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NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (includes summary and corrigendum dated 10 September 2002) [2002] FCAFC 228 (15 August 2002)

Last Updated: 10 September 2002

NAAV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

N 265 of 2002

NABE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 282 of 2002

ANARE SUA RATUMAIWAI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 399 of 2002

AUREL TURCAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 225 of 2002

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v JIAN ZHONG WANG

S 84 of 2002

BLACK CJ, BEAUMONT, WILCOX, FRENCH and von DOUSSA JJ

15 AUGUST 2002 (CORRIGENDUM 10 SEPTEMBER 2002)

MELBOURNE

(1) On the cover sheet, remove "Country Roads".

(2) In paragraph 461 and on the cover sheet, "Abebe v The Commonwealth (1999) 197 CLR 170" should read "Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510".

(3) In paragraph 471 and on the cover sheet, "Timbarri Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55" should read "Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55.

(4) In the last sentence of paragraph 499 "objected to particular stringency" should read "subjected to particular stringency".

Emily Hammond

Associate

10 September 2002

1. The Court heard these five appeals together. All of them raise questions of statutory interpretation about the extent to which the amendments made to the Migration Act 1958 (Cth) in October 2001 have, by s 474(1), restricted review by the courts of administrative decisions of the Minister for Immigration & Multicultural & Indigenous Affairs, his delegates, and the merits review tribunals (notably the Migration Review Tribunal (MRT) and the Refugee Review Tribunal (RRT)) in migration matters.

2. The first two appeals before the Court, (NAAV and NABE), concern people who had applied for protection visas. The third appeal, (Ratumaiwai), concerns a person who applied for a family visa. The fourth, (Turcan), concerns a person who held a permanent spouse visa which was cancelled by the Minister's delegate while the person was outside Australia, and the fifth, (Wang), concerns a person who held a temporary business visa which was cancelled by the Minister's delegate while the person was outside Australia, and whose request to the Minister to revoke that cancellation was refused.

3. Mr Turcan, whose spouse visa was cancelled while he was outside Australia, has been held in immigration detention since he returned to Australia on 22 February 2002 and was not immigration cleared. Those involved in the other appeals are not in immigration detention.

4. In the first appeal (NAAV), it was argued that the RRT failed to give procedural fairness to the appellant. In the second (NABE) it was said that the RRT made a fundamental mistake because it misidentified the identity of the persons by whom the appellant claimed to be persecuted. The third and fourth appeals (Ratumaiwai and Turcan) concerned alleged errors by the decision-makers in interpreting provisions of the Migration Act. In the fifth appeal (Wang) it was claimed that the Minister's delegate, contrary to the requirement of the Act, failed to give proper information about the decision to cancel the visa as required by the Act before deciding whether or not to revoke that cancellation.

5. In most of the appeals the Solicitor-General for the Commonwealth argued on behalf of the Minister that no legal error was involved in the decision for which judicial review was sought, and in all of the appeals he argued that, in any case, the amendments made to the Migration Act in October 2001 had the effect that the decisions were protected from successful judicial review. Essentially, the Minister relied on the `privative clause' introduced in October 2001. This is contained in s 474 of the Act, which reads:

"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."

6. The other parties have argued that this clause does not have the full effect for which the Minister argued, and that it does not protect the decisions in the present cases from successful judicial review. Some of the other parties argued that if the clause did have that effect, it was invalid for constitutional reasons.

7. The issues before the Court involve questions of statutory construction and each Judge has delivered separate reasons for judgment.

8. The separate judgments disclose two broadly differing approaches to the effect of the amendments. The majority view, represented by the Chief Justice and Beaumont and von Doussa JJ, is that the amendments leave little scope for judicial review (in the sense that although the amendments to the legislation do not prevent access to the Courts, they leave little scope for an applicant to argue successfully that the decision affecting him/her was invalid on legal grounds). Wilcox and French JJ, and are of the view that the amendments do not operate to restrict judicial review as substantially as the Minister contends.

9. All of the Judges agree that the October 2001 amendments have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by the Courts, and have done so by implicitly changing the substantive meaning of the Act so that the jurisdiction and/or power of decision-makers under the Act is expanded. In this way, the decisions that might otherwise have been invalid are "validated" by the effect of the privative clause. As mentioned, the clause does not bar access to the Courts and if it did so, the Judges point out in their reasons, questions of constitutional invalidity would arise.

10. In the first, fourth and fifth appeals (NAAV, Turcan and Wang), the Judges (with the exception, in the case of NAAV, of Beaumont J, who does not express a view) agree that the decision-makers made a legal error which would, in the absence of the privative clause, mean that the challenged decisions would be invalid in law. In NABE the Judges agree with the trial Judge's conclusion that the decision-maker did not make a legal error. All the Judges agree that there was an error by the decision-maker in Ratumaiwai, but agree with the trial Judge that the error was not one of such a nature as would make the decision invalid in law.

11. The next paragraph states, in very brief summary form, the Judges' conclusions about how the privative clause operates in the three appeals in which its operation is directly in question.

12. In the first appeal, (NAAV), a majority of the Judges (the Chief Justice, Beaumont and von Doussa JJ; Wilcox and French JJ dissenting) conclude that the privative clause operates to expand the power of the RRT so that its decision is not invalid despite the circumstance that the RRT failed to comply with the common law requirements of procedural fairness. In the fourth appeal, (Turcan), a majority of the Judges (the Chief Justice, Wilcox and French JJ; Beaumont and von Doussa JJ dissenting) conclude that the privative clause does not operate to expand the power of the Minister's delegate so that he or she can cancel a visa when satisfied on a basis that is incorrect in law, that the visa was granted in contravention of the Act. In the fifth appeal, (Wang), a majority of the Judges (the Chief Justice, Wilcox and French JJ; Beaumont and von Doussa JJ dissenting) conclude that the privative clause does not operate to expand the Minister's power to refuse to revoke a visa cancellation when the person whose visa was cancelled seeks revocation of that cancellation and was not provided with the information required under the Act.

13. Consequent upon the interpretations that they give to the Migration Act, as amended to include the privative clause, all of the Judges agree that the challenges to the privative clause on Constitutional grounds fail.

14. The results of the appeals are as follows:

* NAAV's appeal is dismissed, with costs, by majority (the Chief Justice, Beaumont and von Doussa JJ; Wilcox and French JJ dissenting). The application for judicial review of the RRT's decision therefore remains refused.

* NABE's appeal is dismissed with costs, unanimously. The application for judicial review of the RRT's decision therefore remains refused.

* Mr Ratumaiwai's appeal is dismissed with costs, unanimously. The application for judicial review of the MRT's decision therefore remains refused.

* Mr Turcan's appeal is allowed, with costs, by majority (the Chief Justice, Wilcox and French JJ; Beaumont and von Doussa JJ dissenting). The decision of the trial judge is set aside. Orders are made to quash the delegate's decision to cancel Mr Turcan's visa, and give liberty to apply within 7 days for any necessary consequential orders in relation to his release from detention.

* The Minister's appeal in Wang is dismissed, with costs, by majority (the Chief Justice, Wilcox and French JJ; Beaumont and von Doussa JJ dissenting).

15. This summary is intended to assist in an understanding of the outcome of these appeals. Such summaries are commonly prepared by the Court in cases of general public interest, but they are not a substitute for the judges' reasons which remain the only authoritative statement of the Court.

16. This summary will be available on the internet at www.fedcourt.gov.au soon after the delivery of judgment, as will the reasons for judgment.

CONSTITUTIONAL LAW - validity of privative clause enacted by s 474 of the Migration Act 1958 (Cth) - whether privative clause is inconsistent with s 71, or s 75(iii) and (v) of the Constitution.

ADMINISTRATIVE LAW - operation of privative clause - application of Hickman principle of statutory interpretation to privative clauses - application of Hickman principle of construction to s 474 of Migration Act 1958 (Cth).

MIGRATION - power to grant protection visas - whether use of undisclosed independent information by Refugee Review Tribunal in a manner adverse to appellant, and contrary to assurances, constituted breach of rules of natural justice - whether s 474 applies to protect the decision to affirm the Minister's decision to refuse the application for a protection visa from review.

MIGRATION - power to grant protection visas - where Refugee Review Tribunal misidentified the persons by whom the appellant claimed to have been persecuted - whether s 474 applies to protect the decision to affirm the Minister's decision to refuse the application for a protection visa from review.

MIGRATION - power to grant Family (Residence) visas - where alleged that Migration Review Tribunal failed to consider that appellant provided financial or emotional assistance to a `special need relative' so as to entitle appellant to visa - whether s 474 applied so as to protect the decision to affirm the Minister's decision to refuse the application for a Family (Residence) visa from review.

MIGRATION - power to cancel permanent spouse visa - where visa cancelled while holder outside Australia, and holder detained as an unlawful non-citizen on return to Australia - where Minister's delegate cancelled visa under s 128 because she was satisfied that the grant of the visa was in contravention of the Act, but that satisfaction was affected by an error of law - whether s 474 applied so as to protect the cancellation decision (and consequent decision to detain) from review.

MIGRATION - power to revoke cancellation of Business Entry visa - where visa cancelled while holder outside Australia, and decision to refuse to revoke the cancellation pursuant to s 131 made in absence of the notice of cancellation with content required by s 129 - whether s 474 applied so as to protect the decision to refuse to revoke the cancellation from judicial review.

Constitution, ss 71, 75(iii), 75(v)

Judiciary Act 1903 (Cth), s 39B, s 44

Acts Interpretation Act 1901 (Cth) ss 15, 15A, 15AA

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 8

Federal Court of Australia Act 1976 (Cth) s 23

Migration Act 1958 (Cth), ss 3A, 36, 65, 116, 128, 129, 131, 424A, 474, 475, 475A, 476

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

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

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Minister for Foreign Affairs & Trade v Magno (1992) 37 FCR 298, considered

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Country Roads

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NAAV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

N 265 of 2002

NABE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 282 of 2002

ANARE SUA RATUMAIWAI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 399 of 2002

AUREL TURCAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

V 225 of 2002

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS v JIAN ZHONG WANG

S 84 of 2002

BLACK CJ, BEAUMONT, WILCOX, FRENCH and von DOUSSA JJ

15 AUGUST 2002

MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The appeal be dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The appeal be dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The decision of the learned primary judge is set aside.

3. Certiorari is granted to quash the delegate's decision of 6 July 2002 to cancel the appellant's visa.

4. Prohibition is issued to prevent the respondent, his delegate and officers from acting upon or giving effect to or proceeding further upon the cancellation decision.

5. There be liberty to apply within seven days for any necessary consequential orders in relation to the release of the appellant from detention.

6. The respondent pay the appellant's costs of the appeal and the application for review.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. The appeal be dismissed, with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BLACK CJ:

1 These five appeals have been heard together. They raise a common question concerning the extent to which judicial review of privative clause decisions, as defined by s 474(2) of the Migration Act 1958 (Cth) (the Act), is available in this Court.

2 The appeals involve the construction of the Act as amended last year by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (Judicial Review Amendment Act) and by seven other Acts passed at the same time (the 2001 Amendments). Central to the operation of the Judicial Review Amendment Act is s 474(1) which provides:

"(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."

3 It is important to understand the legislative history of the Act and the nature of the amendments made to it over recent years, including the nature of the 2001 Amendments. These matters are discussed and explained comprehensively in the reasons for judgment of French J at [386] - [429]. The facts of the five matters on appeal are set out in the reasons of the other members of the Court.

4 I have had the advantage of reading in draft the reasons for judgment of the other members of the Court and, except in two cases, I have reached the same conclusions as to the outcomes of these appeals as Beaumont and von Doussa JJ. I would dismiss the appeals in NAAV, NABE and Ratumaiwai. I would do so essentially for the reasons given by von Doussa J and, subject to what follows, I agree with what his Honour has said about the construction of s 474 and its effect in these appeals. I agree also with the reasons of von Doussa J for rejecting the submissions that s 474 is invalid as being offensive to Chapter III of the Constitution.

5 I differ however from von Doussa J on a point that is determinative of two of the appeals. The first is the appeal of Mr Turcan against the decision of the primary Judge rejecting an application for judicial review of the decision to cancel his visa, and the consequential decision to place him in immigration detention as an unlawful non-citizen. The point in Turcan is whether s 474(1) has the effect that s 128 of the 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 so-called Hickman provisos are set out later in these reasons at [11].)

6 The second is the Minister's appeal in Wang against the declaration by the primary Judge that a decision of the Minister's delegate refusing to revoke the cancellation of Mr Wang's visa was invalid and of no effect. The question in Wang is 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.

APPROACH TO INTERPRETATION OF S 474(1)

7 The starting point must be that s 474(1) is in substantially the same terms as a provision in World-War II national security regulations considered by the High Court in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 ("Hickman"), R v Drake-Brockman; Ex parte Northern Colliery Proprietors' Association [1946] ALR 106 ("Drake-Brockman"); R v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd [1947] HCA 32; (1947) 75 CLR 361 ("Rent Controller"), R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd ("Thiess") [1948] HCA 9; (1948) 77 CLR 123, and R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387 ("Murray"). Section 474(1) is also in substantially the same terms as the privative clause in the industrial legislation considered by the High Court in R v The Commonwealth Court of Conciliation & Arbitration; Ex parte Grant [1950] HCA 8; (1950) 81 CLR 27; R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208, R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100; R v Kelly; Ex parte Berman [1953] HCA 82; (1953) 89 CLR 608, R v The Members of the Central Sugar Cane Prices Board; Ex parte The Maryborough Sugar Factory Ltd [1959] HCA 35; (1959) 101 CLR 246, The Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia [1960] HCA 68; (1960) 104 CLR 437, R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Amalgamated Engineering Union (Australian Section) [1967] HCA 47; (1967) 118 CLR 219, R v Judges of the Commonwealth Industrial Court; Ex parte Cocks [1969] ALR 161, North West County Council v Dunn [1971] HCA 34; (1971) 126 CLR 247, R v Coldham; Ex parte The Australian Workers Union [1983] HCA 35; (1983) 153 CLR 415 ("Coldham"), Re The Australian Bank Employees Union; Ex parte Citicorp Australia Ltd [1989] HCA 41; (1989) 167 CLR 513 at 520, O'Toole v Charles David Pty Ltd [1991] HCA 14; (1991) 171 CLR 232, and by this Court in matters remitted by the High Court, such as Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission [1999] FCA 847; (1999) 93 FCR 317. Consistently with common practice, I will refer to s 474(1), and to clauses in substantially the same terms as s 474(1), as Hickman clauses.

8 When the Parliament uses the same words as it has used in previous enactments that have been the subject of judicial consideration and interpretation, it is taken that the intention of the Parliament is that the words be given their judicially established meaning: Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing & Engineering Employees [1994] HCA 34; (1994) 181 CLR 96 at 106. That it was the Parliament's intention in enacting s 474(1) to adopt the interpretation that the High Court has previously given to Hickman clauses is confirmed by the Minister's Second Reading Speech on the Bill for the Judicial Review Amendment Act. After describing the difficulties that the Government perceived with judicial review under Part 8 of the Act in the form it then was, the Minister said:

"Faced with the problem I have outlined, I asked the Department of Immigration and Multicultural Affairs in early 1996 to explore options for best achieving the government's policy objective of restricting access to judicial review. This was done in conjunction with the Attorney-General's Department, the Department of the Prime Minister and Cabinet and eminent legal counsel.

The advice received from legal counsel was that the only workable option was a privative clause.

As members are probably aware, section 75 of the Commonwealth Constitution gives the High Court original jurisdiction to consider challenges to the actions and decisions of Commonwealth officers. As a result, access to the High Court cannot be legislatively restricted without a constitutional amendment.

However, access to the Federal Court, and the scope of judicial review it can exercise, can be changed by legislation. To simply restrict access to the Federal Court in migration legislation matters, would in practice deflect many cases to the High Court under section 75 of the Constitution. This has the potential to erode the proper role and purpose of the High Court.

Counsel's advice was that a privative clause would have the effect of narrowing the scope of judicial review by the High Court and of course the Federal Court. That advice was largely based on the High Court's own interpretation of such clauses in cases following the seminal High Court case of Hickman in 1945. The privative clause in the bill is based on a very similar clause in Hickman's case.

The High Court has not since, despite opportunities to do so, repudiated the Hickman principle, as formulated by Justice Dixon in Hickman's case. Indeed, that principle was described as `classical' in a later High Court case.

Members may be aware that the effect of a privative clause such as that used in Hickman's case is to expand the legal validity of the acts done and the decisions made by decision makers. The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently."

- Australia, Parliamentary Debates, House of Representatives, 26 September 2001, p.31559 - 61

The Minister's speech is set out more fully in the reasons for judgment of von Doussa J.

9 Because the Parliament has enacted s 474(1) in substantially the same terms as earlier Hickman clauses, the operation of which has been explained by the High Court in the cases to which I have referred, and because the Second Reading Speech confirms that the Parliament's intention was that s 474(1) should be interpreted consistently with the High Court's treatment of those previously-enacted clauses, it is clear that the Act as now amended must be interpreted in accordance with the principles that emerge from those cases.

10 The cases in which Hickman clauses in federal legislation have been considered by the High Court have usually arisen in connection with industrial legislation in which the Hickman clause has operated to protect an award once made, but has not purported to affect proceedings before an award is made: see Coldham at 418-9 per Mason ACJ and Brennan J. For example mandamus was granted, notwithstanding the presence of a Hickman clause, in R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Australia) Limited [1949] HCA 33; (1949) 78 CLR 389 at 399-400 to require the Court of Conciliation & Arbitration to hear and determine an application for an award; mandamus was granted in Re The Australian Bank Employees Union; Ex parte Citicorp Australia Limited [1989] HCA 41; (1989) 167 CLR 513 at 520 to require the Conciliation & Arbitration Commission to hear and determine the issue whether it was appropriate to hear and determine an application without a dispute finding being made; and prohibition was granted in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd [1953] HCA 22; (1953) 88 CLR 100 against the respondent industry board, to prevent it from proceeding to cancel or suspend the prosecutor's registration as an employer under the Act in pursuance of the pending inquiry before a delegate of the board. In contrast, the definition of a privative clause decision in ss 474(2) and (3) is very wide in its scope and extends to a decision proposed to be made (s 474(2)), and to conduct preparatory to the making of a decision (s 474(3)(h)). Although the Parliament has here given a Hickman clause a wider operation within a statutory scheme than it has ever had before - the clear intention of the Parliament being that the clause should operate here to the widest degree, the interpretation of s 474(1) is not to be restricted by its uncommon reach. There may be questions about the precise extent of the reach given to s 474(1) by the definition of privative clause decision in ss 474(2), (3), (4) and (5), but nothing turns on those questions in these appeals.

THE PROPER CONSTRUCTION OF HICKMAN CLAUSES

11 A long line of High Court authority establishes how a Hickman clause operates. Essentially what is involved is the reconciliation of apparently inconsistent statutory provisions. The operation of the Hickman clause in federal industrial legislation was described by Mason ACJ and Brennan J in Coldham at 418:

"... a [Hickman clause] will validate an award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled `... namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power) ...' [references omitted]

As Dixon J. explained in Murray, and in other cases, it is a matter of reconciling the prima facie inconsistency between one statutory provision which seems to limit the powers of the Tribunal and another provision, the privative clause, which seems to contemplate that the Tribunal's order shall operate free from any restriction. The inconsistency is resolved by reading the two provisions together and giving effect to each. The [Hickman clause] is taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which prohibition lies."

Their Honours went on to say at 419:

"But a [Hickman clause] cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal. In the face of such a provision, a [Hickman clause] is ineffective to prevent prohibition going when the Tribunal transgresses those limitations or restraints [references omitted]. The present is just such a case."

12 This explanation of the operation of a Hickman clause so as to include a consideration of "inviolable limitations or restraints" is consistent with what Dixon J said in Murray at 399 - 400. His Honour said:

"We are familiar with the distinction between provisions that are directory and those that are mandatory. The distinction supplies an analogy which may help to explain the effect of [the Hickman clause]. For construed in the traditional manner it must be taken to mean that strict compliance with at least some of the provisions of Part III. is not an indispensable condition to the jurisdiction of the Board and to its authority to make a valid and binding award order or determination. There is necessarily an appearance of inconsistency between a provision which defines and restricts the power of a tribunal and prescribes the course it must pursue and a provision which says that the validity of its decrees shall not be challenged or called in question on any account whatever.

The apparent inconsistency should be resolved by an attempt to arrive at the true intention of the legislative document containing the two provisions considered as a whole. The first step in such a process of interpretation is to apply to a [Hickman clause] the traditional or established interpretation which makes the protection it purports to afford inapplicable unless there has been an honest attempt to deal with a subject matter confided to the tribunal and to act in pursuance of the powers of the tribunal in relation to something that might reasonably be regarded as falling within its province. There is nothing artificial in such an interpretation. For it could hardly be supposed, to take perhaps an extreme example, that it was intended that [a Hickman clause] should give validity and protection to the awards of a tribunal established in relation to one industry when the tribunal intentionally stepped outside its allotted industrial field and proceeded to regulate an entirely different industry. A second step in interpreting the whole legislative instrument must be to consider whether particular limitations on power and specific requirements as to the manner in which the tribunal shall be constituted or shall exercise its power are so expressed that they must be taken to mean that observance of the limitations and compliance with the requirements are essential to valid action. For a clearly expressed specific intention of this kind can hardly give way to the general intention indicated by such a provision as [a Hickman clause]."

13 The second step referred to in the judgment of Dixon J in Murray also explains the actual decisions in Hickman, Drake-Brockman, Rent Controller, Thiess, Metal Trades, and Coldham, where the presence of a Hickman clause did not prevent constitutional writs issuing.

14 More recently, the operation of a Hickman clause was described in similar terms by Deane and Gaudron JJ in Darling Casino Ltd v New South Wales Casino Control Authority [1997] HCA 11; (1996-7) 191 CLR 602. Their Honours summarised the passages from the judgment of Dixon J in Hickman at 630, and continued at 632:

"The various legislative powers conferred by s 51 of the Constitution are all expressed as being "subject to" the Constitution and thus to the provisions of s 75. Thus, it has been said that a [Hickman clause] cannot prevent this Court from reviewing decisions which involve the refusal by officers of the Commonwealth to discharge "imperative duties" or which go beyond "inviolable limitations or restraints". On the other hand, it has been acknowledged that such a clause can protect against "a mere defect or irregularity which does not deprive the tribunal of the power to make the award or order", or "some procedural defect which would otherwise result in invalidity"."

15 It is difficult to formulate a precise principle for determining exactly when a provision in an Act containing a Hickman clause may be said to be outside the operation of such a clause and to have the character of an "inviolable limitation". Constitutional considerations aside, the cases where "inviolable limitations" have been identified by the High Court can be seen, however, as cases in which, if the legislation were interpreted in a particular way, essential structural elements created by the legislation would be violated, or else some other quite fundamental aspect of the legislation would change its character in a way and to an extent that the Parliament could not be taken to have intended.

16 To my mind, the task of identifying any "inviolable limitations" in an Act containing a Hickman clause is not greatly assisted by distinctions such as those between `procedural' and `substantive' provisions, or between express and implied statutory conditions on power.

17 Although the Parliament's intention was to give validity to private clause decisions to the greatest extent that can be achieved consistently with the High Court's interpretation of clauses in similar terms, the effect of the clause, and more particularly the question whether there are "inviolable limitations" in the statute upon which the clause does not operate, has to be considered in the context of the particular statute in which it is found. The fact that there are no "inviolable limitations" in the context of one statute containing a privative clause does not mean that they will be absent in the context of another statute containing such a clause. This may be illustrated by reference to the conclusive evidence provision in s 177(1) of the Income Tax Assessment Act 1936 (Cth), which reads:

"The production of a notice of assessment, or of a document under the hand of the Commissioner, a Second Commissioner, or a Deputy Commissioner, purporting to be a copy of a notice of assessment, shall be conclusive evidence of the due making of the assessment and, except in proceedings under Part IVC of the Taxation Administration Act 1953 on a review or appeal relating to the assessment, that the amount and all the particulars of the assessment are correct."

18 In the High Court and this Court, s 177 has been attributed with having a generally conclusive effect in relation to assessments, at least where the Hickman provisos are met: see, for example, Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168 ("Richard Walter") at 195 per Brennan J, 211 per Deane and Gaudron JJ; Hoare Bros Pty Ltd v Commissioner of Taxation (1996) 62 FCR 302 at 312-5. But it is not surprising that there is no emphasis placed on any "inviolable limitations" exception in the context of the Income Tax Assessment Act. In Richard Walter, Brennan J summarised the framework within which s 177 operates at 196 as follows:

"The service of a notice of assessment would fail in its purpose if the assessment were open to challenge for non-compliance with the general and often complex provisions of the Act governing the calculation of taxable income and the liability to pay tax. The application of the general provisions to the particular facts of a taxpayer's case is and must be expected to be a matter of frequent controversy between the taxpayer and the Commissioner. Although the Commissioner's exercise of power to assess a taxpayer to tax is governed by provisions of the Act which prescribe the components of a taxpayer's taxable income and the manner in which those components and the taxable income are to be ascertained, it is inevitable that on occasions the process of assessment will fail to comply with those provisions. However, if s 175 confers validity on assessments made in a bona fide attempt to exercise the power to make them, it authorises the Commissioner to determine in good faith, rightly or wrongly, the application of the general provisions of the Act to the facts of the particular case subject to correction by the objection, review and appeal procedures. That accords with the policy of the Act which most clearly appears from the text of s 177(1)."

19 Mason CJ at 181-2 also drew attention to the framework within which s 177 operates. That framework includes a general validating provision at s 175, which reads:

"The validity of any assessment shall not be affected by reason that any of the provisions of this Act have not been complied with."

The congruence that must exist between s 175 and s 177 helps to explains why the Hickman provisos continue apply to s 177 but the "inviolable limitations" exception does not: see Richard Walter at 188 per Mason CJ, 193-7 per Brennan J, 210-211 per Deane and Gaudron JJ, and 240-242 per McHugh J; see to slightly different effect Toohey J at 222 - 223. So does the fact that s 177 protects procedural steps which are part of "the due making of the assessment", and not the substantive liability of the tax-payer: see Richard Walter at 182 per Mason CJ, and the cases his Honour cites at footnote 54.

CONSTITUTIONAL VALIDITY OF S 474(1)

20 A Hickman clause is saved from constitutional invalidity in two ways. First, it cannot expand the decision-maker's power unless a law giving antecedent authority to the decision-maker would have been within the scope of the legislative power which supports the grant of power in fact made: R v Kelly; Ex parte Berman [1953] HCA 82; (1953) 89 CLR 608 at 631 per Kitto J; see also Hickman at 616 per Dixon J. Moreover, and importantly, the fidelity required of courts to the Constitution by its covering clause 5 means that a privative clause does not prevent review for excess of legislative power: O'Toole at 251 per Mason CJ, 271-3 per Brennan J, and 308 per Dawson J. Accordingly, in cases involving the application of a Hickman clause that protects awards of the Australian Industrial Relations Commission and its predecessors, the availability of challenge on constitutional grounds has been demonstrated in many cases. Because the power of the Commission to make an award must be within the scope of the legislative power conferred by s 51(xxxv) of the Constitution to make laws for the peace, order and good government of the Commonwealth with respect to the conciliation and arbitration of interstate industrial disputes, a Hickman clause cannot protect an award from challenge on the ground that it was not made in settlement of dispute of an industrial or interstate character: R v Kirby; Ex parte The Transport Workers Union of Australia [1954] HCA 19; (1954) 91 CLR 159 at 173-4; O'Toole. Nor can a privative clause protect an award made in breach of the requirement, inherent in the concept of arbitration, that the parties be afforded a proper opportunity to be heard before an order is made that effects them: R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 552, R v Moore; Ex parte State of Victoria [1977] HCA 58; (1977) 140 CLR 92 at 101-102 per Gibbs J.

21 A Hickman clause is also saved from constitutional invalidity because it is treated as having an implicit effect on the substantive law that is to be applied by a statutory decision-maker whose decision is protected by the clause (with the result that, where certain provisos are met, the area of valid decision-making is expanded) rather than as withdrawing or ousting the jurisdiction conferred on the High Court by s 75(v) of the Constitution. This operation of a Hickman clause was explained by Brennan J in O'Toole at 275:

"When the Hickman-Coldham conditions are fulfilled, [the Hickman clause] will `validate' the purported award in the sense that [it] will shield it from direct or collateral attack and require the court before which the validity of the purported award is in question to exercise its jurisdiction on the footing that the purported award is not invalid merely on the ground that it was in truth made in excess of the statutory powers conferred on the Commission. Although [the Hickman clause] does not deem an award made outside the powers of the Commission to be an award within those powers, [it] has the effect of giving a protected award an operation as if it were valid. Since [the Hickman clause] attributes to some invalid awards the same operation as valid awards would have, it may be said that [it] `validates' an invalid award ... In that sense, [it] expands the powers conferred on the Commission by other provisions of the Act."

See to the same effect Gaudron and Gummow JJ in Darling Casino at 630-1.

22 Apart from these two constitutional limitations on the operation of a Hickman clause, the remaining limitations have emerged from decisions of the High Court reconciling the prima facie inconsistency between statutory provisions which seem to limit the powers of a decision-maker, and the privative clause which seems to contemplate that the order or decision in question will operate free from any restriction: R v Coldham at 418. In Darling Casino, Gaudron and Gummow JJ expressed it this way at 631:

"It is to be remembered that the Hickman principle is a rule of construction. ... Accordingly, the question in this case is not one of the meaning and effect of the Hickman principle which seeks to reconcile `the prima facie inconsistency between one statutory provision which seems to limit the powers of the [decision-maker] and another provision, the privative clause, which seems to contemplate that the [decision] shall operate free from any restriction'. Rather, it is one of the meaning and effect of the statutory provisions in question. If there is an inconsistency, the Hickman principle requires that it be `resolved by reading the ... provisions together and giving effect to each'. However, there are anterior questions: the extent to which the relevant statutory provisions, when properly construed, give rise to an inconsistency to be resolved in that way; and whether the decision in question is one that falls within the area of that inconsistency."

23 In the light of these principles, I turn to the disposition of Mr Turcan's appeal.

MR TURCAN'S APPEAL

24 Mr Turcan held a permanent Subclass 801 Onshore Visa which was cancelled because the Minister's delegate was satisfied that it had been granted in contravention of the Act. In truth, however, as Wilcox, French and von Doussa JJ have all concluded, the delegate misconceived that the visa had been granted in contravention of the Act. This is because, given that the delegate who granted Mr Turcan's visa was satisfied that the criteria for the grant of the visa were met (and there being no relevant vitiating legal error of construction involved in that assessment), s 65 required the grant of the visa, and there was no contravention of the Act involved in its grant. (On the legal point in question, I would add a reference to the power to cancel in s 109 of the Act, which needs to be read in conjunction with ss 104, 107 and 108.)

25 It is well-settled that where a statutory power is expressed to arise where 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 s 75(v): Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 651 per Gummow J and the cases there cited. That proposition was not challenged by any of the parties in these appeals.

26 It is also well-settled that, at least in the absence of a Hickman clause, "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": Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 150. Moreover, as Latham CJ said in R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407 at 430:

"[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist."

The Chief Justice continued at 432:

"It should be emphasized that the application of the principle now under discussion does not mean that the court substitutes its opinion for the opinion of the person or authority in question. What the court does do is to inquire whether the opinion required by the relevant legislative provision has really been formed. If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide."

27 The principle expressed in these passages has been approved on many occasions. See, for example, Foley v Padley [1984] HCA 50; (1984) 154 CLR 349 at 353 per Gibbs CJ and 370 per Brennan J.

