Zahid v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2002-09-10|Before: Sackville J

the proceedings 1 In these proceedings the applicant, a Fijian national, seeks relief under s 39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act") in respect of a decision of the Migration Review Tribunal ("MRT") made on 9 January 2002. The MRT affirmed a decision of a delegate of the respondent ("the Minister"), given on 21 December 1999 to refuse to grant the applicant, his wife and son Family Residence (Class AO) visas. 2 The grounds specified in the application raise two broad issues. The first is that the MRT had erred in law in rejecting the applicant's claim to be a "special need relative" of the nominator (his mother, who is an Australian citizen) within the meaning of the Migration Regulations 1994 (Cth) ("Migration Regulations"), Schedule 2, cl 806.213 as it stood at the time of the visa application. The second ground is that the MRT had failed to consider whether the applicant was a "remaining relative" of the nominator for the purposes of cl 806.213. As explained in a judgment delivered in these proceedings on 30 May 2002, the MRT correctly assumed that the relevant provisions to be applied were those in force as at the date of the visa application, that is, 15 March 1996: Zahid v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 670 at [14] ("the first judgment"). 3 The application came on for hearing on 21 May 2002. The applicant appeared at the hearing unrepresented. 4 As noted, on 30 May 2002 I delivered the first judgment. I held that the applicant's claim for relief under s 39B(1) of the Judiciary Act, insofar as it sought to attack the decision of the MRT that the applicant was not a "special need relative" of the nominator, failed. I added these observations at the conclusion of the first judgment (at [40]-[44]): "In the course of argument, I asked Mr Smith [counsel for the Minister] why the applicant did not qualify as a "remaining relative" for the purposes of cl 806.213. It is clear that, at the time of the application, the applicant had a relative (the nominator) who was an Australian citizen usually resident in Australia. Thus the applicant clearly satisfied sub-reg (1) of reg 1.15. Mr Smith accepted this, but said that the applicant was disqualified under reg 1.15(2)(a)(i), because he "usually reside[d] in the same country, not being Australia, as an overseas near relative": that is, he usually resided in Fiji, the same country in which one of his sisters was resident. It seemed to me that it was arguable that, in 1996, the applicant usually resided in Australia, rather than Fiji. I suggested to Mr Smith that perhaps the most appropriate course was that I should refer the applicant to the Registrar for referral to a legal practitioner on the pro bono panel, pursuant to Federal Court Rules ("FCR"), O 80 r 4(1). Mr Smith, very fairly, did not object to that course being taken. Nor did he object to the proceedings being stood over to enable the applicant to receive advice on the "remaining relative" point. Having taken into account the matters identified in FCR, O 80 r 4(2), I consider it appropriate to refer the applicant to the Registrar pursuant to O 80 r 4(1) for the purpose of the applicant receiving advice in relation to the present proceeding. The advice should be limited to the question of whether the applicant has a claim for relief under s 39B(1) of the Judiciary Act by reason of the MRT's failure to find that he was a "remaining relative" within the meaning of cl 806.213. The referral should include, if counsel thinks appropriate, representation in these proceedings. I should make it clear that the referral to the Registrar pursuant to FCR, O 80 r 4 does not imply that I have formed any view on this issue. I propose to adjourn the proceedings for further directions to a date which will enable the applicant to receive the advice to which I have referred." 5 The proceedings were listed for further directions on 28 June 2002. Shortly before the directions hearing, Mr Leeming of counsel filed written submissions on behalf of the applicant. In those submissions, Mr Leeming argued as follows:

the legislation 8 The relevant provisions of the Migration Act 1958 (Cth) ("Migration Act") and Migration Regulations are set out in the first judgment, which should be read together with this judgment. For convenience I again set out the provisions which were referred to at the adjourned hearing. 9 Section 474(1) of the Migration Act was introduced into the legislation by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the "Judicial Review Act"), which commenced on 2 October 2001. Section 474(1) provides as follows: "(1) A privative clause decision (a) is final and conclusive; (b) must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." The reference in s 474(1) to a "decision" includes "doing or refusing to do any act or thing" (s 474(3)(g)) and a "failure or refusal to make a decision" (s 474(3)(j)). There is no dispute that the decision of the MRT in the present case is a "privative clause decision". 10 Clause 806.21 of the Migration Regulations set out criteria that had to be satisfied at the time the application for a Family Residence (Class AO) visa was made (in this case, 15 March 1996). These criteria included the following: "806.213 The applicant is…a remaining relative or a special need relative of another person who: (a) is a settled Australian citizen…; (b) is usually resident in Australia; and (c) has nominated the applicant for the grant of the visa". 11 The term "settled", in relation to an Australian citizen, was defined to mean "lawfully resident in Australia for a reasonable period": reg 1.03. Clause 806.221 provided that the visa applicant had to continue to satisfy the criterion in cl 806.213 at the time of the decision. 12 Regulation 1.15 defined "remaining relative" as follows: "1.15(1) An applicant for a visa is a remaining relative if the applicant has a relative who: (a) is: (i) a brother, sister or parent; or (ii) … of the applicant; and (b) is: (i) an Australian citizen; or (ii) an Australian permanent resident; or (iii) …; and (c) is usually resident in Australia; unless the applicant is disqualified under subregulation (2). (2) An applicant is disqualified if: (a) the applicant or spouse (if any) of the applicant: (i) usually resides in the same country, not being Australia, as an overseas near relative; or (ii) has had contact with an overseas near relative during a reasonable period preceding the application; or (b) …; (c) …. (3) In this regulation 'overseas near relative' means a person who is (a) a parent, brother, sister or non-dependent child; or (b) … of the applicant or of the spouse (if any) of the applicant but is not a relative of the kind referred to in sub-regulation (1)."

