Moulana & Anor v Minister for Immigration [2002] FMCA 219 (27 September 2002)

Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOULANA & ANOR v MINISTER FOR IMMIGRATION

[2002] FMCA 219

MIGRATION - Application for review of decision of the Migration Review Tribunal - special need relative - jurisdictional error - privative clause decision - application dismissed.

Migration Regulations 1994

Judiciary Act 1903

Migration Act 1958

Migration Legislation Amendment (Judicial Review Act) 2001

NAAA v MIMIA [2002] FCA 362

Re MIMA; ex parte Cohen (2001) 177 ALR 437

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228

Wu v MIMA [2000] FCA 1817; (2000) 105 FCR 39

Craig v South Australia [1995] HCA 58; (1995) 131 ALR 595

MIMA v Yusuf [2001] HCA 30; (2001) 180 ALR 1

Boakye-Danquah v MIMIA [2002] FCA 438

Wang v MIMIA [2002] FCA 167

NAAG v MIMIA [2002] FCA 713

R v Hickman; ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598

Zahid v MIMIA [2002] FCA 1108

Huang v MIEA (1996) 71 FCR 95

SBBK v MIMIA [2002] FCA 565

Applicants:

SEYED HABULLA MOULANA and SEYED ZAIN MOULANA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ330 of 2002

Delivered on:

27 September 2002

Delivered at:

Sydney

Hearing Date:

18 July 2002

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Mr C. Colborne

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs to be assessed by the court pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SZ339 of 2002

SEYED HABULLA MOULANA & SEYED ZAIN MOULANA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The proceedings

1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) made on 7 March 2002 affirming a decision of the respondent (the Minister for Immigration and Multicultural and Indigenous Affairs) to refuse to grant the applicant a Change in Circumstances (Residence) (Class AG) visa.

2. The applicant applied for a Class AG visa on 30 July 1998. The only subclass of the visa class relied upon was subclass 806. The basis for the application was that the applicant claimed to be a "special need relative" of his sister (the nominator). After the application was made and before it was finally determined the provisions of the Migration Regulations 1994 relating to special need relatives and subclass 806 were repealed (see SR 306 of 1998 and SR 259 of 1959) but they continue to apply to applications for the visa which were made before the date of repeal (re MIMA; ex parte Cohen (2001) 177 ALR 437 per McHugh J at 23-29).

3. The applicant claimed to be a special need relative of the nominator, his sister Sanya Zahir Sayed. A delegate of the respondent made a decision to refuse to grant the visa on 2 August 2001. The applicant sought review by the Migration Review Tribunal (the tribunal). The tribunal affirmed the decision of the delegate on 7 March 2002.

4. On 5 April 2002 the applicant filed an application for review in the Sydney Registry of the Federal Court seeking orders under section 39B of the Judiciary Act 1903 (Cth). The grounds of the application were that the tribunal erred in law amounting to jurisdictional error in two respects: first in determining that the nominator did not have a disability, prolonged illness or other serious circumstances requiring a permanent or long term need for assistance that would bring the visa applicant within the definition of special need relative, and second in finding that the nominator's husband's epilepsy did not cause the nominator to have a need for substantial and continuing assistance from the nominator. In an affidavit sworn on 4 April 2002 the applicant stated that he sought relief on the grounds that the tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction in arriving at its decision. On 15 May 2002 Lindgren J transferred the matter to the Federal Magistrates Court.

5. At the hearing counsel for the respondent submitted that the second respondent (the Migration Review Tribunal) should be removed from the proceedings consistent with the approach taken by Sackville J in NAAA v MIMIA [2002] FCA 362. I note s479 of the Migration Act 1958 (Cth) does not include the tribunal as a party to a review of a privative clause decision. The applicant consented to the removal of the Migration Review Tribunal as a party. Accordingly (while I note that under Rule 11.01(4) of the Federal Magistrates Court Rules 2001 the Court may decide a proceeding even if a person is incorrectly included as a party), pursuant to Federal Court Rules order 6 Rule 9(a) (which is applicable by virtue of order 1.05(2) of the Federal Magistrates Court Rules) it is appropriate to order that the Tribunal cease to be a party to the proceedings. As in NAAA the removal of the Tribunal as a party has no practical significance for the proceedings.