28 It follows that I agree with Wilcox, French and von Doussa JJ that, at least absent s 474(1), the misconstruction of s 116(1)(f) by Ms Faulkner 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.

29 The Parliament must however be taken, by enacting s 474(1), to have implicitly 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 according to the Hickman principle), now be "validated". It must also be accepted that there is no constitutional reason why s 474(1) could not have the effect that the substantive law of the Act is altered so that the Minister has the power to determine questions of law (other than matters going to constitutional limits) conclusively and finally.

30 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 [1995] HCA 58; (1995) 184 CLR 163 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).

31 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). To do so would, in my opinion, be to take a step appreciably beyond concluding that the satisfaction of the Minister or delegate must be taken to exist notwithstanding an error in law in determining a factual question posed by the provision giving him or her power to cancel or grant the visa. It would also be to take a step beyond concluding that the satisfaction of the Minister or delegate must be taken to exist notwithstanding an error in determining the meaning of a term or expression used in the Act which in the sense it would have in ordinary speech: see generally Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 141 ALR 59. An example of this distinction is provided by Mr Ratumawai's appeal, to which I refer later.

32 Other textual considerations support this view. First, s 4(2) provides that, in order to advance the object of the Act (set out at s 4(1)), the Act:

"... provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain. [Emphasis supplied]"

33 The statement concerning the way in which the object of the Act is to be advanced strongly suggests that the Parliament did not intend to provide for the removal of an existing visa-based right to remain in Australia upon the basis of an incorrect answer to the legal question specifically posed by s 116(1)(f). The qualification on the power to grant a visa "subject to the Act" found in s 29(1) offers some support for that conclusion, as does the fact that s 474 (2) defines a privative clause decision as one made "under this Act". Of course, in relation to s 474(2) it must immediately be said that the evident intent of s 474(1) is not to be undone by reliance merely upon the presence of the words "under this Act" in the definition provision. But the words are of significance when considering whether the "satisfaction" required as a condition on the power to cancel a visa exists where the Minister or delegate has incorrectly answered the legal question posed directly by s 116(1)(f). Accordingly, I consider that a correct answer to the legal question about contravention posed by s 116(1)(f) is in the nature of an "inviolable limitation" upon the power to cancel a visa on that ground. The decision is therefore reviewable, notwithstanding s 474(1).

34 The decision of the High Court in The Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd [1960] HCA 68; (1960) 104 CLR 437 does not, in my view, stand in the way of this conclusion. In that case, the High Court considered that the particular State legislation there in question committed to the Western Australian arbitration court the power to determine the very question that was said to be a jurisdictional fact. The question about which the court had to be satisfied was essentially one of fact, and was posed in terms that were taken to bear their ordinary, non-technical meaning. Section 116(1)(f), with its expression of a particular question of law, is a very different provision and is found in a very different statutory context. To my mind there is a clear distinction to be drawn between a provision conferring jurisdiction upon an arbitration court conditioned upon the court's conclusion about the reasonable likelihood of a lockout occurring and a provision that speaks expressly in terms of a contravention of a particular Act "or any other law of the Commonwealth". The basis on which Connell was explained and distinguished by Menzies J at 453 is not inconsistent with this approach. (It should not be forgotten that Connell was a case in which prohibition went against an award to which a Hickman clause applied). See also the recent example of Re Churchill [2001] FCA 469; (2001) 109 FCR 104 at 110.

35 For these reasons, I conclude that the decision of the Minister's delegate to cancel Mr Turcan's visa, being based on a wrong answer to the legal question posed by s 116(1)(f), was a decision that, notwithstanding the expansionary effect of s 474(1), she did not have power to make. I agree with the orders proposed by Wilcox and French JJ in this appeal.

36 I should add that Regulation 1.03 and the phrase "special need-relative" considered in the case of Mr Ratumaiwai, does not raise the issue that emerges in Mr Turcan's case. Even if the Migration Review Tribunal did err in law in construing that phrase, it was an error of law that the Tribunal now has jurisdiction to make. The term "special need relative" was defined at the relevant time by Regulation 1.03 in non-technical, or "ordinary" language, and did not in terms pose a legal question as the basis of the Minister's satisfaction. Section 474(1) operated to enlarge the Tribunal's jurisdiction in this respect.

MR WANG'S APPEAL

37 It will be apparent from what I have written concerning Mr Turcan's appeal, that there are some fundamentals in the way the Act operates, to which s 474(1) has no application. The judgment of von Doussa J at [625] identifies fundamentals of such a character. (I have described the fundamentals primarily as "structural", whilst von Doussa J uses the term "jurisdictional factor".) I agree with von Doussa J that these elements are few in number, and that once they are satisfied the decision-maker's power is greatly expanded by s 474(1). In Wang, the primary Judge held that the power to decide to revoke a visa cancellation, under s 131, is not enlivened unless the Minister (or delegate) has taken a particular step, namely the provision of proper notice as required by s 129. I agree with what von Doussa J has written about the operation of s 474(1) on procedural steps in a validly-attracted area of decision-making. The distinction I would draw, however, is that, although Beaumont and von Doussa JJ see s 128 as the single gateway to decision-making under s 131, I would see the two provisions as directed to quite separate areas of decision-making. The learned primary Judge did so too; see Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 at [31]. When visa cancellation and revocation of visa cancellation are seen as separate areas of decision-making, the fundamental structure - now revealed - 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. It follows that I would dismiss the Minister's appeal.

38 I should add that I do not see this result as having the logical consequence of opening the door to successful applications for judicial review in respect of the various procedural requirements within the Act, for the reason that other requirements may quite readily be seen as merely directory in character when the required reconciliation process with s 474(1) takes place. The requirement of the section in question in Mr Wang's case, s 131, is anterior to that. It involves, to my mind, one of the very few procedural requirements in the Act that have to be satisfied before the decision-maker's power is attracted, and the expansive effect of s 474(1) is activated. Thus I would add to the key requirements outlined by von Doussa J at [625] the requirement, in respect of a revocation decision under s 131, of proper notice under s 129.

OTHER APPEALS

39 The appeals in NAAV, NABE, and Ratumaiwai should be dismissed with costs.

Associate:

Dated: 15 August 2002

BEAUMONT J:

NAAV OF 2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA

INTRODUCTION

40 Before this Full Court are five appeals from single Judges of the Court in matters arising under the Migration Act 1958 (Cth) ("the Act"). In each appeal, the operation of a privative clause, s 474(1) of the Act, arises for consideration, albeit in different contexts.

41 Section 474(1) provides:

"(1) A privative clause decision :

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."

42 In s 474 a "privative clause decision" includes (relevantly) a decision of an administrative character made under the Act, and specifically includes a decision granting, revoking or refusing to give, a visa (s 474(2) and (3)).

43 The appellant in this appeal is a Burmese national, who applied for a protection visa soon after his arrival in Australia in 1995, claiming refugee status on the ground that he feared persecution in Burma because of his political opinions. Specifically, he claimed to have been a political activist in Burma since 1988.

44 This is an appeal from a decision of Gyles J, dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal"), affirming a decision of the delegate of the Minister, not to grant the appellant a protection visa.

THE PROCEEDINGS IN THE TRIBUNAL

45 In support of his application for a protection visa, the appellant made these claims:

* His father had been arrested, in 1984, by Burmese intelligence police, as a political suspect, and held in Insein gaol for thirteen months.

* He himself had been a political activist in Burma from 1988. He had been arrested on three occasions, interrogated, and subsequently incarcerated for two years.

* If he returned to Burma, he would be arrested at the airport and his passport would be confiscated. Given that he was a political offender, he could not afford to be arrested one more time as this would be "the end of me".

* He had also been active in anti-government circles whilst in Australia.

46 Although the Tribunal accepted some of the appellant's claims, it did not accept his claim to be a political activist of some profile who had suffered persecution. In forming an unfavourable opinion of the appellant's credibility, and so rejecting his version of events, the Tribunal took into account, adversely to the appellant, (amongst other things) the following:

1. Information gathered from sources other than the appellant and contained in a number of documents ("country information").

2. A particular map of the region.

3. The military experience of the Tribunal member.

47 However, none of this was disclosed by the Tribunal to the appellant or to his migration agent, and, as will appear, the failure to disclose such matters was the basis of the appellant's application to the primary Judge for judicial review.

48 At this stage, however, some explanation should be given of the way the proceedings before the Tribunal were conducted.

49 Early in the Tribunal hearing (at which both the appellant and his migration agent were present), the Tribunal member said:

"Now, you have both provided an account of your situation on a number of occasions already, so I have a reasonable idea of what you claim your problems are. I invited you to this hearing, because I was unable to make a favourable decision on the information before me. I will not be discussing everything at the hearing today but I will be asking you a number of questions and trying to get as clear a picture of your circumstances as I possibly can.

I may also talk to you about information that I have concerning your country which is independent information. This is information that comes from various sources and from people who are not at the hearing today. These people may be experts on or in your country, from the Australian Government and your country, and there may be other information about your country, information from document examiners, cables, articles, experts and that sort of thing. It may also be information from other governments, and from human rights organisations.

Now, I will be telling you what that information may mean in your case, and giving you an opportunity to make comments about it. ..."

50 Later in the hearing, the following exchange took place between the migration agent (Mr McDonnell) and the Tribunal member (Mr Gibson):

"MR McDONNELL

One other little thing was that you mentioned earlier some independent country information, that could have a bearing on the case, I would ask that that be made available, if it will be taken into consideration.

MR GIBSON

Yes, in fact I should have corrected myself. In fact, it doesn't have any, I read it during one of the breaks, that is why I stopped actually, because I thought that it did and when I started reading down I found out that the dates were disparate from the dates that I thought that they were, so no, it has no bearing at all.

MR McDONNELL

No problem then, thank you.

MR GIBSON

It was back in 1988, and I had misconceived that with 1998, so do not worry about it. It is not germane to the - to any of their claims. Okay. Anything else?

...

I think we can take it that the Department's decision is on the file, I have read it, I am not interested in that decision. I am interested only in the statements and evidence given by the appellants to the Tribunal. I do not pay any attention to the Department's form of reasoning, or for that matter, their finding on fact, but the form of the Tribunal's inquiry is to consider the case all over again, and that is what I will be doing, so you can take it that the submissions you have on the veracity or otherwise of the Department's decision, will have had no bearing on the decision that I make.

MR McDONNELL

I appreciate that.

MR GIBSON

I will go wholly on matters and fact that I through my own inquiries and through the information and evidence given by the appellants and yourself.

Does that make that easier?

MR McDONNELL

Thank you.

MR GIBSON

That is my job anyway, that is what it says in the Act ...

MR McDONNELL

Yes.

MR GIBSON

... and that is how I conduct my inquiries.

MR McDONNELL

Okay."

51 At the completion of the hearing, the following exchange took place:

"MR GIBSON

Okay. Now, submissions. Do you wish to make any further written submissions in this matter - in these matters, I should say.

MR McDONNELL

I would like to ask if the Tribunal considers there are any issues which it would - it considers problematic or would like to see ...

MR GIBSON

No, not this time, no. but if you wish to make submissions, maybe we can say, fourteen days?

MR McDONNELL

Yes, fine. Thank you.

MR GIBSON

To be perfectly honest, even fourteen days, I'm not going to get around to making my decisions in these cases in the next fourteen days, in any case, because of my hearing schedule, so what is the date today - the date is - today is the 9^th of August - the end of August would be about the earliest that I - I know that exceeds the fourteen days that we normally give, but that is the practicality, so if you wish to make written submissions, then let's say the 30^th of August, is the closing date for those.

MR McDONNELL

Thank you.

MR GIBSON

That goes for the appellants of course too, if there is any other materials that they wish considered, yes and there is that document there too.

Now, I have asked for the visa application file in Rangoon to be sent to the Tribunal, although I suspect from materials on the file, on the DIMA file, that that has already been asked for, in both their cases, and it's a matter of tracking that down.

Now, it would be incumbent upon me that if there is any materials there which is inconsistent with any of the evidence given by the appellants, that I would put that to them, in the form of a section 424A letter, so if that comes out then, then that will be forthcoming as well.

I do not know what is on those files. It has not been alluded to at all by the delegate so, mind you, then, the delegate hasn't made much referral to any materials, actually.

MR McDONNELL

Well, at that time, I don't know if it was the practice then to look for the ...

MR GIBSON

If that material becomes available before I make my decision, and it's inconsistent or contradicts evidence given by the appellants, then I will write a section 424A letter.

MR McDONNELL

Thank you.

MR GIBSON

That is about all I can think of at the moment. As I said, I will not be getting around to making a decision before the end of the month, because of my hearing schedule.

MR McDONNELL

Thank you for [letting] us know that.

MR GIBSON

I also have several detention cases which I have to deal with too, so, obviously they take priority at this stage. Okay. Do you understand all of that? We've been discussing written submissions and when I will be able to make my decision so, I can't make a decision before the end of the month, so if you wish to make any submissions, you have until the end of the month to do so.

Okay, then based on any written submissions that you might make or any other materials that I might receive in the meantime, I will go from there, so, okay? You understand?

APPELLANT

[Through interpreter]

The form are filled out in Rangoon, are usually filled out by the agent.

MR GIBSON

Yes, I appreciate that but if they become available there is no guarantee that we can get them of course. They may become available, and I will certainly give them the appropriate weight to anything that is said there.

Now, in coming to my decision in both your cases, please understand that I will take into account all the various forms of information and evidence that I have. Now, this includes the materials contained within the Department's file. The information and material in the Tribunal's files. Your written submissions, any additional written materials which is forwarded, your oral evidence at the hearing, independent information, a little bit which I put to you during the oral evidence, and of course the [definition] of a refugee contained in the Refugee's Convention.

Now, in coming to my decision, no one piece of information or evidence is more important than any other, but you must realise that I may give different weight to different pieces of information and evidence. Do you understand that? Yeah? So, that is the process that I go through in coming to my decision.

I am also constrained by what the Australian courts have had to say about refugee matters as well and that gets mixed into the decision making as well." (Emphasis added)

52 In a letter written to the Tribunal shortly after the hearing, the migration agent made a submission which included the following:

"4. At the hearing, the Tribunal conducted a very thorough enquiry into [the appellant's] ...histor[y]. This involved a detailed probing of [the appellant's] ... memor[y] on events that occurred many years back. In our submission [this] testimony was coherent, plausible, and essentially consistent in all respects with available country information and with the details given in [his] prior claims."

FINDINGS OF THE TRIBUNAL

53 After making some general findings regarding the activities of the appellant prior to 1988, the Tribunal made a number of findings adverse to the appellant, including the following:

"120. I am unable to accept that the applicant was detained in Insein Jail. I have read reports compiled from first hand accounts of prisoners in Insein jail (see Amnesty International, Myanmar Conditions in persons and labour camps, September 1995; and ABSDF, Cries From Insein, 1996). I can find no reference to prisoners being hooded whilst being interrogated over the time as the applicant claims he was. Indeed given the nature of the regime then operating in Burma, it is difficult to understand the purpose of hooding prisoners like the applicant. The applicant's lack of knowledge about the prison, inconsistent information and his lack of information in relation to matters of prison life confirmed my view that he was not arrested and then detained in Insein prison as he claimed. He knew little about the prison routine or the jail in general, and avoided having to give such information by claiming solitary confinement and having been hooded by a blanket. I am not satisfied he was ever detained in Insein Prison.

121. In light of the inconsistencies in his evidence, I am unable to accept that the applicant was arrested and incarcerated as he claims, whether in the local jail or in Insein Jail. Further, I am reluctant to accept that the applicant was in fact in Rangoon at this time. There is the difficulty with regard to which year of school he was in and there is no mention of the applicant having been resident in Rangoon in 1987 and 1988 in the applicant's protection visa application. However, the independent information indicates that hundreds of thousands of Burmese took part in such demonstrations, including members of the police and the armed forces. I can give the benefit of the doubt to the applicant and accept that he participated in the demonstration in March 1988, but I am not satisfied that his involvement had any immediate or long term implications for the applicant, including being arrested, being detained in a local or Insein Jail or being denied enrolment in school.

122. In this regard I note and accept that independent information that in regard to persons who were involved in the 1988 demonstrations in Burma, DFAT [Department of Foreign Affairs and Trade] advice (from the Australian Embassy In Rangoon in 1992) is that it is:

Important to remember that in 1988 many millions of Burmese were involved in the uprisings and it would be unlikely that such participation would lead to any adverse consequences. It is all a matter of degree and perceived hostility toward the government. (DFAT, 1992, CX8570).

A later DFAT Cable from Rangoon (1995) states that after the 1988 riots in Burma:

Many people were interrogated and presumably are on file with the intelligence agencies, but this has rarely been the basis for further harassment unless the person continues to participate on anti-government activities (you will be aware that the definition of anti-government activities can be very broad). Records appear to be kept in case further evidence against the person in question arises. (DFAT, 1995, CX9957).

A record of a telephone conversation on 14 November 1994 between Amanda Zappia of the Australia-Burma Council and the Research Unit of the RRT [Refugee Review Tribunal] quotes Ms Zappia as saying that:

If a person was in Burma for 15 months after the demonstrations it is unlikely that the authorities have any interest in them over their participation in the demonstrations. (A Zappia, 1994, Record of Telephone conversation between Amanda Zappia, Coordinator of Australia-Burma Council and RRT, 24 February 1994, RRT Library).

123. The applicant claims that he was denied enrolment in school for his year 10 in Rangoon because of his claimed political activities. As I have found that he was not arrested and imprisoned, I am unable to accept that the applicant was denied enrolment for his political beliefs. He was just one of many who were involved in the protests at that time. In any case, schools would have been in recess at that time, as the applicant himself gave evidence that he had completed his exams on 16 March, and that the academic year runs from June until March. Independent information indicates that all schools were closed by the authorities at that time, including primary, middle and high schools, colleges and universities, because of the political unrest in June 1988. Only some high schools were reopened in September 1989. It is my view that the applicant has put a political gloss on the fact that he could not have been enrolled at that time, because all the schools were closed at that time.

Activities in Tanggok (also called Taungok, Taungup) in 1988

124. The applicant claimed that he participated in the protests commencing on 8 August 1988, after joining the democratic group Ye Ye Taught or `Burning Fire'. In one account he claimed that that group included police and government officers, and that the group had to administer the town for the period 3 to 18 September 1988. The applicant claimed that there were only 12 soldiers in his town and his group surrounded them in their camp. Because there were over 1000 soldiers in the nearby town of Thandway (or Sandoway), he and his group destroyed three bridges between the towns to prevent the soldiers from coming to their town. The applicant, the chairman and 37 others of his group then left Taungok and crossed into Bangladesh by boat, taking protection with and helping to organise the Arakan Liberation Party/Arakan National Democratic Front there. The applicant claimed to have returned one month later under the general amnesty.

125. At the hearing, the applicant gave a slightly different account of events. He claimed that after 8/8/88 the student union formed the group Ye Ye Taught or Burning Fire in Taungok, that the students took over the administration of the town, and that the army was surrounded in their hill top barracks by 3000 to 4000 towns people. He claimed that troops from Sandoway were sent after the military coup to kill or arrest the active members of the Burning Fire group and the administration group in Taungok. Although he claimed that he was not one of the student leaders or part of the group who administrated the town or burnt down the 100 metre long bridge to prevent the troops form coming to Taungok, he claimed that he was one of 30 people who left Taungok on a big motorised boat that night for Bangladesh, and joined the Arakan Liberation Party in Bangladesh for one month, before returning to Bangladesh because of health problems and because there were no arms in Bangladesh.

126. The applicant's story of his participation in the events in Taungok during August and September are inherently implausible and his accounts inconsistent. The applicant was 15 years old, when he claimed he participated. In his first account, although general and missing specific details, the inference is that he was a student leader, and active organiser and participant in the demonstration, subsequent administration of the town, the destruction of the three bridges, and as such, was included in the 39 who `escaped' to Bangladesh on the boat, then to have helped organise the Arakan Liberation Party there.

127. At the hearing, the applicant resiled from the inference of influence and leadership claimed in his statement. He admitted that he was not a student leader or organiser of the demonstration on 8 August 1988, saying that he had joined a group and handed out leaflets. When asked, he stated that he was not a part of the administration group in the town during September. When he was asked how the 100m long bridge was destroyed, he claimed it was not big, it was destroyed by fire, and that he was not part of the group who destroyed the bridge, and could not therefore provide any details of its destruction. From my own military experience, the applicant's account of the bridge being small at 100 metres long and being destroyed by fire is a nonsense. In any case, his previous evidence was that three bridges between Taungok and Sandoway were destroyed by his group.

128. A detailed examination of Taungok in the Microsoft Encarta Interactive World Atlas 2000, indicates that Taungok [is] not on the coast but some 10 kms or so inland on a small river. It is surrounded by saline marshes and salt deserts, and the nearby coast is salt lakes and lagoons. Taungup is some 300 kms from the Bangladesh border as the crow flies, and some 400 to 500 kms at least by boat, including the navigation of rivers, swamps, the islands off the coast of that part of Burma, and an open ocean crossing. He claimed that it took 15 hours to make the crossing to Bangladesh, but that he did not know how far it was. It is implausible that the journey took just 15 hours.

129. The applicant did not say where in Bangladesh they made landfall, but claimed that they went to the Arakanese village of Nyitnaywa in the Chowdhury Bara area in Bangladesh. There is no record of any such village in the Microsoft Encarta Interactive World Atlas 2000. A variety of spellings were used, but no record exists of such a village. There are several towns or villages called Myitna in Burma, one of which is 50 kms east of Sittwe, north of Taungup. The applicant claimed that he spent a month in the village before returning to Burma through Maungdaw on 20 October 1988, where he was registered. He claimed that he returned under the general amnesty which was declared in the first week of October 1988. According to the wife's evidence, the amnesty was declared in early December 1988. He claimed that he met his future wife in the village in Bangladesh.

130. In the light of the applicant's inconsistent and implausible evidence, I am unable to accept that after the demonstrations of August 1988, the applicant was involved, in whatever capacity, with the administration of his town, that he was involved in the destruction of a bridge or bridges, or that he `escaped' from Burma to Bangladesh by boat and spent a month in Bangladesh. As to the claim to have participated in the demonstrations in August 1988, I have some doubts about the account the applicant gave about this activity. The detail he provided was scant and general, the sort of information that would come from newspapers and magazine articles, rather than from being a participant in the event. However, despite this, I give the applicant the benefit of the doubt and accept that he was a participant in the 8/8/88 demonstrations in Taungup.

131. I am satisfied that the applicant took part in demonstrations in Taungup in August 1988. However, hundreds and thousands of Burmese took part in such demonstrations, including members of the police and the armed forces. In light of this, I am unable to accept that the applicant left Burma and stayed in Bangladesh for one month after the September 1988 military coup. I am not satisfied that his involvement in the protests had any immediate or long term implications for the applicant. In this regard I note and accept the independent information that in regard to persons who were involved in the 1988 demonstrations in Burma, DFAT advice (from the Australian Embassy in Rangoon in 1992) is that it is:

Important to remember that in 1988 many millions of Burmese were involved in the uprisings and it would be unlikely that such participation would lead to any adverse consequences. It is all a matter of degree and perceived hostility toward the government. (DFAT, 1992, CX8570).

A later DFAT Cable from Rangoon (1995) states that after the 1988 riots in Burma:

Many people were interrogated and presumably are on file with the intelligence agencies, but this has rarely been the basis for further harassment unless the person continues to participate on anti-government activities (you will be aware that the definition of anti-government activities can be very broad). Records appear to be kept in case further evidence against the person in question arises. (DFAT, 1995, CX9957).

A record of a telephone conversation on 14 November 1994 between Amanda Zappia of the Australia-Burma Council and the Research Unit of the RRT quotes Ms Zappia as saying that:

If a person was in Burma for 15 months after the demonstrations it is unlikely that the authorities have any interest in them over their participation in the demonstrations. (A Zappia, 1994, Record of Telephone conversation between Amanda Zappia, Coordinator of Australia-Burma Council and RRT, 24 February 1994, RRT Library).

132. The applicant claimed that he was detailed for two days and mistreated by the military intelligence in October 1988 when he visited his grandfather in Yambe without informing the authorities. I accept that the applicant may have been detained for unauthorised travel to Yambe, although I note that there is no record of a Yambe in Burma in the Microsoft Encarta Interactive World Atlas 2000. The independent information indicates that Burma continues to have a pervasive security apparatus which intrudes generally on all civilian life. All persons are required to report to the local authority when staying overnight in other than their permanent residence, even for example if only one night visiting relatives. While this requirement is `often ignored', the extent of monitoring, reporting and `dobbing' would make it extremely difficult to be able to continually avoid the attention of the authorities. However, I am unable to accept that the applicant was detailed and interrogated about contacts in Bangladesh. I am of the view that the applicant was putting a political gloss on what was a normal procedure by the military authorities, as intrusive and discriminatory as it was.

...

138. After one month the applicant claimed that he returned to Rangoon in the company of smugglers. On approaching Rangoon, he claimed that he was arrested and detained at a check point by the authorities, and conveyed to Insein Jail. He claimed that he was imprisoned for two years there. He claimed that he did not know that he was in Insein Jail for six months because he was in solitary confinement. Afterwards, he claimed to have been incarcerated in special hall number 4 with two others in a room `8 x 10'. He claimed that he met only two other people while in the jail, and that when they opened the cells, they did so one at a time so that no one else was encountered. The applicant was quick to gloss over his time in jail, avoiding giving any details of the routine, procedures or how the jail was organised, information which an inmate of two years would readily know. It was obvious that the applicant knew nothing other than a few general things about Insein Jail.

139. I am unable to accept that the applicant was detained in Insein Jail. As I have indicated above, I have read reports compiled from first hand accounts of prisoners in Insein jail (see Amnesty International, Myanmar Conditions in prisons and labour camps, September 1995; and ABSDF, Cries from Insein, 1996). There is nothing that indicates that inmates are put immediately into solitary confinement or that they could not know that they are in Insein Jail. The applicant's lack of knowledge about the prison, inconsistent information and his lack of information in relation to matters of prison life confirmed my view that he was not arrested and then detained in Insein prison as he claimed. He knew little about the prison routine or the jail in general, and avoided having to give such information by claiming solitary confinement and incarceration in a cell with two others. I am not satisfied he was ever detained in Insein Prison.

140. After his return to Taungup from Rangoon, the applicant claimed that he was involved with his father's business, but because of harassment by the military intelligence, he moved from village to village because he felt threatened. He claimed that his father sent him to Rangoon in June 1991 to help with the business, and in December 1991 or 1992 (depending on which account is taken) he was married. He claimed that he was periodically questioned by military intelligence. I am unable to accept the veracity of the applicant's evidence that he was harassed and questioned periodically by military intelligence in this regard, as I was unable to accept that the applicant had been incarcerated for two years as he claims. In any case, as previously mentioned, the general pervasiveness of the authorities monitoring of the general population would preclude moving from place to place as claimed by the applicant."

THE APPLICATION FOR JUDICIAL REVIEW

54 As mentioned, the case for the appellant advanced at first instance was that the use by the Tribunal of the undisclosed material mentioned in a manner which was adverse to the appellant, was a breach of the rules of natural justice, in that procedural fairness was not afforded; that this was a jurisdictional error; and, that relief by way of certiorari, mandamus, prohibition and injunction should be granted pursuant to s 39B of the Judiciary Act. Further, it was contended that the privative clause did not preclude the grant of this relief, because jurisdictional error of this kind was within the exceptions to the operation of such a clause. In any event, it was said, it should be declared that s 474 is invalid, as impermissibly attempting to confer judicial power upon the Tribunal, contrary to Chapter III of the Constitution; or, if s 474 is to be construed so as to exclude relief where there has been a breach of natural justice, it is invalid as inconsistent with s 75 of the Constitution.

55 It was contended that a denial of natural justice, being a kind of jurisdictional error which had not been validly excluded from judicial review by "plain words of necessary intendment", was not immune from review by virtue of s 474. It was submitted that the provision of natural justice, or procedural fairness, was a fetter on the lawful exercise of a power, and, unless it was expressly excluded by the legislature, obedience to its requirements was a necessary and indispensable prerequisite to the making of a valid decision. It was thus submitted that a denial of procedural fairness is an error going to jurisdiction, for which prohibition will be granted.

56 On behalf of the Minister, the Solicitor-General, on the other hand, submitted that s 474(1) is in substantially similar form to the privative clause considered in R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598, where Dixon J, in a "classic" passage, said (at 614 - 615):

"The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of [the privative clause] is will established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a 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 acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body." (Emphasis added)

57 The Solicitor-General contended that Dixon J thus identified, in this connection, three pre-conditions to the valid exercise of decision-making powers, that is to say, a decision (1) which is "a bona fide attempt to exercise ... power"; (2) which "relates to the subject matter of the legislation"; and (3) which "is reasonably capable of reference to the power ...".

58 It was submitted for the Minister that the effect of a privative clause is not to oust the jurisdiction of the courts, but to broaden the lawful authority of decision-makers protected by such a clause, so that their jurisdiction is defined only by the Hickman conditions, with any other apparent restrictions on the exercise of power being construed as directory in nature.

59 The Solicitor-General accepted that, since the operation of a privative clause is a rule of construction only, it remains possible, in an appropriate case, where the parliamentary intent is clear, to establish that a particular restraint expressed in the relevant legislation is also a pre-condition to the valid exercise of power. In such cases, constitutional writs will be available in the event of infringement of such an "inviolable" restraint.

60 The Solicitor-General referred to par 16 of the Revised Explanatory Memorandum relating to s 474(1) in these terms:

"The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful."

61 The Solicitor-General also referred to the following explanation in the Second Reading Speech by the Minister:

"The bill gives legislative effect to the government's long-standing commitment to introduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances. This commitment was made in light of the extensive merits review rights in the migration legislation and concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia ... .

... The result is to give decision makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently.

In practice, the decision is lawful provided:

* The decision maker is acting in good faith;

* The decision is reasonably capable of reference to the power given to the decision maker - that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member;

* The decision relates to the subject matter of the legislation - it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and

* Constitutional limits are not exceeded - given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise."

62 It was submitted by the Solicitor-General that, given the clear statement of the object and desired effect of the legislation in the Explanatory Memorandum and Second Reading Speech, and given that the privative clause was inserted as an amendment to an existing Act, there was no real scope to contend that any of the express limitations previously existing in the Act were "inviolable" and thus not intended to be overridden by the privative clause.

63 Further, it was submitted for the Minister that, in context of the Act, Parliament had indicated that the rules concerning natural justice (except to the extent, if at all, that they fell within the "Hickman conditions") do not go to the jurisdiction of the Tribunal, in the sense of what is necessary if judicial review may be granted despite the language of s 474(1).

THE PRIMARY JUDGE'S REASONS

Construction of s 474

64 Gyles J said (at [29] - [30]):

"Something of a conundrum lies at the heart of the debate. Prohibition does not lie save for jurisdictional error. Anything less than jurisdictional error will not found prohibition. On the other hand, it is clear that if Hickman is correct, then there are jurisdictional errors and jurisdictional errors, in the sense that some will, whilst others will not, be affected by a privative clause. The work which Hickman does is to define those jurisdictional errors which will found the prerogative writs notwithstanding the privative clause. It is not as if Hickman had been decided before the application of the prerogative writs to administrative bodies for what might be called constructive failure to exercise jurisdiction ... .

...