background 13 It is unnecessary to repeat the account of the applicant's circumstances and of the MRT's reasons given in the first judgment. Some further background is, however, helpful in addressing the issues raised at the adjourned hearing. 14 The applicant's claim for a Family Residence (Class AO) visa was initially put forward to the Minister's delegate on the basis that he was a special need relative. His application form stated that he was applying for what he described as an "806 special need relative" visa. A letter written on his behalf by a migration agent, dated 15 March 1996, stated that the applicant's "case is based upon the argument that the applicant is a special need relative to his mother who is an Australian citizen". 15 On 4 July 1997, the applicant wrote to the Department of Immigration and Multicultural Affairs requesting an early decision on his application because of the effect of the delay on his mother's health. The letter included the following passage: "In view of the time interval since my application was lodged with your department in March 1996, I respectfully request your advice on when we can expect our case to be finalised as I understand that all necessary documents have been lodged, that I meet the Department's criteria for Special Need relative and the last remaining relative and expect a decision from you in my favour." (Emphasis added.) 16 On 21 December 1999, the Minister's delegate advised the applicant that his application for a visa had been refused. The decision record explained why, in the delegate's opinion, the applicant had not met the definition of "special need relative". The delegate also briefly referred to other visa categories in the sub-class (806 - Family) for which the applicant had applied, and said this: "At the time of application, the applicant had a sibling resident in the home country of Fiji and therefore the applicant and his spouse are not able to meet the Regulatory definition of a 'remaining relative'." This passage shows that the delegate had formed the view that the applicant could not satisfy the definition of "remaining relative" because he was disqualified under reg 1.15(2)(a)(i): that is, the delegate considered that the applicant usually resided in the same country (Fiji), not being Australia, as an overseas near relative (his sister). 17 On 2 July 2001, the MRT invited the applicant to provide certain additional information relevant to his claim to be a special need relative of the nominator. The applicant's solicitor provided the information by letter dated 27 August 2001. No suggestion was made in the solicitor's letter that the MRT should consider whether the applicant satisfied the requirements for a remaining relative. 18 The MRT conducted a hearing on 6 December 2001. The transcript of that hearing was not before me. On 10 December 2001, the applicant's solicitor put further written submissions to the MRT. These submissions addressed the special need relative issue, but made no reference to the possibility that the applicant might be a "remaining relative" within the meaning of cl 806.213. 19 The MRT's decision was handed down on 9 January 2002. The MRT's reasons contain this passage: "At the time the visa application was lodged, Family (Residence) (Class AO) contained a number of subclasses. The only subclass in respect of which any claims have been advanced is Subclass 806, and then only in respect of the 'special need relative' ground. There is no evidence to suggest that the visa applicant meets key criteria for other subclasses or other grounds." This passage is the only part of the reasons that might be construed as referring to the question of whether the applicant could be regarded as a "remaining relative".

The Applicant's Contentions 20 As I have noted, in written submissions predating the Full Court's decision in NAAV v Minister, Mr Leeming contended that the MRT had committed a jurisdictional error by failing to address the applicant's claim that he was a "remaining relative" of the nominator. 21 Mr Leeming's written submissions, filed after the decision in NAAV v Minister, addressed the question of whether the applicant's claim to relief under s 39B(1) of the Judiciary Act was foreclosed by reason of s 474(1) of the Migration Act. Mr Leeming accepted that the effect of s 474(1), as construed in NAAV v Minister, is to expand the lawful authority and power of the decision-maker, in this case the MRT. He also disclaimed any suggestion that any of the three so-called Hickman provisos applied in this case. (The Hickman provisos confine the protection accorded by a privative clause such as s 474(1) to a decision that "is a bona fide attempt [by the decision-maker] to exercise its power, that it relates to the subject matter of the legislation and…is reasonably capable of reference to the power given to the [decision-maker]": The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 498, at 615, per Dixon J.) Mr Leeming relied instead on the proposition that s 474(1) of the Migration Act cannot be read as validating what would otherwise be an unlawful decision if the MRT fails to comply with an "essential structural element" of the Migration Act. 22 Mr Leeming submitted that the MRT's failure to consider whether the applicant satisfied the criteria for a "remaining relative" constituted a failure to comply with an essential structural element of the regime established by the Migration Act. He pointed out that s 348(1) of the Migration Act provides that if an application is properly made for review of an "MRT-reviewable decision" the MRT "must review the decision". The MRT's failure to address the "remaining relative" issue amounted, so he argued, to a failure by it to comply with this essential statutory requirement. It followed that s 474(1)could not protect the MRT's decision from invalidity. 23 Mr Leeming recognised, as he had to, that three members of the Full Court in NAAV v Minister expressed the view that s 474(1) of the Migration Act validates decisions made by the MRT where the MRT has failed to ask the correct question (assuming that the Hickman provisos are fulfilled). He submitted, however, that the MRT's decision in the present case should not be characterised as involving a "mere" failure to ask the correct question. A distinction had to be drawn, so he argued, between two categories of decisions. In the first, the MRT turns its mind to the claim made by the applicant, but fails to ask the correct question, for example because it misconstrues a statutory provision. In the second, the MRT simply does not turn its mind to the applicant's claim at all. The latter case, according to Mr Leeming, involves a failure to comply with a fundamental requirement laid down by the Migration Act. Parliament did not intend an egregious error of this kind, so he contended, to be protected by a privative clause in the form of s 474(1).