Background

6. In his visa application the applicant claimed that his sister (the nominator) and her then seven year old son had emotional, psychological and physical needs for which he provided emotional, psychological and physical assistance and that he was a special need relative of his sister.

7. At the time of application "special need relative" was defined in regulation 1.03 of the Migration Regulations 1994 as follows:

Special need relative in relation to ... an Australian permanent resident usually resident in Australia ..., means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:

(a) the ... resident has a permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the 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 ... resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

(ii) welfare, hospital, nursing or community services in Australia.

8. Relevantly, clause 806.213 of Schedule 2 of the Migration Regulations required that the applicant be a "special need relative" of another person ("the nominator") at the time of application for the visa in question (30 July 1998). Further, because he had previously been refused a substantive visa (a protection visa for which he had applied on 11 March 1996), clause 806.211 required that he had become a "special need relative" since last applying for the substantive visa (ie. since 11 March 1996).

9. The Tribunal found that the nominator did not have a "permanent or long term need for assistance because of death, disability, prolonged illness or other serious circumstances "at any time after 11 March 1996 or at the time of application".

10. By the time of the tribunal hearing the nominator's son had no current health problems and his health had "ceased to be an issue" according to the tribunal. The nominator's husband's epilepsy was found to be a prolonged illness at the time of application but the Tribunal was not satisfied that it caused the nominator to have a need for substantial and continuing assistance at the time of application.

11. As to the nominator's situation, the Tribunal referred to a number of reports. A report from Monash Doctors Surgery dated 24 July 1998 stated that the nominator had given birth in June 1998 and had suffered from anxiety and atypical chest pains recently. A report dated 29 July 1998 from a psychologist, Irvin de Jong, stated that the nominator had the symptoms of general anxiety disorder although a formal diagnosis of the disorder could not be made as the symptoms had not been present for a period of six months. He suggested that "the possible development of a generalised anxiety disorder is almost assured" (sic). He also stated that the nominator was presenting with mild depression which he was confident would escalate. A report from a medical practitioner at Clayton Medical Centre dated 13 September 2001 indicated that the nominator had stated that she had had migraines and stated that she needed her brother's assistance. A psychological review prepared for the purposes of the application by a different psychologist, Mr Edwin Kleynhans, concluded that at the time of assessment (23 January 2002) the nominator's depression was at a serious level and had become an ongoing illness. Mr Kleynhans stated that the nominator was suffering from generalised anxiety disorder.

12. The Tribunal found that there was no evidence to support a finding that the nominator's depression and anxiety as described in the report of

Mr de Jong amounted to a "prolonged illness" at the time of application. It also found that the nominator did not have a need for substantial and continuing assistance because of her husband's epilepsy and that her emotional needs did not amount to other serious circumstances within the definition of special need relative.

Applicant's contentions

13. The grounds for review detailed in the application for review were that the Tribunal erred in law amounting to a jurisdictional error, first in determining that the nominator did not have a disability, prolonged illness or other serious circumstances requiring a permanent or long-term need for assistance that would bring him within the definition of a special need relative and secondly in finding that the nominator's husband's epilepsy did not cause the nominator to have a need for substantial and continuing assistance for the applicant. Written and oral submissions from counsel for the applicant elaborated on these submissions. The submissions were prepared and the hearing conducted before the decision of the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228.

14. In particular, the applicant argued that the Tribunal asked itself the wrong question in relation to the issue of whether the nominator's depression and anxiety were a "prolonged illness" at the time of application in failing to mention that the conditions had persisted until the hearing or the opinions of the psychologists that the conditions were long-term illnesses. It was suggested that the Tribunal should have asked itself whether the depression and anxiety at the time of application were likely to continue for years (that being "long-term") in accordance with the decision of the Full Court of the Federal Court in Wu v MIMA [2000] FCA 1817; (2000) 105 FCR 39. Further it should have considered how the nominator would cope without the applicant's assistance and not simply how she coped when she had his assistance. In accordance with Wu's case it was said that the Tribunal had to ask itself whether the nominator required assistance of the same sort that would be required if she was suffering from a disability or prolonged illness. It was submitted that in asking the wrong questions and ignoring relevant considerations the Tribunal made jurisdictional errors in the sense referred to in Craig v South Australia [1995] HCA 58; (1995) 131 ALR 595 as approved by the High Court in MIMA v Yusuf [2001] HCA 30; (2001) 180 ALR 1 at [82].