Merely because if a privative provision is ignored there would be jurisdictional error such as to ground entitlement to prohibition it does not follow that the privative provision may be ignored and prohibition granted despite it. To conclude that prohibition will go in all cases of jurisdictional error of the type identified in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 particularly at 179 and all cases of breach of the rules of natural justice would be to ignore the clear distinction drawn in Hickman and render s 474 and like privative clauses virtually devoid of content (see Zines, Constitutional Aspects of Judicial Review of Administrative Action, (1998) 1 Constitutional Law and Policy Review 50 at footnote 41)."

(It should be explained that in the citation by Gyles J, Leslie Zines had said:

"It is not clear whether [Gaudron and Gummow JJ in obiter observations in Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 at 631] were using `jurisdiction' in the narrower or broader sense discussed in Craig. If the latter, there would be few if any non-jurisdictional errors for the privative clause to protect.")

65 Gyles J observed (at [32]):

"The recognition that Hickman is, at heart, a rule of statutory construction (see Darling ... Casino per Gaudron and Gummow JJ at 631) is of no assistance to the applicants in the present case. There is no express provision of the Act inconsistent with s 474(1) which arises in the present case."

66 Gyles J concluded (at [34] - [35]):

"...It should be clear that I am considering only that kind of procedural fairness (or lack thereof) which may be involved in the use of the kind of information in question here by the Tribunal. I am not intending to answer an abstract question as to whether a privative clause can exclude natural justice. The Act must be construed as it now stands, including s 474 and including the express prescriptive provisions governing the procedure of the Tribunal in Div 3, Div 4 and Div 5 of Pt 7. In the case of a breach of any of those express provisions, a question of statutory construction would arise as to reconciliation of that provision with s 474. A good example would be if the facts in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 arose now. The process of construction would include application of the principles enunciated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. This was the approach in principle taken by Mansfield J in Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167. The particular result in that case is of no consequence to the argument in this case.

I accept the substance of the submissions of the Solicitor General. In my opinion, s 474 operates according to its terms, which are inconsistent with the existence of implied duty to afford procedural fairness by supplying information going beyond the requirements of Div 4 of Pt 7 of the Act, no matter upon which theory any such implication would be drawn."

67 His Honour went on to say (at [35] - [36]):

"This conclusion [that s 474 operates according to its terms] is reinforced by the passages from the Explanatory Memorandum and Second Reading Speech to which I have referred. In my opinion, it is not legitimate to construe the Act on the basis that s 474 did not exist, particularly in relation to a version of the Act which had radically different judicial review provisions, conclude that a duty to afford natural justice existed and then ask whether s 474 takes away the corresponding right.

The course of High Court decisions has established the Hickman exceptions as authoritative and exhaustive. The principles have been referred to very recently by Gaudron and Gummow JJ in Minister for Immigration & Multicultural Affairs v Bhardwaj at [47], with whose reasons in this respect McHugh J agreed, and by Gaudron J in Miah at [102]. Even if teased out in the manner favoured by the authors of Aronson & Dyer, Judicial Review of Administrative Action, 2^nd Ed, at p 691, the exceptions do not include breach of an implied duty to accord procedural fairness of the type that is alleged here. The remark by Dawson J in O'Toole most naturally relates to bias, as at least some, and perhaps all, examples of bias would negate the bona fides of the decision and so fall within the first Hickman exception."

(In O'Toole v Charles David Pty Ltd [1991] HCA 14; (1991) 171 CLR 232, Dawson J had remarked (at 305):

"Whilst it must be possible to call evidence in support of a contention that an award has not been made bona fide (I would take the requirement of bona fides to embrace at least some aspects of natural justice) or in support of a contention that does not relate to the subject matter of the legislation, this does not open an award to attack upon the basis of some mere defect or irregularity which is not such as to deny the power to make it." (Emphasis added))

Constitutional validity

68 On the question of the constitutional validity of s 474, it was submitted on behalf of the appellant that s 474 invalidly purports to vest part of the judicial power of the Commonwealth in the Tribunal, that is, in persons who are not judges appointed in the terms of s 71 of the Constitution, and in bodies which are not courts in terms of s 71 and Chapter III. Yet, the argument went, a decision of the Tribunal is a decision as to whether a person satisfies the definition of a refugee. Thus, it is a determination of an existing right or status, not the creation of a new right or a new status. But the conclusive determination of current rights is the province of the judiciary. Yet the application of the Minister's interpretation of the Hickman doctrine puts the administrator in a position of final arbiter, not only on questions of procedure but on questions involving the interpretation of an international Convention (the Refugees Convention) and the domestic law governing the administrator's decision-making power. The effect of s 474 is thus to make the Tribunal the final arbiter on questions of law. It is, emphatically, the province and duty of the legal department to say what the law is. On the Minister's interpretation of s 474, that duty, reserved under Chapter III of the Constitution to courts, has been given to an administrative decision-maker. It was submitted that the provision is thus inconsistent with Chapter III.

69 The Solicitor-General, on the other hand, submitted that it was a common, if not essential, characteristic of judicial power that it involves the making of a binding, authoritative and enforceable decision as to existing legal rights, citing Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [164] and Attorney General (Commonwealth) v Breckler [1999] HCA 28; (1999) 197 CLR 83 at [41]. The Solicitor-General then submitted that this characteristic is not present in the decision to grant or refuse a protection visa under the Act, as the determination is only upon a question whether a new right should be granted. He submitted that this is established by the decision of the Full Federal Court in SZ v Minister for Immigration & Multicultural Affairs [2000] FCA 836; (2000) 101 FCR 342.

70 Gyles J held that the submissions of the Solicitor-General were "plainly correct", citing SZ, per Branson J at [37] - [41].

71 Counsel for the appellant accepted that Gyles J was bound by the decision of the Full Federal Court in SZ, but submitted, formally, that it was incorrectly decided. However, Gyles J held that SZ remained authoritative on the point. In relation to the question of suggested inconsistency with s 75(iii) & (v) of the Constitution, it was submitted on behalf of the appellant that, if s 474 were to be construed as contended by the Solicitor-General, then it narrows the scope of the constitutional writs contemplated by s 75(v), to the point where s 75(v) has no practical application; and this amounts to a de facto withdrawal of jurisdiction from the High Court, contrary to the Constitution.

72 Gyles J said (at [44] - [45]):

"The fallacy inherent in this submission has been explained in the High Court decisions to which I have referred, from Hickman on, when dealing with the operation of s 474. See also Zines (above) and Kirk, `Administrative Justice and the Australian Constitution' in Creyke and McMillan (eds) Administrative Justice - the Core and the Fringe (AIAL) 2000. So far as the present case is concerned, there is no constitutional inhibition upon the legislature defining the procedure of a tribunal so as to exclude all the rules of natural justice that might otherwise be implied. As Hayne J put it recently in Aala [Re Refugee Tribunal and another; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82] at [166]:

`... the Parliament may lawfully prescribe the kind of duty to which an officer of the Commonwealth is subject and may lawfully prescribe the way in which that duty shall be performed.'

As a postscript, it is not clear to me how that success on this aspect would lead to this Court having jurisdiction under s 39B of the Judiciary Act."

Common law rules of natural justice

73 Although not strictly necessary for him to do so, Gyles J proceeded to consider whether, absent the privative provision, relief would have been granted pursuant to s 39B of the Judiciary Act.

74 His Honour noted that the reasons of the Tribunal identified twenty-one sources of country information which were regarded as inconsistent with, or adverse to, the claims of the appellant, although the Tribunal did not inform the appellant or his migration agent of them. The information set out in those documents (which documents are described in the annexure to these reasons) came from a range of sources, some in the public domain and some from the Department of Foreign Affairs and Trade ("DFAT").

75 Gyles J said (at [48]):

"It is obvious that the Tribunal member regarded himself as free to consult whatever sources, either public or private, were available to him as to the situation in Burma in the years that the applicant lived there and subsequently. It is also a fair inference that the documents actually referred to in the detailed reasons of the member of the Tribunal could not have been the totality of sources consulted by him, but, rather, were a selection which were regarded as of relevance to the reasoning of the Tribunal member. I may be permitted to say that it is obvious, both from many reported cases concerning proceedings of the Tribunal and from the dozens (or hundreds) of such cases that I have seen, that this process is commonplace. Indeed, this type of material has become known by the generic name `country information'."

76 His Honour considered an example of the reasoning of the Tribunal which was complained of by the appellant (at [49] - [51]):

"The applicant had given an account of having been imprisoned in Insein Prison, where he was interrogated and mistreated for two weeks, then put into a small cell for two months until being released. He claimed that when he was taken out of his cell he was hooded with a blanket, this accounting for his inability to remember detail about the prison. The Tribunal member said:

`I am unable to accept that the applicant was detained in Insein Jail. I have read reports compiled from first hand accounts of prisoners in Insein jail (see Amnesty International, Myanmar Conditions in prisons and labour camps, September 1995; and ABSDF, Cries from Insein, 1996). I can find no reference to prisoners being hooded whilst being interrogated over the time as the applicant claims he was. Indeed given the nature of the regime then operating in Burma, it is difficult to understand the purpose of hooding prisoners like the applicant. The applicant's lack of knowledge about the prison, inconsistent information and his lack of information in relation to matters of prison life confirmed my view that he was not arrested and then detained in Insein prison as he claimed. He knew little about the prison routine or the jail in general, and avoided having to give such information by claiming solitary confinement and having been hooded by a blanket. I am not satisfied he was ever detained in Insein Prison.'

...

The applicant NAAV has given evidence that, if he had known that the Tribunal was to refer to those sources, he could have referred the Tribunal to references to prisoners being hooded in Insein Prison in a book entitled `Tortured Voices - a Personal Account of Burma's Interrogation Centres', published by the All Burma Students Democratic Front in July 1998 - the same organisation that apparently published `Cries from Insein' referred to by the Tribunal member. The publication to which the applicant NAAV refers does have a reference to prisoners in Insein Prison being hooded."

77 However, Gyles J found that, although this example illustrated that the appellant might have been able to refer to credible countervailing material which would support his claims in relation to an important aspect of his account, "there are difficulties both in principle and in practice in having the duty to afford natural justice descend to such a level of detail in this statutory context". The difficulty in principle, his Honour said, was that an applicant for protection does not have any case to meet.

78 Gyles J said (at [52]):

"The statutory process in Div 4 of Pt 7 of the Act is designed to afford an opportunity to the applicant to produce his or her case, with supporting material, in writing and in person. The case is then considered behind closed doors by the member of the Tribunal performing the function of an administrator. The member of such a tribunal is, or becomes, by way of being an expert in the circumstances of various countries, and must assess what is claimed by the applicant in the light of that knowledge. As such knowledge cannot all be carried in the head, a library of it must be available. Evaluation of the credibility of an account given by an applicant is subjective and depends upon many factors, including observations of an applicant at the hearing, in circumstances where the Tribunal member will usually have considered other cases with a similar claimed history and patterns will often have emerged. There is obviously always a mass of country information available. Much would be taken for granted. Much would be debatable. A selection of that which is relevant to the particular case depends upon the way in which the member views the case. The judgment as to the issues upon which external country information will be relevant is entirely a matter for the Tribunal member. There is no obligation to consider any or any particular country information. Disclosure of particular country information to an applicant is, in essence, to reveal the process of reasoning of the Tribunal."

79 In relation to the practical difficulties in imposing such a duty on the Tribunal, Gyles J said (at [53]):

"The problems in practice are formidable. The Tribunal is obliged by the Act to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420). There has been much emphasis in the cases upon the elements `fair' and `just', but little upon the elements `economical', `informal' and `quick'. The code of procedure which governs the Minister is also designed for dealing `fairly, efficiently and quickly' with visa applications (s 52). The role of a court is not to prefer one objective over another. To do so is to subvert the will of the legislature. Achieving all of these objectives in a high volume jurisdiction necessarily requires balance and compromise. As this, and many other cases, show, the system has failed lamentably in relation to speed and economy, and perhaps in informality. Delays and cost in finalising applications for visas, including, and perhaps in particular, protection visas, may be assumed to have pernicious effects which courts are ill-equipped to understand."

80 After reviewing the provisions of the Act relating to the requirements of procedural fairness and the several judgments in the High Court in Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 75 ALJR 889, his Honour said (at [79]):

"The differences in expression in the judgments, and the bland nature of the orders made, leave some room for doubt as to precisely what was decided in Miah. It was certainly decided that what the statute described as a code of procedure [see below], and was described by successive Ministers as a code intended to replace the uncertain common law requirements of natural justice, was not such a code. In my opinion, the gravamen of the decision is that the delegate should have informed the applicant that he was proposing to take into account the new circumstances constituted by the election results and the effect of the change of government upon the current security situation in Bangladesh in considering whether protection would be afforded if the applicant returned to Bangladesh, and given the applicant the opportunity of commenting upon that and providing such information as he wished in relation to that matter. Put shortly, the applicants should have been advised of the substance of the possibly adverse (and critical) issue. I do not regard the decision as requiring production of the country information which the delegate had bearing upon that issue to the applicant. Apart from the fact that this is what I deduce from a fair reading of the critical portions of the judgments, this understanding best fits with the express provisions of subdiv AB. A distinction can be drawn between appraising an applicant of the substance of the case which has to be met, on the one hand, and the provision of `information' on the other, the latter being dealt with by s 57 (particularly s 57(1)(b))[see below] but also by ss 54, 55, 56 and 58."

81 (Subdivision AB of Div 3 of Part 2 of the Act (ss 52 - 64) is entitled "Code of procedure for dealing fairly, efficiently and quickly with visa applications".)

82 Section 57 imposes upon the Minister (and, accordingly the Tribunal) the following requirement:

"(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for refusing to grant a visa; and

(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c) was not given by the applicant for the purpose of the application.

(2) Subject to subsection (3), the Minister must:

(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c) invite the applicant to comment on it.

(3) This section does not apply in relation to an application for a visa unless:

(a) the visa can be granted when the applicant is in the migration zone; and

(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa." (Emphasis added))

83 Gyles J added (at [79]):

"It is not possible to ignore those express provisions or obliterate the distinction which they draw between personal and general information, particularly as that distinction echoes that drawn by Mason J in the passage from Kioa I have set out above. This would also give some effect to the clear legislative intent reflected in the Second Reading Speeches of Ministers in successive governments. In my opinion, the decision in Miah does not travel beyond the facts of the case before the Court - a new event or circumstance which arose after the last communication between the delegate and the applicant."

84 (The passage from Kioa v West [1985] HCA 81; (1985) 159 CLR 550 from the judgment of Mason J (at 587) was this:

"In the ordinary course of granting or refusing entry permits there is no occasion for the principles of natural justice to be called into play. The applicant is entitled to support his application by such information and material as he thinks appropriate and he cannot complain if the authorities reject his application because they do not accept, without further notice to him, what he puts forward. But if in fact the decision maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter: In re HK (An Infant) [[1967] 2 QB 617]." (Emphasis added))

85 For the appellant, it was also submitted that the Tribunal misled the appellant by what it said in relation to country information, leading the appellant to believe that no country information would be utilised. However, Gyles J found (at [83]) that "[w]hilst there may have been room for misunderstanding at an earlier stage, by the completion of the hearing I think it is clear that the Tribunal member was intending to refer to country information in accordance with well-established practice".

86 In relation to the appellant's complaint that in the course of his reasons, the Tribunal member referred to his own military experience in assessing some evidence, Gyles J (at [84]) saw -

"...no difficulty in such a person using his or her knowledge and experience to assess the credibility of what is put before them. It is not realistic to expect compartmentalisation of knowledge. It is not feasible to disclose all such knowledge or experience. It may be different if, for example, due to involvement in some particular experiment or incident out of the ordinary course, a particular fact was known."

87 For the appellant, it was also argued that the Tribunal's use of a particular map to check the appellants' version of events, which caused the Tribunal to doubt the veracity of those events, could have been remedied if the appellant had known that it was to use the map in this way, as he could have tendered other material which would have corrected "misconceptions" of the Tribunal. However, his Honour found he could not, in principle, distinguish the use of the map from the use of the other "country information".

THE GROUNDS OF THE APPEAL

88 By the grounds of his appeal, the appellant raises the following questions:

(1) Whether the Court should have found that the Tribual failed to comply with the rules of natural justice by (a) misleading the appellant by telling him that it would advise him of any "independent information" in its possession and that it would give the appellant an opportunity to comment on those documents, but then utilising twenty-one undisclosed documents; (b) failing to disclose to the appellant, or his advisor, any of the documentary information upon which it relied in making adverse findings as to the appellant's credit; and (c) failing to disclose to the appellant that the member would use his own military experience in assessing the veracity of the appellant's claims.

(2) Whether the Court erred in finding that s 474 operates to exclude any implied duty on the part of the Tribunal to afford procedural fairness by supplying information going beyond that required to be disclosed pursuant to Div 4 of Part 7 of the Act.

(3) Whether the Court should have found that, in the absence of clear words of necessary intendment, s 474 does not operate to exclude any duty on the Tribunal to afford procedural fairness.

(4) Whether the Court should have held that s 474 was beyond constitutional power in that it (a) reserves to administrative decision makers and others who are not Chapter III judges a part of the judicial power of the Commonwealth; and (b) is inconsistent with pars 75(iii) and 75(v) of the Constitution.

89 The appellant now seeks orders allowing the appeal, and, in lieu of the dismissal of his application, an order under s 39B of the Judiciary Act setting aside the Tribunal's decision and remitting the matter to the Tribunal for a fresh hearing.

CONCLUSIONS ON THE APPEAL

90 It will be convenient to turn first to the construction of s 474(1) in order then to consider the challenge to its constitutional validity.

The operation of s 474(1)

91 Provisions, such as s 474(1), which purport to "oust" the jurisdiction of the courts to exercise their ordinary powers of judicial review of administrative action, have been enacted in a wide range of contexts, and have received a settled interpretation.

92 An early illustration is the decision of the Privy Council, on appeal from the Supreme Court of Victoria, in The Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 where the Privy Council considered the operation of a statutory provision taking away, in the case of the Court of Mines, the Supreme Court's general inherent power to issue a writ of certiorari to an inferior court or tribunal. The Court of Mines had, ex parte, ordered the winding up of a registered mining company on the ground of non-compliance with a statutory demand by a party claiming to be a creditor. The Supreme Court had quashed the winding up order on the grounds that the company had not been given sufficient notice of the hearing of the petition, and that the creditors had facts in their possession which they were bound to disclose to the Court, but which they did not, including the fact that, in truth, there was no debt.

93 In holding that the privative clause operated to deprive the Supreme Court of its power to issue certiorari in these circumstances, and accordingly allowing the appeal, the Privy Council (Sir James W Colvile) said (at 442):

"There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen's Bench will grant a certiorari; but some of those authorities establish, and none are inconsistent with, the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it."

94 (There is no suggestion of fraud, or lack of good faith in any of the appeals before us.)

95 Their Lordships went on to say (at 442 - 443):

"In order to determine [whether there was a want of jurisdiction in the Court of Mines] it is necessary to have a clear apprehension of what is meant by the term `want of jurisdiction.' There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal, or upon the nature of the subject-matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry. It is obvious that conditions of the last differ materially from those of the three other classes. Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which, whether apparent on the face of the proceedings or brought before the superior Court by affidavit, are extrinsic to the adjudication impeached. But an objection that the Judge has erroneously found a fact which, though essential to the validity of his order, he was competent to try, assumes that, having general jurisdiction over the subject-matter, he properly entered upon the inquiry, but miscarried in the course of it. The superior Court cannot quash an adjudication upon such an objection without assuming the functions of a Court of appeal, and the power to re-try, a question which the Judge was competent to decide."

96 Willan was cited by Isaacs J in the early High Court case of Baxter v New South Wales Clickers' Association [1909] HCA 89; (1909) 10 CLR 114 at 157, where a similar approach was taken to the operation of a privative clause in industrial arbitration legislation (per Griffith CJ at 131 - 132; per Barton J at 139 - 140; per O'Connor J at 148 - 149; per Isaacs J at 162).

97 Isaacs J also applied Willan in a broader context in Wall v The King; Ex parte King Won and Wah On (No. 1) [1927] HCA 4; (1927) 39 CLR 245 at 256.

98 Willan was also cited by Starke J in considering an industrial arbitration privative clause in Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161. Starke J said (at 183):

"In my opinion, reg. 17 excludes any appeal whatever from any award or order of the Conciliation Commissioner in relation to industrial disputes referred to him under sec. 16 of the Industrial Peace Regulations. Effect can only be given to reg. 17 by treating the words, award, order or determination, as meaning acts in fact done by the tribunal in the supposed exercise of the powers entrusted to it. To confine the meaning of those words to acts done lawfully and within the jurisdiction of the tribunal ignores the clear, distinct and unmistakable intent of the regulation. Prohibition at common law was the appropriate remedy for restraining inferior Courts from exceeding their jurisdiction, and yet this remedy is withdrawn by the regulation: See Baxter's Case; Morgan and Australian Workers' Union v. Rylands Bros. (Australia) Ltd.; Clancy v Butchers' Shop Employees Union; Colonial Bank of Australasia v Willan." (Footnotes omitted)

99 In Hickman, above, Dixon J (at 615) cited both Baxter and Aberfield Coal. The Willan doctrine, it seems, is the source of what is now referred to as the "Hickman principle", as has been noticed by H W R Wade & C F Forsyth in their work Administrative Law, 8^th ed. 2000 at pp 712 - 713. Noting that Australian legislation has made "free use" of ouster clauses, and that "[p]articularly drastic formulae" have been employed in the attempt to prevent the courts interfering with bodies administering industrial legislation, the authors state, correctly in my view, that the High Court's solution to the problem has been as follows:

* However strong (as here) the ouster clause, to retain power to quash "for plain excess of jurisdiction", but not for "mere error of law", citing Houssein v The Under Secretary, Department of Industrial Relations and Technology (NSW) (1981 - 1982) [1982] HCA 2; 148 CLR 88. There, Stephen and Brennan JJ said (at 95):

"[The privative clause] reflects the determination of the legislature to prevent the important work of the Arbitration Court, later the Commission, in the field of industrial matters from being impeded by constant resort to the Supreme Court for the issue of prerogative writs, and to do so by allowing some excess of jurisdiction to pass without exposure to judicial review."

* Not to intervene "where the tribunal has made a bona-fide attempt to exercise its authority in a matter relating to the subject with which the legislation deals and capable reasonably of being referred to the power possessed by the tribunal". Citing Dixon J in R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387 at 398, Wade and Forsyth observe that "this doctrine appears to derive from the reference to `manifest defect of jurisdiction' in ... Willan...".

* On this principle, the High Court has refused relief where a tribunal was said to have exceeded its jurisdiction by misconstruing "lock-out" (citing Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd [1960] HCA 68; (1960) 104 CLR 437). But it has granted prohibition, despite express ouster of that remedy, where a board sat without the statutory quorum required for it to function validly (citing Proctor, above); and where a board made an error of jurisdictional fact in finding that workers were eligible for membership of a particular union (citing R v Coldham; Ex parte Australian Workers Union (1982 - 1983) [1983] HCA 35; 153 CLR 415) (the authors observing also that Hickman was "similar[ ]").

100 As Wade and Forsyth observed (at 713 - 714), accurately in my view, this distinction is "plainly difficult to apply in borderline cases"; but the High Court's "compromise" is a "brave endeavour" to strike "some sort of balance between legislative intention and constitutional logic".

101 Many other illustrations of the validating operation of privative clauses in cases in the High Court and this Court may be given; and it would be wrong to suggest that the Hickman principle is "out of date", or has somehow "served its purpose" in war-time conditions. For instance in the High Court:-

* In R v The Commonwealth Conciliation and Arbitration Commission; Ex parte The Amalgamated Engineering Union (Australian Section) [1967] HCA 47; (1968) 118 CLR 219, on an application for prohibition and mandamus, although Kitto J was of the opinion that the Commission had erred in law making an award settling a dispute as to wages, a privative provision validated the award since the three Hickman provisos were satisfied in the circumstances of that case (at 252 - 254). Although Menzies J was of the view that the Commission had not erred, if he had been of the contrary opinion, he would have held that the privative clause protected the award from interference by the Court (at 264 - 265).

* In O'Toole, above, the Full High Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) held that although a privative provision cannot preclude a constitutional challenge, a purported award will attract the protection of the provision if the three Hickman provisos are satisfied.

* In Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1994 - 1995) [1995] HCA 23; 183 CLR 168, the High Court considered the application of the Hickman principle to a privative clause (s 177) in income tax legislation (at 179 - 180, 193 - 194, 205, 210 - 211, 222, 233 and 240).

102 In this Court, reference may be made to the following cases where the Hickman principle has been applied, without any reservation (in chronological order):-

* In Sunrise Auto Limited v Commissioner of Taxation (1995) 61 FCR 446, Beaumont and Beazley JJ (at 467 - 470, 472) applied Hickman and Walter.

* In Hoare Bros Pty Ltd v Commissioner of Taxation (1996) 62 FCR 302, Black CJ, Einfeld and Sackville JJ (at 312 - 314) applied Walter (and thus Hickman). In Hoare, the Full Court said (at 314 - 315):

"In Richard Walter at 186, Mason CJ repeated the substance of the analysis that had been put forward in F J Bloemen. Brennan J (at 197) considered that an assessment made in bad faith could be challenged, despite the terms of s 175:

`It is conceivable that a purported assessment could be made in bad faith so as to forfeit the protection which s 175 would otherwise confer on the assessment. If such a case were to occur, neither s 175 nor s 177(1) would transform the purported but invalid assessment into a source of liability. The purported assessment would be a nullity. But an assessment which has been made on a bona fide attempt to exercise the power to make it is not invalid merely on account of a disconformity between the amounts assessed and the amounts properly assessable under the general provisions of the Act.'

Deane and Gaudron JJ (at 211) expressed the scope for challenge somewhat more broadly:

`....[Section] 175's protection from invalidity is applicable only if the purported `assessment' (i) is a `bona fide attempt' by the Commissioner or other authorised officer to exercise powers conferred by the Act; (ii) `relates to the subject matter' of the Act and (iii) `is reasonably capable of reference to' those powers. If a purported `assessment' does not satisfy those three requirements, the protection of s 175 will be unavailable and the purported `assessment' will be invalid.' [Footnotes omitted.]"

* In Darrell Lea Chocolate Shops Pty Ltd v Commissioner of Taxation (1996) 72 FCR 175, Spender, Burchett and Hill JJ (at 185 - 186) applied Hickman and Walter in considering whether a privative clause "rendered [an] assessment immune from attack as to its validity":

"This principle of construction is set out in the judgment of Dixon J in R v Hickman; Ex parte Fox [1945] HCA 53; (1945) 70 CLR 598 at 614. The decision of the High Court in Richard Walter confirms that the Hickman principle of construction applies equally to the privative provisions of s 167 and it must follow would equally apply to the provisions of s 67 of the No 1 Assessment Act.

Section 67 will therefore operate to preclude a court from examining the validity of an assessment once a notice of assessment is tendered, provided always:

(1) that there has been a bona fide attempt to exercise the power of assessment;

(2) that that attempt to exercise the power of assessment relates to the subject matter of the legislation, in the present case the sales tax legislation; and

(3) that the exercise of the power of assessment is reasonably capable of reference to the power given to the Commissioner.

The fact that an assessment may be wrong could never enliven the Hickman principle. Provided that in making the assessment the Commissioner made a bona fide attempt to assess the relevant tax or (in the case of sales tax having regard to the definition of `assessment' in s 3(1) of the No 1 Assessment Act) to ascertain the sale value of relevant goods and the sales tax payable on that sale value, that notice of assessment will be immune from attack."

* In Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission [1999] FCA 847; (1999) 93 FCR 317, Wilcox and Madgwick JJ (Moore J agreeing) held that a decision of the AIRC was not only erroneous in law, but the error was jurisdictional, and would, absent the privative clause, have attracted prerogative relief. However, the Court applied the Hickman principle (at [90]):

"90 In the application of these principles to the present case, it is necessary to ascertain whether the error of the Full Bench, although jurisdictional, led to the making of an award of the type that s 150 would not protect because it fell outside the category of orders or awards described by Dixon J in the passage quoted by Gaudron and Gummow JJ [in Darling Casino]. There is here no question of constitutional invalidity. Nor is there any suggestion that the decision of the majority, resulting in the Full Bench's award, was not a bona fide attempt to exercise the powers conferred on the Full Bench of the Commission by s 45. The award clearly relates to the subject matter of the legislation. The only basis on which counsel suggested s 150 would not protect the Full Bench's award was that its making was not reasonably capable of reference to the power conferred by s 45. However, while the majority of the Full Bench misunderstood or overlooked the differences between the Commission's relevant powers, and thereby fell into jurisdictional error in exercising the Full Bench's powers under s 45(7), the actual exercise of power is capable of reference to the powers conferred on a Full Bench. It involves, on its face, an exercise of the power conferred by s 45(7): see R v Hickman: Ex parte Fox & Clinton at 617. Thus s 150 operates to protect the award from prerogative relief." (Emphasis added)

* In San Remo Macaroni Company Pty Ltd v Federal Commissioner of Taxation 1999 ATC 5138, Hill J (at [51] - [57]) applied Hickman and Walter.

* In Briglia v Federal Commissioner of Taxation 2000 ATC 4247 Kenny J (at [6] - [9]) applied, inter alia, Hickman and Walter.

* In Kordan Pty Ltd v Commissioner of Taxation [2000] FCA 1807; 2000 ATC 4812, Hill, Dowsett and Hely JJ (at [2] - [4]) applied, inter alia, Hickman and Walter.

* In Daihatsu Australia Pty Ltd v Commissioner of Taxation [2001] FCA 588; (2001) 184 ALR 576, Finn J (at [29] - [30]) applied, inter alia, Hickman and Walter.

* In Meredith v Commissioner of Taxation of the Commonwealth of Australia 2001 ATC 4595, French J (at [29] - [30]) applied, inter alia, Hickman and Walter.

103 Hickman has likewise been regarded as good law by the Industrial Relations Court of Australia. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, Wilcox CJ and Keely J (Moore J agreeing) said (at 686):

"The High Court continues to regard Hickman as good law: see O'Toole v Charles David Pty Ltd [1991] HCA 14; (1991) 171 CLR 232 at 248-9, 274-5, 286-7 and 304; [1990] HCA 44; 96 ALR 1; 99 ALR 415 and DCT v Richard Walter Pty Ltd [1995] HCA 23; (1995) 127 ALR 21 at 25-6, 36-7, 50, 59, 68 and 73."

104 It must, in my view, follow that it is settled law in this country that a provision such as s 474 should be interpreted in the light of the Hickman principle, notwithstanding that, as Wade and Forsyth observe, in some "borderline" cases, its application may be "difficult".

Constitutional validity of s 474

105 When so construed (and thus read down) the constitutional validity of s 474 is, in my opinion, beyond argument in this Court. In any event, there is nothing which I can usefully add to the reasons of the other members of the Court in rejecting the constitutional challenge. It is sufficient, for my purposes, to note that there is nothing in the Hickman principle which suggests that the decision under review is unexaminable by the Court. What this principle teaches is that the examination is directed to certain areas, essentially of characterisation of aspects of the decision in the light of the three provisos. Nothing in Chapter III holds that such a statutory direction is beyond power.

The application of the Hickman principle in the present circumstances

106 It will be convenient to consider the application of each proviso of the principle separately.

Was the Tribunal's decision made bona fide?

107 In NAAG of 2002 v MIMIA [2002] FCA 713, Allsop J said (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. Finn J in Daihatsu Australia v Federal Commissioner of Taxation [2001] FCA 588; (2001) 184 ALR 576 at [36] referred, by way of exemplification, to the exercise of a power knowingly for an improper purpose or where no attempt is made, knowingly, to act conformably with duty. Heerey J in SBAP v Refugee Review Tribunal [2002] FCA 590 at [47] said that the phrase `bona fide' involved a serious question involving personal fault on the part of the decision-maker going beyond error of fact or law. It must be clearly identified and proved. I agree. I also agree with the statements of principle made by Mansfield J in SAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 547 at [34] to [36]."