the minister's contentions 24 The Minister's written submissions argued that the applicant failed at the first hurdle because the MRT was not obliged to consider whether the applicant was a "remaining relative" of the nominator. Mr Smith founded this submission on the proposition that reg 1.15(2)(a)(i), on its correct construction, required the decision-maker to exclude from consideration any period during which the applicant was present in Australia, whether lawfully or unlawfully. In his oral submissions, however, Mr Smith accepted that even if this proposition were correct, reg 1.15(2)(a)(i) still required the MRT to address whether the applicant usually resided in the same country (Fiji) as an overseas near relative (his sister). Mr Smith therefore ultimately accepted that the MRT had not addressed the correct question posed by the definition of "remaining relative": that is, whether the applicant usually resided in Fiji at the time he applied for a Family Residence visa. 25 Mr Smith submitted that the reasoning of the majority in NAAV v Minister (Black CJ, Beaumont and von Doussa JJ) required s 474(1) of the Migration Act to be construed as validating a decision of the MRT where the only error (independently of s 474(1) itself) is a failure by the MRT to address the correct question. According to Mr Smith, it cannot matter whether the failure occurs because the MRT misunderstands the law or simply does not direct its attention to the right tissue. To give s 474(1) such an effect does not involve infringing "inviolable limitations or restraints" upon the statutory powers of the MRT. Since the only error made by the MRT was its failure to consider whether the applicant was a remaining relative of the nominator, its decision was effectively protected from invalidity by s 474(1) of the Migration Act. 26 In oral submissions, Mr Smith advanced an alternative argument. He submitted that even if the distinction between a failure to ask the correct question and a failure to turn the decision-maker's mind to the correct issue was sound (as the applicant had suggested), the MRT in this case had in fact adverted to the possibility that the applicant might have been a remaining relative, but rejected it. Thus, so Mr Smith argued, the factual foundation for the applicant's argument was wanting.

reasoning 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). 28 The question, therefore, is whether the MRT's decision is protected by the so-called privative clause, s 474(1) of the Migration Act. For the purposes of this case, the answer is to be derived from the reasoning of the Full Court in NAAV v Minister. It should be noted, however, that the High Court has reserved judgment in proceedings in which the issues dealt with in NAAV v Minister have been canvassed: Re Minister for Immigration and Multicultural and Indigenous Affairs & Anor; Ex parte Applicants S134/2002; (Judgment reserved 4 September 2002).

naav v minister: an overview 29 In NAAV v Minister, the Full Court dealt with five appeals, namely NAAV v Minister, NABE v Minister; Ratumaiwai v Minister; Turcan v Minister; and Minister v Wang. Each appeal raised what was described as a "common question" concerning the "jurisdiction and power to judicially review privative clause decisions as defined in s 474 of the Migration Act ": at [595] per von Doussa J; see also at [1] per Black CJ. 30 Each member of the Court delivered a separate judgment. There are, however, clear differences in approach between a majority of the Court, comprising Black CJ, Beaumont and von Doussa JJ, and the minority, comprising Wilcox and French JJ. Beaumont J, although delivering a detailed judgment, concluded his reasons with the following observation (at [277]): "For completeness, and in order to avoid any possible doubt, I should say that I agree entirely with the reasons of von Doussa J in each of these appeals". Black CJ said that he would dismiss the appeals in three cases (NAAV, NABE and Ratumaiwai) "essentially for the reasons given by von Doussa J" (at [4]). The Chief Justice also said (at [4]) that "subject to what follows, I agree with what [von Doussa J] has said about the construction of s 474 and its effect in these appeals." 31 The Chief Justice added, however, that he disagreed with von Doussa J on a point that was determinative of two of the appeals (Turcan and Wang). His Honour identified (at [5]) the point in Turcan as "whether s 474(1) has the effect that s 128 of the [Migration Act] is to be construed as extending authority to the Minister, or the Minister's delegate, to reach an unchallengeable state of satisfaction about the particular legal question as to the meaning of the Act or another law of the Commonwealth specified in s 116(1)(f) - 'contravention of [the] Act or of another law of the Commonwealth' - provided that what are known as the three Hickman provisos are fulfilled." The question as formulated by the Chief Justice in Wang, was (at [6]) whether "s 474(1) has the effect that failure to provide the notice that is required by s 129 of the Act does not invalidate a decision, under s 131, to refuse to revoke a visa cancellation, provided that the three Hickman provisos are fulfilled." The statutory provisions referred to by the Chief Justice are set out or explained in the summaries of Turcan and Wang (see [55]-[72]), below). 32 Wilcox J, at the conclusion of his judgment, observed (at [377]) that French J had reached similar conclusions to his own. Wilcox J said that he concurred with French J's "exposition of the relevant principles and his application of them to these appeals". Presumably Wilcox J intended by this statement to concur with French J's observations on some issues on which he (Wilcox J) expressly reserved his position earlier in his judgment.