15. It was further suggested that the Tribunal made its decision in the absence of the jurisdictional fact which enlightened its power to make that decision, as its satisfaction under section 65 of the Migration Act 1958 that the applicant was not entitled to the visa was based on its findings that the nominator did not have a prolonged illness and that there were no other serious circumstances. It was submitted that those findings and thus the consequential satisfaction were not formed by a correct application of the applicable law.

16. The applicant submitted that the privative clause did not validate decisions which involved jurisdictional error of the nature which he alleged. He suggested that section 65, which requires a decision maker to achieve satisfaction upon certain elements before making a decision to grant or to refuse a visa, was dependent on a properly formed "reasonable satisfaction" and that sections 65 and 348, 359 and 360 (which require the Tribunal to conduct a review and in doing so to have regard to all the material before it) were inviolable limitations or restraints and that compliance with them was essential to valid action. In support of these arguments a number of single judge decisions of the Federal Court were cited (in particular Boakye-Danquah v MIMIA [2002] FCA 438 and Wang v MIMIA [2002] FCA 167).

Respondent's contentions

17. The respondent contended that the tribunal decision essentially turned on its assessment of whether the nominator had a permanent or long-term need for assistance because of prolonged illness or other serious circumstances at the time of application; that this was a factual matter involving no issue of law, that the tribunal had had regard to relevant authority and that there was no legal error in its decision. It was further argued that after the introduction of the privative clause there was no scope for the argument that any limitations in the Act were inviolable.

18. It was submitted that there was evidence before the Tribunal of some mild depression on the part of the nominator at the time of application. That was the evidence the Tribunal had regard to when considering whether the nominator had a prolonged illness at the time of application. The fact that there was also evidence from a separate psychologist dealing with what appeared to be more serious depression at the time of decision was irrelevant unless that report had specifically said something about the nominator's circumstances at the time of application other than noting the prior report. In other words it was submitted that the subsequent evidence was not relevant to the issue of whether there was a prolonged illness at the time of application as the criterion does not include situations that do not exist at the time of application but are suggested might exist in the future. (Wu v MIMIA [2000] FCA 1817; (2000) 105 FCR 39 at [62]). It was also submitted that the Tribunal had correctly asked the question whether at the time of application the nominator suffered from a prolonged illness. It found that she did not. This was said to be a purely factual assessment for the member who was not bound to accept the first psychologist's opinion that the current depression would escalate in the future. It was submitted that the findings of the Tribunal that the nominator's condition did not amount to a prolonged illness and that the circumstances of her family did not amount to other serious circumstances) were findings of fact and not a matter of law. The expression `prolonged illness' was said to be used in its ordinary non-technical sense and the meaning of such a non-technical expression is a question of fact, not a question of law and hence not there was no jurisdictional error (McHugh J in Re MIMA; ex parte Cohen (2001) 177 ALR 473).

19. It was also submitted that the test from Wu was not misstated by the Tribunal in indicating that "serious circumstances" involve something having a substantial and negative effect on a person affecting his or her capacity to look after his or herself or to look after someone else.

20. Hence it was argued that no jurisdictional error had been established but that in any event the decision would be protected by the privative clause. Particular reference was made to the decision of Allsop J in NAAG v MIMIA [2002] FCA 713 which rejected an argument based on section 65 of the Migration Act as put by the applicant in this case.

Application of the law

21. It was common ground that the Tribunal's decision is a privative clause decision within the meaning of section 474(2) of the Migration Act and is thus subject to the limitations on judicial review prescribed by section 474(1) which were introduced by the Migration Legislation Amendment (Judicial Review Act) 2001 as applicable to all applications made to the Court on and from 2 October 2001.

22. After the hearing in this matter the Full Court of the Federal Court handed down its decisions in NAAV v MIMIA [2002] FCAFC 228. Each member of the Court delivered a separate judgment in relation to each appeal. All agreed that s.474(1) is constitutionally valid and that the amendments have removed what would otherwise be errors in the making of some migration decisions from the scope of judicial review by validating decisions that might otherwise have been invalid.

23. There was broad agreement that s.474(1) is not to be read literally but is to be construed in the same manner as the kind of privative clause considered in R v Hickman; ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598. In that case Dixon J observed at 615:

"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."