108 I agree with this explanation.

109 In the present case, in my view, there is no evidence of any lack of an honest or genuine attempt to undertake the task at hand. It follows, in my opinion, that this proviso was satisfied here.

Was the Tribunal's decision in a matter relating to the subject with which the Act deals?

110 Plainly, this proviso was satisfied here.

Was the Tribunal's decision reasonably capable of reference to the power possessed by the Tribunal?

111 In NAAG, Allsop J said (at [26] - [28]):

"26 In the context of the Act and a decision of the Tribunal, as referred to in [22] above, this requires some degree of connection between the decision and the power. Kitto J in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [1967] HCA 47; (1967) 118 CLR 219 at 252-53, in terms approved by Mason ACJ and Brennan J in R v Coldham, supra at 418, paraphrased this requirement as not on its face going beyond the power. Dixon J, in R v Metal Trades Employers' Association, supra at 249, in connection with this requirement in that case said that the award must not on its face exceed the express authority of the Arbitration Court. See also R v Murray; Ex parte Proctor, supra at 400 (see [23] above). In one sense, this requirement is no more than ascertaining whether, on the face of what was done, the executive act was within the power given. In Hickman the act was in point of fact not within the coal mining industry and so what was done was not protected by the privative clause.

27 I do not read this third requirement as intended to mean that the limits of the power in question, absent the privative clause, are analysed (including notions of jurisdictional error of the kind discussed earlier) so as to find `jurisdictional error' and so to find an absence of `reasonable capacity of reference' to the power. To do so would be to drain the privative clause of all intended content and effect.

28 Thus, using the language of Dixon J in R v Murray; Ex parte Proctor, supra at 399-400, in discussing the `first step', one needs to find an honest attempt to deal with the subject matter confided to the Tribunal (being the review under ss 414 and 415 of the Act and the question of its state, or lack, of satisfaction as to Australia's obligations) and an honest attempt to act in pursuance of the powers of the Tribunal (being those thrown up by ss 414 and 415 of the Act) in relation to something that might reasonably be regarded as falling within its province (being the questions thrown up by ss 65 and 36)."

112 I agree.

113 Again, this proviso is plainly satisfied in the present case. Whether or not (and I need not, and do not express a view on the point) there was a breach of the common law rules of procedural fairness arising out of the informal discussion at the Tribunal's hearing, it is clear that, since none of the information now complained about specifically concerned the appellant, there was no breach of any statutory requirement. The Tribunal's process, its decision and its reasons for decision all purported to address the factual issues which the Tribunal was charged by the Act to address. The complaint made is solely directed to the way in which that process was in fact carried out. Even if the complaint were justified, it cannot follow, as a matter of characterisation of the Tribunal's decision to refuse the visa, that the decision was not reasonably capable of reference to the power given to the Tribunal.

114 Whether an aspect of the procedure was unfair (but, on any view, not in breach of any statutory prescription (whether "inviolable" or not (cf. O'Toole, above at 274)) is beside the point. Here the observations of Latham CJ and Dixon J in R v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd [1947] HCA 32; (1947) 75 CLR 361 (at 369), as follows, are squarely applicable:

"Such a [privative] provision will operate to prevent prohibition going in cases of procedural deficiencies where the authority ... is in substance dealing with the matter in respect of which power is conferred upon it." (Emphasis added)

115 It is, in my view, beyond argument that the tribunal was in substance dealing with this matter.

116 For completeness, reference should also be made, if it were thought necessary, to the provisions of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), enacted recently. Its provisions and its explanatory Memorandum make it clear that Subdivision E of Div 3 of Part 2 of the Act is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it deals. But it is not necessary that I pursue its significance here. (Cf. Pearce and Geddes, Statutory Interpretation in Australia 5^th ed. 2001 at pp 74 - 76).

117 Since writing the above, Kiefel J has dealt with a question similar to the main point agitated in this appeal: Hashimi v MIMA [2002] FCA 988. Her Honour said (at [16] - [17]):

"Fundamentally the question would seem to be what the principles expressed in Hickman require. His Honour in Awan accepted that it remained authoritative (at [166]). In my respectful view Hickman requires that the provisions of s 474(1) be read with s 359A(1). It is not sufficient to consider only how important the latter provision might be. To do so would be to ignore s 474(1), the operation of which is confirmed by the materials referred to at [12] above.

In my view the only way in which the provisions can be reconciled is to read s 359A as imposing an obligation upon the Tribunal with respect to the provision of information during the course of the review proceedings; but that a breach of it was not intended to invalidate the decision, so far as this Court is concerned. No provision is made in s 359A(1) or elsewhere for the consequences of a breach. None of the conditions referred to in Hickman are present. Section 474(1) operates in its terms."

118 Kiefel J added (at [20]):

"The applicant also submitted, in reliance upon observations made by Gaudron and Gummow JJ in Darling Casino Ltd v NSW Casino Control Authority (1997] [1997] HCA 11; 191 CLR 602, that the decision is not one made `under this Act', as s 474(2) defines a privative clause decision. The argument requires one to read s 359A(1) as a condition necessary to be fulfilled before the Tribunal's power was enlivened. In my view no warrant has been shown for reading the subsection as conditioning the exercise of the Tribunal's decision-making power in this way."

119 I agree.

DISPOSITION OF THE APPEAL

120 Accordingly, I would dismiss the appeal, with costs.

NABE OF 2002 V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

INTRODUCTION

121 This is an appeal from a decision of Tamberlin J, dismissing an application for judicial review of a decision of the Tribunal, whereby the Tribunal affirmed a decision of the delegate of the Minister not to grant the appellant a protection visa. Before the Tribunal, the appellant, a national of Sri Lanka, who arrived in Australia in April 2001, claimed that he had a well-founded fear of persecution by reason of his suspected involvement with the Liberation Tigers of Tamil Eelam ("the LTTE"), the People's Liberation Organisation of Tamil Eelam ("the PLOTE") and the Sri Lankan Army.

BACKGROUND AND CLAIMS

122 In support of his visa application, the appellant made a number of claims, which can be summarised as follows.

123 The appellant claimed that he was of Sri Lankan nationality, and a Tamil from Jaffna of Roman Catholic faith. He claimed that he had completed secondary school education in Sri Lanka and later completed a computer course. He claimed that he had worked in Sri Lanka as a computer instructor and did occasional unpaid work in a relative's grocery business.

124 In support of his claim that he was from Jaffna, the appellant submitted an ID card issued to him in 1992. He said that he was never required to renew that card.

125 Apart from the oral evidence of the appellant at the hearing, the Tribunal had available to it material contained on the Departmental and Tribunal files, including a taped interview between the appellant and a Departmental officer, and certain "country information" (some of which is referred to below). The appellant was assisted at the hearing by an interpreter in the Tamil language.

126 The appellant claimed that in 1984, while at school, a fellow pupil was killed in an army attack when several bullets struck the school. He said that occasional attacks continued as part of the general conflict in his area, and that his school was often closed as a consequence of the surrounding violence.

127 The appellant also claimed that the Indian Peace Keeping Force ("the IPKF") arrived in 1987, and that his house was attacked and damaged in shelling on several occasions. He said that he was often suspected of being a member of the LTTE. He also claimed that he was detained at an LTTE camp for several days, until his mother successfully intervened on his behalf. He claimed that, on a later occasion, while engaged in choir practice at his church, he was beaten by the authorities and taken to a camp, where a friend was killed. He claimed that he was sometimes required to dig bunkers for the LTTE, and that he was detained on suspicion of involvement with groups such as the Eelam People's Revolutionary Liberation Front ("the EPRLF").

128 The appellant further claimed that, in October 1995, he went to a refugee camp in Pallai, to avoid the intense fighting in Jaffna. He said that he remained there for three months, but when the fighting became intense he moved to Mullaithivu. He claimed that, while there, he was forced to joint the LTTE, for which he served as a cook for two and a half years in a camp used by LTTE cadres. He said that he supported the aims of the LTTE, but not its killings.

129 The appellant claimed that when he was prevailed upon to undertake military training, he escaped from the LTTE camp along a jungle route to Vavuniya, in January 1999, and remained there for three months. He claimed that he was interrogated, beaten and otherwise mistreated by the authorities, while detained for two weeks on suspicion of involvement with the LTTE or with the PLOTE. He claimed that, at this time, the authorities learned of his connections with the LTTE.

130 The appellant also claimed that he had escaped from detention with the assistance of a friend, who obtained all necessary documentation, such as a permit from the army to enable travel to Colombo. He claimed that he had travelled to Colombo by train and remained there for three months. He said that the person who assisted him in Vavuniya also arranged for his registration with the police in Colombo. He claimed that, nevertheless, he was detained for three days and beaten simply for being Tamil. In addition, he claimed that his documentation was not accepted.

131 He further claimed that, in April 1999, he returned to Vavuniya due to his treatment in Colombo. He claimed that he was, essentially, in hiding in Vavuniya, where he remained for almost a year before again returning to Colombo, in May 2000, with his sister. He claimed that, for the next ten months in Colombo, he never went outside and that he lived there only on money sent by his family.

132 The appellant claimed that, on his second trip out of Vavuniya, he again obtained all necessary documents from an agent. He claimed that he was arrested on two occasions during his second period in Vavuniya and released after his sister paid bribes. He claimed that his sister is now in Vavuniya, or perhaps Mullaithivu.

133 Finally, the appellant claimed that he eventually left Sri Lanka on a passport that contained his own name and photograph. He claimed that it was improperly obtained by an agent, who also paid bribes to enable him to depart the country. He said that he gave his passport to another agent in Thailand, who gave him a false Canadian passport that he used to enter Australia. He also carried other Canadian documentation with him, some Canadian money and correspondence from his girlfriend. He claimed that his girlfriend lives in Mullaithivu and that they last met some time in 1999.

THE TRIBUNAL'S REASONS

134 The Tribunal accepted some of the appellant's claims, but rejected others.

135 The Tribunal accepted that the appellant was born in Jaffa, that a fellow school pupil had been killed by gunfire, and that the appellant's family home was damaged during the time that the IPKF had a presence in the north of the country.

136 The Tribunal also accepted that, as a teenager living on the Jaffna Peninsula, the appellant was sometimes regarded with suspicion. The Tribunal noted that, on one occasion, the appellant had been released, without charge, after allegedly being investigated at an army camp. The Tribunal did not, however, accept that the appellant would have been released at the request of his mother if he was of on-going interest to the authorities, or if he was seriously thought to be an active supporter of the LTTE or any other allied group.

137 Further, the Tribunal found that, even if it accepted that the appellant, a Roman Catholic, had been beaten by the authorities while engaged in choir practice at his church and removed to a camp, this had occurred several years ago, while he resided in the vicinity of the main trouble spot in Sri Lanka. The fact that he was released from custody, and was later able to travel to Colombo, indicated, in the Tribunal's view, that he was not of any continuing interest to the authorities. The Tribunal found that, since the EPRLF then operated as a pro-government force with parliamentary representation, any perceived association between the appellant and the EPRLF would not indicate a real chance of persecution, in the present or foreseeable future, for any Convention reason.

138 In relation to the appellant's claim that he had worked as a cook for the LTTE for two and a half years, the Tribunal observed that, because he did not embrace the violent tactics used by the LTTE, it seemed improbable that the appellant would have remained with the LTTE for so long, given that he did not support its methods, and given also the apparent ease of his escape when he was, ultimately, required to undergo military training.

139 In relation to the appellant's claim that the authorities came to know of his alleged association with the LTTE and had detained and beat him, the Tribunal found that this was at odds with his capacity to travel, on two separate occasions, from Vavuniya to Colombo. The Tribunal did not accept that, if the authorities had discovered that the appellant had had a significant role with the LTTE over a substantial period of time, they would release him after a few weeks of detention and then allow him to travel to Colombo.

140 The Tribunal remarked that the former militant group, PLOTE, then operated solely as a pro-government force. The Tribunal found that it was "implausible" that, in 1999, the appellant would have been detained for involvement with an organisation such as PLOTE. It concluded that, in weighing all the relevant evidence, the appellant had fabricated his claims of his involvement with the LTTE and of continuing problems with the authorities due to his association with either the LTTE or PLOTE. The fact that the appellant was able to depart from Sri Lanka using a passport in his own name indicated that he was not wanted by authorities and therefore had no actual need to retain a low profile while residing in Colombo. The Tribunal did not accept that he departed on an illegally obtained passport.

141 The Tribunal concluded:

"There is no doubt that Tamils have often been at risk of persecution in Colombo and elsewhere in recent years. The evidence also indicates, however, that almost half the population of Colombo is Tamil and that the risk of persecution is very far from universal. Aforementioned information indicates that, apart from those who have fled the authorities in the north, those most at risk are recently arrived young people without established links to Colombo.

In the present case the applicant has a history of residence in Colombo of at least a year and no credible claims of harm there for any Convention reason. His sister resided there with him, at least for a time. The applicant registered with the authorities, thus indicating he established a valid purpose for residing in Colombo, as well as indicating he was not regarded as a security risk. The Tribunal is not satisfied that he has no work history or significant family or personal contacts still in Colombo. In all the circumstances the Tribunal finds it would be reasonable for the applicant to again take up residence in the capital where he does not face any real chance of persecution for any Convention reason.

In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason."

THE APPELLANT'S CLAIM FOR JUDICIAL REVIEW

142 Before Tamberlin J, the appellant's claim for judicial review was principally put on the basis that the Tribunal had misunderstood certain of the claims made by the appellant and, therefore, did not address these claims, thus giving rise to a constructive failure to exercise jurisdiction.

143 It was also contended for the appellant that the Tribunal had acted on irrelevant material, or, alternatively, that the Tribunal had not given genuine and realistic consideration to the appellant's claims.

144 It was said that these were errors which went to the jurisdiction of the Minister (and thus the Tribunal) to refuse a visa under s 65 of the Act since the grant of a visa was conditional on the Minister being properly satisfied of the requisite matters. Where there is an error of this type, it was said, the Minister could not be properly satisfied, the material jurisdictional fact being the proper satisfaction of the Minister. Thus, it was claimed, in reaching its decision, the Tribunal had committed an error in concluding that the required satisfaction did not exist. Therefore, the argument went, the power to make the decision refusing a protection visa could not be exercised and such an error could not be protected by the privative clause.

THE JUDGMENT AT FIRST INSTANCE

145 His Honour turned first to consider the meaning and operation of s 474(1). He said (at [27]; [30] - [31]):

"As a consequence of the 2001 amendments to the Act, in particular s 474, it can no longer be said that nothing in the Act suggests that the RRT is given authority to determine questions of law or make a decision otherwise than in accordance with law.

...

Section 474 in terms makes it evident that the decision of the RRT is intended to authoritatively resolve questions of fact and law before it. That principle is qualified by the authorities to the effect that a privative clause will not apply to prevent judicial review where the decision is unconstitutional or in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, or where the empowering statute makes it clear that compliance with a condition is essential to the exercise of jurisdiction. Indeed, Hickman itself is an example of the latter situation in so far as the Court held that the privative clause did not operate to protect the Board's decision because the activity was not `in the mining industry', an expression which delineated the area of jurisdiction conferred. Accordingly, in this case, as a consequence of the 2001 amendments, the generalised statements as to jurisdictional error enunciated in Craig, are not determinative of the present proceedings.

In this case it is important to keep in mind that the power in s 65 is conditioned on the satisfaction of the Minister and not that of the Court."

146 His Honour noted that the first alleged error was expressed in the Tribunal's reasons as follows (at [27]):

"`He claims that he was interrogated, beaten, and otherwise mistreated by the authorities while detained for two weeks on suspicion of involvement with the LTTE or with the People's Liberation Organization of Tamil Eelam (PLOTE). He claims that the authorities learned of his connections with the LTTE.' (Emphasis added)"

147 The appellant submitted to the primary Judge that the error evident in this passage of the Tribunal's reasons, was that the claim made by him was that he was detained by the PLOTE for involvement with the LTTE, not by the authorities. This statement, it was said, pointed to jurisdictional error because the claim for protection was dealt with on an erroneous basis and the error was an important consideration which affected the decision.

148 In this connection, Tamberlin J noted that, in the appellant's original statement to the Department, he had stated that, in January 1999, he went to a place called Vavuniya and remained there for some months; this was said to be an army-controlled area where there were other groups favouring the government. The appellant had then stated (at [29]):

"`They took me for interrogation and questioned me inhumanely. They beat me. they [sic] heated iron bar [sic] and burnt my arms. ... I screamed, they [sic] continued to torture me.' (Emphasis added)"

149 Tamberlin J observed that this statement did not specify who it was that detained the appellant and interrogated him. However, in the decision record of the delegate, dated 9 August 2001, the following appeared (at [36]):

"`The applicant claims that Vavuniya was under Sri Lankan Army control and that whilst in Vavuniya he was arrested by PLOTE people. The applicant claims that he was arrested by PLOTE because persons who came from Mullaitivu were suspected of being LTTE supporters. The applicant claims that the PLOTE also knew he had worked for the Tigers. The applicant claims that he was detained and tortured during the interrogation by the PLOTE. The applicant claims during the interrogation he admitted that he had been forced to work for the Tigers.' (Emphasis added)"

150 His Honour observed that this statement in the delegate's decision clearly indicated the delegate's understanding that the appellant's claim was not one of detention and torture by the authorities, but by the PLOTE. The decision of the delegate was the subject of review by the Tribunal; and, this statement as to the nature of the claim was before the Tribunal when considering the decision. (Other material before the Tribunal did not specify clearly who was said to have detained and tortured the applicant.)

151 Tamberlin J said (at [37]):

"On the material I have referred to, other statements by the applicant and the relevant part of the transcript of the hearing before the RRT which was tendered in evidence, I am satisfied that there was an error by the RRT which could have affected the outcome because it bears directly on the question whether there were grounds, based on past persecution, for the applicant believing there is a real risk of persecution if returned."

152 The primary Judge went on to consider the application of s 474 in this connection (at [38]):

"The task is then to apply s 474 to the present case. There is nothing in this case to indicate that the decision to refuse a visa was not made bona fide in an attempt to exercise the power conferred, namely to decide whether the applicant had the necessary requirements to be granted a protection visa. The decision relates to the subject matter of the legislation, namely the refusal of a protection visa. The determination is reasonably referable to the function assigned to the RRT and there is no suggestion of any constitutional invalidity in the decision of the RRT. Nor is there any basis to suggest that the RRT was not in fact satisfied that the applicant was not a refugee, nor was there any inviolable provision or essential condition going to jurisdiction which was breached by the RRT in reaching its conclusion. I therefore consider that the error which I have found in the RRT decision is within the protection afforded to the RRT decision by s 474."

153 It was also submitted for the appellant that the Tribunal did not give any realistic or genuine consideration to his claims. However, his Honour found that this was not an available ground of review in the light of the reasoning of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426 at 435 - 442. Tamberlin J was not, in any event, persuaded that there was such a failure, since the detail of the reasons indicated that there had been a genuine and realistic consideration of the claims.

THE GROUNDS OF THE APPEAL

154 The appeal is grounded on the appellant's contention that the primary Judge erred in finding that, although there was an error by the Tribunal which could have affected the outcome, the error was protected by s 474.

CONCLUSIONS ON THE APPEAL

155 In NAAV, I considered the operation of s 474 and will not repeat that consideration here. In these circumstances I will deal directly with the question whether or not the Hickman provisos were satisfied here.

156 Did the Tribunal act bona fide? Lack of bona fides is not, and could not be, suggested here.

157 Did the Tribunal's decision relate to the subject matter of the legislation? Plainly it did.

158 Was the Tribunal's decision reasonably capable of reference to the power given to the Tribunal by the Act? Again, this proviso was plainly satisfied here. At its highest, this was no more than a case of an apparent error made within jurisdiction.

DISPOSITION OF THE APPEAL

159 I would accordingly, dismiss the appeal.

ANARE SUA RATUMAIWAI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

INTRODUCTION

160 This is an appeal from a judgment of Hill J, dismissing an application for judicial review of a decision of the Migration Review Tribunal ("the Migration Tribunal"), whereby the Migration Tribunal affirmed a decision of the delegate of the Minister not to grant the appellant a Family (Residence) visa on the basis of his claim to be a "special need relative" within the meaning of the Migration Regulations 1994 (Cth) ("the Regulations"), made under the Act.

161 The appellant, Anare Sua Ratumaiwai, is a resident of Fiji. He applied for a Family (Residence) (Class AO) visa, claiming to be a "special need relative" in relation to his brother, Jolame Takona Ratumaiwai ("the brother"), a resident of Australia. His application was refused by a delegate of the Minister. He then sought review by the Migration Tribunal of the delegate's decision. However, the Migration Tribunal affirmed the delegate's decision. The appellant then applied to the Court, seeking to invoke s 39B of the Judiciary Act 1903 (Cth) in his application for the grant of a writ of certiorari, a writ of mandamus or a writ of prohibition for relief, upon the ground that the Migration Tribunal had committed an error which went to its jurisdiction, in failing to take into account a relevant consideration; that is, that the appellant provided financial assistance, or alternatively, emotional support, to the brother. The Minister opposed the grant of any writ on the basis that s 474(1) of the Act applied here.

162 The criteria which an applicant for a Family (Residence) (Class AO) visa (the relevant subclass is subclass 806) must satisfy are stated in cl 806.213 of Schedule 2 to the Regulations; that is, that at the time of application and at the time of decision, an applicant for a visa must be a "special need relative" of a person who has nominated the visa applicant for the grant of the visa. "Special need relative" was relevantly defined in reg 1.03, at the relevant time, as follows:

"`special need relative' in relation to an Australian citizen usually resident in Australia, and 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 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, an Australian permanent resident or...

(ii) welfare, hospital, nursing or community services in Australia;" (Emphasis added)

THE TRIBUNAL'S REASONS

163 The Tribunal found that the brother had a disability, in the form of bilateral osteo-arthritis of the knees, but that he did not have a permanent or long-term need for assistance because of this disability, because the brother was at home during the day for long periods, when the appellant was at work, and there was no evidence of anything which the brother could not do while he was alone.

164 According to the evidence of the brother, because he had pain and loss of mobility due to the osteo-arthritis, he needed assistance with cooking, laundry and other household chores. But the Migration Tribunal found that the brother had made no effort to ameliorate his condition by the use of physical aids such as a stool (to sit on while making meals) or a walking frame.

165 The Tribunal also found that alternative assistance was available to the brother to enable him to attend church, attend medical appointments and do shopping - activities which the brother's lack of mobility would render difficult, and in which the appellant provided assistance to the brother.

166 The Migration Tribunal found that the brother had no need for long-term assistance "because of death, disability, prolonged illness or other serious circumstances". Accordingly, the Migration Tribunal was of the view that the appellant was not a "special need relative" at the time of the visa application. Given this finding, it was unnecessary for the Migration Tribunal to consider whether this was also the case at the time of the Migration Tribunal's hearing.

THE APPELLANT'S CONDUCT OF HIS CASE BEFORE THE MIGRATION TRIBUNAL

167 Before the primary Judge, the appellant sought to tender the transcript to the proceedings before the Migration Tribunal, in aid of a submission that the appellant requested the Migration Tribunal to take into account financial and emotional assistance, assistance of a kind mentioned in the evidence of the appellant to the Migration Tribunal, where the appellant said that he was prepared to provide this type of assistance to the brother.

168 In connection with this tender, it was submitted on behalf of the appellant that the Migration Tribunal had not addressed the question whether the appellant had, as the appellant claimed, provided financial and emotional assistance to the brother. By failing to consider these alternative forms of assistance, and confining itself solely to the physical assistance which the appellant provided (i.e. help with preparing meals, the laundry and housework, and transporting the appellant to church, to shop and for medical appointments), the Migration Tribunal had, it was submitted, made a jurisdictional error. (In his reasons, Hill J was to observe that the jurisdictional error allegedly committed by the Migration Tribunal might be characterised as a constructive failure to exercise jurisdiction, an error of law, or as a failure to take into account relevant considerations, referring to Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at 21 - 22.)

169 Before the primary Judge, counsel for the Minister did not dispute that a failure to take into account a relevant consideration might constitute "jurisdictional error", but submitted that "jurisdictional error" could not be shown in this case; or, alternatively, was not shown here, for the following reasons:

(1) The Court should not receive the transcript into evidence on the question whether the appellant asked the Tribunal to take into account financial and emotional assistance, and whether the appellant in fact gave evidence that he was prepared to provide assistance of that kind to his brother.

(2) As a matter of construction of the Regulations, "financial support" did not constitute "assistance", as that term was used in Schedule 2 so that the Migration Tribunal was correct to exclude it from consideration.

(3) A matter could only be a relevant consideration so as to found "jurisdictional error" if the matter was one the decision-maker was bound to take into account; yet the decision-maker was not, in the present case, bound to take into account either financial or emotional assistance.

(4) The Migration Tribunal made no "jurisdictional error" when the appellant did not, at the hearing before the Migration Tribunal, seek to make a case involving financial or emotional assistance, and did not ask the Migration Tribunal to rule on that case.

170 Hill J ruled that, since mandamus and prohibition were sought, the transcript should be received into evidence, subject to the Minister's objection, and subject to its relevance on the issue of "jurisdictional error" being later demonstrated.

171 The transcript records the following:

* The Migration Tribunal member asked the appellant in what ways he provided assistance to the brother. After stating that he did the cooking because the brother could not stand, as well as the washing and cleaning, the appellant said that he paid for food and also paid the electricity bill each month. He said "looking at the moneywise, he usually hasn't got the money".

* In response, the Migration Tribunal member said:

"Well, I'm afraid money is not going to make any difference to this application. Giving financial assistance wouldn't qualify you as a special need relative, so I'm just focusing on the type of assistance that would be recognised as suggesting that you might be a special need relative."

* Noting that, in the papers before it, it was stated that the appellant gave emotional support to the brother, the Migration Tribunal member asked: "...but we don't actually have any evidence that he has got anything wrong mentally. Is that correct?". The appellant replied affirmatively.

* The Migration Tribunal member then repeated, by way of a question, that "there's no evidence to suggest that the brother had any sort of mental illness or disability?". The appellant again replied that the brother had no mental illness.

* Later, the Migration Tribunal member questioned the brother, asking him what things the appellant did for him that the brother believed he could not do for himself. After detailing cooking, shopping (etc), the brother said that the appellant also helped financially. The Member said:

"But that doesn't qualify. If you look at the decision it says that you need assistance because of death, disability, prolonged illness or other serious circumstances, so financial help is not relevant to the application. Is there anything else you would like to tell me?"

The brother made no reference to emotional support.

* Later in the interview, the Migration Tribunal recalled the appellant. A translator is reported as saying: "He's [referring to the appellant] asking about the financial condition". The Migration Tribunal Member said:

"That's irrelevant. I can't take that into account. I have to follow the law just as the first person who made a decision did and if you read it, it says that the person has to have a long-term need for assistance because of death, disability, prolonged illness or other serious circumstance. Now, I have been through the evidence with you and with the nominator and the only evidence that I can find is that he has got severe arthritis of his knees and that is it. There is no evidence to support anything else other than the arthritis as at that date in July."

172 The Migration Tribunal's reasons made no reference to the question whether financial or emotional assistance may or should be taken into account.

THE PRIMARY JUDGE'S REASONING

173 It was common ground before Hill J that the Migration Tribunal's decision to affirm the decision of the delegate, was a decision of an administrative character made, or at least purporting to have been made, under the Act. It was also common ground that the Migration Tribunal's decision did not fall within subsections (4) or (5) of s 474, so as to fall outside the definition of a "privative clause" decision. The question for the Court was the effect of s 474(1) in the present circumstances and, in particular, whether it operated to require the Court to dismiss the application, as was contended by the Minister.

174 Hill J identified the issue for his determination as being whether the Migration Tribunal made a "jurisdictional error" in the manner in which it dealt with the review before it; if this was found to be the case, then it would be necessary to consider the operation of s 474(1) of the Act.

Did the Migration Tribunal make a jurisdictional error?

175 Hill J said (at [18]):

"... not all decisions involving legal error are decisions made in excess of jurisdiction. That this is so is clear from Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176. It follows from this that a privative clause will, subject to the three exceptions in Hickman clearly preclude a Court in proceedings initiated by certiorari, mandamus or prohibition from setting aside a decision where there is legal error which does not go to jurisdiction."

176 His Honour identified the issue in this way (at [26]):

"The reasons of the Tribunal make no reference either to the question whether financial assistance may be taken into account or whether the brother had the need for and was supplied by the applicant with emotional support. The question is thus whether the Tribunal made a jurisdictional error by not dealing, so it is said, with either financial or emotional assistance."

177 Hill J went on to say (at [27] - [28]):

"It is clear from the transcript that the Tribunal considered, and rejected, the claim of the applicant that the giving of financial assistance qualified him as a `special need relative' within the meaning of that expression. Even although the Tribunal Member did not deal with the issue of financial assistance in the reasons for decision, as he was obliged to do under s 430(1)(b) of the Act, it is clear that the Member did not fail to consider the question. He did consider it and rejected it. So, it cannot be said that the Tribunal Member failed to take into account financial assistance as a relevant consideration. If it be assumed that the Tribunal Member was wrong in the view he took that financial assistance fell outside the kind of assistance which the definition of `special need relative' was concerned with, it may be argued, as indeed it was by counsel on behalf of the Minister, that the Tribunal made a factual error in ascertaining the meaning of the ordinary English word `assistance'. In my view there is a difficulty in the present case in characterising the error which the Tribunal made (if indeed it made an error at all) as being simply a question of the meaning of an ordinary English word. Indeed, in my view, the present case is distinguishable from Ex parte Cohen [(2001) 173 ALR 473, [where McHugh J held that a mistake of fact in the meaning of an ordinary English word is not a jurisdictional error].

The distinction between error of fact and error of law is a fine one. While it is true that the ordinary English meaning of a word is a question of fact, so that a Tribunal which defines the word wrongly does not make an error of law, what was involved in the present case was whether it was open to the Tribunal to find that a person who gave financial assistance to a nominator came within the expression `special need relative'. In accordance with propositions 4 and 5 set out in the judgment of the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, as approved by the Full High Court in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 at 395-6 the question involves the meaning of the word, but in the context in which the word appears. What is involved then is really a question of construction of the definition, rather than a mere question of the meaning of the word `assistance'. In so saying I am conscious of the difficulty that arises in differentiating between a question of construction and the meaning of a word, see Agfa-Gevaert at 396."

178 In relation to the question of financial assistance, Hill J held (at [29]) that once it is seen that the Migration Tribunal has addressed the issue of financial assistance, even if, in so doing, it has made an error of law, that error is not a "jurisdictional error".

179 His Honour went on to say that "there is no particular reason why financial assistance could not fall within the kind of assistance with which the definition of `special need relative' is concerned" (emphasis added) (at [30]). However, it was not necessary to decide the question, because it sufficed, for present purposes, that the Migration Tribunal did not commit a jurisdictional error in refusing to grant the appellant a visa applied for on the ground that the appellant gave his brother financial assistance.

180 On the question of emotional support, Hill J held (at [31]):

"To the extent that the applicant claimed as well to rely on emotional support as qualifying as assistance it is likewise clear that the Tribunal considered and rejected the claim. As presently advised I can see no reason why, in a particular case, emotional support could not relevantly be assistance which is both substantial and continuing. Unlike the Tribunal Member I see no reason why emotional support could be relevant only where the nominator is suffering a mental illness, although that might turn on just what one means by `mental illness'. In a particular case, a person who is disabled or has a prolonged illness, not being a mental illness, may very well be unable to cope without emotional support and thus have a long-term need for assistance in that form. The relative who is willing and able to offer that support might then qualify as a special need relative, assuming it to be the case that such support was not reasonably able to be obtained from one of the sources referred to in paragraph (b). It seems to me that in deciding otherwise the Tribunal erred in law. But that is not the end of the problem."

