Awan v Minister for Immigration and Multicultural and Indigenous Affairs
[2002] FCA 594
•9 MAY 2002
FEDERAL COURT OF AUSTRALIA
Awan v Minister for Immigration, Multicultural & Indigenous Affairs
[2002] FCA 594MIGRATION – Application for student visa – Migration Review Tribunal decision – breach of s 359A(1) Migration Act – Mistakes of fact concerning the applicant’s financial status - effect of privative clause in s 474 Migration Act – whether breach amounted to jurisdictional error – whether legislative intention that breach would lead to invalidity of a decision of the MRT.
PRACTICE AND PROCEDURE – Unrepresented applicant – expedited hearing – access to justice.
Migration Act 1958 (Cth) ss 65, 336A, 348, 353, 353A, 358, 359, 359A(1), 360, 362A, 365(1), 366C, 368(1), 368A, 474, 475A, 476.
Judiciary Act 1903 (Cth) s 39B
Migration Regulations 1994 (Cth) schedule 2 cl 560.224(1)
Australian Constitution s 75(v)Minogue v Human Rights & Equal Opportunity Commission (1999) 84 FCR 438 referred to
R v Hickman & Ors; Ex parte Fox and Anor (1945) 70 CLR 598 applied
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 followed
R v the Commonwealth Rent Controller and Ors; Ex parte National Mutual Life Association of Australasia Limited (1947) 75 CLR 361 considered
R v Murray and Ors; Ex parte Proctor and Ors (1949) 77 CLR 387 considered
R v Metal Trades Employers’ Association and Ors; Ex parte Amalgamated Engineering Union Australian Section (1950) 82 CLR 208 considered
R v Coldham and Ors; Ex parte The Australian Workers’ Union (1982) 153 CLR 415 considered
O’Toole v Charles David Proprietary Limited (1991) 171 CLR 232 considered
Deputy Commissioner of Taxation of the Commonwealth of Australia v Richard Walter Pty Limited (1994) 183 CLR 168 considered
Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 considered
Re Refugee Review Tribunal and Anor; Ex parte Aala (2000) 176 ALR 219 considered
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 considered
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 considered
Greene v McElroy (1959) 360 US 474 considered
Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1 considered
NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 considered
Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 301 followed
Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 considered
Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 followed
Walton v Ruddock [2001] FCA 1839 referred to
NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281 referred to
Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 referred to
Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 followedAHMED IRFAN AWAN v MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
V 1223 OF 2001
NORTH J
9 MAY 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 1223 OF 2001
BETWEEN:
AHMED IRFAN AWAN
APPLICANTAND:
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
NORTH J
DATE OF ORDER:
9 MAY 2002
WHERE MADE:
MELBOURNE
THE COURT DECLARES THAT:
1.the decision of the Migration Review Tribunal dated 7 November 2001, affirming a decision of a delegate of the respondent, Minister for Immigration, Multicultural & Indigenous Affairs, to refuse to grant the applicant, Ahmed Irfan Awan, a student visa was made in excess of jurisdiction and is null and void.
THE COURT ORDERS THAT:
2.the respondent pay the costs of the applicant of and incidental to this application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V 1223 OF 2001
BETWEEN:
AHMED IRFAN AWAN
APPLICANTAND:
MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
NORTH J
DATE:
9 MAY 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an application by Mr Ahmed Awan in relation to a decision of the Migration Review Tribunal (the Tribunal) which was made on 7 November 2001. The Tribunal affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs (as he was then titled), to refuse Mr Awan a student visa – subclass 560.
BACKGROUND
Mr Awan is a national of Pakistan. He was born on 8 January 1976. He holds a combined degree in arts and science from Punjab University in Lahore, Pakistan.
On 29 June 1996 he came to Australia. At that time he held a student visa. He commenced study for a Diploma of Textile Manufacturing Technology at the Melbourne Institute of Textiles.
It seems that the conditions attached to his student visa entitled Mr Awan to work for up to 20 hours per week while his course of study was in session. He worked part time as a taxi driver. Then, on 3 December 1996, he was severely assaulted whilst driving a taxi. Following this incident he consulted a psychologist who reported symptoms of Post-traumatic Stress Disorder. The psychologist expressed the view that Mr Awan was not fit psychologically to return to work until at least after 24 February 1997. Mr Awan described the incident in a submission faxed to the Tribunal on 24 May 2001, as follows:
“But in December 1996 a drunken Guy attacked me. He had an argument with me and while I was driving he put a big knife on my throught [sic] and before actually he applied that to cut my throught [sic] I grabbed it with my fingers and he cut my fingers. He was sitting directly behind me. Then some how I managed to stop the car and got out of it. He chased me and then tried to [illegible] me with the same taxi he stole. That incident had a very bad impact on me. I was under phycological [sic] treatment for that life threatening assault for nearly one and half years. Still sometimes it comes in my dream and disturbs me. I consider myself very very lucky to be alive because that Guy besides drunk was also disabled.”
In 1998 Mr Awan completed the Diploma of Textile Manufacturing Technology.
He then undertook a Master of Information Systems degree at Central Queensland University. He completed this course and the degree was conferred on 6 April 2001. This course was undertaken during the currency of his student visa which had been renewed on several occasions.
Mr Awan’s then current student visa was due to expire on 30 April 2001.
On 19 April 2001, Mr Awan went to the Preston office of the Department of Immigration and Multicultural Affairs (the Department). He wanted to apply for a further student visa in order to study for a Master of Business Administration at Central Queensland University. This course was to commence on 16 July 2001.
Mr Awan was advised at the Preston office that the Migration Regulations and Departmental policy did not allow a student visa to be issued to him unless the proposed course started no more than one month after the end of the previous course. He was told that, in the circumstances, it would be appropriate that he leave Australia and apply from offshore for a visa to allow him to pursue the Masters degree at Central Queensland University.
Mr Awan then, on the same day, tried to apply for a student visa extension at the Melbourne CDB and Dandenong offices of the Department. At each office he was given the same advice. He did not proceed with the application on that day.
On the following day, 20 April 2001, Mr Awan returned to the Preston office of the Department. He submitted an application for a student visa, this time, in order to study for an Advanced Diploma of Business (International Trade: Marketing) at the Cambridge International College. That course was to start on 30 April 2001. In a written statement in support of the application Mr Awan said that he wanted to study marketing in order to return to work in the family textile business. The staff then asked him to submit a business registration document to show that the family owned a textile business. Mr Awan responded that the family had sold the business and no longer owned it.
Mr Awan then demanded that the visa be granted immediately. When told that the decision depended on Mr Awan providing further documents concerning the relevance of the course to future employment, Mr Awan threatened to douse himself with petrol and set himself alight.
Then Mr Awan walked out of the office. The police were called. They spoke to him as he removed a tin from the boot of his car.
Mr Awan returned to the office and paid the fee for the visa application. He was then interviewed by Compliance Officers, Ms Amelia Politis and Mr Michael Edwards. In a written report (the initial report), apparently made on 20 April 2001, they described the events which ensued:
“Officers Edwards and Politis later spoke to Mr Ahmed [Awan]. Also present was Mr Zaia [Manager – Preston Office]. The purpose of this discussion was explained to Mr Ahmed. He was asked to illustrate what had occurred thus far. Mr Ahmed described his educational background and what he had done since his arrival in Australia. He demanded that a student visa be granted to him asap because he was a genuine student. He said that if a visa was not given to him he ‘would do what he had to do’. When I asked him what he meant by this and whether he was referring to suicide, he shrugged his shoulders and said that this was not suicide but that it was a sign of ‘protest’. He referred to the fact that there existed racism in Australia if you were not ‘white’. He made it quite clear that he was not leaving Australia and that he was staying here to study and that he was starting this course on 30/4/01.
Compliance officers explained processes and procedures regarding applications to Mr Ahmed. They advised that each application was looked at individually and that different legislation applied to different classes of visa. It was explained to him that client services staff were doing their duty and that if additional information was required, then in order to satisfy the requirements of visa grant, it was essential that the applicant do all that was requested to facilitate in the success of the application and in meeting the requirements of the specified visa class.
When it was evident that Mr Ahmed was not taking heed of practical advice regarding application procedures, and he continued to ignore attempts to find a solution to the dilemma at hand, I then explained what events could take place as a consequence. Eg. Student application could be refused – client is viewed as difficult and unstable given that he has threatened to do bodily harm to himself and thereby subjecting fear to those around him at the time – leading to immigration detention pending some solution to events.
In the end, Mr Ahmed continued to show signs of aggression, stubbornness and a clear unwillingness to listen to any advice. He exhibited defensive behaviour and indicated that the department was intent on making him depart the country and that he was in Australia to study. He was told that he was showing no respect for the immigration laws of Australia and that he was in no position to demand that the Department grant him a visa that day.
He was told that he would be taken to the city office at Casselden Place where he would be questioned further and where his application for a student visa would be assessed. He stated that he was not going anywhere. At this time, officers Boulton and Khamly came into the interview room. Mr Ahmed was given the opportunity to come quietly but was adamant that he would not and became more defensive. He was then placed in immigration detention under s 192 of the Migration Act.
Officers departed Preston Office at @ [sic] 15.10hrs.”
It seems that Mr Awan was then taken to the Melbourne CDB office of the Department where he was interviewed by Mr Windsor, State Manager, Client Services and Residence. The interview occurred on Friday 20 April 2001. Mr Windsor prepared a file note of the interview (the Windsor file note). The note is dated on the following Monday, 23 April 2001.
The interview was conducted to assess the genuineness of Mr Awan’s application for a student visa. After setting out the background to the case in one page, Mr Windsor makes the assessment in four paragraphs. The first paragraph is narrative. The balance is as follows:
“When he finished his latest course he decided he need [sic] to improve his people skills so he decided to do a Masters in Human Resource Management. This was also a two year course. He was concerned at the prospect of having to return to Pakistan to apply for a visa for this course. He could not afford the travel expenses and was concerned about the delay in visa processing. When told he would be unlikely to be granted a visa in Australia to study this course, he enrolled in a two year marketing course at Cambridge College commencing on 30 April. I asked him about the content of this course and how it would help him, how it fitted in with his overall study plans and career goals. He was unable to give any details of the course content. He said he doesn’t really remember and had left the course content details in his car. He was not able to say how the study would assist him other than to say it would help him at some stage. He said he didn’t know what job he would be looking for when he completed his studies. He further said that he was not sure whether he would keep going with the course for the full two years, implying that he might change to another course down the track.
Mr Awan left me with the very strong sense that what course he studied was not important, as long as he had a visa to enable him to remain in Australia. He had no plan in mind in terms of undertaking a set of study to give himself particular skills focussed towards any career goals that he could articulate. He commented that he likes Australia, likes living here, and gave the impression that he did not wish to leave Australia. He indicated that he doesn’t tell his parents about his study choices but indicated that he receives financial support from his brother-in-law who lives in Japan and his father.
On the basis of my interview with Mr Awan I concluded that he is not a genuine applicant for a student visa, but simply wishes to remain in Australia indefinitely.”
Mr Awan saw a doctor on 20 April 2001. It is not clear if that was before or after the interview with Mr Windsor. The doctor’s notes record in part:
“very anxious about it [the student visa application] – took 2
stubbies to ‘relax’ himself
actually felt quite drunk, felt
very angry when told couldn’t have
visa extension
says he said things he didn’t mean”Mr Awan explained the circumstances of the events of the 20 April 2001 in an hand-written submission faxed to the Tribunal in support of his application for a review of the decision to refuse to grant him a student visa, as follows:
“On 20th April I went to Cambridge College paid them and got the Enrolement [sic] Advice form. Then I drove toward Preston when I was in Clifton Hill I stopped at a drive through bottle shop at the corner of Queens parade and high street, just before the bridge in front of the Tram stop. I requested for three stubbies of Victoria Bitter. When I arrived at DIMA office in Preston I parked my car outside and started drinking beer I finished them in the span of about 15 or 20 minutes. Then I got into the office I received the ticket and then seated infront [sic] of Lady officer and presented my documents, she looked at them and then asked me why I wanted to study marketing and to write down the reasons how this course will help me to my future employment. At that time I was feeling bit dizzy due to beer plus I was very tired as well for not having enough sleep last time. I wrote that this course will help me understand marketing and when I will go to Pakistan it will help me to expand our business nationally and internationally. Then she talked with her collegue [sic] and then told me that I must show the proof of our business. At that time I thought she has questioned me about my integrity. I refused to do that and demanded her that I want to study marketing to know about it because it is very important part of business development and marketing knowledge will be helpful for me to understand latest techniques of marketing as I studied about International Marketing as an optional unit in my Master of Information Systems course at CQU. At the time I was out of my mind. I felt very angry that I am and have been genuine student as I proved that even I continued my studies during severe phychological [sic] problems and now I have been getting unfair treatment. I told the officer to issue me the visa without showing her the proof of business. I was not thinking rationally. I did make a threat to self harm but that was surely due to frustration. I did not say anything to harm anyone else. I went to toilet for a least four times. Then Manager of Preston office interviewed me and he was very, very nice to me. I requested him to call my brother in law in Japan and he will send me some documents for proof just now, he tried but mobile was switched off. I had no control on my actions and emotions, after meeting with Joe I went back to office and then walked out, I was crying continuously during all this time like a kid, I opened the boot of the car and grabbed an empty can and I was intercepted by two police officers who asked me where I am going I told them I am going to buy petrol for my car but they did not believe and took the container of [sic] me. I then went back to the office, received the ticket again and applied for the visa again. EFTPOS did not work because I had already exceeded the daily limit. Then the Lady officer (another one) this time asked me to go to the nearby Bank and get the money out and I did, they did not care about my threats probably the [sic] knew these are not genuine.”
On 21 April 2001, the Minister’s delegate determined that Mr Awan was not a genuine student. The existing student visa was cancelled, even though it would have expired on 30 April 2001 in any event.
On 23 April 2001, Mr Awan, then in detention at the Maribyrnong Detention Centre, was interviewed by Ms Politis in connection with his application for a student visa. A record of this interview was made, and was signed by Mr Awan (the visa interview).
On 26, 27 and 30 April 2001, Mr Awan rang Ms Politis about a possible release from detention and about the progress of his student visa application. Ms Politis made a file note of these conversations dated 30 April 2001 (phone enquiries notes).
On 30 April 2001, Ms Melita Hoskin, as delegate of the Minister, determined to refuse Mr Awan the student visa. It appears that her decision relied upon the initial report, the Windsor file note, and the visa interview. After summarising the contents of these documents the delegate concluded:
“I am not satisfied that you are seeking to enter/stay in Australia for the purpose of study. I am not satisfied that you will leave Australia at the end of your authorised stay. I am not satisfied that the course you are seeking to undertake is consistent with, and appropriate to, your current level of education. I am not satisfied that the study is relevant to your past or proposed future employment in your home country. You do not meet Regulation 560.224(1)(d).
You have stated that you cannot afford the travel expenses associated with returning to Pakistan. Your bank statements from your Bank of Melbourne account show only one deposit that is not from a salary payment in the period 21 December 2000 to 17 April 2001. Although you submitted a statement from your father which states he is supporting you, there is no evidence of this in the form of deposits to your bank account.
You are being held in detention and therefore unable to work for a salary. Therefore, you will not be earning an income from paid employment in Australia. Given that you have received the majority of your financial support from salary payments in the past five months, I am not satisfied that you can support yourself financially in the future without access to paid employment.
Furthermore, I note that you have applied to the Migration Review Tribunal (MRT) for a waiver of the MRT application fee based on financial hardship. I am not satisfied that you have the financial ability to undertake the course without contravening any condition of a student visa relating to work. You do not meet Regulation 560.224(1)(a).
You do not meet all the criteria for the grant of a student visa. Therefore I refuse you the grant of a student visa.”
In the meantime, on 7 May 2001, the Tribunal constituted by Mr Graham Friedman conducted a hearing (the cancellation review hearing) in relation to Mr Awan’s application for review of the delegate’s decision to cancel the student visa. Mr Awan gave evidence at that hearing. On the same day the Tribunal determined to affirm the delegate’s decision to cancel the student visa.
On 21 May 2001, Mr Awan applied to the Tribunal to review the refusal of the delegate, Ms Hoskin, to grant the student visa.
On 24 May 2001, Mr Awan faxed to the Tribunal the hand written submission referred to par 18 of these reasons.
On 3 August 2001, Weinberg J dismissed an application for review of the decision of the Migration Review Tribunal constituted by Mr Friedman made on 7 May 2001 affirming the cancellation of the student visa.
On 1 October 2001, the Tribunal held a hearing in relation to Mr Awan’s application for review of the decision of Ms Hoskin refusing a student visa.
On 7 November 2001, the Tribunal determined to affirm the decision of the delegate to refuse Mr Awan a student visa.
THE PRESENT APPLICATION
On 3 December 2001, Mr Awan filed an application in relation to the decision of the Tribunal made on 7 November 2001.
The application is hand written and was prepared by Mr Awan. The grounds of the application state as follows:
“I want the student visa in Febuary [sic], because soon after I will finish summer that is probably in first week or most likely last week of January, I want to see my family by visiting Pakistan, so remember I want the visa in Febuary [sic] I want visa in Febuary [sic] I want visa in Febuary [sic], understand, Thanks.”
When the application was filed it was endorsed, in the usual way, with a time and date for a directions hearing. In this case the time and date was 10.15 on 4 February 2002. When matter was called on that day, Mr Awan did not appear.
In view of the non-appearance of the applicant, and apparent lack of substantial grounds of the application, I raised with Mr Brereton, who appeared as a solicitor employed by the Australian Government Solicitor, the solicitor acting on behalf of the respondent, whether it would be appropriate for the matter to be struck out.
In a submission for which Mr Brereton should be highly commended, he explained something of the background of the case. In particular, he indicated that Mr Awan’s absence may have been connected with the psychological difficulties flowing from the knife attack in December 1996. Now that I have a greater understanding of the background of this case, it is clear that Mr Brereton’s submission was both entirely appropriate and sensitive to the circumstances of the case. He could have taken the opportunistic course and sought to encourage the Court to strike out the application. Rather, he acted with propriety and humanity as is appropriate for an officer of the Court. In the result, the directions hearing was adjourned until Friday, 8 February 2002. On that occasion Mr Awan appeared for himself.
THE DIRECTIONS HEARING
The purpose of the directions hearing was to set a timetable for the steps necessary to prepare the case for hearing. The first step required in this case was to have Mr Awan enunciate the legal error committed by the Tribunal on which he relied.
The purpose of the hearing was explained to Mr Awan. Several of the exchanges with Mr Awan at this hearing need to be set out for the purpose of understanding some later references in these reasons.
When appearances were taken, the following occurred:
“HIS HONOUR: Are you Irfan Awan?
MR AWAN: Yes, I am.
HIS HONOUR: Would you like to stand up when you talk to the court?
MR AWAN: I will not stand up.
HIS HONOUR: Pardon?
MR AWAN: I can’t. I have got a pain in my back.
HIS HONOUR: I see. Mr Awan, what is the basis of your complaint about the decision that’s under review? What’s wrong with it?
MR AWAN: What’s wrong? Everything the government has done was wrong. I was put in custody, abduction, two months. That was wrong. I was a genuine student and I studied. I proved that I’m a genuine student. I should not have been put in detention for two months. My visa should not have been cancelled. This visa should have been granted on the day, last year. So there are a lot of reasons.
…
MR AWAN: I was a genuine student and I am a genuine student and I will be a genuine student. That’s what I want to put. I am studying. I’m doing this course at a university. I’ve done two semesters and I’ve got four subjects to do (indistinct).
HIS HONOUR: Well, the trouble with that …
MR AWAN: I don’t want to go into all this, whatever, what this book is, because I don’t believe in this stuff. So this application when done by this court and other courts – I don’t believe. I am a genuine student. I’m studying and I want to study, and I want a student visa, and I want to see my family before 25th of this month.”
Shortly afterwards the following exchange occurred:
‘HIS HONOUR: … What the law requires me to do is to look at the decision and see whether there’s legal error, whether there’s an error in terms of the Migration Act. So that when you’re preparing that document, it really isn’t going to be of assistance, no matter how strongly you feel about it – and I can understand that you do – to say, “I am a student and please believe that I am”, because it’s not up to me to believe you or not believe you; it’s up to me to see whether the tribunal went about its process properly or not. Because you’re not represented legally, I’m going to permit you to proceed with the case, even though the application is not in a form which normally would be accepted, because I doesn’t really say what the mistake that the tribunal made is. It just says, ‘I want a visa, I want a visa, I want a visa,’ and that won’t work.
…
MR AWAN: But it should work before the 25th of this month, because I have gone through this court before in the last hearing when Weinberg was – he decided, and I know what kind of court this is and I know what kind of laws you have got, and I know what kind of people you are, and I have seen all the – after September, what happened in America, I’ve seen all the court, all your dealings with the people like us, and I don’t believe in this court and I don’t believe in the ways you deal with the people. So I’ve told you what I’ve told you. That’s all I will talk. I don’t have any legal representation. I will not get any legal representation, I will not submit any other arguments.
…
HIS HONOUR: Well, what you’ve told me doesn’t amount to an argument which would upset the decision of the tribunal.
MR AWAN: It did not last time as well, when I had the legal representation, right? I wasted my money and it should have helped last time. Why it didn’t help last time? That’s why I did not stand up, because I’ve got no respect, because if you people are sitting there, you should make the right decision. Last time, why he didn’t make the right decision? With so many other cases – maybe you have done that Tampa case as well, and that’s according to laws – you didn’t do what your law says. You do what the money says, what the (indistinct) says. That’s what you people do. That’s what you people are. You don’t think about humanity. You don’t think about someone is suffering, someone is right. You have got the policy. You use this court in the wrong ways.
…
Mr AWAN: … Prime minister is calling the court to tell them this is …
…
MR AWAN: That’s just politics. No court, no rules, no laws. You people don’t follow your own laws.”
In the light of the insistence by Mr Awan of an early decision in the case, it was then indicated that the earliest hearing date would be the 26 March 2002. Mr Awan demanded that the case be heard before the 25 February 2002. He explained his position thus:
“MR AWAN: My mother is in hospital. This is not a reason. I was supposed to go overseas last year in April, right, after one year. I was graduated. I did the masters degree in information systems. I was graduated in April. I was supposed to go overseas on 28 April last year.
…
MR AWAN: I got admission at this course. I went for visa extension and they told me that I am not a genuine student, and they put me in detention for two months.
…
MR AWAN: The masters student, the one who has done master degree. I was not a genuine student then. Those are genuine students who are working here for the last 10 years and not studying at all.
…
MR AWAN: I was put in detention for two months and my parents know about, and my mother has been suffering from that time, April. You can count how long is that.”
The position appeared to be that if Mr Awan left Australia, the terms of his present Bridging Visa would not permit him to re-enter Australia. The options, then, were to list the matter for hearing before 25 February 2002, or require Mr Awan to delay his trip.
The only available date for the Court to hear the case before 25 February 2002 was 48 hours later on Sunday, 10 February 2002. Mr Brereton was able to engage counsel at short notice and this date was fixed. The exchange which occurred with Mr Awan when the hearing date was fixed is illuminating. It went as follows:
“HIS HONOUR: You understand that the court is doing this because you’ve said that you desire a result before you depart to see your mother, a trip which you say has been delayed. So I hope you can understand that this is a highly unusual effort being made for the court, in the light of those unusual circumstances.
MR AWAN: It’s because of this court’s previous decisions – it should not have reached this stage initially. It has been done all by their department, department mistakes, and then this court mistake, MRT mistake. It’s not my fault.
HIS HONOUR: Yes.
MR AWAN: The court and the government, it should say sorry to me for this.”
In the result Mr Awan’s case received unusual expedition. The result is that other cases will be delayed to accommodate the progression given to this case. In deciding to give Mr Awan such special treatment, considerations relating to access to justice have been determinative. They should be explained.
REASONS FOR AN EXPEDITED HEARING
Judges regularly determine the priority of hearing dates among cases on their dockets. Some issues of priority are clear cut. Traditionally, cases involving detention receive the highest priority. Witness availability is often an important factor in determining the priority of cases. Less critical, but nevertheless relevant, is the availability of counsel. Sometimes the health of a party or witness will demand that the case be given a speedy hearing.
Mr Awan’s case does not exhibit any of the usual claims for a speedy hearing. He has a strong subjective feeling that he has been unfairly treated by the Department, the Tribunal, and the Court. He regards these institutions as simply following government policy directed against him. At times he has said that he feels that the Australian community is racist and that he is treated badly because he is from Pakistan and or because he is a Muslim. It may be that Mr Awan’s views are the result of a combination of his personality, background and the psychological scars of the very bad experience of assault in 1996. Whatever their genesis, it is clear from my observations of Mr Awan in court, that these concerns are genuinely and strongly felt. The question then is whether the genuine and strong subjective feelings of injustice and discrimination are a reason for giving special treatment in the management of a case involving such a person.
This issue is especially relevant to the jurisdiction of this Court in migration matters. While litigants in ordinary commercial cases often have strong feelings about the deserving nature of their claims, migration cases concern the fundamental needs of human beings to have a secure and agreeable place to live – a place where they are accepted and where they are away from fear and hardship. The personal impact of these cases is closer to family law litigation where, for instance, the custody of children is an issue, or personal injury litigation, where direct physical or mental harm has been occasioned to the person, than litigation which is primarily concerned with property.
The claim to a speedy resolution by litigants in migration matters who have strong and genuine feelings of grievance with the legal system in Australia raises an issue of access to justice. In recent times it has been accepted that improved access to justice is a goal to be pursued by the legal system. Improvements in physical access to courts by the building of ramps for disabled people, the installation of hearing loops in courtrooms for hearing impaired people, and the installation of facilities to guide the blind have been undertaken. A continuing challenge to the improvement in access to justice concerns people involved in the system who have psychological problems or mental illness which give them a feeling of anxiety and threat from the processes of the system well beyond the feeling of anxiety and threat held by others in the community involved in the system who do not suffer those disabilities.
It is necessary for the courts to make special efforts to accommodate people with genuine feelings of heightened anxiety directly related to the legal system. Otherwise, those people will be denied equal access to justice because they will experience the detriment of involvement, or perhaps even be dissuaded from taking such involvement by reason of their particular psychological or mental state. The foundational institutions of society, such as the courts, must demonstrate the values of our society in the way they go about their work. One of the values in society which the courts must demonstrate is the need to accommodate the requirements of difference. For instance, differences in religious beliefs are accommodated by providing various forms of oath taking, and differences in English language proficiency are accommodated by the use of interpreters. Differences in psychological and mental capacities to interact with the legal system may sometimes need to be accommodated by making special arrangements in the management of cases.
In the United Kingdom a very comprehensive Equal Treatment Bench Book [ has been published. It provides practical guidelines to courts “on a variety of topics which may lead litigants, victims, witnesses, or legal representatives to feel that they may be disadvantaged in dealing with our legal system”. In the Forward the Lord Chief Justice, Lord Bingham, said:
“The cardinal principle which underlies the [judicial] oath is that of equality before the law. In deciding guilt or innocence, or in weighing the merits of claims between private individuals or between individuals and the state, judges must have reference only to the facts (so far as they can be established), the merits of each party’s position and the relevant law.
But this does not mean the judges should ignore factors such as ethnic origin, gender, or disability. On the contrary, justice requires that judges must understand all the factors relevant to the factual situation they are considering, including those which may affect the way those present in the courtroom behave, or perceive the trial process.”
One reason why the courts may have been reluctant to accept the demands of people with psychological or mental difficulties is that those people sometime engage in confronting conduct during the proceedings. For instance, in the present case the exchanges extracted earlier in these reasons demonstrate that Mr Awan’s conduct was at times apparently petulant, intemperate, offensive, and disrespectful. Once it is appreciated that such conduct is a manifestation of the very problem which the litigant is experiencing, it becomes possible for the court to focus on the underlying issue. Then, the court will not be deflected by conduct which would, in other circumstances, be regarded, and treated, as unacceptable. Rather than treating the conduct as a reason for refusing to deal with the case until the conduct has improved, the conduct might been seen as the very reason why the case should be treated differently.
In the present case it appeared to me that to delay the hearing of this application, even for the relatively short period until 26 March 2002, would place an undue strain on Mr Awan, which the system should not require if at all possible. Consequently the matter was heard two days after the directions hearing, and on a weekend. It is unfortunate that the decision has been delayed. However, this delay resulted from the complexity of the issues in the case, and the absence of legal representation of Mr Awan which would have assisted the Court in determining the novel and difficult issues.
It is now necessary to turn to the statutory framework in which the decision was made and to the decision of the Tribunal.
THE STATUTORY FRAMEWORK
The question before the Tribunal was whether Mr Awan satisifed the criteria for the grant of a Student (Temporary) (Class TU) subclass 560 visa. Section 65 of the Migration Act 1958 (Cth) (the Act) provides:
“(1) After considering a valid application for a visa, the Minister:
(a)if satisfied that:
(i)the health criteria for it (if any) have been satisfied; and
(ii)the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii)the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv)any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.”[emphasis added]
Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations) sets out the criteria that a visa applicant must satisfy in relation to particular subclasses of visa before the Minister can grant the visa pursuant to s 65. The relevant criteria considered by the Tribunal were set out in subclauses 560.224(1)(a) and (d) of Schedule 2 of the Regulations as follows:
“(1) … the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard:
(a)to the financial ability of the applicant to undertake the course without contravening any conditions of the visa relating to work; and
…
(d)to any other relevant matter.”
THE DECISION OF THE TRIBUNAL
The decision of the Tribunal is divided into sections. The two sections of significance to this proceeding are headed “Evidence” (pars 7 – 29) and “Findings” (pars 30 – 37).
The Tribunal outlined (pars 8 – 25) the background, including the visas previously held by Mr Awan, the studies he had completed, the visit to the Department offices on 19 April 2001, the events of 20 April 2001, the cancellation of the visa on 21 April 2001, the Windsor interview (wrongly recorded as having occurred on 23 April – in fact, it was held on 20 April 2001), the phone enquiries notes, and the delegate’s decision refusing the student visa.
Then the Tribunal recorded (pars 19 – 23) the evidence given by Mr Awan to the MRT in the cancellation review hearing on 7 May 2001. The passage comprises about 25 per cent of the “Evidence” section of the Tribunal’s decision.
This emphasis immediately strikes one as an unduly detailed reference to a prior proceeding before another Tribunal member. Indeed, the account of the evidence of Mr Awan given to the previous Tribunal is taken, without acknowledgment, directly, and without alteration, from the decision of the MRT constituted by Mr Friedman which considered the decision to cancel the then existing student visa. The transposition of the evidence includes the mistake in the reference to the date of the interview held by Mr Windsor on 20 April 2001.
Further, the recitation of the background facts set out in pars 8 – 18 are also taken directly, without acknowledgment, and without alteration from the decision of the previous Tribunal.
The remaining paragraphs of the evidence section (pars 24 – 29) are new, that is to say, not taken from the previous decision. Paragraph 24 is a further, apparently repeated, reference to the Windsor interview. Then, in par 25, there is a six line reference to the decision of the delegate under review. Paragraphs 26 – 28 summarise the evidence given at the hearing on 1 October 2001. In the context, this seems a surprisingly brief record of the evidence, because, one would imagine, the hearing in relation to the review would be the primary source of evidence for the determination of the review.
Because of this paucity in the description of what occurred at the hearing before the Tribunal, the reliance by the Tribunal on an adverse assessment of the credibility of Mr Awan, and the assertion by Mr Awan, before me, that the hearing before the Tribunal had taken about ten minutes, I was concerned to have the transcript of that hearing as part of the evidence before the Court. After the hearing before me, the respondent produced the transcript of the proceedings before the Tribunal in response to my concerns.
The transcript of Mr Awan’s evidence before the Tribunal occupies ten pages of a total transcript of the substantive hearing of thirteen pages. The remaining three pages are taken up with the record of the short submissions made by counsel appearing for Mr Awan. Whilst it would probably have taken about half an hour for Mr Awan to give his evidence, rather than the ten minutes he recalled, the essence of his recollection, namely, that the hearing was very short, was substantiated by the transcript.
The next section of the decision is entitled “Findings”. Apart from introductory matters, which need not be reproduced now, the “Findings” occupy four paragraphs. It is best to set them out in full.
“33. The decision record shows that the delegate found that the visa applicant did not satisfy paragraphs (a) or (d) [of clause 560.224(1) of the Regulations]. The delegate noted that the visa applicant claimed he did not have sufficient funds to return to Pakistan, that from December 2000 until April 2001 all but one credit entry related to salary, and that the visa applicant applied to waive the Tribunal application fee on the ground of financial hardship. The delegate concluded that the visa applicant did not have the financial ability to undertake the course without contravening any condition of the visa relating to work. At this hearing the visa applicant stated that he was supported by his father and did not need to work, but at the hearing on 7 May 2001 he gave evidence that his father paid for his education expenses but other expenses were met through part time employment. The evidence given under oath by the visa applicant at the two hearings is inconsistent. In addition the statement by the visa applicant that he could not afford to return to Pakistan to apply offshore is not consistent with the statement that he wanted to travel widely in Australia or that he wanted to apply for a visa to tour and play cricket in England. The Tribunal finds that the visa applicant is not a credible witness and is prepared to say whatever at the time he believes will best help his application. PAM provides the following guidance in respect to financial ability:
9.2.1Criterion 560.224(1)(a) takes into consideration ‘the financial ability … to undertake the course without contravening any conditions … relating to work’. In assessing this ‘genuineness’ factor, whether for offshore or onshore students, officers should have regard to which conditions are imposed on which Student visas – see Schedule 2 560.611 provision and section 14.2 below. (The table in section 14.1 below summarises these various student visa conditions.)
9.2.2This criterion cannot, under policy, be satisfied if the student proposed to rely solely on potential income earned from working within the work rights (if any) that may be granted to them in Australia after commencing studies. Under policy, such ‘work rights’ are intended only to supplement a student’s income.
In view of the conflicting evidence given by the visa applicant the Tribunal cannot accept the statement that he is fully supported by his father and therefore is not able to find that visa applicant can undertake the course without contravening work conditions. Consequently the visa applicant fails to meet subclause 560.224(1)(a).
34. The delegate also found against the visa applicant under subclause 560.224(1)(d). The delegate took into account the events of 19 – 23 April 2001, with the rapid change of courses and educational institutions, as evidence of the fact that study was just an excuse to remain in Australia. The delegate also took into account the fact that the visa applicant had little idea of the content of the course or its relevance to future employment or what the employment might be. By the time of the hearing on 7 May 2001 the evidence of future employment was stronger in that the visa applicant talked about returning to the family cotton business. By this hearing the visa applicant had improved his evidence and now was sure that he was to be employed in the business. However on being questioned it transpired that the family business was that of landlords and cotton growers and not textile manufacturers, although they did have an equity share in a textile business that is managed by a friend of his fathers and where he may find employment.
35.PAM has the following guidance on this paragraph:
9.5.2 In all cases, and regardless of whether the student is applying in or outside Australia, factors that may, under policy, be taken into account include
· the student’s situation in their home country, for example, personal, financial, employment and other commitments that may induce the applicant to return to their home country and circumstances (e.g. military service commitments) that may induce the applicant not to return to their home country;
· the student’s immigration history e.g. previous compliance with immigration laws and whether the student has previously applied for entry to Australia;
· the student’s academic record (see paragraph 9.5.4 below);
· the student’s links with Australia;
· whether the student saftisifes officers that they will leave Australia at the end of any authorised period of temporary stay (see also paragraph 9.5.7 below);
· whether the proposed course of study will commence within a reasonable time of the student’s proposed date of arrival in Australia;
· whether the student’s stated purpose in studying in Australia and the proposed duration of stay is consistent with the applicant’s circumstances;
· whether the student is seeking to undertake a course consistent with, and appropriate to, their current level of education;
· whether the study is relevant to the student’s past or proposed future employment (as appropriate) in their home country (see paragraph 9.5.5 below);
· if a similar course is already available in the home country, whether the student has sound reason for not undertaking the study there; …
36. Dealing with each of the above factors in summary form the Tribunal has difficulty in assessing the future position of the visa applicant in Pakistan as has [sic] found that the visa applicant is not a credible witness. The visa applicant has complied with immigration laws in the past and has a good academic record. The visa applicant claims that he will leave on the completion of his course in June 2002 but he may find another course that he wishes to study and thus prolong his stay in this country. He could also renew his application for permanent residence. The course at Cambridge has commenced and the visa applicant is studying but the level of the course namely TAFE is not consistent with his academic achievement, which was a Master of Information Systems at CQU. Taking these other factors into account the Tribunal finds that the visa applicant fails to meet subclause 560.224(1)(d). The Tribunal therefore finds that the visa applicant does not meet subclause 560.224(1) and is not a genuine applicant for entry and stay as a student.” [emphasis added]
THE DUTY OF THE COURT DEALING WITH AN UNREPRESENTED LITIGANT
The applicant was self-represented. His application to the Court did not state any grounds upon which it was alleged that the Tribunal erred in law.
The task of the Court in such circumstances is made especially difficult. This is particularly so when the issues of law raised by the case are complex and novel, as they are in the present case.
Very properly the respondent did not seek a summary dismissal of the application, and, indeed assisted the Court in resolving the questions before it consistent with the interests of the respondent. The Court is bound to protect the rights of the unrepresented litigant but, at the same time, it is bound to ensure that it does not prejudice the impartial function which it must fulfil in adjudicating between the parties: Minogue v Human Rights & Equal Opportunity Commission (1999) 84 FCR 438.
Consistent with this obligation, I will now consider whether the Tribunal made any errors in arriving at its decision, and then consider whether any such errors entitle Mr Awan to a remedy in this application. The application should be treated as an application under s 39B Judiciary Act 1903 (Cth) (Judiciary Act). The argument by the respondent was put on this basis.
ERRORS MADE BY THE TRIBUNAL
Breach of Section 359A(1) of the Migration Act
Inconsistency in the evidence concerning financial support by Mr Awan’s father
Section 359A of the Act provides:
“(1) Subject to subsection (2), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies – by one of the methods specified in section 379A; or
(b)if the applicant is in immigration detention – by a method prescribed for the purpose of giving documents to such a person.
(4)This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.”
The Tribunal found an inconsistency in the evidence given by Mr Awan concerning the financial support received by him from his father as follows:
“At this hearing the visa applicant stated that he was supported by his father and did not need to work, but at the hearing on 7 May 2001 he gave evidence that his father paid for his education expenses but other expenses were met through part time employment. The evidence given under oath by the visa applicant at the two hearings is inconsistent.”
This inconsistency was one of the two inconsistencies in the evidence of Mr Awan upon which the Tribunal relied to find that Mr Awan was not a reliable witness. The Tribunal based its conclusion to reject Mr Awan’s application on the finding that Mr Awan was not a credible witness. In other words, the finding was critical to the decision. Hence, the need to comply with s 359A(1) was of particular significance in the determination of this case.
The inconsistency was between evidence given to the Tribunal conducting the cancellation review hearing on 7 May 2001, and later evidence given on 1 October 2001 before the Tribunal which made the decision presently under consideration.
The evidence given to the cancellation review hearing was information which the Tribunal considered was part of the reason for affirming the decision under review. The Tribunal was, therefore, bound to give particulars of the information to Mr Awan, to explain to him that the evidence was inconsistent with the evidence given to the Tribunal, and to invite him to comment on it. The Tribunal failed to do any of these things, and it thereby acted in breach of s 359A(1).
Inconsistency in the evidence concerning Mr Awan’s travel plans
The second inconsistency in the evidence given by Mr Awan related to his travel plans. The finding of this inconsistency was the other reason for the Tribunal’s conclusion that Mr Awan was not a reliable witness. The Tribunal said:
“In addition the statement by the visa applicant that he could not afford to return to Pakistan to apply offshore is not consistent with the statement that he wanted to travel widely in Australia or that he wanted to apply for a visa to tour and play cricket in England.”
There are two references in the section of the decision which outlines the evidence before the Tribunal which seem to be the basis of the Tribunal’s finding of inconsistency in the evidence relating to travel. Those references are:
“On 23 April 2001 the visa applicant was interviewed in relation to the subclass 560 visa application he had lodged on 20 April 2001. In the record of interview the visa applicant stated that he could not afford to travel overseas to lodge a visa application and had enrolled in the course at Cambridge which was starting earlier than the proposed course at CQU.”