24. There was also broad agreement in NAAV that the purported exercise of power by the decision-maker must not be one that contravenes what is variously described as an `inviolable limitation or restraint' (Black CJ at [12]), a `final limitation upon the powers, duties and functions of the decision-maker' (von Doussa J at [619]) or a `structural' element in the operation of the Act (Black CJ at [37]). As a matter of construction, the broad statement of legislative intention expressed in a privative clause may be displaced by a provision which makes clear Parliament's intention that the observance of some procedure or the proper consideration of some issue is to be a precondition for a valid decision. As outlined by Sackville J in Zahid v MIMIA [2002] FCA 1108, there is a difference between the approach taken by the majority (Black CJ, Beaumont and von Doussa JJ) and that of the minority (French and Wilcox JJ) in relation to the correct approach to such final or inviolable limitations on the decision-maker's powers.

25. There are two aspects of these decisions of particular relevance. The first relates to the applicant's argument based on the principles enunciated by the High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 and MIMA v Yusuf [2001] HCA 30; (2001) 180 ALR 1 that a decision-maker will fall into jurisdictional error if it identifies a wrong issue, asks itself the wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion.

26. The applicant complained of two such errors. I am not satisfied that the tribunal made a jurisdictional error in the sense complained of in its consideration of `prolonged illness'. It asked itself whether at the time of the application the nominator suffered from a prolonged illness. This was a finding on a question of fact based on the meaning of words in the legislation (Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at [36]-[37] per McHugh J). The finding was open to the tribunal on the material before it and the tribunal is not shown to have erred in law in making it. The tribunal was not bound to accept the opinion of Mr de Jong that the `possible development of a generalised anxiety disorder is almost assured' and his opinion that the nominator's then mild depression would escalate does not establish a prolonged illness at the time of application. While consideration of the future arises in such an inquiry because of the reference to `permanent or long term need' in the definition of special need relative, the definition `proceeds on the basis that there is an existing need and that the need will endure' (Wu v Minister for Immigration and Multicultural Affairs [2000] FCA 1817; (2000) 182 ALR 548 at [17]). The evidence from Mr Kleynhans is not determinative of the issue of whether there was a prolonged illness at the time of application. The fact that an illness may be established at a later time does not mean that there was a prolonged illness at the time of application as the criterion does not include situations that do not exist at the time of application but which it is suggested might exist in the future (Wu at [62]).

27. It was also argued that the tribunal applied the wrong test and hence asked the wrong question in relation to whether the emotional needs of the nominator alone or together with the medical conditions of the nominator, her husband and eldest son constituted `other serious circumstances' at the time of application. It was claimed that the tribunal set out the correct test from Wu from paragraph [41] but then merely asked whether the circumstances involved something having a substantial and negative effect on the capacity of the nominator to look after herself or her family. It is said that in doing so it applied what had been said in Wu at [40] by way of a comment on a common element of circumstances identified by Counsel for the Minister.

28. It is helpful to set out in full paragraphs [40]-[41] of the judgment of the Full Court of the Federal Court in Wu:

40. The parties were asked to identify circumstances that might create the need for permanent or long term assistance that were not comprehended by the notions of "disability" or "prolonged illness". Counsel for the Minister identified four such circumstances namely depression which did not fall within any medical or clinical definition of that term (see Jun v Minister for Immigration & Multicultural Affairs [2000] F CA 867 at par 28), imprisonment (though accepting that this would probably have to be imprisonment of the member of the family unit), financial ruin or drug addiction. Even accepting, for present purposes, that none of these circumstances is either a "disability" (but see Marsden v HREOC & Coffs Harbour & District Ex-Servicemen & Women's Memorial Club Ltd [2000] FCA 1619) or a "prolonged illness", each exemplifies the disparate circumstances in which the need for long-term assistance might arise. Each is "serious" in the sense that it involves something having a substantial and negative effect on the person affecting their capacity to look after himself or herself or to look after another person. Another feature common to each is that they involve something which was out of the ordinary and perhaps could be said to be unexpected. (emphasis added)

41. However there is nothing about the expression "other serious circumstances" nor its immediate statutory context which suggests that a necessary feature of the circumstances is that they be out of the ordinary or unexpected. In our opinion the word "serious" is simply intended to reinforce the nature of the assistance that is central to the definition, namely assistance which is substantial and continuing in relation to a need for assistance which is permanent or long-term. That is, the circumstance is sufficiently serious that, in relation to a citizen, it would require assistance of the same sort that would be required if the citizen was suffering from a disability or prolonged illness. In our opinion, if a citizen or a member of the citizen's family unit is in circumstances which create a need for substantial and continuing assistance of the citizen and the circumstances do not arise because of the death of a member of the family unit or the disability or prolonged illness of either the citizen or the member of the family unit then those circumstances are intended to be comprehended by the expression "other serious circumstances".