181 However, Hill J went on to say that there was "a real question whether the applicant ever really made a claim based upon emotional support" (at [32]). This was because there was "no evidence, whether directly from the brother or otherwise, from which this need could be inferred". Accordingly, the Judge concluded that in relation to the question of emotional support, even if the Migration Tribunal made an error of law, this could not affect the ultimate result, since, in any event, for the reasons given for finding that the error of law made in holding that financial assistance could not be "assistance" in a relevant sense did not involve jurisdictional error, so too the Tribunal's error in holding that emotional support could only be relevant where the nominator had a mental illness, did not involve jurisdictional error (at [32]).

182 It followed, in his Honour's opinion, that the appellant could not succeed, whether or not this Court had, despite s 474, jurisdiction to grant prohibition, manadamus or certiorari. But, although not strictly necessary to do so, on the view thus expressed, his Honour went on to make the following observations on the operation of s 474.

Operation of s 474

183 Hill J said (at [50]):

"In my view, the question of construction which is raised by s 474 requires the Court to reconcile the broad language of the privative clause with the specific language of the Act, particularly the conferral of jurisdiction (and the imposition of a duty) upon the Tribunal to review a decision. The obvious legislative purpose (and the Court is required to give effect to the legislative purpose, at least so long as in the present context it is express or arises by necessary implication from the language used), is to expand the validity of decisions made in purported exercise of jurisdiction, so that they are to be treated as validly made, notwithstanding that there may be some error which would otherwise justify the decision being set aside. On the other hand, the privative clause is not to be interpreted so that a real failure to exercise jurisdiction nevertheless permits the decision to be validated. The clearest example of such a real failure to exercise jurisdiction is the case where a Tribunal simply fails to address the issue it is required to address, or, while purporting to do so, takes into account some quite irrelevant matter. In my view, however, the privative clause is not to be ignored so as to permit this Court to treat the decision as invalid merely because the Tribunal has made a wrong finding of fact (that would not be judicial review in any case) or even had proceeded upon a wrong basis in law. In particular, prohibition may only be invoked where there is jurisdictional error. Neither error of law, or error of fact are, of themselves, necessarily jurisdictional error."

184 The Judge proceeded to say (at [51]):

"For my part I am inclined to agree with Gyles J [in NAAV] that s 474 would preclude the Court (the question may be different where the High Court is involved, for this would raise the constitutional question) from making an order for prohibition absolute where there had been a denial of natural justice. In addition to the matters to which his Honour refers in reaching this conclusion there is the fact that the jurisdiction of this Court is limited under s 476 in such a way as to preclude from judicial review the denial of natural justice."

185 In dismissing the application, his Honour remarked (at [52]) that jurisdictional error had not been made out because -

"The Tribunal addressed the issues presented to it. If, in so doing, the Tribunal made an error of law, so be it. That error of law does not amount to jurisdictional error of the kind which would enliven the power of the Court to grant a writ of prohibition in the face of s 474 ... ."

THE GROUNDS OF APPEAL

186 By his grounds of appeal, the appellant raises the following appellate issues:

(1) Whether the primary Judge should have held that the Migration Tribunal erred in not taking into account the financial assistance and emotional assistance said to have been provided by the appellant to his brother, as considerations relevant to the issue of whether the appellant was a "special needs relative" of that brother.

(2) Whether the Migration Tribunal's statements to the effect that financial assistance would not qualify the appellant as a "special need relative", together with the Migration Tribunal's failure to mention the issue in its reasons for decision, meant that the Migration Tribunal did not take account of financial assistance as a consideration relevant to the issue of whether the appellant was a "special need relative" of that brother.

(3) Whether the Migration Tribunal's statements to the effect that, absent a mental illness, emotional assistance would not qualify the appellant as a "special need relative", together with the Migration Tribunal's failure to mention the issue in its reasons for decision, meant that the Migration Tribunal did not take account of emotional assistance as a consideration relevant to the issue of whether the appellant was a "special need relative" of that brother.

(4) Whether, on the proper construction of s 474, the Migration Tribunal committed jurisdictional error of law, such error being a failure of the Migration Tribunal (a) to take account of considerations going to the existence of a jurisdictional fact, being whether the appellant was a "special need relative" in terms of the Regulations; or (b) to appreciate the extent of its power in relation to the definition of a "special need relative" in the Regulations.

(5) Whether the appellant was entitled to a writ of prohibition to prevent the Minister from acting upon or giving effect to or enforcing the Migration Tribunal's purported decision.

CONCLUSIONS ON THE APPEAL

187 I need not repeat what I said in NAAV on the operation of s 474.

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 WA Coal Miners' Case (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 Migration Tribunal'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 Migration Tribunal.

189 I would dismiss the appeal, with costs.

AUREL TURCAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

INTRODUCTION

190 This is an appeal from a decision of Heerey J, dismissing an application under s 39B of the Judiciary Act 1903 (Cth) for judicial review of two decisions of the Minister's delegate made on 6 July 2001 and 23 February 2002, respectively.

191 The first ("the July 01 decision") was a decision made on 6 July 2001, under s 128 of the the Act, to cancel a "permanent spouse class 801" visa held by the appellant, Aurel Turcan. The second ("the February 02 decision") was a decision made on 23 February 2002, under s 189(1) of the Act, to detain the appellant as "an unlawful non-citizen".

192 The proceedings before Heerey J were commenced on 27 February 2002. The Minister filed an objection to competency in relation to the challenge to the July 01 decision, contending that the application was not made within the time fixed by s 477(1) of the Act. Since the proceedings were commenced after the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) came into effect on 2 October 2001, it was accepted that both the July 01 decision and the February 02 decision were "privative clause decisions" within the meaning of s 474(2).

THE GRANT OF THE APPELLANT'S VISAS

193 The appellant is a citizen of Moldova who arrived in Australia in March 1998, on a three month visa for the purpose of participating in a sporting competition at Coffs Harbour. In April 1998, the appellant moved to Melbourne, where he met Ms Elena Mamara. On 17 July 1998, they announced their engagement and on 28 August 1998 they were married. On 4 September 1998, the appellant applied for a "TK extended eligibility (temporary) subclause 820" visa, as the spouse of an Australian citizen. This was granted on 11 November 1998. This visa entitled the appellant to remain in Australia for two years, at which time the Migration Regulations 1994 (Cth) ("the Regulations") would require the circumstances of the marriage to be reviewed prior to the granting of a permanent visa.

194 On 20 July 2000, the Department of Immigration and Multicultural Affairs ("the Department") received information from an anonymous source, alleging that the appellant had entered into a contrived marriage with his wife "whereby he paid her money in instalments and she agreed to go along with his story for Immigration purposes". The informer claimed that the appellant had set up a tiling business and expected permanent residence to be granted in one month's time. The informer also claimed that the appellant later intended to separate from, and divorce, his wife and to sponsor various members of his family to Australia. In addition, the informer claimed that the appellant had fought for the Russians in Chechnya and had committed war crimes there.

195 The appellant did not become aware of these allegations until February 2002. He disputed their truth in his evidence before Heerey J.

196 Meanwhile, on 15 November 2000, the appellant had been granted a permanent spouse class 801 onshore visa (hereafter "the permanent visa"). The officer who granted the permanent visa did not sight the file containing the note of the informer's allegations, as it had been mislaid.

THE CIRCUMSTANCES OF THE CANCELLATION OF THE PERMANENT VISA

197 According to the appellant's evidence before Heerey J, after some months living with his wife's parents, and then in a friend's house, the couple moved into an apartment at 8/33 Rathmines Street, Fairfield in about May 1999. By the following year, the appellant had established his own tiling business called "Turcan Tiling". His wife undertook all the administrative tasks associated with the running of this business. For the next eighteen months the appellant and his wife lived together. They shared household duties, paid bills out of their joint savings, engaged in sexual intercourse and attended social functions. However, on or about 12 or 13 November 2000, his wife, who was studying and doing some casual work at the time, asked the appellant to move out of their home because she said she needed some peace and quiet. The appellant moved to his wife's parents' house. The appellant and his wife did not live together at the Fairfield apartment thereafter. In December 2000, the appellant's wife moved out of the Fairfield apartment, taking all of the furniture. She told the appellant that he could move back in, but he declined. In December 2000, the appellant went to Moldova for a holiday. He returned to Australia on 20 January 2001 and attempted a reconciliation with his wife, but without success. On 3 May 2001, he again travelled to Moldova and did not return to Australia until 22 February 2002.

198 Meanwhile, the file containing a note of the informer's allegations had been located within the Department. The matter was reconsidered and various enquiries made. A friend of the appellant's wife's family informed the Department that he was aware that the appellant had recently returned to Moldova, but was not able to say for how long. The appellant's wife's father told an officer in the Department that she had told him that her relationship with the appellant had ceased prior to the date on which the appellant had gone to the Department to obtain the permanent visa; and that she had not told her father this because the appellant had threatened to harm her and her family if she revealed the break-up.

199 By letter dated 5 July 2001, the appellant's wife informed the Department that her marriage to the appellant was over as from 13 February 2000. She mentioned that they were having many arguments. She said that, on 14 February 2000, she had returned from New South Wales and found that he had left the home to live elsewhere. During the middle of 2000, she told him that she was going to inform the Department about their separation. She said that he had come that night to her house, broken in through the window, and broken her laptop computer, television set and video. He took her by force out of the apartment, put a screwdriver in front of her and told her that he was going to kill her if she let the Department know of their separation. He had gone on to threaten to blackmail her and said that he would disgrace her before her family and the whole Romanian community. She said that she had not contacted him and did not know where he was.

200 On 6 July 2001, a delegate of the Minister completed a Form 1144 Notification of Cancellation under s 128 of the Act, stating that the appellant's visa was cancelled on 6 July 2001, under s 116(1)(f) of the Act, on the ground that the visa "should not have been granted because its grant was in contravention of this Act".

201 Section 128 of the Act provides:

"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."

202 Section 116(1) provides, relevantly, that the Minister may cancel a visa if he or she is satisfied that:

"(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;"

203 Another ground is:

"(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;"

204 The particulars given in the notice of cancellation were that:

"The relationship that you claimed to have on 17 Nov 2000 in the presence of a departmental officer for the purposes of your application for permanent residence on spouse grounds, was in fact no longer in place. This was known to you prior to the grant of residency."

205 A duplicate of the notification was sent by the Department to the appellant at the address in Fairfield, which had been provided by the appellant as his residential address in a statutory declaration made on 21 September 2000, submitted in support of his permanent visa application. This was the address of the appellant appearing in the Department's computer records in July 2001. (At that time, reg 5.02A(2) provided that a document relating to the cancellation of a visa must be given to the holder by one of three methods, one of which was "(b) by sending it to the person's residential or business address last known to the Minister".) However, Departmental records indicate that the delegate was aware that the appellant was outside Australia at the time.

THE INFORMATION IN THE TRANSLATING AND INTERPRETING SERVICE APPLICATION

206 By Form 377, dated 4 March 2001, the appellant had made an application to the Department's Translating and Interpreting Service (TIS) for the translation of two documents from Romanian into English. The form, as completed, gave the appellant's surname and given name. The form asked for "Your mailing address" and the appellant stated "35 Lois Street, St Albans VIC 3021". The form also asked for telephone numbers for home and work and the appellant gave numbers 03 9367 4493 and 0411 040 668 respectively. Under the heading "Office use only" there are a number of questions on the form with provisions for "yes" or "no" answers to be marked. They were ticked as follows:

"Originals retained? No a Yes

Visa sighted? No Yes a

Permanent resident? No Yes a

Eligible for free service? No Yes a

Copy of passport? Yes a No

Payment made? No a Yes"

207 Opposite the question "Permanent resident?" the form asked for "Arrival date/Grant of permanent residence". "Arrival date" was deleted and the figures inserted "15/11/00". Opposite the question "Copy of Passport?" the form asked for "Passport number". There appeared "AO184890" and "VISA:- 8032651629/S".

208 As of 4 March 2001, the Lois Street address was, in fact, the appellant's residential address.

209 TIS is part of the Citizenship and Languages Services Branch of the Multicultural Affairs and Citizenship Division of the Department. TIS provides translating services to the general public for a fee, but the Directions for Completion, issued with the Form 377, indicate that permanent residents may be entitled to free translation of "settlement related documents", if they first arrived in Australia within the last two years. The Directions for Completion ask "Please provide certified copies of appropriate pages in your passport with your personal details, permanent residence visa and date of arrival".

210 TIS operates a computer system which is known as JES (Job Entry System), and it is usual practice to enter the details of each request for service into that system. JES is only used by TIS for its own work, and is not linked to the centralised computer data system operated by the Department (known as the ICSE system). This is consistent with the general practice in the Department, whereby each section operates its own computer system as well as accessing ICSE to the extent necessary for their functions. Generally, officers in parts of the Department other than TIS do not have access to JES and people in TIS do not generally have access to the ICSE system, and, in this case, did not enter details of requests for translation services into that system. In the usual course, an application to TIS for translating or interpreting services would never come to the attention of a decision-making delegate of the Minister.

THE INTERNAL REVIEW OF THE VISA CANCELLATION

211 In October 2001, the cancellation of the appellant's visa was internally reviewed by the Department. A recommendation was made that the matter should be referred to the Residence Section which should:

"be made aware of what appears to be a legally flawed cancellation decision in relation to Mr Turcan and decide whether the cancelling officer wishes to revoke the cancellation and consider cancellation under 116(1)(d) or referral to Investigations Melbourne."

212 The basis for this view was that s 116(1)(f) does not allow for substantive visas to be cancelled where the delegate was satisfied at the time that the criteria were met, even if it later appears that those criteria were not in fact met. This is because the substantive visas are granted under s 65 which depends upon the Minister or the Minister's delegate being "satisfied" as to the relevant criteria. This may be contrasted with s 73, which allows a grant to occur only where the appellant actually meets the criteria. In the present case, the delegate had in fact been satisfied as to the criteria and thus, according to the Departmental view, the appropriate ground for cancellation was s 116(1)(d). This view was confirmed by a minute, dated 29 January 2002, from the Investigations Section to the Manager, Residence Section, Melbourne, seeking consideration of the question whether the cancellation decision should be set aside.

THE DETENTION

213 However, before any action could be taken, the appellant returned to Australia. He arrived at Melbourne Airport late in the evening of 22 February 2002. The computer records at Immigration Control showed that the appellant's visa had been cancelled on 6 July 2001. The appellant was detained. He was handed a letter in these terms:

"Mr Aurel Turcan

By Hand

Dear Mr Turcan

This letter is to confirm advice given to you at the time of your arrival at Melbourne Airport on 23 February 2002.

On 6 July 2001, your Class AS, Subclass 801 Resident visa was cancelled under section 128 of the Migration Act 1958, on the grounds set out at paragraph 116(1)(f) of the Act.

Paragraph 116(1)(f) states:

`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;'

Our records show that a letter notifying you that your visa had been cancelled was sent to you on 6 July 2001 at your last known address.

As you do not have a visa for Australia, you are unable to satisfy section 166 of the Act and must be Refused Immigration Clearance under subsection 172(3) of the Act.

You are being detained under s.189 of the Act and will be removed from Australia as soon as reasonably practicable.

F. Andrew

Duty Manager

Melbourne Airport

23 February 2002."

214 The decision to detain was made under s 189(1) of the Act which provides:

"(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person."

215 The appellant has remained in immigration detention.

THE JULY 01 DECISION - THE APPELLANT'S CASE AT FIRST INSTANCE

216 By his further amended application the appellant sought an order in the nature of certiorari to quash the July 01 decision on the ground of "jurisdictional error" being:

"(a) the person who made the decision could not lawfully have been satisfied that there was a ground for cancelling the visa under s.116(1)(f) of the Migration Act within s.128(a)(i) of that Act without giving the applicant an opportunity to be heard on the question;

(aa) The decision involved an error of law in that the person who made the decision erroneously construed s.116(1)(f) as authorising the cancellation of a substantive visa where the person granting the visa was satisfied at the time of grant that the criteria for the visa were met but it was later suspected the criteria were not met.

(b) The person who made the decision could not be satisfied that it was `appropriate' for the purposes of s.128(a)(ii) of the Migration Act to cancel the Spouse visa in accordance with Sub-division F of Part 2 Division 3 of the Migration Act where:

(i) the [appellant] had had no opportunity to respond to the allegations made by his wife as to the state of their marriage as at November 2001 or at any other time;

(ii) the [appellant] had had no opportunity to respond to the allegation that he had been involved in `atrocities';

(iii) the [Minister] knew that the [appellant] had departed Australia in June 2001 and there was no urgency or question of national importance which required the protection given to the [appellant] by ss.117(2), 119-127 and 338(3) of the Migration Act to be removed;

(iv) the [Minister] failed to take into account a relevant matter being that the [appellant] had a permanent visa and had been lawfully resident in Australia for at least 3 years;

(v) the [Minister] failed to take into account a relevant matter being that the [effect] of the decision in the circumstances was to cause the [appellant] to return to Australia where he would not be able to pass through Immigration Clearance and thus would be required to be detained;

(vi) the [Minister] concluded it was `appropriate' to cancel the visa to reverse an administrative error whereby not all of the file concerning the [appellant] had been before, or seen by, the officer who granted the [appellant] his visa of 15 November 2000.

(vii) the provisions of Sub-division F of Part 2 of Division 3 of the Migration Act would not be complied with.

(c) The July 2001 decision did not represent a bona fide attempt to exercise the power given by s.128 the Migration Act because the decision maker exercised the power in circumstances where:

(i) the [appellant] was deprived without reason of an opportunity to respond to the allegations made against him;

(ii) the decision was made by accepting the uncontroverted statements of a disaffected spouse;

(iii) the decision was made to exercise the power to make the decision without giving the [appellant] notice of intention to do so when the [Minister] knew that the [appellant] had departed Australia and had elected to wait until he had done so before considering to exercise the power being an unconscionable exercise of the power to make the decision;

(iv) the decision was made in circumstances where the [Minister] had no intention of informing the [appellant] that his visa had been cancelled so that on the return of the [appellant] to Australia he would not be able to pass through immigration clearance and thus never be an `an eligible non-citizen' within s.72(1) of the Migration Act able to obtain a Bridging Visa with the consequence that the decision was made to ensure the [appellant] would be detained;

(v) the duty imposed by s.129(1)(b) of the Migration Act on the Respondent to give a notice giving particulars of the grounds and of the information on which the ground was considered to exist was not complied with."

THE FEBRUARY 02 DECISION - THE APPELLANT'S CASE AT FIRST INSTANCE

217 By his further amended application the appellant sought an order prohibiting the Minister from acting on the "purported performance" by the Departmental officer at Melbourne Airport, on 23 February 2002, of his duty under s 189(1) to detain the appellant as an unlawful non-citizen on the ground of "jurisdictional error" being:

"(aa) The officer erred in law in concluding that the July 2001 decision operated at law to cancel the visa granted to the [appellant] on 15 November 2000;

(a) The officer erred in law in concluding that he could `know or reasonably suspect' within s.189(1) that the [appellant] was an unlawful non-citizen when the July 2001 decision to cancel the Class 801 Spouse visa held by the [appellant] was null and void;

(b) The finding that the officer `knew or reasonably suspected' that the [appellant] did not hold a visa in circumstances where the material before the officer revealed the previous visa held by the [appellant] had been purportedly cancelled covertly in his absence and notification of it sent by officers of the [Minister] to an address in Australia when it was at all times known that the applicant was not in Australia so that the applicant had been denied the opportunity provided by ss.129, 130, 131 of the Migration Act to seek revocation of the cancellation purportedly effected by the July 2001 decision was, in all the circumstances, so unreasonable that no reasonable officer could have reached the conclusion;

(c) The finding that the officer `knew or reasonably suspected' that the [appellant] was `a non-citizen' involved an error [of] law being a construction of s.129(3) of the Migration Act which failed to distinguish between the validity of the July 2001 decision and the consequence on that decision of a failure by the respondent to give the notice of the decision required by s.129(1) of the Migration Act;

(d) Alternatively the performance of the duty involved an error of law in that the officer erred in construing the term `failure to give notification' in s.129(3) of the Migration Act as including the giving of misleading notification;

(e) Alternatively the performance of the duty involved an error of law in that the officer failed to construe the term `evidence ... of a visa that is in effect and held by the person ...' in s.166(1)(a)(ii) as being satisfied where a non-citizen whose visa has been cancelled without the non-citizen having any means of knowing this produces the visa in question."

THE REASONS OF THE PRIMARY JUDGE

The Minister's objection to competency

218 In dismissing the objection to competency, his Honour said (at [31] - [34]):

"In the present case... the Form 377 is an official Departmental document which in part contemplates information, including a name and address, being provided by a person in his or her capacity as a visa holder, or by a person having the characteristic of being a visa holder. The information provided by the Form 377 is in permanent form. That information goes into the custody of the Department where it can be stored in a way that would enable easy retrieval by reference to the name of the visa holder, should an appropriate system be put in place. The evidence on behalf of the Minister did not attempt to show it would be impossible or unreasonable to establish such a system. The Minister's case was confined to what in fact were the internal administrative procedures in existence. This cannot be determinative of the statutory criterion. At the relevant time s 53(2) of the Act (repealed as from 10 August 2001) required a visa applicant to tell the Minister of a change of address. There was, however, no obligation on the holder of a visa, whether temporary or permanent, to notify a change of address. So there would be utility in a system whereby the information provided in a Form 377 would be readily available for an officer of the Department for whom the address of a visa holder became relevant.

In the circumstances I would hold that the St Albans address of the applicant was known to the Minister in July 2001 in the sense that it was information available within the Department and could have in fact come to the attention of the relevant decision maker had an appropriate administrative system been in place.

I do not accept the argument that in the Form 377 as completed by the applicant there is any relevant difference between a `mailing address' and a `residential or business address'. Theoretically there could be such a difference, for example if the address ... stated was a post office box. However, the address on its face looks like an actual physical location. It is easily verifiable as being at an existing street in a residential area of Melbourne. A "home" telephone number is given.

I therefore find that notification of the July 01 decision did not occur before the applicant was detained at Melbourne Airport on 23 February 2002."

219 The Minister has not appealed against the dismissal of the objection to competency.

The operation of s 474

220 However, the Minister did rely upon the provisions of s 474(1) in answer to the appellant's claim for relief under s 39B of the Judiciary Act.

221 On the operation of s 474, Heerey J said (at [41]):

"There seems to me significance in the fact that s 474 was introduced by way of amendment. It was inserted into an existing legislative scheme containing an extremely complex and highly structured decision making apparatus. The Act and the Regulations provide for hundreds, if not thousands, of discrete migration decisions. Many of these decisions have detailed substantive criteria and procedural requirements. It would be obvious to Parliament that, decision makers being human, errors of fact and law, whether or not capable of being characterised as `jurisdictional', are likely to be made in such a setting. Where complaint is made of error, the Act provides for recourse to merits review by the Migration Review Tribunal, the Refugee Review Tribunal or the Administrative Appeals Tribunal. It seems, therefore, difficult to impute to Parliament an intention to limit the protection of s 474 so that it permits judicial review beyond the Hickman grounds. In particular, it is unlikely that Parliament intended that a defect in some element of a decision-making process would render the decision one not made `under the Act' and therefore outside s 474, or that some particular features of this detailed legislative scheme were intended to be `inviolable' by the application of some (unstated) test."

222 His Honour noted the implications of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1, given shortly before the introduction of s 474, and said (at [43]):

"The Minister succeeded on both issues, but the victory was a somewhat Pyrrhic one. Observations of four members of the majority suggest that the doctrine of jurisdictional error would support judicial review of decisions of the Tribunal on grounds little, if any, different from what would be available at common law. The recent restatement of that law in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179 was treated as applicable: see per Gaudron J at [39] - [44] and per McHugh, Gummow and Hayne JJ at [82] - [83]."

223 Heerey J went on to say (at [44]):

"The operation and effect of a privative clause such as s 474 is a question of construction (no question of constitutional validity is raised in the present case). What is the extent of the protection that Parliament intended to provide? The plain words of s 474, read in the light of the large gap in the 1992 restrictions recently revealed in Yusuf, point against the existence of a Parliamentary intention to leave untouched large, judicially developed areas of review."

224 The Judge also found support for this view in the Minister's Second Reading Speech on the amendments, which, Heerey J said, "confirms a Parliamentary intention that judicial review is to be confined strictly to Hickman grounds" (at [45]).

Application of s 474 to the July 01 decision

225 Heerey J said (at [46]):

"In my view, the correct approach is to first consider whether s 474 applies. If it does, the Court need not, indeed should not, go any further. The Court should not assess the case as if s 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the Court's jurisdiction and is to be applied at the threshold."

226 His Honour went on to say (at [47] - [50]):

"First, the allegations in par 2(c) of the further amended application do not make out a case that there was something other than a bona fide attempt by Ms Faulkner to exercise her power of visa cancellation. Mistake of fact or law does not constitute bad faith. There is no suggestion that Ms Faulkner was animated by some personal bias against the applicant or had in mind some purpose other than the purpose of cancelling a visa when a ground for doing so appeared to her to exist. The fact that the applicant was, to Ms Faulkner's knowledge, outside Australia and that it was at least possible that he might not receive the notification of cancellation can hardly constitute bad faith on the part of Ms Faulkner, given that these were express criteria of s 128.

To the extent that the allegations of bad faith assert a breach of natural justice, I would hold that such a ground is not available for the reasons given by Gyles J in [NAAX and NAAV v MIMA [2002] FCA 263] at [35].

Secondly, the July 01 decision relates to subject matter of the legislation, namely cancellation of a visa on a ground stated in s 116.

Thirdly, the decision is reasonably referrable to the function assigned to the decision maker. Ms Faulkner was exercising a delegated power.

I conclude therefore that s 474 prevents review of the July 01 decision and the grant of any of the relief sought by the applicant."

Application of s 474 to the February 02 decision

227 In relation to the question of the application of s 474 to the February 02 decision, Heerey J said (at [53]-[57]):

"The grounds in the further amended application do not in terms allege lack of bona fides in relation to the February 02 decision and counsel for the applicant did not advance such a case in his written or oral submissions.

The February 2002 decision relates to subject matter of the legislation, namely detention of a non-citizen who does not have a valid visa.

The decision is reasonably referable to the function assigned to the decision maker. It is not in dispute that the decision maker, the officer at Melbourne Airport, had authority to make a decision under s 189(1). This power, and corresponding duty, are conferred on all officers of the Department - see the definition of `officer' in s 5 - and not just delegates of the Minister. Since the officer at the airport saw on the computer records an indication that the applicant's visa had been cancelled (as was in fact the case), it was open to him to reasonably suspect that the applicant was an unlawful non-citizen. Once the officer had reached this state of mind, his obligation to detain the applicant was mandatory. The act of the officer was an act in fact done by him in (at least) supposed exercise of the powers entrusted to him: Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161 at 182, cited with approval by Dixon J in Hickman at 615.

It is not clear whether counsel for the applicant relied on breach of natural justice as a separate ground in relation to the February 02 decision. Perhaps grounds (b) or (e) in the further amended application might involve elements of natural justice. In any event, I would, as already mentioned, hold that such a ground is not available. Section 474 is conclusive against review of the February 02 decision."

THE GROUNDS OF THE APPEAL

228 By his grounds of appeal, the appellant raises the following appellate issues:

(1) Whether s 474 of the Act was to be applied at the threshold of proceedings, preventing the Court considering whether an applicant for a constitutional writ under s 39B of the Judiciary Act had otherwise established an entitlement to grant relief.

(2) Whether a mistake of fact or law can constitute "bad faith" for the purposes of the application of the principle in Hickman.

(3) Whether "bad faith", for the purposes of the application of Hickman, could be established without a finding that the officer of the Commonwealth had engaged in reprehensible or contumelious conduct in exercising the power in question, such as being animated by personal bias, or having in mind an ulterior purpose.

(4) Whether the exercise on 6 July 2001 of the power given by s 128 of the Act to cancel the visa then held by the appellant was at law an exercise of the power in "bad faith", or otherwise not protected by s 474 of the Act.

(5) Whether NAAV was correctly decided.

(6) Whether the exercise on the 6 July 2001 of the power conferred by s 128 of the Act to cancel the visa then held by the appellant was reasonably referable to the power to cancel visas in accordance with Sub-Division F of Division 3 of Part 2 of the Act.

CONCLUSIONS ON THE APPEAL

229 In my opinion, the present case is, in principle, indistinguishable from the reasoning and approach taken, correctly I think, in NAAV, NABE, Ratumaiwai and by Allsop J in NAAG. In short, even if the Minister's delegate made an error of law in being satisfied that a ground for cancellation existed, this should, for present purposes, in the words of Wade and Forsyth, be characterised as a "mere error of law", and not as a "plain excess of jurisdiction". The present case is, upon analysis, no different from the WA Coal Miners' Case.

230 I agree with Heerey J that, given the character of the allegations relied on by the appellant, the real question in this litigation is whether the three Hickman provisos were satisfied in respect of the July 01 Decision. In my opinion, they were.

231 In the first place, there could be no serious suggestion of any absence of good faith on the part of the decision-maker.

232 Secondly, the decision to cancel was, in my view, within the Hickman requirement that it be in a matter relating to a relevant subject with which the Act deals; that is to say, the decision "relates to [a] subject matter of the legislation".

233 Thirdly, in my opinion, the decision to cancel is "reasonably capable of reference to the power [to cancel]". It is true that doubts were expressed within the Department as to which of the several grounds available under s 116 might be available in the complicated circumstances that had arisen. But, unlike the facts in Bhardwaj, above, no formal action to re-open the matter had been taken. That being so, the complaints now made, whether of lack of procedural fairness, or of a possible legal error, are submerged by the operation of s 474.

234 For completeness, I should refer to a submission advanced on behalf of the appellant that a decision (as here) as to "satisfaction" is "reviewable, where the decision-maker has misdirected himself at law". Reliance is placed on observations in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 275 - 276; and in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 per Gummow J at [131].

235 It is true, as their Honours observed in Wu (at 275), that a decision as to "satisfaction" used not to be examinable, but as Sir Owen Dixon's "classic dictum" in Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 (at 360) demonstrated, this is no longer so.

236 Indeed, earlier, in R v Connell; Ex parte Hetton Bellbird Collieries Pty Ltd [1944] HCA 42; (1944) 69 CLR 407, judicial review was granted where, as Gummow J noted in Eshetu (at [135]), it was held that the decision-maker could not, in law, have been properly satisfied that certain rates of remuneration were "anomalous". In the WA Coal Miners' Case, Menzies J (at 453) explained, and distinguished Connell:

"The distinction that I draw between that case and this is that there the grant of power was construed as not extending to the formation of an unchallengeable opinion unless and until a correct interpretation had been put upon the word `anomalous', whereas here, as I construe s. 137, the matter upon which the Court must itself form an opinion includes the meaning of the word `lock-out'. In like fashion, it seems to me that the decision of the Privy Council in Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust [(1937) AC 898] is to be distinguished. In this case it cannot be said that the Court of Arbitration did not form an opinion upon the matters, including the possibility of a lock-out, which had to appear to it to be `reasonably likely'; the most that can be said is that it formed a wrong opinion."

237 Significantly for present purposes, Menzies J went on (at 454) to hold that -

"In any event, I consider that, even if there were an excess of jurisdiction, the proceedings of the Court of Arbitration and its order are protected by s. 108 of the Industrial Arbitration Act, which provides that `proceedings in the Court ... shall not be impeached ... nor shall the same be removable to any Court by certiorari or otherwise; and no ... order, or proceeding of the Court ... shall be liable to be challenged ... or called in question by any Court of judicature on any account whatsoever.'"

238 His Honour, however, went on to note (at 454 - 455) that -

"... it is well established that an inferior court which manifestly disregards limits upon its jurisdiction and undertakes to do something that is altogether outside the sphere of the jurisdiction conferred upon it, is subject to control by means of the prerogative writs, notwithstanding a protective section which, according to its terms and taken by itself, would deny any such control: The Colonial Bank of Australasia v. Willan [(1874) LR 5 PC 417 at 442]. The basis of this rule is that two conflicting provisions of the legislature, one imposing obviously fundamental restrictions upon an inferior court or tribunal and the other protecting the proceedings of that inferior court or tribunal from examination, have, as a matter of construction, to be reconciled. The position that has been reached in this Court was expressed by Dixon J. in R. v. Hickman; Ex parte Fox and Clinton in a passage relating to sections of this character which has come to be regarded as classical ...."

239 After citing the passage at 615, Menzies J said (at 455):

"It seems to me that the decision of the Court of Arbitration here is clearly within this proposition, and because this is so, s. 108 protects the order that was made from being challenged or called into question either by certiorari or by prohibition."

240 In other words, cases such as Connell (for instance, R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228 per Rich, Dixon and McTiernan JJ at 242) were concerned only with the position absent a privative clause, and cannot deprive a provision such as s 474 of its settled operation.

241 As Willan and the Amalgamated Engineering Union and the WA Coal Miners' Case, for instance, teach, 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.

242 As has been said, the real question in the litigation was whether the July 01 decision could stand. Accordingly, the challenge to that decision having failed, it must follow that the challenge to the February 02 decision must also fail.

243 The appeal should be dismissed with costs.

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V JIAN ZHONG WANG

INTRODUCTION

244 This is an appeal by the Minister from a judgment and orders of a Judge of the Court (Mansfield J), made pursuant to s 39B of the Judiciary Act 1903 (Cth), granting judicial review of a decision of a delegate of the appellant Minister, made under s 131 of the Migration Act. His Honour held that the delegate's decision, refusing to revoke the cancellation of the respondent's visa, was invalid and of no effect.

THE FACTUAL AND LEGISLATIVE CONTEXT

245 The respondent, Jian Zhong Wang, a national of China, was granted a Temporary Business Entry (Class UC) Subclass 457 Business (Long Stay) Visa on 1 March 2001, on the basis that he was a person sponsored by an Australian business, the Marden Basketball Centre Pty Ltd, to establish a China Shao Lin Kung Fu Academy and to teach martial arts classes at its Mars Sporting Complex. The visa entitled the respondent to work for that business as a sporting coach and to make multiple entries to Australia until 1 March 2002. Marden Basketball Centre Pty Ltd was approved for a Standard Business Sponsorship and for a Nomination by a Business Sponsor in respect of the respondent, also on 1 March 2001.

246 The application for the visa had been made on 26 February 2001. (Essential criteria for the grant of a subclass 457 visa are (1) that the applicant "has personal attributes and an employment background that are relevant to, and consistent with, the nature of the activity to be performed"; and (2) that the applicant "demonstrates, if so required by the Minister, that he or she has the skills necessary to perform the activity".) The application was accompanied by twenty-three documents, or categories of documents, in general attesting to the respondent's professional skills, qualifications and experience as a martial arts instructor.

247 On 13 July 2001, the respondent departed Australia. On 18 July 2001, a delegate of the Minister cancelled the respondent's visa, acting under s 128 of the Act. (It was common ground that it was appropriate for this cancellation decision to be made under s 128 of the Act because, at the time, the respondent was no longer in Australia, and it was therefore not necessary for the respondent to be given notice of the intention to cancel the visa prior to its cancellation. It was also common ground that, unless cancelled, the visa entitled the respondent to enter Australia from time to time.)

248 Section 116 (in Subdivision D of Part 2 Division 3 of the Act) empowered the Minister to cancel a visa in certain circumstances (see below). Subdivision F (ss 128 - 133) prescribed the relevant procedures when the visa holder is outside Australia. Section 128 provided:

"128 Cancellation of visas of people outside Australia

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."

249 The ground of cancellation relied on was that stated in s 116(1)(d). It provided, relevantly, that the Minister may cancel a visa (if its holder has not entered Australia) if the Minister is satisfied that:

"- [the visa] would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared;"

250 The term "enter" includes "re-enter" (see definition of "entry", s 5 of the Act).

251 The respondent was notified of the cancellation of the visa, by letter dated 18 July 2001, as follows:

"I wish to advise that the visa granted to you on 01 March 2001 has been cancelled under section 128 of the Migration Act 1958 ("the Act"). Grounds for cancellation of that visa exist under S116(1)(d) of the Act which states that "the Minister may cancel a visa if he ... is satisfied that 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".

Your visa was cancelled on 18 July 2001 because documents attesting to your skills, qualifications and experience as a martial arts instructor have been found to be bogus.

The "Act" gives you the opportunity to comment on the ground for cancellation and to give reasons why your visa should not have been cancelled.

If you are able to show that the ground for cancellation does/did not exist, the cancellation of your visa will be revoked. It [sic] you cannot show that the ground for cancellation does not exist, but there is a reason why your visa should not have been cancelled, the cancellation of your visa may be revoked.

You should respond to this Notice by 22 August 2001. There is no provision for this time frame to be extended. If you do not respond by that date, the revocation of the cancellation of your visa will not be considered. ..." (Emphasis added)

252 Section 129 of the Act provides:

"(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:

(a) stating the ground on which it was cancelled; and

(b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and

(c) inviting the former holder to show, within a specified time, being a prescribed time, that:

(i) that ground does not exist; or

(ii) there is a reason why the visa should not have been cancelled; and

(d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and

(e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.

(2) The notice is to be given in the prescribed way.

(3) Failure to give notification of a decision does not affect the validity of the decision." (Emphasis added)

253 The delegate, by memorandum dated 18 July 2001, had recorded the basis upon which the respondent's visa had been cancelled and, before the primary Judge, the parties referred to that document as the delegate's "Reasons for Decision" (hereafter "Reasons"). After referring to the grant of the visa, and the basis upon which that visa had been granted, the Reasons stated:

"These documents [the documents provided in support of his skills or attesting to his skills] included what purported to be a certificate of award from a Hong Kong martial arts tournament, a certificate as a Kung Fu instructor for the police and a reference from the Shaolin Temple.

These documents have now been established as bogus and the Guangzhiu office of DIMA has advised that they hold written confirmation of this."

254 The Reasons then referred to the provisions of s 103 of the Act (that "a non-citizen must not give an officer, the Minister or a tribunal ..., a bogus document") and to s 116(1)(d) of the Act, and concluded that a ground for cancellation existed under s 116(1)(d); that the visa holder was outside Australia; and that it was appropriate to cancel the visa without notice under s 128 of the Act because giving notice of intention to cancel might "cause the visa holder to travel to Australia". (If, on the other hand, the respondent had been in Australia at the time of the decision to cancel his visa, he would have been entitled to the benefit of different procedures prescribed under Subdivision E of Division 3 before the visa could be cancelled.)

255 If a response is made to a notice under s 129, s 131 then obliges the Minister to consider whether to revoke the cancellation. Section 131(1) provides:

"(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."

256 (As will be seen, before the primary Judge, the respondent successfully contended that s 129(1) was not complied with in the circumstances because he was not informed of the information about which documents were found to have been bogus, and also not informed why those documents were considered to be bogus, notwithstanding that the delegate in the Reasons identified three specific documents which he considered to be bogus, and there stated the foundation for that view.)

257 The respondent, through his migration agent, responded to the letter of 18 July 2001 on 21 August 2001, within the period prescribed. The letter stated that the respondent had been unable to identify which of the documents attesting to his skills qualifications and experience as a martial arts instructor had been found to be bogus, so that the respondent was unable to respond specifically in relation to the three documents about which the delegate of the appellant had in fact made such a finding.

258 The Minister's delegate then purportedly made a decision, under s 131 of the Act, declining to revoke the cancellation of the visa. The respondent was notified of that decision by letter, dated 2 October 2001, in these terms:

"On 18 July 2001 you were notified that your visa was cancelled under section 128 of the Migration Act 1958. Your agent responded in a letter dated 21 August 2001 and also provided a number of further letters and documents.

After considering your response, the Department has decided not to revoke the cancellation of your visa under s 131 because of the reasons set out in the attachment. ...."

259 The respondent's migration agent (who had received the letter dated 18 July 2001, giving notice of the cancellation of the visa) claimed, and for present purposes the Minister accepted, that he did not receive the Reasons for cancelling the visa, but only the letter of 18 July 2001 itself. (As has been seen, the letter of 18 July 2001 did not expressly refer to any enclosure).

THE RESPONDENT'S APPLICATION FOR JUDICIAL REVIEW

260 By his application filed on 22 October 2002 (as subsequently amended), the respondent applied, pursuant to s 39B of the Judiciary Act, for judicial review of the decision, under s 131 of the Act, not to revoke the cancellation.

261 The grounds of the application were that the decision "involved a failure to observe procedure laid down in Section 129(b) of the Act in that the notice pursuant to Section 129 did not give particulars of information because of which the ground was considered to exist." Particulars of this ground were that the respondent "had submitted 23 documents attesting to his skill qualifications and experience as a martial arts instructor. The [Minister's] notice pursuant to Section 129 of the Act did not give particular[s] of document or documents which were bogus."

262 The respondent sought an order setting aside the decision made on 2 October 2001.

THE MINISTER'S OBJECTION TO COMPETENCY

263 By his notice of objection to competency filed on 17 December 2001, the Minister objected to the competence of the Court to try the application on, relevantly, the following grounds:

"2. The decision sought to be challenged is a `privative clause decision' as that term is defined in s. 474(2) of the Act.

3. Section 474 of the Act provides, inter alia, that a privative clause decision is final and conclusive; and must not be challenged, appealed against, reviewed, quashed or called into question in any court."

THE REASONS OF THE PRIMARY JUDGE

264 Mansfield J held that the Minister had not complied with the requirements of s 129 of the Act, by failing to give the respondent notice of the cancellation of the visa, the ground of cancellation, and the particulars of that ground, and the information by reason of which that ground was considered to exist.

265 Mansfield J said (at [18]) that "[this] deficiency in the notification of the cancellation of the visa is a significant one, as it impaired the [respondent's] ability to respond as s 129(1)(c) contemplates".

266 His Honour, however, noted that the Minister had submitted that the decision of 2 October 2001 was a "privative clause" decision so that, notwithstanding s 129(1) of the Act, the Court had no power to grant the relief claimed. (The respondent accepted that the relevant decision fell within the extended statutory definition of a "privative clause" decision, but denied that s 474(1) could apply in the present circumstances.)

267 Mansfield J said (at [27]):

"In discerning the legislative intention as to the proper relationship between a decision purportedly made under s 131 where the notice required by s 129(1) of the Act has not been given and the terms of s 474(1), I observe first that s 474 must be intended to operate in the face of certain departures from procedural prescriptions in relation to decisions under the Act, and adopting the `interpretation' qualification in Murray [a reference to R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387 per Dixon J at 399 - 400], in respect of all but `inviolable limitations or restraints' imposed by the Act itself. Brennan J in O'Toole v Charles David Pty Ltd [1991] HCA 14; (1990) 171 CLR 232 at 274 (O'Toole) used that question as a `fourth condition', a question also so described in Coldham at 419. I note that in the passage cited above from Darling Casino, Gaudron and Gummow JJ referred to the decision maker acting in excess of jurisdiction, inter alia, by reason of `the limited terms of a valid law'."

268 His Honour turned to analyse the statutory scheme enacted in Subdivision F, as follows (at [31]):

"As a starting point, it can be seen that the very purpose of the decision under s 131 is to reconsider the cancellation of a visa in the light of the response of the person whose visa has been cancelled. Section 129(1) directs that person be given certain notice, and requires that person be given the opportunity to respond to the reasons for cancellation within the specified time: s 129(1)(c). Absent any such response, the [Minister] does not have to proceed to any reconsideration under s 131 of the Act. It is only by reason of that response to the notice that the [Minister] is obliged by s 131 to reconsider his decision. Although s 131 does not expressly oblige the [Minister] to consider the response, in my view it is clear that that is what it provides for. Accordingly, the jurisdictional fact which s 131 prescribes, and upon which the decision under s 131 is to be made, is the response of the [respondent] to the notice under s 129(1). It is only upon the response that the [Minister] can then address whether he is satisfied that a ground existed for the cancellation of the visa (s 131(1)(a)) or whether he is satisfied that there is another reason why the cancellation of the visa should be revoked (s 131(1)(b)). The material that s 131 requires the [Minister] to address in making that decision is the `response to a notice under s 129 of the cancellation of a visa'."

269 His Honour held (at [32]) that "[i]t is the scheme of subdivision F of Div 3 of Pt 2 of the Act that it is only by consideration of a response to a notice under s 129 that a valid decision may be made ..." (emphasis added).

270 Mansfield J continued (at [33] - [34]):

"In this matter, the precondition to the entitlement to making a decision under s 131 did not exist. There was no response to a notice under s 129 because no proper notice under s 129 was given. There is no contention that the letter given on 18 July 2001 constituted substantial compliance with that section, as the Reasons for Decision which would have provided the information required by s 129(1)(c) were not enclosed. As the [respondent's] response of 21 August 2001 shows, the absence of that information meant that the [respondent's] response was not a response to a notice under s 129. It did not properly engage the issue whether the ground for cancellation of the visa did not exist because the [respondent] was not given the information required so as to enable him to do so.

In my judgment, the circumstance is not simply one where a procedural prescription imposed as part of the process of decision-making has not been complied with. It is one where the jurisdictional fact prescribed by the Act, and one which is also the essence of the material upon which the Minister is entitled and obliged to make a decision, has been shown not to exist. The purpose of the decision-making process under s 131 has been frustrated. If I may paraphrase Stephen J in Green v Daniels [1977] HCA 18; (1977) 51 ALJR 463 at 465, the [Minister] has wrongly precluded himself from attaining the requisite state of satisfaction."

271 Mansfield J concluded (at [35]):

"In view of my characterisation of the nature of the decision to be made under s 131, and my view that the existence of a response to a valid notice under s 129(1), or at least to a notice which is adequate to elicit a meaningful response to the reasons for the cancellation of the visa, is an essential pre-condition to a valid decision under s 131, I consider that it is not intended by the Act that s 474(1) should preclude the grant of appropriate relief under s 39B of the Judiciary Act in the present circumstances. The decision under challenge is really no decision at all, because the respondent was not empowered in the circumstances to form any satisfaction in terms of s 131(1)(a) or (b). He did not have before him to enliven that power, and to impose the obligation to exercise it, a response to a notice under s 129(1). The absence of such a response is not `a mere defect or irregularity which does not deprive [him] of the power' to make the decision: Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168 per Mason CJ at 180."

272 Mansfield J then made a declaratory order that the decision refusing to revoke the cancellation was "invalid and of no effect". His Honour further ordered that leave be given to the respondent "to apply for such further orders in the light of the reasons for decision as he may be advised."

THE MINISTER'S GROUNDS OF APPEAL

273 By the grounds of his notice of appeal, the Minister raises the following appellate issues:

(1) Whether

(a) a decision to reconsider the cancellation of a visa, pursuant to s 131 of the Act can only be made "after considering any response to a notice under s 129"; and

(b) no such response can be given until a proper notice has been given complying with the requirements of s 129(1).

(2) The correct construction of s 131 apart, whether a decision made pursuant to s 131(1), being a privative clause decision for the purposes of s 474 of the Act, could be the subject of a declaration as to invalidity.

(3) Whether compliance with s 129(1) was an essential precondition to the exercise of power under s 131.

(4) Whether a declaration that the Minister's refusal to revoke the cancellation of the respondent's visa was invalid and of no effect should have been made.

CONCLUSIONS ON THE APPEAL

274 Again, in my view, the present case is indistinguishable in principle, from NAAV (and Hashimi, above) notwithstanding that the lack of fairness here arose out of failure to comply with a procedure for the provision of information prescribed by the Act.

275 I agree with von Doussa J that the relevant subject matter here is the visa cancellation decision-making power. When considered in the light of the Hickman principle, it appears clearly enough that each of the provisos were satisfied here.

276 It must follow, in my view, that the appeal should be allowed, with consequential orders as proposed by von Doussa J.

ALL APPEALS - GENERAL AGREEMENT WITH VON DOUSSA J

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.

Associate:

Dated: 15 August 2002

(a) The document numbered CX 8570 referred to at paragraphs 122 and 131 of the Tribunal's reasons.

(b) The document numbered CX 9957 referred to at paragraph 94, where it is identified as "DFAT [Department of Foreign Affairs and Trade], `Myanmar; Request for Information: Refugees: Burma Profile', cable RA 1782, 1 Feb 1995" and at paragraphs 122 and 131 of the Tribunal's reasons, where it is identified as "DFAT, 1995, CX 9957".

(c) Record of a telephone conversation between Amanda Zappia, co-ordinator of Australia-Burma Council and the Tribunal, 24 February 1994, referred to at paragraphs 122 and 131 of the Tribunal's reasons.

(d) Amnesty International, "Myanmar Conditions in prisons and labour camps" September 1995, referred to at paragraph 139 of the Tribunal's reasons.

(e) ABSDF, Cries from Insein, 1996, referred to at paragraph 139 of the Tribunal's reasons.

(f) An article by McPhedran in The Canberra Times, 19 August 1997, CX 25011, referred to at paragraph 88 of the Tribunal's reasons.

(g) DFAT cable RA 7682, dated 23 June 1995, CX 9489 referred to at paragraph 89 of the Tribunal's reasons.

(h) DFAT, Human Rights Update, 28 January 2000, CX 39784, referred to at paragraph 90 of the Tribunal's reasons.

(i) An otherwise unidentified DFAT report to the effect referred to at paragraph 95 of the Tribunal's reasons in relation to the issue of Burmese passports.

(j) DFAT, 1996 Country Profile referred to at paragraph 96 of the Tribunal's reasons in relation to immigration controls in Burma.

(k) DFAT cable RA 7927 referred to at paragraphs 97 and 98 of the Tribunal's reasons in relation to the issue and non issue of passports to various Burmese citizens.

(l) DFAT report 094, 9 June 2000, referred to at paragraph 100 of the Tribunal's reasons.

(m) DFAT Country Information Report, "Information on the Current Situation With Respect To Passport Issue And Departure from Burma", No 285/00, 2 June 2000 referred to at paragraph 101 of the Tribunal's reasons.

(n) DFAT cable RA 1782, cited at paragraphs 102 and 152 of the Tribunal's reasons.

(o) DFAT, "Processing of passport renewal applications", CIR No 113/00, 15 March 2000, CX 41129 referred to at paragraph 105 of the Tribunal's reasons.

(p) DFAT, "Human Rights Update", 2000, CX 39784, referred to at paragraphs 104, 105 and 152 of the Tribunal'' reasons.

(q) The Tribunal Burma Workshop transcript (paper given by Andrew Selth) referred to at paragraphs 106-110 and 152 of the Tribunal's reasons.

(r) Unidentified "independent information" cited by the Tribunal at paragraph 123 of its reasons to the effect that "all schools were closed by the authorities at [the relevant time in 1989] ...".

(s) Terrell Oung, Central/International Co-ordinator, Australia Burma Council, letter to the Tribunal, 30 May 2000, referred to at paragraph 111 of the Tribunal's reasons.

(t) Trevor Edmond, Secretary, Friends of the NLD in Australia Inc, letter to the Tribunal, 2000, undated, referred to at paragraphs 109-110 of the Tribunal's reasons.

(u) DFAT, 1992, "Minute from DFAT concerning Burmese demonstrators in Australia", 24 September, CX 8069 referred to at paragraph 112 of the Tribunal's reasons.

WILCOX J:

278 In the last week of September 2001, in the wake of the Tampa affair (see Victorian Council for Civil Liberties v Minister for Immigration and Multicultural Affairs [2001] FCA 1297, 110 FCR 452; on appeal, Ruddock v Vadarlis [2001] FCA 1329, 183 ALR 1), Parliament passed eight Bills dealing with "border protection" and/or immigration law. One of those Bills ("the Judicial Review Bill") enacted the Migration Legislation Amendment (Judicial Review) Act 2001. This Act substituted a new Part 8 of the Migration Act 1958 ("the Act"). The common factor in these five appeals is that each raises questions concerning the constitutional validity, interpretation and application of that Part.

The new Part 8

279 The new Part 8 further restricted the already limited right to judicial review of decisions made under the Act. It commenced with a new s 474 that uses the term "privative clause decision" to refer to virtually all decisions under the Act. The exceptions are mostly decisions affecting property interests. Section 474(1) provides that:

"(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."

280 However, Parliament did not intend s 474(1) to mean what it says. That is clear from the remainder of the new Part 8, in which Parliament imposed rules governing applications to this Court under s 39B of the Judiciary Act 1903, and even, for the first time, allowed applications for review to be made to the Federal Magistrates Court.

281 As is common ground in these appeals, s 474(1) is a privative clause designed to pick up and apply what the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") (Mr P Ruddock MP) described, in his Revised Explanatory Memorandum on the Judicial Review Bill, as "a line of authority stemming from the judgment of Dixon J" in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598. As other members of the Court have done so, I need not quote the words used by Dixon J. They include the three conditions, stated in a proviso, that are sometimes called the "Hickman conditions".

282 It is entirely understandable that Parliament should have thought it desirable to do something about the judicial review position that obtained in September 2001. In his Second Reading Speech on the Judicial Review Bill, on 26 September 2001, Mr Ruddock said the number of applications for review had increased from about 400 in 1994-95 to about 1640 in 2000-01; with a substantial increase in departmental expenditure on litigation.

283 However, the decision to seek salvation in a privative clause was curious. As the Government perceived the problem, it was not that too many applications for judicial review were succeeding, but that too many applications were being filed. In his Second Reading Speech, and referring to applications for judicial review, Mr Ruddock said:

"From experience we know that a substantial proportion of these cases will be withdrawn by the applicants prior to hearing. The percentage of applicants who withdraw fluctuates between one-third to one-half of applicants. Of the cases that go on to substantive court hearings the merits based decision is currently upheld in around 90 per cent of cases.

It is hard not to conclude that there is a substantial number who are using the legal process primarily in order to extend their stay in Australia, especially given that one-third to one-half of all applicants withdraw from legal proceedings before hearing."

284 No doubt this was one reason for the large number of unsuccessful applications. I believe there were others. At that time, the standard letter sent to unsuccessful applicants by the Refugee Review Tribunal told them they had "the right to seek review of this decision by the Federal Court". The letter contained no reference to the limited nature of the review that was available in the Court. It did not inform recipients that the Court had no power to review the Tribunal's findings of fact. Overwhelmingly, then as now, refugee applicants lacked legal advice. As was demonstrated by daily experience in this Court, most review applicants wished only to recanvass the facts. Sometimes they learned the limitations on the Court's role before the hearing and withdrew their application. More often, they learned at the hearing; but not before their misapprehension had caused expenditure to the Department of Immigration and Multicultural Affairs. Moreover, those who wished to soldier on, however hopeless the cause, had an unqualified right of appeal to a Full Court of this Court, the exercise of which caused further expense and delay.

285 The Tribunal's standard letter now informs unsuccessful applicants they "may have a limited right to seek review" of the Tribunal's decision "by the Federal Court, Federal Magistrates Court and/or the High Court". Recipients are still not told of the nature of the limitation. In fairness, it would not be easy to do this in a manner that was both accurate and easily comprehensible.

286 Despite the new Part 8, the volume of migration applications made to this Court remains much the same. During the nine months (January to September 2001 inclusive) immediately preceding the commencement of the new Part 8, 1072 applications for review were filed in this Court. In the nine months immediately after commencement (October 2001 to June 2002 inclusive) 1003 applications were filed. Full Court appeals actually increased (227 to 242).

287 A privative clause, in the form of s 474, does not relieve a court from the obligation to receive applications for review and to consider each case. People still have the right to file an application and come to court. Overwhelmingly, applicants are unaware of s 474. Overwhelmingly, they have no understanding of the Court's role. Most still wish only to recanvass the Tribunal's findings of fact. There is still an unrestricted right of appeal from a first instance decision.

288 To the extent that a privative clause is effective, it diminishes the rule of law. That is a significant matter. The rule of law is a concept that lies at the heart of our system of government.

289 Our system of government depends upon three fundamental principles: first, laws may be made only by democratically elected Parliaments (statutes), or by Executive officers acting pursuant to authority conferred on them by a Parliament (regulations); second, everyone, including Ministers and other public officials, must obey those laws; and, third, on application by an affected person, judges, who are independent of the Executive government, can, and normally will, enforce the law and with it that obligation.

290 To the extent that it is effective, a privative clause abrogates the third principle. Judges must allow to stand decisions that are not in accordance with the will of Parliament.. In the immigration area, this may have profound consequences for individuals. By definition, the people most directly affected will be non-citizens. But Australian citizens may also be impacted; as spouses, relatives, friends or employers of non-citizen visa holders or applicants. This is especially the case where the privative clause (as here) applies to all visa decisions, not just decisions about applications for protection visas by asylum seekers. For any one of us, the relevant non-citizen may be very close to home: the woman our son wishes to marry, the father of our daughter's child, a next door neighbour or key employee whose residence visa has been mistakenly cancelled.

Application of the Hickman principle

291 The reason why it remains necessary for a court to consider the particular case appears from Hickman itself. Despite his enunciation of the "Hickman conditions", in that case Dixon J joined the other four members of the High Court in holding invalid the impugned order of the Local Reference Board. He explained at 618 that he did so because the relevant regulation included the words "in the coal mining industry" which, he said, "are words of final limitation upon the powers, duties and functions of the Boards".

292 Two years later, in R v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Limited [1947] HCA 32; (1947) 75 CLR 361, Dixon J spelled out the situation even more clearly. The regulations in suit allowed the Controller to determine a rent upon application by a lessor or lessee or of his own motion. However, the Court held, the Controller could vary a determined rent only upon application by the relevant lessor or lessee. An application for variation of a determined rent was made by the tenant of one portion of a city building. There was no application for variation in respect of any of the other 38 tenancies in the building. Notwithstanding that fact, the Controller varied all the rents. The High Court unanimously held he had erred and granted prohibition in respect of the 38 tenancies.

293 Regulation 38 of the regulations said:

"Every determination of a Fair Rents Board or of the Controller shall, except as provided in this Part, be final and without appeal, and no writ of prohibition or certiorari shall lie in respect thereof."

294 In a joint judgment, Latham CJ and Dixon J said (at 369):

"When Commonwealth legislation confers powers upon an officer a provision such as reg. 38 cannot be construed as intended to provide that his powers are absolutely unlimited. Such a construction would raise questions of the validity of the legislation. Such a provision cannot help to give effect to any legislation which it is beyond the power of the Commonwealth Parliament to enact. Further, even where no question of validity arises, the effect of such a provision in a particular case depends upon the construction of the relevant statute taken as a whole. If a legislature gives certain powers and certain powers only to an authority which it creates, a provision taking away prohibition cannot reasonably be construed to mean that the authority is intended to have unlimited powers in respect of all persons, and in respect of all subject matters, and without observance of any conditions which the legislature has attached to the exercise of the powers. Such a provision will operate to prevent prohibition going in cases of procedural deficiencies where the authority whose powers are in question is in substance dealing with the matter in respect of which power is conferred upon it. But if, upon the construction of the legislation as a whole, it appears that the powers conferred upon the authority are exercisable in certain cases, and definitely that they are not exercisable in other cases, and that any attempt to exercise them was intended to be ineffective, then a provision taking away prohibition will not exclude the jurisdiction of this Court under s. 75(v.) of the Constitution in a case of the latter description: see Hickman. It is therefore necessary to inquire whether the regulations now under consideration impose any condition which must be satisfied when it is sought to exercise the power to vary a determination of rent." (Emphasis added)

295 Their Honours went on to construe the regulations in suit. They concluded (at 370) that "as a variation can be made only upon an application to the Controller, and as a decision of the Controller to act of his own motion cannot be regarded as an application to the Controller, the Controller has no power to vary a determination of his own motion".

296 In Rent Controller, there was no question of constitutional invalidity. Neither was it suggested the regulation could not have been drafted in such a way as to empower the Controller to vary a rent of his own motion. Yet, despite Hickman, the Controller's decision was invalid; the reason being non compliance with a statutory condition precedent.

297 Subsequent cases show the concept of statutory limitation or condition has significantly limited the ability of the Hickman principle to immunise statutory decisions from judicial review. In the 57 years since Hickman, there has not been any case in which a majority of the High Court has applied Hickman to save from invalidity an order or decision, made under Commonwealth law, that would otherwise have been held invalid. Indeed, the High Court seems to have taken that step only once, in Coal Miners' Industrial Union v Amalgamated Collieries of Western Australia Limited [1960] HCA 68; (1960) 104 CLR 437, a case that turned on Western Australian law. There have been a few applications of Hickman at a level below the High Court, predominantly in relation to State legislation, but "Hickman hits" have been a rare phenomenon.

298 I have indicated misgivings about the enactment of s 474. I have taken this unusual step because the issue so intimately affects the rule of law and the work of the courts (especially this Court). However, that done, I must put my misgivings aside. Whether wisely or otherwise, Parliament has enacted s 474. Legislative policy is for Parliament to determine, not for the courts. It is the duty of judges to interpret legislation in good faith and, provided it is constitutionally valid, to give it full force and effect, whatever the judges' private views about its content. I can and will do that.

Constitutional validity of the amendments

299 Submissions of invalidity were made in the present appeals. Counsel for Mr Turcan, Mr T Hurley, contended s 474 of the Act fell outside the Commonwealth's legislative power - even adding together s 51(xix), s 51(xxvii) and s 51(xxxix) of the Constitution - because it purports to remove from the High Court and the Federal Court jurisdiction to determine the legality of "a decision which itself causes a person to be detained, or requires another decision or conduct whereby a person is detained". Counsel said a construction of s 474 that yielded that result "would be to introduce a lettre de cachet". He referred to Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 at 528 where Deane J said: "The common law knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action". This statement was adopted in Lim v Minister for Immigration [1992] HCA 64; (1992) 176 CLR 1 at 19-20.

300 As I understand the position, Mr Turcan is currently in immigration detention. So it is understandable that his counsel should have focussed attention on that fact. However, Mr Turcan is not being detained pursuant to an executive warrant; rather, it seems, pursuant to s 189(1) of the Migration Act. That subsection provides:

"(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person."

The subsection is one of the many provisions in Division 7 of Part 2 of the Act that regulate the detention, and release from detention, of specified categories of people.

301 The submission made by Mr Hurley points up the importance of correct decision-making in relation to the grant and cancellation of visas. Perhaps that is something that needs to be taken into account in assessing the proper construction, under Hickman principles, of statutory provisions concerning such decisions. However, the fact that the statute makes provision for detention of unlawful non-citizens, and people reasonably suspected of being unlawful non-citizens, does not, itself, mean that provisions limiting judicial review of decisions concerning such people are constitutionally invalid.