naav v minister: common ground 33 There is some common ground in the five judgments. A number of principles appear to be accepted, explicitly or implicitly, by all members of the Court. 34 First, a privative clause such as s 474(1) of the Migration Act is to be interpreted in accordance with the principles of construction enunciated by Dixon J in Hickman and consistently applied thereafter by the High Court: at [9], per Black CJ; at [99]-[101], per Beaumont J; at [280]-[281], per Wilcox J; at [499], per French J; at [617], per von Doussa J. 35 Secondly, s 474(1) is not to be read literally, since to do so would result in it purporting to oust the entrenched jurisdiction of the High Court under s 75(v) of the Constitution: at [21], per Black CJ; at [354], per Wilcox J; at [505], [540] [541], per French J. A privative clause (such as s 474(1)) says nothing about the scope of this Court's jurisdiction under s 39B(1) of the Judiciary Act (which is co-extensive with that of the High Court under s 75(v) of the Constitution) and therefore does not seek to preclude judicial review of invalid decisions: at [515], per French J; at [611], [642], per von Doussa J. 36 Thirdly, s 474(1) operates to insulate the decision-maker against what would otherwise be unlawfulness in the decision-making process: at [11], per Black CJ; at [481], per French J; at [291]-[297], per Wilcox J, at [611], per von Doussa J. In the language of Dixon J in Hickman itself, 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". See at [11], per Black CJ; at [100], [104], per Beaumont J; at [281], per Wilcox J; at [537], per French J; at [630], per von Doussa J. 37 Fourthly, 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" (at [619], per von Doussa J), an "inviolable limitation or restraint" (at [12], per Black CJ; at [499], [537] per French J), or a "structural" element in the operation of the Migration Act (at [37], per Black CJ). 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: at [11], per Black CJ (citing R v Coldham; Ex parte The Australian Workers Union (1983) 153 CLR 415, at 418, per Mason ACJ and Brennan J); at [500], per French J. 38 Fifthly, s 474(1) of the Migration Act is constitutionally valid. Read in the way already indicated, s 474(1) does not deprive the Court of jurisdiction to grant relief in respect of decisions made in excess of power. Rather, a provision such as s 474(1) is treated as having an implicit effect on the substantive law, by extending the lawful authority and powers of the decision maker. Nor does s 474(1) confer judicial power on non-judicial bodies in contravention of Ch III of the Constitution. See at [20]-[21], per Black CJ; at [105], at Beaumont J; at [308], per Wilcox J; at [538]-[546], per French J at [640]-[646], per von Doussa J.

the five appeals 39 The most important differences between the approach taken by the majority (Black CJ, Beaumont and von Doussa JJ) and that of the minority (French and Wilcox JJ) revolves around the fourth principle relating to final or inviolable limitations on the decision maker's powers. A convenient way of illustrating the differences is by summarising the outcome of each of the appeals. The summaries of Turcan and Wong assist in identifying the differences between Beaumont and von Doussa JJ, on the one hand and Black CJ on the other.

NAAV v Minister 40 In this case, the primary Judge held that there had been no breach by the Refugee Review Tribunal ("RRT") of the requirements of procedural fairness in affirming the delegate's decision not to grant the appellant a protection visa. His Honour held, in any event, that s 474(1) operated according to its terms to exclude any implied duty on the RRT to afford procedural fairness. 41 All members of the Court, other than Beaumont J (who expressed no opinion on the point) considered that, contrary to the opinion of the primary Judge, the RRT had not satisfied the requirements of procedural fairness. The majority (Black CJ, Beaumont and von Doussa JJ) nonetheless dismissed the appeal on the ground (at [648] per von Doussa J) that "the rules of procedural fairness have been excluded by s 474. It follows that the [RRT's] decision was lawfully made." 42 French J dissented. His Honour identified (at [556]) the RRT's breach of procedural fairness as its failure to comply with its own undertaking that it would not consider country information adverse to the appellant other than that which had already been disclosed. He considered that the unfairness of what occurred was so obvious that the breach of procedural fairness "vitiated the exercise of the [RRT's] power to make a determination". In his Honour's view: "It is not to be supposed that the privative clause introduces a legislative intent…that a breach of procedural fairness which is so clear and contrary to a statement made by the decision-maker himself should be beyond the reach of judicial review". 43 Wilcox J also dissented. He held (at [332]) that the obligation to accord procedural fairness was not affected by the Hickman principle. In his view, if the legislation, construed as a whole, requires that powers are exercisable only in certain cases and not others, a privative clause will not preclude relief if the decision-maker purports to exercise the powers in circumstances not contemplated by the statute. He considered that this principle applies to common law obligations implied by statute as much as to obligations expressly imposed by statute. 44 In the result, the Full Court, by majority, dismissed the appeal, although not on the same grounds as those relied on by the primary Judge.

NABE v Minister 45 In this case, the primary Judge held that the RRT had failed to deal with the appellant's claim that he had been mistreated in Sri Lanka not by the authorities, but by the People's Liberation Organisation of Tamil Eelam ("PLOTE"), a militant organisation. His Honour held that this was a jurisdictional error, but that the decision was saved from invalidity by s 474(1) of the Migration Act. 46 Wilcox J held that, while the RRT may have overlooked a reference by the delegate to the appellant having claimed that the mistreatment he had suffered occurred at the hands of PLOTE rather than the army or government officials, the error, if any, was "merely an error of fact" (at [342]). Wilcox J (at [344]) found it unnecessary to consider the correctness of the primary Judge's conclusion that s 474(1), in any event, saved the RRT from jurisdictional error. 47 French J held (at [562]) that the RRT had merely made "an erroneous finding about [the appellant's] evidence" and that such an error did not "fall into any of the grounds of review which are now available consistently with s 474". 48 von Doussa J, with whom Black CJ and Beaumont J concurred on this point, agreed (at [650]) with Wilcox J that the error identified by the primary Judge was an error of fact that did not amount to a jurisdictional error. von Doussa J added this comment: "even if the error amounted to a jurisdictional error of the Craig [v South Australia] type, I consider that the decision was validated by s 474(1) as the authority and powers of the RRT had been properly engaged by a valid application made to the RRT for review of an RRT-reviewable decision, and none of the three Hickman provisos has application." 49 Accordingly, the Full Court unanimously dismissed the appeal.

Ratumaiwai v Minister 50 In this case the appellant, like the applicant in the present proceedings, had applied for a Family Residence (Class AO) visa on the basis that he was a "special need relative" of the nominator (the appellant's brother), who had certain physical disabilities. The MRT found that the brother did not have a permanent or long term need for assistance because of his disability. The appellant contended before the primary Judge that the MRT had committed a jurisdictional error by failing to take into account a relevant consideration, namely the financial assistance and emotional support provided by the appellant to his brother. The primary Judge dismissed the appellant's application. The Full Court unanimously dismissed the appeal. 51 French J held (at [572]) that it was open to the MRT to conclude that financial assistance as such did not fall within the scope of the definition of "special need relative" in Migration Regulations, reg 1.03. French J also held that, although the MRT was incorrect in suggesting that emotional support could constitute "assistance" for the purposes of reg 1.03 only if the nominator suffered from mental illness, the error was irrelevant because the appellant had not advanced a case from which emotional support could be inferred. Wilcox J simply expressed agreement with the primary Judge that the appellant had not demonstrated jurisdictional error. 52 von Doussa J held (as did Wilcox J) that the appellant had failed to demonstrate jurisdictional error. His Honour added this comment (at [651]): "Even if the Tribunal had committed errors of law of the kind contended for by [the appellant] by misinterpreting the definition of 'special need relative' in the Migration Regulations, reg 1.03, and by failing to consider whether [the appellant] had provided to his brother financial assistance and emotional assistance, I consider that s 474 would nevertheless save the Tribunal's decision from invalidity." Black CJ agreed with von Doussa J. 53 Beaumont J, although expressing agreement with von Doussa J's reasoning, expressed his own reasons for dismissing the appeal as follows (at [188]): "In my opinion, in the absence of any arguable basis for the operation of any of the Hickman provisos, this is a plain case for the application of s 474(1). As Menzies J observed in [The Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437, at 452]: '[t]o show that the [decision-maker] made a mistake of law is not of itself sufficient to show that the [decision] which followed that error was made without jurisdiction [for the purposes of a privative clause]'. This decision, which may or may not have contained an error of law in the interpretation of the Regulations, clearly satisfied those provisos. The [MRT's] decision can, without doubt I think, be characterised as a bona fide attempt to exercise its authority in a matter relating to the particular subject with which the Act deals; and as a decision which is capable, on any reasonable approach, of being referred to the power possessed by the [MRT]." 54 The appeal was unanimously dismissed.