29. It is relevant to note that in Wu the Full Court was considering the issue of whether the expression `other serious circumstances' comprehends the circumstances of a baby or child. It had been suggested by an earlier Full Court decision (Huang v MIEA (1996) 71 FCR 95) that 'other serious circumstances' refers to circumstances `similar to' death, disability and prolonged illness and not to the mere fact that a citizen or resident was of tender years. The court in Wu found that this suggestion did not form part of the ratio in Huang and proceeded to determine that `other serious circumstances' in the definition of special need relative could comprehend a situation where the citizen was a young child in need of substantial and continuing assistance from a relative and the need was a long-term one. It is notable that at [38] the Court stated that the definition of special need relative `..is intended to identify, as a criterion or an element of a criterion, a class of person who might remain in Australia to tend to the needs of a citizen who is unable to care for himself or herself for a lengthy period' (emphasis added) and that it was not clear that a child of tender years was intended to be excluded from the group whom are unable to care for themselves. It then analysed each of the elements of the definition indicating that the need for assistance must arise because the citizen (or a member of his or her family unit) is affected in one of four ways, the fourth of which is `other serious circumstances'.

30. At [41], as set above, the Court in Wu rejected the argument that the effect of the word `serious' was to restrict `other serious circumstances' to those that were out of the ordinary or unexpected. It was not necessary that the circumstances be `similar to' death, disability or prolonged illness (as had been suggested in Huang). Rather the question was whether the circumstance was sufficiently serious that it would require assistance of the same sort as would be required if the citizen were suffering from a disability or prolonged illness.. In other words the focus was on the nature of the assistance central to the definition. Thus childhood could be comprehended by the expression `other serious circumstances'.

31. This context makes it clear that at [40] the Court is doing more than merely commenting on the submissions of Counsel for the Minister. Rather it is indicating that the sense in which the word `serious' is used in the definition of special need relative is that the circumstance `involves something having a substantial and negative effect on the person affecting their capacity to look after himself or herself or to look after another person'. This was the test applied by the tribunal. Its conclusion was a finding of fact and was open on the material before it. It has not been established that the tribunal has erred in law in its consideration of the expression `other serious circumstances'.

32. Furthermore, even if the tribunal did err in law in construing the phrase, it is an error that the tribunal now has jurisdiction to make. As was said by Black CJ in NAAV at [30]:

I agree that the enactment of section 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 pre-condition to power to grant and cancel visas under the Act does not result in every case in the decision being invalid. I accept that section 474(1) may be taken to provide the "contrary intention", 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 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.

33. Also see to the same effect von Doussa J at [636] - [639] and Beaumont J at [277]. One of the cases before the Full Court (Ratumaiwai v MIMIA) involved an argument, as in this case, that the Migration Review Tribunal had erred in law in construing the phrase "special need relative". Black CJ concluded (at [36]) that even if the 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) operates to enlarge the Tribunal's jurisdiction in this respect. Also see Beaumont J at [188] and von Doussa J at [651] concluding that if there were an error of law s.474(1) would save the decision from invalidity.

34. In the light of these views of the majority in NAAV it is now clear that a decision which involves a jurisdictional error in the Craig sense is now validated by section 474(1).