302 The solicitors for NAAV and Wang each filed notices under s 78B of the Judiciary Act. The notices raised two questions:

(i) whether s 474 of the Act is inconsistent with Chapter III of the Constitution in that it reserves to persons who are not judges the power to determine conclusively whether a duty to accord procedural fairness arises in a particular case, the content of the duty and whether it has been observed in the particular case; and

(ii) whether s 474 is inconsistent with s 75(iii) or (v) of the Constitution.

303 In their written outline of submissions counsel for both NAAV and Mr Wang argued for these questions to be answered affirmatively. However, they left the main burden of the argument to Ms D Mortimer, counsel for the intervenor, the Human Rights and Equal Opportunity Commission ("HREOC").

304 In its filed outline of argument, HREOC summarised its constitutional submissions in this way:

"1 The key concept underlying the Commission's submissions is the proposition that the Australian legal system recognises, in various ways, an obligation to provide an effective remedy to persons present in this country whose interests have been adversely affected by a decision of an officer of the Commonwealth, where the decision is otherwise than in accordance with law. In this case, the need for an effective remedy is a need of non-citizens affected by decisions made under the Migration Act ...

2 As in Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510, yet in a different context, the central question raised in these appeals is whether s 474 of the Act requires, or can require, a Chapter III Court to affirm and/or assume that there has been a due administration of the law where there may not have been.

3. The Australian legal system recognises the obligation to provide an effective remedy from such a failure to provide due administration of the law:

* In a constitutional sense, by according primacy to the role of the High Court in supervising, under s 75(v), the lawfulness of actions taken by officers of the Commonwealth;

* At common law, by the repeated acknowledgement of the role of Ch III Courts in determining, declaring and enforcing the law which prescribes limits and governs the exercise of power: Attorney-General v Quinn [1990] HCA 21; (1990) 170 CLR 1 at 37; Abebe at [37];

* In the exercise of executive power under the Constitution to bind Australia to obligations in international law in respect of human rights, which it is to be assumed are undertaken intending that they be complied with and be reflected in our legal system: Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 289; Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 at 30 per Brennan J (with whom Mason CJ and McHugh J agreed).

4. Section 474 of the Act has the potential to compromise this obligation significantly." (Original emphasis)

305 In developing these points, Ms Mortimer submitted that the Federal Court's jurisdiction under s 39B(1A) of the Judiciary Act is co-extensive with the jurisdiction of the High Court under s 75(v) of the Constitution. She argued it followed the "limitations which operate on Parliament's ability to affect the exercise of the powers of the High Court under s 75(v) must apply to the Federal Court". Ms Mortimer pointed out that s 75(v) "is construed to permit the High Court always to be able to correct unlawful usurpations of power by judicial and non or quasi judicial officers".

306 The submissions summarised in the preceding paragraph were not contested by counsel for the Minister. However, of course, the critical question is what is meant by "unlawful".

307 Ms Mortimer argued that, if s 474 is construed in such a manner as to protect decisions that involve jurisdictional error, it is invalid. Her reason was that "then the administrative decision makers under this Act ... have been given authority by Parliament conclusively to determine questions of law which go to their authority to decide, and to make a decision otherwise than in accordance with law". She referred to the High Court's decisions in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 180 ALR 1.

308 The application of the Hickman principle to cases of jurisdictional error is a problem of importance and some difficulty. However, I do not think the problem justifies this Court in holding that a provision in the form of s 474 of the Act is beyond the legislative competence of the Commonwealth Parliament. The High Court has discussed similar provisions in numerous cases, without making any suggestion of general constitutional invalidity. If a particular application of s 474 would lead to invalidity (either because it confers judicial power on non-judges or conflicts with s 75(v) of the Constitution) the Court should read it down so as to exclude that application, not declare it to be wholly invalid: see s 3A of the Act.

309 Counsel for HREOC drew attention to the fact that the privative clause (s 474) is not contained in those Parts of the Act that confer powers upon decision-makers, but in the Part concerned with judicial review. She suggested this raises questions about the application of the Hickman principle: "it simply may not be possible to prescribe in advance the operation of s 474 on all the various decisions which can be made by the RRT and the MRT under the Act". Although Ms Mortimer did not put the argument in this way, it seems to me also to raise a constitutional issue, especially having regard to the provisions of the amending Act regarding the commencement of the new s 474. Part 2 of Schedule 1 of the Migration Legislation Amendment (Judicial Review) Act applied the new judicial review regime to privative clause decisions made on or after the date of commencement of Schedule 1 of that Act (2 October 2001). That step creates no particular problem. However, it also purported to apply the new regime to applications for judicial review made on or after the commencement of the Schedule in respect of decisions made before commencement of the Schedule. That being so, it is arguable that s 474 is not a provision expanding, to the furthest constitutionally-permissible limit, the jurisdiction of statutory decision-makers; but that it is a provision restricting review of decisions whose jurisdictional base remains limited to provisions other than s 474.

310 I have been troubled by this aspect of the case. However, in the absence of submissions specifically directed to the issue, it would not be appropriate for me to reach a conclusion about it.

311 I reject the submission that s 474 is constitutionally invalid.

Application of Hickman to the five appeals

(i) NAAV

312 The facts relating to NAAV's appeal are set out in judgments of other members of the Court. The critical questions are, first, whether the Refugee Review Tribunal denied natural justice (procedural fairness) to the applicant and, second, if so whether this is an available ground of review.

313 In relation to the first matter, I have no doubt. Early in the hearing, the Tribunal member, Mr Gibson, referred to independent "country information" and told the applicant and his representative, Mr McDonnell, that he would "be telling you what that information may mean in your case, and giving you an opportunity to make comments about it". Later in the hearing, Mr McDonnell asked Mr Gibson to make available "any independent country information that could have a bearing on the case". Mr Gibson replied that it (the independent country information) had none, "it has no bearing at all". Mr McDonnell accepted this as a satisfaction of his request.

314 At the conclusion of the hearing, Mr Gibson reinforced the message that he would not be considering undisclosed independent information. In the course of listing the material he would consider, he referred to "independent information, a little bit which I put to you during the oral evidence".

315 Judging by his concluding remarks, Mr Gibson initially expected to be able to announce the Tribunal's decision within about one month after the hearing, that is by about the end of August 2000. In fact the decision was made 13 months after the hearing, on 11 September 2001. For some unexplained reason, it was not published until 2 October 2001, the day on which the new Part 8 of the Act commenced to operate. No doubt because of the lengthy delay between hearing and decision, Mr Gibson must have forgotten the assurances he gave the applicant and his representative. Far from confining his use of independent information to whatever was put to the applicant during the course of his oral evidence, Mr Gibson took into account a large quantity of undisclosed material.

316 Counsel for NAAV described the relevant material to us, without contradiction, as "21 undisclosed documents, a particular atlas, (Mr Gibson's) undisclosed specialist knowledge of military training and an undisclosed map". The undisclosed material was important to the Tribunal's decision-making process. NAAV had claimed that, following a particular demonstration in March 1998, he was taken to Insein Jail, where he was interrogated and mistreated for two weeks and then held for two months in solitary confinement. Mr Gibson rejected that claim. He said (at para 120):

"I am unable to accept that the applicant was detained in Insein Jail. I have read reports compiled from first hand accounts of prisoners in Insein Jail (see Amnesty International, Myanmar Conditions in prisons and labour camps, September 1995; and ABSDF, Cries from Insein, 1996). I can find no reference to prisoners being hooded whilst being interrogated over the time (sic) as the applicant claims he was."

317 At the hearing before the primary judge, Gyles J, counsel read an affidavit in which NAAV deposed that, if he had known the Tribunal intended to use the Amnesty International and ABSDF documents for this purpose, he would have referred the Tribunal to a July 1998 publication of the All Burma Students' Democratic Front, Tortured Voices: Personal Accounts of Burma's Interrogation Centres, in which there are references to Insein prisoners being hooded. NAAV annexed relevant pages to his affidavit.

318 In his reasons for decision, Mr Gibson said he was unable to find on the Microsoft Encarta Interactive World Atlas certain villages mentioned by NAAV in his account of his flight from Burma to Bangladesh. The implication was that the villages did not exist. In this context, Mr Gibson referred to "the applicant's inconsistent and implausible evidence". In his affidavit, NAAV cited maps in which these villages are shown.

319 Mr Gibson's conclusions about these matters may have affected the outcome. At para 157 of his decision, he said he must consider NAAV's claims "both individually and cumulatively". He said he was not satisfied NAAV had a well-founded fear of persecution for Convention reasons "even when his claims are assessed cumulatively". Had Mr Gibson given NAAV and his representative the opportunity to respond to the independent information he was taking into account, he may have reached different conclusions about the important matters to which they related. In turn, this may have affected his overall assessment of NAAV's credibility and claim to a protection visa.

320 It is not necessary for me to express any general view as to the extent to which the Refugee Review Tribunal (or any other statutory decision-maker) is bound to disclose independent country information to an applicant. If nothing had been said, it might have been open to Mr Gibson to rely upon undisclosed independent information in respect of matters not personal to the applicant. However, something was said. Although I am confident Mr Gibson did not intend to mislead NAAV, in fact he did so. The situation is similar to that which obtained in Aala.

321 That conclusion brings me to the second question: is the requirement of procedural fairness excluded by s 474?

322 In Aala the High Court held that the Refugee Review Tribunal was bound to accord procedural fairness to a visa applicant. Although s 476(2)(a) of the then Act excluded breach of the rules of natural justice as a ground of relief in this Court, that did not affect the Tribunal's obligation to accord procedural fairness or the enforceability of that obligation under s 75(v) of the Constitution.

323 In Re Minister for Immigration and Ethnic Affairs; Ex parte Miah [2001] HCA 22; 179 ALR 238, the High Court took the same view about the obligation of a delegate of the Minister. McHugh J stated the relevant principle at [126]:

"It is now settled that, when a statute confers on a public official the power to do something which affects a person's rights, interests or expectations, the rules of natural justice regulate the exercise of that power `unless they are excluded by plain words of necessary intendment'. An intention on the part of the legislature to exclude the rules of natural justice is not to be assumed nor spelled out from `indirect references, uncertain inferences or equivocal considerations'. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice. As I pointed out in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 196:

`The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture.'

The common law rules of natural justice are part of this background. They are taken to apply to the exercise of public power unless clearly excluded."

324 Gaudron J noted, at [95], the heading of the relevant subdivision of the Act, subdivision AB of Division 3 of Part 2. It read: "Code of procedure for dealing fairly, efficiently and quickly with visa applications". Her Honour said: "That being so, those powers are to be exercised to ensure procedural fairness, albeit in a manner that is quick and efficient". The obligation to accord procedural fairness was not excluded.

325 McHugh J, at [128], noted the same heading and commented it "assumes that the `code' will operate fairly". He said:

"The subject matter of the Act, the fact that it implements Australia's international obligations, and the omission of words unambiguously pointing to an intention to exclude all the common law rules of natural justice indicate that the exercise of power under subdiv AB is conditioned on the observance of those rules except where the provisions of the Act specifically supersede them."

326 Counsel for NAAV, Mr B Walker SC and Mr L Karp, pointed out that procedural fairness has not been specifically excluded from Part 8 of the Act. They noted that a Bill to achieve that result, the Migration Legislation Amendment (Procedural Fairness) Bill 2001 was presented to Parliament on 27 September 2001, but not enacted. Counsel said:

"... legislation impinging on common law rights must be strictly construed. Section 474 says nothing about procedural fairness. The only provision in sec 474 which could possibly encompass procedural fairness is para 474(3)(h) which includes within preparatory conduct that which would ordinarily be considered to be conduct subject to the rules of procedural fairness. This is far from a specific excluding reference to natural justice. It is even further from clear words of necessary intendment that natural justice not apply. Subsection 474(1) cannot be read as a clear intention to exclude natural justice, because the subsection does not say so. Nor can Hickman jurisprudence make it so because one of the enquiries with which Hickman is concerned is whether there are requirements in the statute which proscribe the conduct in question notwithstanding the existence of a privative clause. Requirements in a statute are as powerfully conveyed by unexcluded implications as by express words. The express and implied requirements provided by a statute are indifferently requirements of the statute, and are equally binding on everyone (including courts)."

327 In their written submissions on NAAV's appeal, counsel for the Minister, Mr D Bennett QC, Mr S Gageler SC and Mr S Lloyd, acknowledged "the giving of procedural fairness will generally be an implied precondition on the valid exercise of the power". However, they said that position is subject to any express statutory provision to the contrary. They contended s 474(1) of the Act constitutes such a provision. Counsel said a privative clause "necessarily excludes the application of the rules of procedural fairness except to the extent that they are incorporated into one of the Hickman provisos". Counsel referred to Mr Ruddock's Second Reading Speech and said:

"Given this clear statement of the object and desired effect of the legislation and given that the privative clause was inserted as an amendment to an existing Act, there is no scope to contend that limitations previously existing in the Act are `inviolable' and not subject to the effect of the privative clause."

328 If counsel meant, by this submission, to contend that the amendments should be construed in isolation from the remainder of the Act, I do not think that is correct. Amendments are designed to vary the terms of a previously existing statute; but the principal Act, as amended, remains to be considered as a whole. The relevant task, for present purposes, is to determine whether the Act, as it now stands and considered as a whole, evinces a Parliamentary intention to exclude the obligation of the Tribunal to afford natural justice or to exclude the power of a court to enforce that obligation.

329 Unlike the situation in Miah, NAAV's appeal does not arise out of a decision by a delegate of the Minister, but, rather, a decision of the Refugee Review Tribunal. The heading of subdivision AB of Division 3 of Part 2 of the Act is not relevant to a decision of the Tribunal. However, s 420 of the Act applies to the Tribunal. It uses a similar collocation of words. Section 420(1) requires the Tribunal, in carrying out its functions under the Act, to "pursue the objective of providing a mechanism for review that is fair, just, economical, informed and quick". Section 420(2)(b) says that the Tribunal, in reviewing a decision, "must act according to substantial justice and the merits of the case". These are not the words of a Parliament that wishes to exclude the obligation to provide procedural fairness.

330 None of the Bills enacted by Parliament expressly excluded the obligation of natural justice that had been recently upheld by the High Court in Aala and Miah. The Government may have wished to achieve such an exclusion, but it did not receive the necessary Parliamentary support.

331 Under those circumstances, I conclude that Aala and Miah continue to apply; persons who make decisions under the Act affecting the visa entitlement of particular individuals are bound to accord to them procedural fairness.

332 I do not think this obligation is affected by the Hickman principle. As Latham CJ and Dixon J pointed out in Rent Controller, an element of that principle is that, if, upon the construction of the legislation as a whole, it appears that powers are exercisable only in certain cases, and not exercisable in other cases, a privative clause will not preclude relief. I agree with counsel for NAAV that this rule extends to common law obligations implied by a statute, as much as to obligations expressly imposed by the statute.

333 I would order that the appeal by NAAV be allowed, the orders of Gyles J be set aside and, in lieu thereof, it be ordered that the decision of the Refugee Review Tribunal be set aside and the matter be remitted to that Tribunal (differently constituted) for rehearing and determination.

(ii) NABE

334 The facts concerning this appeal have also been recounted by other members of the Court. The Refugee Review Tribunal accepted that NABE was a Sri Lankan national of Tamil extraction who was born in Jaffna. He was affected by the long-running civil war between the LTTE and the Sri Lankan government. NABE claimed to have been taken by the "authorities" (presumably Sri Lankan government forces) while engaged in choir practice at his church, and removed to a camp. The Tribunal did not make a clear finding about this claim but commented:

"... the episode occurred several years ago while he resided in the vicinity of the main trouble-spot in Sri Lanka. The fact that he was released from custody and was later able to travel to Colombo indicates that he was not of any continuing interest to the authorities, and the Tribunal finds accordingly."

335 The Tribunal noted claimed later incidents but was not persuaded of the truth of all those claims. After referring extensively to country information the Tribunal member concluded:

"There is no doubt that Tamils have often been at risk of persecution in Colombo and elsewhere in recent years. The evidence also indicates, however, that almost half the population of Colombo is Tamil and that the risk of persecution is very far from universal. Aforementioned information indicates that, apart from those who have fled the authorities in the north, those most at risk are recently arrived young people without established links to Colombo.

In the present case the applicant has a history of residence in Colombo of at least a year and no credible claims of harm there for any Convention reason. His sister resided there with him, at least for a time. The applicant registered with the authorities, thus indicating he established a valid purpose for residing in Colombo, as well as indicating he was not regarded as a security risk. The Tribunal is not satisfied that he has no work history or significant family or personal contacts still in Colombo. In all the circumstances the Tribunal finds it would be reasonable for the applicant to again take up residence in the capital where he does not face any real chance of persecution for any Convention reason."

336 The submission put to the primary judge, Tamberlin J, was that the Tribunal erred in failing to deal with a separate claim of mistreatment, not by the "authorities" but by the People's Liberation Organization of Tamil Eelam ("PLOTE"), a pro-government militant organisation. This mistreatment was said to have occurred at Vavuniya in early 1999. It was contended that the failure to deal with the claim of persecution by PLOTE was a jurisdictional error.

337 Tamberlin J accepted this submission. He noted that, in his first statement, NABE referred to the mistreatment at Vavuniya in 1999 without identifying who was responsible for it. NABE referred only to "they". However, his Honour also noted that the decision of the delegate recorded NABE's claim that, whilst in Vavuniya, "he was arrested by PLOTE people". He said (at para 37):

"This statement in the delegate's decision clearly indicates that the applicant's claim was not detention and torture by the authorities, but by PLOTE. It was the decision of the delegate that was the subject of the review by the RRT and this statement as to the nature of the claim was before the RRT when considering the decision. Other material before the RRT did not specify clearly who detained and tortured the applicant. On the material I have referred to, other statements by the applicant and the relevant part of the transcript of the hearing before the RRT which was tendered in evidence, I am satisfied that there was an error by the RRT which could have affected the outcome because it bears directly on the question whether there were grounds, based on past persecution, for the applicant believing there is a real risk of persecution if returned." (Original emphasis)

338 I have not read all the material to which his Honour referred; in particular, the relevant part of the transcript of the hearing before the Tribunal. However, I accept this material supports the contention that NABE had claimed to have been mistreated at Vavuniya by PLOTE, rather than by government authorities. Even so, I have difficulty in concluding that the Tribunal fell into a jurisdictional error.

339 At his initial interview, NABE was asked whether he had any reasons for not wishing to return to his country of nationality. He replied:

"I came in here because it was impossible to live there so how can I go back there. I have come to Colombo three times. I have been sent back to Jaffna three times. If I return I will be arrested again. Many people who have been arrested disappeared in the past. As a Tamil person, if I return I will be arrested. Tamil are persecuted race in Sri Lanka."

340 The persecution NABE claimed to fear was arrest, obviously by government authorities. That was the case put to the Department, in a supporting submission, by his immigration consultant, Rasan Selliah. Mr Selliah wrote:

"The situation in the country for Young Jaffna Tamils is very dangerous. The Jaffna Peninsula is expecting an outbreak of war at any time. Young Tamils in particular are persecuted by the authorities and by the LTTE. If they refuse to join the LTTE, they often go missing and many are ultimately killed. The authorities regularly detain and kill many youths.

Therefore, the applicant's fear of being persecuted (torture, detention, extortion, and compulsory recruitment) for conventions reasons of race, political opinion (or imputed political opinion) and particular social group (being a young Tamil of Jasffna [sic]) is well founded.

The applicant genuinely fears to return to the Jaffna Peninsula. He cannot reasonably relocate to other parts of the country in order to avoid persecution. He had been arrested, tortured and had paid money to the authorities in Colombo. The applicant cannot speak Singhalese language. Therefore, relocation is impossible in the applicant's case.

The applicant provided a full explanation to the interviewing officer.

The applicant truly believes that if he returns to Sri Lanka he will be arrested and tortured.

Therefore, we submit that the applicant is a refugee under the convention."

341 In a letter sent to the Tribunal shortly before the hearing of NABE's application for review of the delegate's decision, Mr Selliah repeated the same argument, in almost identical words.

342 So far as I can ascertain, at no time did NABE claim a fear of persecution at the hands of PLOTE, as distinct from the "authorities". The claimed mistreatment at Vavuniya was one of a long list of alleged incidents. As PLOTE was a body sympathetic to the Sri Lankan government, evaluation of that incident was relevant to the claim made by NABE, and the only claim made by him, of feared persecution by Sri Lankan government authorities. But it was not a separate claim requiring separate evaluation. The Tribunal may have overlooked the delegate's reference to NABE having claimed the mistreatment occurred at the hands of PLOTE, rather than the army or government officials. If so, however, it seems to me that was merely an error of fact.

343 I accept the Tribunal is not limited to the formal claims made by an applicant for a protection visa. Sometimes the evidence suggests a risk of future persecution by some person, or in some manner, that falls outside an applicant's formal claims. In that case and despite the absence of a claim, the Tribunal may come under an obligation to evaluate the situation. However, for that obligation to arise, there must be some reason for fearing a future problem. Whatever the truth about the Vanuniya incident, having regard to the Tribunal's other findings of fact, there was no reason to apprehend future mistreatment of NABE by PLOTE.

344 As I respectfully disagree with Tamberlin J's view that the Tribunal fell into jurisdictional error, I do not find it necessary to consider the correctness of his conclusion that s 474 saves the Tribunal's decision from invalidity.

345 I would dismiss the appeal of NABE.

(iii) Ratumaiwai

346 This is an appeal against a decision of Hill J dismissing an application to review a decision of the Migration Review Tribunal. Once again, the facts are recounted by others.

347 It was common ground before Hill J that, in order to obtain relief and regardless of the operation of the new s 474 of the Act, it was necessary for Mr Ratumaiwai to demonstrate that the Tribunal had fallen into jurisdictional error. Hill J held he failed to do this. Accordingly, it was unnecessary for him to consider submissions concerning s 474 of the Act. Notwithstanding this, his Honour made some observations about the section.

348 I agree with Hill J that Mr Ratumaiwai failed to demonstrate jurisdictional error by the Tribunal. I am content to adopt the reasons set out by Hill J in paras 20 to 32 of his judgment. On that basis, I would dismiss the appeal. As it is unnecessary for me to do so, I make no comment about Hill J's observations regarding s 474.

(iv) Turcan

349 The application before the primary judge, Heerey J, sought review of two decisions. The first decision, made under s 128 of the Act, was to cancel a "permanent spouse class 801" visa held by Mr Turcan. This decision was made on 6 July 2001. No application for review was made until 27 February 2002, when a proceeding was instituted in this Court. That was done four days after the second decision, on 23 February 2002, to detain Mr Turcan under s 189(1) of the Act.

350 The first decision was made before the new Part 8 was enacted. If Mr Turcan had promptly applied for judicial review of that decision, he would not have confronted the privative clause that is now s 474 of the Act. But he did not do this, presumably because he was overseas from 3 May 2001 until 23 February 2002. When he did make his application, he was met by an objection as to competency. The objection was based upon the fact that the application was not made within the time fixed by the new s 477(1) of the Act. Section 477 relevantly provides:

"(1) An application to the Federal Court under section 39B of the Judiciary Act 1903 for:

(a) a writ of mandamus, prohibition or certiorari; or

(b) an injunction or a declaration;

in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision.

...

(2) The Federal Court of the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or (1A) outside the period specified in that subsection."

351 After investigation of the relevant facts, Heerey J held that Mr Turcan was not notified of the decision of 6 July 2001, within the meaning of s 477(1), until his detention at Melbourne airport on 23 February 2002. On that basis, he held the new privative clause applied to the decision. It seems to me his Honour was correct in holding the new clause applied. But I would adopt a different reason. As Mr Turcan had not instituted any proceeding before 2 October 2001, he had no "right" to obtain relief on the basis of the law that existed before that date: see s 8(c) of the Acts Interpretation Act 1901 and the discussion in Pearce and Geddes, Statutory Interpretation in Australia (5^th ed) at paras 6.7 to 6.9.

352 On the basis that the new s 474 applied to both decisions, Heerey J held it was inappropriate to do more than consider whether any of the three Hickman conditions applied to either of them. Having held they did not, he dismissed the application for review.

353 At para 46 Heerey J explained his approach in this way:

"In my view, the correct approach is to first consider whether s 474 applies. If it does, the Court need not, indeed should not, go any further. The Court should not assess the case as if s 474 did not exist and then only move to consider that section if satisfied that otherwise grounds are made out. Section 474 in its terms goes to the Court's jurisdiction and is to be applied at the threshold."

354 I respectfully disagree with two aspects of that statement. First, I do not think it is correct to say that s 474 "in its terms goes to the Court's jurisdiction". Although a reader uninstructed in the mysteries of privative clauses might read it that way, it is clear (and common ground in these appeals) that s 474 is code for an instruction to apply the line of authority stemming from Hickman. As the High Court has pointed out, the underlying theory of Hickman is that a privative provision is to be used as an aid to construction of the relevant statute; it may affect the availability of relief in the particular case, but it does not affect any court's jurisdiction.

355 Second, it has not been the practice of the High Court simply to take a privative clause, to consider whether the case exhibited any of the Hickman conditions and, if not, dispose of it without considering other legal issues. In Hickman itself, Dixon J first considered whether the prosecutors were engaged in the coal mining industry. Only after reaching a conclusion about that matter (at 614) did he turn to a consideration of the Court's jurisdiction under s 75(v) and the significance of the privative provision, reg 17. A similar methodology can be seen in other cases. Indeed, it is necessary to take this course if effect is to be given to that part of the Hickman doctrine that excludes application of a privative provision to a decision that ignores a statutory condition precedent or an inviolable limitation or restraint upon the powers of the decision-maker.

356 It follows that I respectfully think Heerey J erred in going straight to s 474. He should first have considered the other factors bearing on the validity of each of the decisions. That exercise not having been done, it is necessary for this Court to undertake the task.

357 Once again, the facts have been recounted by others. It will be recalled that Mr Turcan was the holder of a permanent class 801 onshore visa at the time of his departure for Moldova on 3 May 2001. As at that date, he had been separated from his wife for some five months, she having left the apartment they were sharing in December 2000. On 6 July 2001, Ms A Faulkner, an officer of the Department of Immigration and Multicultural Affairs, cancelled Mr Turcan's visa on the ground that it "should not have been granted because its grant was in contravention of this Act". This ground is set out in s 116(1)(f) of the Act. Ms Faulkner's reason was that the relationship claimed by Mr Turcan on 17 November 2000 "for the purposes of your application for permanent residence on spouse grounds, was in fact no longer in place".

358 The visa cancellation was effected pursuant to Subdivision F of Division 3 of Part 2 of the Act, Mr Turcan being a non-citizen who was then outside Australia. Section 128, which leads that Subdivision, provides:

"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."

359 It will be noted that s 128 expressly provides that the cancellation may be effected without notice to the holder of the visa. In that regard, Subdivision F stands in contrast to Subdivision E, which governs the cancellation of visas of persons not known to be outside Australia. That Subdivision requires notice of a proposed cancellation (s 119), the provision of certain information (s 120) and an opportunity for the visa holder to comment (s 121).

360 Counsel for Mr Turcan, Mr Hurley, accepted that s 128 does not require prior notice of a possible cancellation of a visa on a s 116 ground. However, he argued that the consequences of a cancellation under s 128 are severe; for that reason Parliament has required compliance with each of the three pre-conditions in s 128. Mr Hurley contended Ms Faulkner's satisfaction about the first condition ("there is a ground for cancelling a visa under section 116") involved error of law. He relied upon a Departmental assessment of the case that contains this analysis:

"7.7.6 Section 116(1)(f) does not allow for substantive visas to be cancelled where the delegate was satisfied at the time of grant that the criteria were met, but it is later found that those criteria were not met. This is because substantive visas are granted under s 65 of the Act. Unlike s 73, which allows the grant to occur only where the applicant actually meets the criteria, s 65 provides that the Minister must grant the visa `if satisfied that' the criteria for the visa have been satisfied. That is, if the Minister or his delegate is satisfied that the applicant meets the criteria, the visa is lawfully granted, even it [sic] is later found that the applicant never actually met the criteria. Therefore, such a decision is not in contravention of the Act.

7.7.7 Conversely, if a delegate grants a visa when he or she is in fact not satisfied that the applicant meets the criteria (for example, in the case of fraud or misconduct by a delegate), the grant will contravene the Act. This is because the power to grant in s 65 is limited to cases where the delegate is satisfied the relevant criteria are met. In practice, establishing that a delegate was not satisfied that a criterion was met will be difficult as it depends on having probative evidence about the delegate's state of mind at the time of grant."

The writer of the assessment recommended reconsideration of the case by Ms Faulkner.

361 Mr Hurley argued "that the requirement that a decision-maker be lawfully `satisfied' that proceeding under Subdivision F is appropriate is an inviolable limitation or restraint upon the jurisdiction or power given by s 128. It is a limitation on the power to decide".

362 Counsel for the Commonwealth put a number of submissions in response to this argument. Their broadest submission was that s 474 of the Act leaves no room for consideration of inviolable limitations; it requires courts to consider only the existence of the three Hickman conditions. I do not think that submission can be sustained, having regard to the jurisprudence developed by the High Court in respect of other privative clauses.

363 At a more specific level, counsel argued that s 128 of the Act does not contain a "clearly expressed specific intention" to impose a limitation. The phrase is taken from R v Murray; Ex parte Proctor [1949] HCA 10; (1948) 77 CLR 387 at 400.

364 I think s 128 does include a clearly expressed intention to impose limitations, being the three conditions stated in para (a)(i), para (a)(ii) and para (b). The condition stated in para (b) was clearly satisfied in this case; Mr Turcan was outside Australia.

365 An issue arises in relation to para (a)(i) and para (a)(ii). The relevant limitation in relation to those conditions is that the Minister is "satisfied" of a particular matter. Ms Faulkner, acting on behalf of the Minister, was apparently subjectively satisfied of both these matters. However, in being so satisfied she seems to have fallen into an error of law. I agree with the analysis of the position set out in para 7.7.6 of the departmental assessment.

366 A statutory formula requiring an official to be "satisfied" of something, before exercising a power adversely to the interests of a particular individual, means lawfully, or validly, satisfied: see R v Connell; Ex parte Hetton Bellbird Collieries Limited [1944] HCA 42; (1944) 69 CLR 407 at 432 per Latham CJ. Ms Falkner was not so satisfied. Accordingly, she was not "satisfied" within the meaning of s 128(a) of the Act.

367 Mr Hurley did not put any separate argument in relation to the second decision, to detain Mr Turcan pursuant to s 189(1). He assumed the validity of this decision directly depended upon the validity of the first decision. That is not strictly correct. The power to detain under s 189(1) may be enlivened by an officer reasonably suspecting that a person is an unlawful non-citizen. Reasonable suspicion is not necessarily negatived by the fact that, unbeknown to the suspecter, an earlier decision is legally invalid. However, if the first decision relating to Mr Turcan is quashed, he will no doubt promptly be released from detention: see s 191.

368 I would uphold Mr Turcan's appeal. I would set aside the orders made by Heerey J and, in lieu thereof, quash the delegate's decision to cancel Mr Turcan's visa. Prohibition should issue to restrain further action upon that decision.

(v) Wang

369 The remaining appeal is that of the Minister against the decision of Mansfield J in relation to Jian Zhong Wang.

370 This case also arises under Subdivision F of Division 3 of Part 2 of the Act. However, although there was a suggestion to the contrary from counsel for Mr Wang, Mr S Tilmont and Mr A Collett, it does not turn on s 128. I say that because it is clear that Mr Wang was overseas at the time of cancellation, and that the delegate of the Minister was satisfied, first, of the existence of a ground of cancellation under s 116(1)(d) of the Act and, second, that it was appropriate to cancel Mr Wang's visa under Subdivision F.

371 Mansfield J accepted that the visa was validly cancelled under s 128. However, he held that the Minister had failed to comply with the requirements as to notice of cancellation contained in s 129; in particular, by failing to give adequate particulars of the ground of cancellation: see s 129(1)(b). In his view, that failure invalidated the delegate's subsequent decision, under s 131 of the Act, not to revoke the cancellation. In paras 34 and 35 of his reasons Mansfield J said:

"In my judgment, the circumstance is not simply one where a procedural prescription imposed as part of the process of decision-making has not been complied with. It is one where the jurisdictional fact prescribed by the Act, and one which is also the essence of the material upon which the Minister is entitled and obliged to make a decision, has been shown not to exist. The purpose of the decision-making process under s 131 has been frustrated. ...

In view of my characterisation of the nature of the decision to be made under s 131, and my view that the existence of a response to a valid notice under s 129(1), or at least to a notice which is adequate to elicit a meaningful response to the reasons for the cancellation of the visa, is an essential pre-condition to a valid decision under s 131, I consider that it is not intended by the Act that s 474(1) should preclude the grant of appropriate relief under s 39B of the Judiciary Act in the present circumstances. The decision under challenge is really no decision at all, because the respondent was not empowered in the circumstances to form any satisfaction in terms of s 131(1)(a) or (b). He did not have before him to enliven that power, and to impose the obligation to exercise it, a response to a notice under s 129(1). The absence of such a response is not `a mere defect or irregularity which does not deprive [him] of the power' to make the decision: Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168 per Mason CJ at 180."

372 I agree. I would dismiss this appeal.

Conclusion

373 In Boakye-Danquah v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 438 I expressed the view, first, that the jurisdiction of this Court under s 39B of the Judiciary Act, in relation to privative clause decisions, is co-extensive with the jurisdiction of the High Court, under s 75(v) of the Constitution, in respect of those decisions; and, second, that this Court ought to apply decisions of the High Court like Craig and Yusuf in determining the reach of s 474.

374 Nothing that has been said in relation to the present appeals causes me to depart from the first of the above two views. However, argument on these appeals suggests to me that my second view may go too far. Although the matter will ultimately be one for the High Court to determine, it may give inadequate weight to the intended operation of the Hickman principle if this Court were to set aside decisions that merely demonstrate jurisdictional error such as a failure to address the correct question; as distinct from a case where there is a failure to comply with a condition precedent or limitation expressed (Turcan and Wang) or implied (NAAV) by a relevant statute.

375 In the result I would uphold the appeals of Mr Turcan and NAAV and make the consequential orders set out above. I would dismiss each of the other appeals. In each case, the successful party should have an order for payment of his costs by the unsuccessful party.

Postscript

376 I note two events that have occurred since the above reasons were drafted. First, Parliament has enacted the Migration Legislation Amendment (Procedural Fairness) Act 2002. I see no reason to believe this Act will be any more effective than the 2001 legislation in reducing the number of applications for judicial review of migration decisions. What other effect it may have must be left for other cases to resolve. As is common ground, the recent statute has no application to any of the present appeals.

377 Second, I have read in draft form the reasons for judgment of the other members of the Court. French J reaches conclusions similar to my own. He does so by application to each appeal of legal principles which he has explained. I respectfully concur with both his Honour's exposition of the relevant principles and his application of them to these appeals.

Associate:

Dated: 15 August 2002

FRENCH J:

Introduction [378]

The Issues on the Appeals [385]

Australia's Migration Statutes [386]

- A Brief History

Overview of the Migration Act [404]

Judicial Review of Decisions under

the Migration Act - Prior to the

1992 Amendments [408]

Judicial Review of Decisions under

the Migration Act - After the 1992

Amendments [413]

Judicial Review of Decisions under

the Migration Act - The Present Position [419]

Approach to Construction - The Relevant Rules [430]

Background to Construction - The Rule of Law [443]

Conditions Applicable to Statutory Powers

under the Migration Act [451]

Jurisdictional Error [461]

Theories of Judicial Review - Legislative

Intention or Judicial Imposition [477]

Privative Clauses and the Exercise of

Conditional Powers Generally [481]

The Hickman Principle [485]

The Jurisdiction of the Courts to Review

Decisions under the Migration Act [491]

The Construction of Section 474

- Application to Valid Decisions [510]

The Construction of Section 474

- Its Effect on Other Provisions of the Act [519]

Construction of Section 474

- Effect on Procedural Fairness [525]

Construction of Section 474

- General Conclusions [537]

Constitutional Validity of the Privative Clause [538]

The Five Appeals [547]

Conclusion [593]

Introduction

378 In September 2001, as part of a package of eight Acts, the Parliament of the Commonwealth enacted the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the "Judicial Review Act"). That amending Act, which came into effect on 2 October 2001, seeks to confine the grounds upon which persons affected by decisions made under the Migration Act 1958 (Cth) ("the Migration Act") may challenge them in the High Court, the Federal Court and the Federal Magistrates Court. By a new s 474 it provides that a range of decisions under the Act shall be final and conclusive and are not to be challenged, appealed against, reviewed, quashed or called into question in any Court. Nor can they be subject to the remedies of prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

379 A law in this form is known as a privative or ouster clause. If interpreted literally such a clause in a federal enactment would be unconstitutional. It would be unconstitutional because it would take away the jurisdiction which is conferred upon the High Court by the Constitution itself. And it would be unconstitutional because it would allow Commonwealth officials to exceed, without any judicial check, not just statutory limits but also constitutional limits on power.

380 Privative clauses, which date back to at least the fifteenth century, have historically been given a narrow construction by the English courts. A detailed history is given by Aronson in Statutory Restrictions of Remedies in England & Australian Administrative Law Unpublished Doctoral Thesis, UNSW Law Library, 1971. See also Chapter 18 of Aronson and Dyer, Judicial Review of Administrative Action, 2^nd Edition, Law Book Company, 2000 ("Aronson and Dyer"). In Australia the courts have been more accommodating of such provisions but have developed an approach which permits limited judicial review of administrative decisions despite the existence of a privative clause. That approach is linked to the concept of giving effect to conflicting parliamentary or legislative intentions.

381 A privative clause may introduce into an Act of Parliament an apparent internal contradiction between the limits that Parliament imposes on official power and its denial of judicial supervision of those limits. The High Court and Sir Owen Dixon in particular recognised in a number of cases in the 1940's that there was a need to try to reconcile that apparent contradiction where privative clauses were enacted. Dixon J expounded an approach to the interpretation of such clauses which would limit the grounds for judicial review but at the same time seek to give effect to the parliamentary intention that certain powers could not be exercised unless some fundamental conditions governing their exercise were met. Although not expressed as a consideration in the early cases, this also prevented restrictions on judicial review running so widely that they would be unconstitutional in their application to the High Court or otherwise by effectively authorising action beyond constitutional limits. The approach developed by Dixon J was recognised and accepted, in part, in the Second Reading Speech by the Minister for Immigration & Multicultural & Indigenous Affairs (the "Minister") which introduced the amending Act to the Parliament. It was interpreted by the Minister as a somewhat rigid rule of law. In truth, it is a guide to reconciling conflicting statutory provisions and must be applied according to the terms and other features of each Act. As the course of decisions in the High Court since the 1940s illustrates, judges have applied privative clauses in a variety of ways which depend on the Acts they have had to deal with.

382 In the case of the Migration Act, judges of the Federal Court have expressed divergent views about the extent to which the Court can review decisions under the Act after the amendments. The Court has therefore convened a special sitting of five of its members to consider five appeals which raise a number of aspects of the operation of the privative clause.

383 Before turning to the particular cases under appeal, the general history of the Migration Act and its provisions before and after the 2001 amendments are reviewed. Principles of interpretation relevant to this appeal are considered and, in particular, the approach to the interpretation of privative clauses in the High Court which is relied upon by the Minister. This consideration leads to some general conclusions about the operation of the amending Act and some particular conclusions about the appeals presently before the Court.

384 The general conclusions about the operation of the privative clause, s 474, are as follows:

1. Section 474 is to be construed and applied in accordance with the approach indicated by the High Court in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 ("Hickman") and the line of authority which developed and expounded that approach.

2. Section 474 applies only to valid decisions made under the Act.

3. Whether a decision is valid, and therefore protected by s 474, is to be determined by construing the provision under which it is made together with the Act as a whole including s 474 and in accordance with the Hickman approach.

4. A decision is not valid and therefore not protected by s 474 from judicial review where:

(i) the decision exceeds the constitutional limits upon legislative power imposed by the Commonwealth Constitution; or

(ii) the decision was not made in good faith; or

(iii) the decision was not reasonably capable of reference to the power under which it was made; or

(iv) the decision was not made by reference to the subject matter, scope and objects of the Act; or

(v) the decision was made in breach of an express statutory limit or condition upon a power which, as a matter of construction, notwithstanding s 474, must be observed for the effective exercise of the power; or

(vi) the decision was made in breach of a limit or condition on a power which, notwithstanding s 474, is implied from the statute or imposed by common law and must be observed for the effective exercise of the power; or

(vii) the decision was made in breach of the requirements of procedural fairness where the circumstances were such that, notwithstanding s 474, procedural fairness was a necessary condition for the valid making of the decision.

5. Jurisdiction to review decisions made under the Migration Act is vested in:

(i) the High Court under s 75 of the Constitution and s 30 of the Judiciary Act 1903 (Cth) ("Judiciary Act");

(ii) the Federal Court under s 39B and s 44 of the Judiciary Act and s 39 of the Federal Magistrates Act 1999 (Cth);

(iii) the Federal Magistrates Court under s 483A of the Migration Act and s 32AB of the Federal Court of Australia Act 1976 (Cth).

6. On the basis of the preceding conclusions s 474 is a valid exercise of the legislative power of the Commonwealth. Having regard to these general conclusions, the outcomes I would propose in respect of the five appeals before the Court are:

1. The first appeal, NAAV v Minister for Immigration & Multicultural Affairs, in which it was said the Refugee Review Tribunal treated the appellant unfairly, should be allowed, certiorari issued to quash the Tribunal's decision, an order in the nature of prohibition issued to the Minister to prohibit him from acting upon or giving effect to or proceeding further upon the Tribunal's decision, and mandamus issued requiring the Tribunal to determine the appellant's application for review of the Minister's decision refusing his application for a protection visa according to law.

2. The second appeal, NABE v Minister for Immigration & Multicultural Affairs, in which the Refugee Review Tribunal made an error of fact, should be dismissed.

3. The third appeal, Ratumaiwai v Minister for Immigration & Multicultural & Indigenous Affairs, in which the Migration Review Tribunal was said to have made an error of law and misconstrued the Migration Regulations 1994 ("Regulations"), should be dismissed.

4. The fourth appeal, Turcan v Minister for Immigration & Multicultural & Indigenous Affairs, in which the Minister's delegate failed to comply with a condition precedent to the power to cancel a visa, should be allowed, certiorari issued to quash the delegate's decision, and an order in the nature of prohibition issued to the Minister prohibiting him from acting upon or giving effect to or proceeding further upon the cancellation decision. There should be liberty to apply within seven days on the question of any continuing detention.

5. The fifth appeal, Minister for Immigration & Multicultural & Indigenous Affairs v Wang, in which the Minister's delegate failed to comply with a condition precedent to the exercise of a power not to revoke the cancellation of a visa, should be dismissed.

The Issues on the Appeals

385 The common issues in the appeals now before the Court concern the proper construction of the privative clause, s 474, introduced into the Migration Act by the Judicial Review Act, the scope of judicial review, if any, which is available on that proper construction and the extent, if any, to which the section properly construed, is outside the legislative power of the Commonwealth.

Australia's Migration Statutes - A Brief History

386 Section 51(xxvii) of the Constitution empowers the Parliament, subject to the Constitution, to make laws for the peace, order and good government of the Commonwealth with respect to "immigration and emigration". The Parliament is also empowered to make laws with respect to aliens under s 51(xix) and with respect to the influx of criminals under s 51(xxviii).

387 One of the first statutes enacted by the Commonwealth Parliament after federation was the Immigration Restriction Act 1901 (Cth). It was described in its long title as:

"An Act to place certain restrictions on Immigration and to provide for the removal from the Commonwealth of prohibited Immigrants."

388 It prohibited the immigration into the Commonwealth of "any person who when asked to do so by an officer fails to write out at dictation and sign in the presence of the officer a passage of fifty words in length in a European language directed by the officer" (s 3(a)). Persons accepted were, inter alia, those possessed of a Certificate of Exemption signed by the Minister or an officer (s 3(h)). The Act was of modest length by contemporary standards comprising in all some nineteen sections. It was subjected to various amendments in the years that followed its enactment but by 1935 still only comprised some nineteen sections, albeit it was to be read with the Pacific Island Labourers Act 1901 (Cth) and the Contract Immigrants Act 1905 (Cth). By 1950, it had undergone further amendments and expanded to sixty-four sections. The "dictation" test provision was still in force as was the system of entry under Certificate of Exemption. That system was the precursor of the entry permit and visa regimes which were successive features of later migration legislation.

389 The Migration Act 1958 repealed the Immigration Act 1901, The Pacific Island Labourers Acts of 1901 and 1906 and the Aliens Deportation Act 1948 (Cth). It was described briefly in its long title as:

"An Act relating to Immigration, Deportation and Emigration."

The Act established a completely new statutory scheme for migration. Entry into Australia was regulated by entry permits, the grant of which was within the power of officers of the Department of Immigration (s 6(2)). An immigrant entering Australia without an entry permit was a prohibited immigrant (s 6(1)). The Act provided for the issue of temporary entry permits (s 6(6)) and for their cancellation by the Minister "in his absolute discretion" (s 7(1)). It also provided for the deportation of aliens and immigrants under various conditions (ss 12, 22)). It created powers of examination, search and detention in relation to suspected prohibited immigrants and persons subject to deportation orders (ss 32-45). It set up a system for the registration of immigration agents (ss 46-53). Somewhat more complex than its immediate predecessor, the Act comprised some sixty-seven sections.

390 In 1985, the Human Rights Commission and the Administrative Review Council published reports on the operation of the Act - Human Rights Commission (1985) Report No 13: Human Rights and the Migration Act (Canberra AGPS); Administrative Review Council (1985) Report No 25: Review of Migration Decisions (Canberra AGPS). At the time merits review was provided by non-statutory Immigration Review Panels and the Determination of Refugee Status (DORS) Committee. Merits review was also available in some cases in the Administrative Appeals Tribunal. The Administrative Review Council Report recommended a new system of merits review involving immigration adjudications subject to review by the Administrative Appeals Tribunal. The Federal Government did not immediately adopt this recommendation but appointed a Committee to Advise on Australia's Immigration Policies (CAAIP) in 1987. That Committee reported in 1988 - Immigration A Commitment to Australia, 3 Vols, Canberra AGPS. It proposed a process of Internal Departmental Review at first instance subject in turn to review by the Administrative Appeals Tribunal.

391 Following these reports the Migration Legislation Amendment Act 1989 (Cth) was enacted. The amendments were comprehensive including new provisions for the control of entry into Australia involving entry permits and visas. A new Part III related to review of decisions. This Part created the Immigration Review Tribunal and provided for a process of internal review. The Federal Court was given jurisdiction to entertain appeals on questions of law from decisions of the Tribunal (new ss 64V and 64X). The general jurisdiction of the Court to review administrative decisions made under the Act, conferred by the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act, remained intact. They are referred to later in these reasons. 1990 saw the establishment of a Parliamentary Joint Standing Committee on Regulations which later became the Joint Standing Committee on Migration. In 1991, a Refugee Status Review Committee replaced the DORS Committee.

392 The next major amendment to the Act was effected by the Migration Reform Act 1992 (Cth) ("Migration Reform Act") which was passed in November 1992. It followed, inter alia, a report on the processing of refugees prepared by the Joint Standing Committee on Migration Regulations in August 1992 under the title, Australia's Refugee and Humanitarian System: Achieving a Balance between Refuge and Control (Canberra AGPS). The amending Act introduced an objects clause into the Migration Act and made the visa the single authority under which, for the most part, a non-citizen could be permitted to enter into or remain in Australia. It also established what was described in the Second Reading Speech as "... a uniform regime for detention and removal of persons illegally in Australia" (Parliamentary Debates, House of Representatives, 4 November 1992, p. 2621). The 1992 Act established a statutory mechanism for merits review of decisions relating to the grant of protection visas to persons claiming to be refugees. For this purpose it created the Refugee Review Tribunal. The provisions relating to the Tribunal commenced on 1 July 1993. The rest were to come into effect on 1 November 1993 but their operational date was deferred by subsequent amendment to 1 September 1994 - Migration Laws Amendment Act 1993 (Cth) (No 59 of 1993).

393 The provisions of the Migration Reform Act, which came into effect on 1 September 1994, included those which introduced the new Part 8 into the Migration Act. That Part provided for a confined judicial review of specified classes of decision under the Act on grounds set out in s 476. Reference is made later in these reasons to its provisions. The restrictions on judicial review were referred to in the Minister's Second Reading Speech. It was said that, under the review provisions:

"Credible independent merits review will ensure that the Government's clear intentions in relation to controlling entry to Australia, as set out in the Migration Act, are not eroded by narrow judicial interpretations."

- Australia, Parliamentary Debates, House of Representatives, 4 November 1992, p. 2621

And further:

"...the Government wishes to make the application of the legal concepts of migration decision making predictable. Judicial review rights for decisions on the grant or cancellation of a visa will be set out in the Migration Act. Judicial review will only be possible after the applicant has pursued all merits review rights or where merits review is not available. Grounds for review will include failure to follow the codified decision making procedures set out in the Act. As the codified procedures will allow an applicant a fair opportunity to present his or her claims, failure to observe the rules of natural justice and unreasonableness will not be grounds for review."

- Australia, Parliamentary Debates, House of Representatives, 4 November 1992, p. 2623

394 The Migration Legislation Amendment Act (No 1) 1998 (Cth), which came into effect in 1999, introduced procedures to be adopted by review tribunals requiring them to give notice to applicants of information that might be adverse to their applications for review. The primary provisions were ss 359A and 359B in relation to the Migration Review Tribunal and ss 424A and 425B in relation to the Refugee Review Tribunal. The Second Reading Speech for the Bill introducing these provisions described it as establishing "... a code of procedure for both the MRT and the RRT which is similar to that already applying to decisions made by the Department".

395 The most recent relevant changes to the Migration Act were made in 2001. They were effected by a package of some eight amending Acts being:

(a) The Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) (No 126 of 2001). This Act made new provision for the prosecution and sentencing of "people smuggling" offences and created new powers in relation to aspects of border control. It also recited the parliamentary intention that the statutory powers in the Migration Act do not prevent the exercise of any executive power of the Commonwealth to protect Australia's borders (s 7A).

(b) The Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) (No 127 of 2001) and The Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) (No 128 of 2001). These Acts excised certain offshore territories from the migration zone, being the zone within which a valid application for a visa may be made by a non-citizen.

(c) The Migration Legislation Amendment (No 5) Act 2001 (Cth) (No 130 of 2001), which authorised airline and shipping operators, travel agents and prescribed organisations to disclose "personal information" relating to travel into or out of the migration zone, to officers for any purpose likely to facilitate the administration and enforcement of the Act (s 488A).

(d) The Migration Legislation Amendment Act (No 6) 2001 (Cth) (No 131 of 2001), which made changes to the conditions of eligibility for a protection visa.

(e) The Migration Legislation Amendment Act (No 1) 2001 (Cth) (No 129 of 2001), which made amendments to Part 8 of the Act that commenced on 1 October 2001. This Act also introduced the new Part 8A which imposed a thirty five day time limit for applications to the High Court, restricted the courts' power to consolidate proceedings, proscribed representative, class and joint actions except in the case of family members, persons performing statutory functions, the Attorneys-General or other prescribed persons, and restricted the persons who could commence or continue proceedings that would raise an issue relating to visas, deportation or removal or in relation to the validity, interpretation of effect of the Act.

(f) The Judicial Review Act (No 134 of 2001), which repealed the Migration Legislation Amendment Act (No 1) 2001 in relation to its amendments to Part 8 of the Act and substituted a new Part 8. It also amended those sections in the new Part 8A which assumed the continued existence of the old Part 8. It reproduced in Part 8A, in relation to proceedings in the High Court, two of the provisions in Part 8 relating to Federal Court proceedings. The Act also made it a condition of eligibility for special category, protection and bridging visas that the Minister be satisfied that the applicant meets the statutory criteria for the visa.

(g) The Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001 (Cth) (No 157 of 2001), which amended the new Parts 8 and 8A to confer jurisdiction on the Federal Magistrates Court concurrent with that of the Federal Court (s 483A).

396 The Judicial Review Act commenced on 2 October 2001. It applies to all judicial review proceedings where the decision under review was made on or after the commencement date or where the decision was made before the commencement date but where no application for judicial review had been lodged at the time of commencement.

397 In the Second Reading Speech for the Judicial Review Bill, the Minister referred to the 1992 changes and observed that the government of the day had intended those changes to reduce Federal Court litigation and to provide greater certainty as to what was required from decision-makers, visa applicants and visa holders. However the volume of cases before the courts had not been reduced. Recourse to the Federal Court and the High Court was trending upwards despite access to independent merits review by the Migration Review Tribunal and the Refugee Review Tribunal. The Minister said:

"The high level of litigation, particularly by twice refused refugee claimants, cannot remain unchecked. Increased litigation leads to increased costs and delays, and for those in detention, to a longer period of detention."

- Australia, Parliamentary Debates, House of Representatives, 26 September 2001, p.31560

The Minister observed that litigation in the migration area could be an end in itself, delay in the final determination being seen as beneficial by those pursuing court action. He referred to s 75 of the Constitution and the inability to restrict access to the High Court legislatively. While access to the Federal Court and the scope of its judicial review jurisdiction could be changed by legislation, this would in practice deflect many cases to the High Court. This, it may be interpolated, was certainly the effect of the 1992 amendments. The Minister then referred to counsel's advice that a privative clause would have the effect of narrowing the scope of judicial review by the High Court and by the Federal Court. The privative clause in the Bill was based upon a very similar clause considered in the case of Hickman. The Minister observed that the High Court had not, despite opportunity to do so, repudiated the approach to the construction of such provisions which he called the "Hickman principle as formulated by Justice Dixon in Hickman's case". The Minister said:

"Members may be aware that the effect of a privative clause such as that used in Hickman's case is to expand the legal validity of the acts done and the decisions made by decision-makers. The result is to give decision-makers wider lawful operation for their decisions, and this means that the grounds on which those decisions can be challenged in the Federal and High Courts are narrower than currently.

In practice, the decision is lawful provided:

. the decision-maker is acting in good faith;

. the decision is reasonably capable of reference to the power given to the decision maker - that is, the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs, or had been properly appointed as a tribunal member;

. the decision relates to the subject matter of the legislation - it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions; and

. constitutional limits are not exceeded - given the clear constitutional basis for visa decision making in the Migration Act, this is highly unlikely to arise.

The options available to the government were very much shaped by the Constitution. While the government accepts that the precise limits of privative clauses may need examination by the High Court, there is no other practical option open to the government to achieve its policy objective."

- Australia, Parliamentary Debates, House of Representatives, 26 September 2001, p.31561

The Minister observed that the proposed Bill would provide the same grounds of review in both the Federal Court and the High Court so that there would be no advantage in invoking the original jurisdiction of the High Court. He then said:

"Although the measures in this bill will limit judicial review, many applicants who consider that they have received a decision from the department which is wrong will of course still have access to independent merits review by the Migration Review Tribunal and the Refugee Review Tribunal. It is the government's intention that all bona fide applicants meeting the criteria for the grant of a particular visa be granted that visa - and that is particularly so in the case of those seeking protection visas. The independent merits review tribunals act as a safeguard in that respect."

- Australia, Parliamentary Debates, House of Representatives, 26 September 2001, p.31561

398 The Revised Explanatory Memorandum for the Bill described the "intention" of the privative clause, s 474, in par 16 thus:

"The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful."

399 The most recent changes to the Migration Act are the latest in a long series of over 100 amending Acts since it was enacted in 1958. The Act now comprises in excess of 740 sections. Its operation is supported by hundreds of regulations set out in two volumes. Significantly for present purposes, it is a statute replete with official powers and discretions, tightly controlled under the Act itself and under the Regulations by conditions and criteria to be satisfied before those powers and discretions can be exercised.

400 Since the hearing of these appeals the Parliament has enacted the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) which provides that existing fair procedure provisions constitute a code of fair procedures and exclude the application of the rules of procedural fairness applicable at common law. It does this by inserting in various subdivisions of the Act, which specify procedures relating to the exercise of powers, a common form section exemplified by the new s 51A which is inserted in subdivision AB of Division 3 of Part 2 of the Act dealing with the grant of visas for non-citizens. The new s 51A provides:

"(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with."

Sections 494A to 494D provide for the sending of documents by the Minister to persons specifying the methods by which such documents can be sent and when a person is taken to have received a document from the Minister. Among the parts of the Act which attract the inclusion of a section in the terms cited above are Division 5 of Part 5 and Division 4 of Part 7 which have to do with the conduct of reviews by the Migration Review Tribunal and the Refugee Review Tribunal.

401 The amendments apply to applications and cancellation decisions where notice is given after their commencement. In relation to the Migration Review Tribunal and the Refugee Review Tribunal they apply to any application for review made after the commencement.

402 The relationship of the amendments to s 474 of the Migration Act is also specified in the amending Act thus:

"The amendments made by items 1 to 6 are not to be taken to limit the scope of operation of section 474 of the Migration Act 1958 in relation to anything done, or omitted to be done, in relation to any matter dealt with in any provision that is taken to be an exhaustive statement of the requirements of the natural justice hearing rule by a section of that Act that is inserted by one of those items."

403 The purpose of the new provisions was set out in the Explanatory Memorandum thus:

"4. The purpose of this Bill is to provide a clear legislative statement that the "codes of procedure" identified in the Bill are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The amendments in the Bill apply to the "codes of procedure" in the Act relating to:

. visa applications;

. visa cancellations under sections 109, 116 or 128 of the Act;

. the revocation of certain visa cancellations; and

. the review of decisions by the Migration Review Tribunal... and the Refugee Review Tribunal."

Overview of the Migration Act

404 The long title of the Migration Act describes it as:

"An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons."

405 The object of the Act is set out in s 4:

"(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

(3) To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act."

406 The Act is divided into nine Parts:

(a) Part 1 - Preliminary (ss 1 to 12)

This Part includes the object of the Act (s 4), definitional provisions (s 5) as well as important provisions for the application of the Act (ss 6, 7, 8, 9), the intended effect of the conferral of powers by the Act (ss 3A, 7A), and the incorporation of general principles of criminal responsibility (s 4A). Section 3A requires that the Act be read so as not to exceed Commonwealth power. It does this by providing for the severance of valid from invalid applications of each of the provisions of the Act. Section 3A is to be read together with s 15A of the Acts Interpretation Act 1901 (Cth).

Part 1 also contains provisions relevant to the exercise of powers under the Act. For example, ss 5(3) and (4) ensure that powers conferred on authorised officers under the Act may also be exercised by the Minister.

(b) Part 2 - Control of Arrival and Presence of Non-citizens.

This Part comprises twenty Divisions. They deal with a variety of subjects including powers to obtain information and documents about non-citizens, visas for non-citizens, immigration detention, removal of unlawful non-citizens from Australia, deportation, powers of examination, search and detention, offences, forfeiture of things used in offences, and monitoring compliance with student visas

(c) Part 3 - Migration Agents and Immigration Assistance.

This Part, which ceases to be in force on 21 March 2003, comprises nine Divisions dealing with the registration of migration agents, the Migration Agents' Registration Authority and general restrictions on the giving of immigration assistance other than by registered migration agents.

(d) Part 4 - Offences relating to decisions under Act.

This Part comprises ss 334, 335 and 336 and deals with false and misleading statements about the effect a person may have on decisions under the Act, and taking of bribes.

(e) Part 5 - Review of Decisions.

This Part comprises ten Divisions which identify decisions reviewable by the Migration Review Tribunal, provides for their review by the Tribunal, how it is to conduct such reviews, the exercise of its powers, its decisions, the giving and receiving of review documents and the referral of decisions to the Administrative Appeals Tribunal.

(f) Part 6 - Migration Review Tribunal.

This comprises two Divisions establishing the Tribunal and providing for registries and officers.

(g) Part 7 - Review of Protection Visa Decisions.

This Part comprises eleven Divisions. It provides for the establishment and membership of the Refugee Review Tribunal for review of decisions by that Tribunal. It also deals with the exercise of the Tribunal's powers, the conduct of reviews by it, its decisions, the giving and receiving of review documents and the referral of decisions to the Administrative Appeals Tribunal.

(h) Part 8 - Judicial Review.

This Part comprises two Divisions, the first of which is the privative clause section, 474. The second contains provisions relating to privative clause decisions and the jurisdiction of the Court - it is referred to in more detail below.

(i) Part 8A - Restrictions on Court Proceedings.

This Part, introduced by the Migration Legislation Amendment Act (No 1) 2001 and amended by the Migration Legislation Amendment (Judicial Review) Act 2001 was discussed in the preceding section.

(j) Part 9 - Miscellaneous.

This Part regulates dealings with movement records and information (ss 488, 488A, 489), the methods by which documents may be given or received under the Act (ss 494A, 494B, 494C, 494D), the approval of forms (s 495) and making of regulations (ss 504, 505, 506, 507), the use by the Minister of computer programs (s 495A, 495B) or delegates (ss 496, 497) to make decisions, and the giving by the Minister of directions to persons or bodies having functions or powers under the Act (s 499). The Part also deals with the commencement and proof of issues in prosecutions for offences against the Act (ss 492, 493), and the `locality' jurisdiction of State and Territory courts in relation to offences (s 494), and places a bar on legal proceedings relating to offshore entry persons (s 494AA).

Part 9 also confers power on the Minister to refuse or cancel temporary safe haven visas (s 500A), and to refuse or cancel visas on character grounds (s 501, 501A, 501B, 501C). AAT review of decisions to cancel or refuse on character grounds is provided for (s 500), as is the protection of information, provided in confidence to authorised migration officers or gazetted agencies, that is relevant to the exercise of the power (s 503A). The Part also empowers the Minister to declare a person to be an excluded person (s 502), and for the consequences that flow from the refusal or cancellation of a visa on character grounds (ss 501E, 501F).

The Part also provides that powers under the Act shall be exercised in accordance with the Regulations (s 498(1)), and any directions given by the Minister (ss 496(1A) and 499).

407 The range of powers conferred by the Act is substantial. They include powers to require the production of documents and information, to take persons into custody who are not charged with any criminal offence, to grant and cancel visas, to seize property, to disclose personal information provided in confidence, to enter the premises of education providers and require cooperation with searches and to deport or remove people from Australia. Many of the powers it confers are serious in their impact upon individuals, both citizens and non-citizens, and at times complex in their drafting. As will be seen later in these reasons, the part played in the Act by the privative clause is not to be resolved by assuming its uniform application across all the power creating and limiting provisions. The operation of the clause has to be considered in each case by reference to the particular sections or regulations in issue and in a statutory context which includes the whole array of powers and their constraints.

Judicial Review of Decisions under the Migration Act - Prior to the 1992 Amendments

408 Prior to 1 September 1994, judicial review of decisions made under the Migration Act was available in the High Court under s 75 of the Constitution and in the Federal Court under the ADJR Act and s 39B of the Judiciary Act as well as cases remitted from the High Court under s 44 of the Judiciary Act.

409 In 1977, the Parliament conferred on the Federal Court, by s 8 of the Administrative Decisions (Judicial Review) Act, jurisdiction to hear and det