Turcan v Minister 55 The appellant brought an application under s 39B(1) of the Judiciary Act challenging, inter alia, a decision made under s 128 of the Migration Act to cancel his permanent spouse class 801 visa. The appellant was outside Australia at the time of the decision. Section 128 provides as follows: "If: (a) the Minister is satisfied that: (i) there is a ground for cancelling a visa under section 116; and (ii) it is appropriate to cancel in accordance with this Subdivision; and (b) the non-citizen is outside Australia; the Minister may, without notice to the holder of the visa, cancel the visa." Section 116(1) empowers a Minister to cancel a visa if he or she is satisfied that: "(d) if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or … (f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth." 56 The officer cancelling the appellant's visa did so in reliance on the ground stated in s 116(1)(f), namely that the visa should not have been granted because its grant was in contravention of the Migration Act. The officer formed the view that at the date the visa was granted, the appellant knew that the relationship he claimed to have "was no longer in place". The appellant challenged the cancellation decision on the basis that s 116(1)(f) of the Migration Act does not permit substantive visas to be cancelled where the Minister's delegate was satisfied at the time of grant that the criteria were met, but it is later found that those criteria were not in truth satisfied. 57 The primary Judge considered that the correct approach was to determine first whether s 474(1) applied to the delegate's decision. If so, it was not appropriate for the Court to decide whether the ground on which the appellant relied was made out. In his view, the operation and effect of s 474(1) was a matter of construction. He considered that Parliament's intention was to limit judicial review of privative clause decisions to the "Hickman grounds". Since the decision was a bona fide attempt to exercise the statutory power, related to the subject matter of the legislation and was reasonably capable of reference to the power given to the delegate, the appellant's challenge had to fail. 58 By majority (Black CJ, Wilcox and French JJ; Beaumont and von Doussa JJ dissenting), the Full Court allowed the appeal. As already noted, Black CJ, although agreeing with von Doussa J's construction of s 474(1), reached a different conclusion on the application of those principles to the circumstances of Turcan. 59 All members of the Full Court held that the delegate had misconceived the scope of s 116(1) of the Migration Act. von Doussa J, in dissent on the appeal, accepted (at [663]) that, except for s 474(1), the delegate's misconstruction of that provision would constitute an error of law "that would invalidate an exercise of power conditioned on her state of satisfaction under s 128 that there was a ground for cancelling the visa under s 116". His Honour, however, construed s 128 of the Migration Act, when read in conjunction with s 474(1), (at [667]) as "extending authority and power to the Minister (or the Minister's delegate) to reach an unchallengeable state of satisfaction as to the matters therein satisfied, provided the three Hickman provisos are all fulfilled". Since they had been fulfilled, s 474(1) effectively rendered the delegate's decision immune from challenge. 60 Beaumont J, also in dissent on this appeal, held (at [229]) that even if the Minister's delegate had erred in law in being satisfied that a ground for cancellation existed, this was a "mere error of law" and not "a plain excess of jurisdiction". Given that the Hickman provisos were fulfilled, the appellant's complaints were "submerged by the operation of s 474" (at [233]). Beaumont J rejected the appellant's reliance on the proposition that a decision as to a delegate's "satisfaction" is reviewable where the decision-maker has misdirected himself at law. While the proposition was generally correct, it could not be applied in the face of a privative clause such as s 474(1). In his Honour's view (at [241]): "even if an error of law might be thought to be central or fundamental to the Tribunal's process of reasoning once the Tribunal has properly entered upon its enquiry, any such error will not result in invalidity because the privative clause will protect the decision from forensic challenge". 61 For French J, the approach taken by the primary Judge overlooked the principle that a privative clause does not preclude judicial review where there has been a failure to comply with a condition precedent to the exercise of the relevant power (at [577]). This principle had been established by R v Murray; Ex parte Proctor (1949) 77 CLR 387. There the High Court held that the National Security (Coal Mining Industry Employment) Regulations had conditioned the validity of Local Reference Boards upon the presence of a quorum and that where a Board purported to act in the absence of a quorum, prohibition lay notwithstanding a privative clause. French J reasoned as follows (at [579]): "Ministerial satisfaction that there is a ground for cancelling a visa under s 116 is a condition of the power of cancellation conferred by s 128. There is no power to cancel a visa under the Act that is not required to be triggered by some fact or state of ministerial satisfaction. Parliament is not to be taken to have intended, by virtue of the privative clause, to confer on the Minister a power to cancel visas on a whim. The condition in s 128 is a condition precedent notwithstanding s 474. A decision made without fulfilment of that condition is not a decision to which s 474 applies. The content of the necessary satisfaction under s 128 is defined by reference to s 116. Where the Minister or delegate relies upon a ground for cancellation which does not apply because he or she mistakes the law, the requisite state of satisfaction does not exist. So the delegate may not be satisfied of a breach of a section wrongly construed. What is required is a state of satisfaction that there is a ground for cancelling a visa under s 116 properly construed." Since the delegate did not possess the requisite degree of satisfaction to enliven the power of cancellation, s 474(1) did not protect the decision from the issue of a writ of certiorari to quash it. 62 Wilcox J agreed (at [364]) that s 128 of the Migration Act contained a clearly expressed intention to impose limitations on the exercise of the power. One such limitation was that the delegate had to be satisfied of a particular matter. This required the delegate to be lawfully validly satisfied (at [366]). Since the delegate had misconstrued the law, she was not so satisfied. Hence s 474(1) did not validate the delegate's decision. 63 Black CJ considered (at [25]) it well-settled that where a statutory power is expressed to arise if the decision-maker is satisfied that statutory criteria are met, a determination that the decision-maker is not "satisfied" goes to the jurisdiction of the decision-maker and is reviewable under s75(v) of the Constitution (and therefore under s 39B(1) of the Judiciary Act). It was also settled, at least in the absence of a Hickman clause, that the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker (at [26]). The Chief Justice therefore agreed with Wilcox, French and von Doussa JJ that, in the absence of s 474(1), the misconstruction of s 116(1)(f) by the delegate constituted "an error of law that would invalidate an exercise of power conditioned on his state of satisfaction under s 128 that there was a ground for cancelling the visa under s 116." 64 Black CJ accepted (at [29]) that s 474(1) had changed "the substantive law governing the Minister's power and jurisdiction under the Act so that decisions that may otherwise have been invalid may, by reason of the intention implicitly expressed in s 474(1) (interpreted in accordance with the Hickman principle), now be 'validated'." His Honour continued (at [30]): "I accept that s 474(1) may be taken to provide the "contrary intent", which gives the administrative decision-maker authority to make a decision otherwise than in accordance with law, referred to in Craig v South Australia, [at 179]. For this reason, I take s 474(1) to express the Parliament's intention that the Minister's satisfaction is to be taken to exist even if the Minister (or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material. But here the question as to "contravention of [the] Act or any other law of the Commonwealth" raised by s 116(1)(f) is so centrally definitional to "satisfaction" that is required by s 128, and is posed so directly as a legal question about the operation of the Act itself, that a line might have been crossed, in that it would seem inherently unlikely that the Parliament intended that the Minister be given a power to decide that question in a way that is wrong as a matter of law. Not only is the ultimate question to which s 116(1)(f) requires an answer posed, in terms, as a question of law, but part of that question relates back to the equally fundamental question of the validity of the application for the visa (see s 46). In these circumstances, I conclude that s 474(1) does not have the effect that the substantive law of the Act is altered to the extent that the courts must now proceed on the footing that the "satisfaction" required as a precondition to the Minister's power to cancel a visa exists in a case where the Minister's satisfaction is founded upon an erroneous answer to the legal question posed by s 116(1)(f)." (Emphasis in original.) The Chief Justice concluded (at [33]) that a correct answer to the legal question about the contravention posed by s 116(1)(f) was in the nature of an inviolable limitation upon the powers to cancel a visa on that ground.