35. The applicant's alternative argument was that the tribunal made its decision in the absence of the jurisdictional fact which enlivened its power to make that decision because its state of satisfaction under section 65 (which was said to be an inviolable provision) was not arrived at in accordance with the requirements of the Act. Tamberlin J considered such an argument in relation to a decision of the Refugee Review Tribunal in SBBK v MIMIA [2002] FCA 565. His Honour there took the view that consideration of the matters set out in section 65(1)(a)(i)-(iv) was an essential precondition to the performance by the Minister of the duty under section 65 and that a failure to consider such matters was not protected from review by virtue of the privative clause. However this approach was disapproved by Von Doussa J in NAAV. Beaumont J agreed entirely with the reasons of von Doussa J. who said the following about SBBK at [639]:

"I share the difficulty expressed by Allsop J in NAAG of 2002 at [59]-[60] about Tamberlin Js conclusion that an error of law in failing to identify the right question to be addressed in the applicant's claim constitutes a failure to comply with a condition that is essential to the exercise of jurisdiction of the RRT. In my opinion the jurisdiction of the RRT was attracted by a valid application to the RRT made under section 414 to review an RRT reviewable decision. Once that jurisdiction was enlivened, the manner of exercise of the authority and powers of the RRT came within the expanded area of authority and powers brought about by section 474(1) that the consequence that the decision of the RRT was lawfully made. This consequence arises even if in the absence of section 474(1) the decision would have been infected with the jurisdictional error of the Craig type because the wrong question had been asked."

36. Section 348 is the equivalent of section 414 in relation to the MRT. As was said by Sackville J in Zahid at [80]:

80 "It seems to be clear, on von Doussa J's reasoning, section 474(1) of the Migration Act protects a decision of the MRT against invalidity where the decision maker has failed to identify the right question to be addressed in dealing with the applicant's claim. So much appears from his Honour's analysis of SBBK v Minister. It also follows from his observation, quoted earlier (see [52] above), in relation to Ratumaiwai, that even if the MRT had misinterpreted the definition of "special need relative" and as a result failed to consider financial and emotional assistance",

s 474(1) would have saved the decision from invalidity. There is nothing in von Doussa J's reasoning to suggest (as did Mr Leeming in his submissions) that a distinction should be drawn between a failure to advert to the correct question, on the one hand, and a failure to ask the correct question because of an error of law, on the other. On the contrary, von Doussa J's reasoning proceeds on the basis that there are few jurisdictional factors that must be satisfied before s 474(1) takes effect (assuming the Hickman provisos are satisfied). It would not be consistent with the paramountcy that von Doussa J attributes to

s 474(1) to hold that the MRT's failure to address the correct question in this case deprived the decision of the "validating effect" of s 474(1).

37. I also agree with Sackville J that the reasoning of Black CJ does not leave it open to conclude that s 474(1) does not "validate" a decision where the MRT has failed to turn its mind to the correct question. As he said:

82 In my view, Black CJ's judgment cannot be read this way. It is true that his Honour reached a different conclusion in Turcan and Wang from that reached by Beaumont and von Doussa JJ. But the difference does not turn on any different view as to whether s 474 (1) of the Migration Act protects a decision maker from a failure to ask the correct question. In Turcan, Black CJ held that the delegate had erred on a particular legal question that his Honour regarded as "structural", in the sense that the question was central to the existence of the power to cancel a visa. In Wang, Black CJ held that, as a matter of construction,

s 129 of the Migration Act imposed a fundamental requirement that had to be satisfied before the Minister or his delegate could revoke a visa cancellation decision. Von Doussa J expressly said that if he had interpreted s 129 as imposing a jurisdictional factor, he would have reached the same conclusion as Black CJ.

38. Further, as quoted at paragraph [30] above, Black CJ specifically stated that a decision would not be invalid by reason of a failure to ask the correct question. He also expressed agreement with von Doussa J's reasons for dismissing the appeal in Ratumaiwai.

39. Accordingly, and again this is expressed clearly and succinctly by Sackville J in Zahid (at [84]-[85]), there is a clear majority view in NAAV that s.474(1) protects a decision from invalidity where the alleged invalidity flows from a failure on the part of the decision-maker to ask the correct question (notwithstanding that the failure would otherwise have constituted jurisdictional error).

40. In these circumstances, and given that there is nothing otherwise to suggest that the decision of the Tribunal involved a lack of bona fides, that it did not relate to the subject matter of the legislation or that it was not reasonably capable of reference to the power given by the decision-maker (the Hickman grounds of review set out in paragraph [23] above), it follows that the applicant's claim for relief pursuant to s.39B(1) of the Judiciary Act must be dismissed.

41. I therefore dismiss the application and order that the applicant pay the respondent's costs. I will hear submissions as to the assessment of the costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: