne J." 7 The error of the MRT was its failure to consider the question whether the present appellant was a "remaining relative" of the nominator for the purposes of cl 806.213 of the Migration Regulations 1994 (Cth). This is the basis on which the parties ask the Court to make the orders sought and on which it is appropriate for the Court to make them. 8 In order to make this clear, we will add to order 4 the words "by determining the appellant's claim to be a 'remaining relative' of the nominator for the purposes of cl 806.213 of the Migration Regulations 1994 (Cth)". I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.