Minister v Wang 65 In this case the respondent's business visa was cancelled under s 128 of the Migration Act while he was outside Australia. The reason recorded for the cancellation was that certain documents relied on by the respondent were bogus. Section 129(1)(b) of the Migration Act provided that if the Minister cancelled a visa under s 128, he or she had to give the former holder of the visa a notice giving certain particulars. The notice also had to state that if the former holder showed within a specified time that the ground on which the visa was cancelled did not exist, the cancellation would be revoked: s 129(1)(d). If the former holder responded to the notice, the Minister was obliged to consider whether to revoke the cancellation. Section 131(1) provided as follows: "(1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister: (a) if not satisfied that there was a ground for the cancellation; or (b) if satisfied that there is another reason why the cancellation should be revoked; is to revoke the cancellation." 66 The Minister's delegate sent the respondent a letter purporting to comply with s 129, and the respondent replied, complaining that he had been unable to discern from the letter which documents were said to have been fabricated. The delegate then made a decision, purportedly under s 131, declining to revoke cancellation of the visa. 67 The primary Judge held that the Minister had not given the notice required by s 129 of the Migration Act. He further held that, in these circumstances, the precondition of the Minister's entitlement to make a decision under s 131 did not exist and that, accordingly, a jurisdictional fact prescribed by the legislation did not exist. In his view, in these circumstances s 474(1) was not intended to preclude the grant of relief under s 39B of the Judiciary Act, since the Minister "was not empowered to form any satisfaction in terms of s 131(1)(a) or (b)". 68 von Doussa J, in dissent on the appeal, said that if the primary Judge's identification of the jurisdictional fact that enlivened the Minister's power to make a decision under s 131 had been correct, he would have dismissed the appeal. However, von Doussa J took the view (at [672]) that the jurisdictional factors enlivening the Minister's power were limited to those contained in s 128: namely, the Minister's satisfaction that the visa holder's visa was liable to be cancelled; that it was appropriate to do so; and that the visa holder was outside Australia. In his opinion (at [672]), it was not correct "to treat each step and each decision that may follow cancellation as discrete areas of authority or "jurisdiction" which are only enlivened upon compliance with procedural provisions that operate at a preceding point in time. If this were the correct approach to the provisions of Subdiv F, a similar approach, for example, to the procedures relating to a review by the RRT would mean that a failure to give to the applicant all the information required by s 424A, or the failure to give the applicant the invitations required by ss 424B, 425 or 425A would constitute preconditions to the exercise of the power to make a decision. In my opinion the result of such an approach would be to defeat the object of s 474(1)." 69 Beaumont J agreed (at [274]-[275]) with von Doussa J, but observed that, in his opinion, the case was indistinguishable from NAAV. 70 Wilcox J agreed (at [372]) with the primary Judge's reasoning. French J considered (at [592]) that notification under s 129 was an "essential element" of the legislative scheme: "The requirements of s 129 and the way that they are imported into s 131 have all the hallmarks of a condition precedent to the effective exercise of the power conferred by s 131 to decide not to revoke. There is no constructional option which avoids that outcome." 71 Black CJ expressed agreement with von Doussa J's view that the "structural" elements of the Migration Act (described as "jurisdictional factors" by von Doussa J) are few in number and that "once they are satisfied" the decision-maker's power is greatly expanded by s 474(1)". He also agreed with von Doussa J's comments on procedural steps in a validly-attracted area of decision-making. But Black CJ considered (at [37]) that visa cancellation and the revocation of visa cancellation should be seen as separate areas of decision-making. The fundamental structure of "the s 131 scheme for revocation of a visa cancellation is that it is enlivened, and enlivened only, by a notice having a particular quality. The learned primary Judge found that the notice provided to Mr Wang did not have that quality, and the contrary was not argued before us. Viewed in that light, an "inviolable limitation" on the power to revoke a cancellation under s 131 is that the fundamental requirement, the notice mandated by s 129, must have been satisfied: see Rent Controller. The learned primary Judge correctly held that the requirement was not satisfied in the case of Mr Wang. Accordingly, the power to refuse to revoke the cancellation of his visa was not enlivened." 72 In the result, the Minister's appeal was dismissed.

the majority approach 73 As I have noted, there are clear differences between the approach of the majority (Black CJ, Beaumont and von Doussa JJ) to the construction of s 474(1) of the Migration Act and that of the minority (Wilcox and French JJ). This is so notwithstanding that Black CJ reached a different conclusion than Beaumont and von Doussa JJ in Turcan and Wang. 74 There is no suggestion in the present case that the three Hickman provisos were not satisfied. Since Mr Leeming relied on what he said was a failure to conform to an essential "structural" element of the Migration Act, the important question for present purposes is what view the majority took as to the scope of the concept of a "structural" element. Mr Leeming appears to have taken the latter concept from the judgment of Black CJ, but his Honour clearly enough regarded the expression as substantially equivalent to the term "jurisdictional factor" used by von Doussa J (which was in turn derived from the judgment of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, at 650). 75 von Doussa J gave as one of many examples the existence of a "jurisdictional factor" the decision in Hickman itself. There a writ of prohibition was granted because the dispute which was the subject of the order was not in truth related to the coal mining industry (as the legislation required). Accordingly, the Local Reference Board's jurisdiction had not been attracted. 76 von Doussa J observed as follows (at [625]): "Under the Act the jurisdictional factors which attract the authority and powers of decision makers in the sense described in a particular case will be few. For example, in relation to the grant of visas, s 45 requires that a non-citizen who wants a visa must apply. The application must be a valid application: s 46. The Minister is then required to consider a valid application for a visa: s 47. The Minister may delegate that function and power to a delegate: s 496. The relevant authority and powers to make the primary decision in the visa application is attracted by the making of a valid application to the Minister and in the case of exercise of power by a delegate, by the additional factor of valid delegation. In the case of the review jurisdictions of the MRT and the RRT their authority and powers are attracted by a valid application to review a decision which is a MRT-reviewable decision, or a RRT-reviewable decision as the case may be: ss 348 and 414 respectively. Again, the attraction of jurisdiction is also dependent on the valid constitution of the Tribunal (e.g. upon the valid appointment of the member which is to constitute the Tribunal). These factors constitute the 'inviolable limitations or restraints' upon the attraction of the relevant authority and powers under the Act. Unless these conditions arise, there cannot be a lawful exercise of decision-making power under the Act, and no occasion for the operation of s 474 of the Act arises." 77 His Honour rejected an argument that procedural provisions which relate to the exercise of decision making power do not give way to the general intention indicated by s 474(1). These provisions were said to include ss 424A and 425, which provide that the RRT "must" be given certain information and "must" invite the applicant to appear before it. In his view (at [633]): "s 474 was introduced as the centre piece of amending legislation which had a very specific intention. I do not think it can be doubted that s 474 was intended to amend provisions of the Act relating to the procedures attending the decision making processes which the Act envisaged. That amendment was to occur by the expansion of the power and authority of decision makers. The intention was that s 474 would have the effect that the provisions, or at least some of them, relating to the decision making process that had hitherto been understood to be mandatory would henceforth be only directory…. In its intended operation the terms and intent of s 474 were specific". Later (at [636]), his Honour said that: "to construe s 474(1) so that it did not have the effect of validating decisions by extending the authority and powers of decision makers so as to render lawful irregularities that would otherwise constitute jurisdictional error of the Craig type would defeat the clear object of Parliament…". 78 Importantly for present purposes, his Honour referred to SBBK v Minister for Immigration and Multicultural Affairs [2002] FCA 265. In that case, Tamberlin J found that the RRT had committed a fundamental error of principle by failing to address a central question, namely whether the applicant was a member of a particular social group comprising "women in Iran" or "divorced women in Iran". Tamberlin J said (at [44]) that it was clear from the Hickman line of authorities: "…that a privative clause will not usually protect a decision that exceeds constitutional limits, or a decision that is made in breach of a specific, express or indispensable precondition to jurisdictional exercise of power, nor will the privative clause serve to validate a decision where there has not been a compliance with a condition that is essential to the exercise of jurisdiction in accordance with statutory terms." von Doussa J remarked that this statement about the general effect of Hickman was "unexceptional". However, he also said (at [639]) that he shared the difficulty expressed by Allsop J in NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713, at [59]-[60]: "about Tamberlin J's conclusion that an error of law in failing to identify the right question to be addressed in the applicant's claim constitutes a failure to comply with a condition that is essential to the exercise of jurisdiction of the RRT. In my opinion the jurisdiction of the RRT was attracted by a valid application to the RRT made under s 414 to review an RRT-reviewable decision. Once that jurisdiction was enlivened, the manner of exercise of the authority and powers of the RRT came within the expanded area of authority and powers brought about by s 474(1), with the consequence that the decision of the RRT was lawfully made. This consequence arises even if in the absence of s 474(1) the decision would have been effected with a jurisdictional error of the Craig type because the wrong question had been asked." (Emphasis added.) 79 In considering the constitutional issue, von Doussa J stated (at [642]) that a "privative clause decision will exceed the lawful authority and powers of a decision-maker only where jurisdictional factors essential to the enlivenment of the authority and powers of the decision-maker are absent". 80 It seems to be clear, on von Doussa J's reasoning, that s 474(1) of the Migration Act protects a decision of the MRT against invalidity where the decision maker has failed to identify the right question to be addressed in dealing with the applicant's claim. So much appears from his Honour's analysis of SBBK v Minister. It also follows from his observation, quoted earlier (see [52] above), in relation to Ratumaiwai, that even if the MRT had misinterpreted the definition of "special need relative" and as a result failed to consider financial and emotional assistance", s 474(1) would have saved the decision from invalidity. There is nothing in von Doussa J's reasoning to suggest (as did Mr Leeming in his submissions) that a distinction should be drawn between a failure to advert to the correct question, on the one hand, and a failure to ask the correct question because of an error of law, on the other. On the contrary, von Doussa J's reasoning proceeds on the basis that there are few jurisdictional factors that must be satisfied before s 474(1) takes effect (assuming the Hickman provisos are satisfied). It would not be consistent with the paramountcy that von Doussa J attributes to s 474(1) to hold that the MRT's failure to address the correct question in this case deprived the decision of the "validating effect" of s 474(1). 81 I did not understand Mr Leeming to dispute this analysis of von Doussa J's reasoning. His submission was essentially that the judgment of Black CJ, which was determinative of the appeals in Turcan and Wang, leaves it open to conclude that s 474(1) does not "validate" a decision where the MRT has failed to turn its mind to the correct question. 82 In my view, Black CJ's judgment cannot be read this way. It is true that his Honour reached a different conclusion in Turcan and Wang from that reached by Beaumont and von Doussa JJ. But the difference does not turn on any different view as to whether s 474 (1) of the Migration Act protects a decision maker from a failure to ask the correct question. In Turcan, Black CJ held that the delegate had erred on a particular legal question that his Honour regarded as "structural", in the sense that the question was central to the existence of the power to cancel a visa. In Wang, Black CJ held that, as a matter of construction, s 129 of the Migration Act imposed a fundamental requirement that had to be satisfied before the Minister or his delegate could revoke a visa cancellation decision. von Doussa J expressly said that if he had interpreted s 129 as imposing a jurisdictional factor, he would have reached the same conclusion as Black CJ. 83 The Chief Justice specifically stated that a decision will not be invalid by reason of a failure to ask the correct question. His Honour said (at [30]) this: "I agree that the enactment of s 474(1) has the consequence that an error of law on the part of the Minister or delegate in reaching the satisfaction that operates as a precondition to power to grant and cancel visas under the Act does not result in every case in the decision being invalid. I accept that s 474(1) may be taken to provide the 'contrary intent', which gives the administrative decision-maker authority to make a decision otherwise than in accordance with law, referred to in Craig v South Australia…. For this reason, I take s 474(1) to express the Parliament's intention that the Minister's satisfaction is to be taken to exist even if the Minister (or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material". (Emphasis added.) In addition, Black CJ expressed agreement with von Doussa J's reasons for dismissing the appeal in Ratumaiwai, presumably including von Doussa J's additional comments referred to earlier. 84 In these circumstances, there is a clear majority view in NAAV v Minister that s 424(1) protects a decision from invalidity, where the alleged invalidity flows from a failure on the part of the decision maker to ask the correct question. Provided that the "jurisdictional factors" or inviolable limitations are not infringed and the three Hickman provisos are satisfied, s 474(1) expands the authority and powers of the decision maker to render the decision lawful, notwithstanding that the failure to ask the correct question would otherwise have constituted jurisdictional error. 85 In my opinion, the appropriate course is to follow the reasoning of the majority in NAAV v Minister unless and until a different view is adopted by the High Court. It follows that the effect of s 474(1) of the Migration Act is that the applicant's claim for relief pursuant to s 39B(1) of the Judiciary Act must be dismissed.

conclusion 86 The application must be dismissed with costs. 87 I add this observation. 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. I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE .

Solicitor for the Respondent: Blake Dawson Waldron

Migration Legislation Amendment (Judicial Review) Act 2001(Cth)

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