And then:
“A hearing was held on 7 May 2001 in relation to the cancellation decision at which the visa applicant gave evidence. …He stated that when he applied for a new student visa at Preston on 19 April 2001 he was upset that he would have to leave Australia to apply for the visa offshore, as he planned to apply for a tourist visa for the United Kingdom to enable him to play cricket in England before starting his MBA course.”
It can be seen that the inconsistency relied upon here was between a statement at the interview with Mr Windsor on 20 April 2001 (wrongly stated as 23 April 2001, which was the date Mr Windsor made the file note), and evidence given at the cancellation review hearing.
The evidence given at the cancellation review hearing was information which, by reason of its inconsistency with the statement made to Mr Windsor, was considered by the Tribunal to be a part of the reason for affirming the decision under review. The Tribunal was, therefore, bound to give Mr Awan particulars of the information, to explain to him why it was relevant to the review, and to invite him to comment on it. The Tribunal failed to do any of these things, and it thereby acted in breach of s 359A(1).
Mistakes of Fact
Alleged inconsistency of evidence concerning the financial ability of Mr Awan
The Tribunal found that there was an inconsistency between Mr Awan’s statement that he was supported by his father and did not need to work, and the statement that his father paid for his education expenses but other expenses were met through part-time employment.
The inconsistency only exists if the statements, assuming for present purposes that they were made, related to the same period of time.
The first statement was said to have been made on 7 May 2001 and the second on 1 October 2001. The statements relate to the time when they were made. They were made at different times, and hence, there is no necessary inconsistency. In apparently assuming that the statements related to the same period of time, the Tribunal mistook the facts.
But, in any event, the Tribunal mistook the facts and hence created a false inconsistency, when it said that Mr Awan had given evidence on 1 October 2001 that he had no need to work and was supported by his father.
The evidence before the Tribunal given by Mr Awan on 1 October 2001 on this subject is short and can be reproduced in full. It was as follows:
“MR DECKER: [Counsel for Mr Awan] Also if he can be asked with regards – what sort of finances do you have to finance your study whilst in Australia? Now, you’ve said it will finish in June 2002? – Yes.
What sort of finances do you have? – I’ve got like $8,000 in the bank today, so it is …
You’re doing okay? – Yes
MR MAHONEY: [The Tribunal member] I’m assuming that … ? – This is like my friend will submit 2,000 today I’m getting from overseas so it will be 8,000.
The funds are coming in from OS, so your father’s financing it? – Yes
MR DECKER: That’s the current status, you’ve got $6,000 – odd in the bank? – Yes, which is actually the fees I am required to pay, that’s for 2,000 that 1,000 I get every month, so that would be just for accommodation and that sort of thing.
MR MAHONEY: So, you don’t work here at all? – I was working, but …
Yes, you were working as a taxi driver at one stage? – I did when I came here in Australia part-time like in December but then after that I didn’t work a lot.
MR DECKER: And it’s fair to say that there was an incident there with a taxi driver and then you never returned back? – Yes.”
[emphasis added]Mr Awan did not give a responsive answer to the question whether he was working at the time. Rather, he began to explain that, in the past, he had worked. The Tribunal interrupted his answer and directed the focus to Mr Awan’s work as a taxi driver. Mr Awan then answered that he had worked as a taxi driver until December, presumably in 1996. This is when he was assaulted. His answer continued that he worked thereafter but “not a lot”. His reference to not returning to work was a reference to not returning to work “there”, that is, with that taxi company. The subject was Mr Awan’s past work, not his present work.
On the evidence given by Mr Awan, the Tribunal had no basis to find that Mr Awan was not working part-time to support himself. And yet this finding was the foundation for the conclusion of the Tribunal that Mr Awan had given inconsistent evidence and was therefore unreliable. The Tribunal made a mistake of fact when it concluded, on the evidence upon which it relied, that there was an inconsistency between the evidence given by Mr Awan to the Tribunal and the evidence given to the cancellation review hearing on this subject.
Finally, the Tribunal made a further mistake of fact on this subject when it found that:
“The evidence given under oath by the visa applicant at the two hearings is inconsistent.” [emphasis added]
The sworn evidence, which was said by the Tribunal to have been given by Mr Awan on 7 May 2001 at the cancellation review hearing to the effect that his father provided funds for educational expenses but that other costs were met through part-time employment, was not evidence given under oath. The statement was contained in the application for review of the cancellation decision. This is shown by the decision of the Tribunal made on 7 May 2001 in which it is stated:
“In his application the visa applicant stated that his father provided funds for education expenses but that other costs such as accommodation and food were met through part-time employment.” [emphasis added]
It follows that the Tribunal wrongly identified the source of this statement. Instead of recognising that it was an unsworn statement contained in an application, the Tribunal wrongly regarded it as sworn evidence given at the cancellation review hearing. As the statement was the basis for the finding that Mr Awan had given inconsistent evidence and that he was therefore an unreliable witness, the unsworn source of the statement may have been important. This is particularly so when the Tribunal identified that the inconsistency was between two sworn statements.
There are other mistakes of fact made by the Tribunal. These mistakes are a matter of concern as they reflect upon the quality of the decision making in this case. However, for reasons which will appear later in this judgment, there is no purpose in further cataloguing these errors.
The major legal issue which arises from the analysis of the errors made by the Tribunal is the consequence of the breaches of s 359A(1) of the Act.
CONSEQUENCE OF BREACH OF SECTION 359A(1)
Since 2 October 2001, a new Part 8 regulating judicial review of decisions made under the Act has been in operation. Under the new regime, there are three provisions of particular relevance as to the whether a Migration Act decision will be subject to review by the Federal Court.
The starting point is s 474 of the Act, 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.
(2)In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).”
It is not disputed that the decision of the Tribunal in question in this case is a privative clause decision within the meaning of s 474(2) of the Act.
Section 476(1) of the Act confirms that the Federal Court does not have any jurisdiction in relation to a primary decision, which is defined by s 476(6) to mean a privative clause decision that is either reviewable or has been reviewed under Part 5 or Part 7 of the Act. However, s 475A provides that s 476 does not affect the Federal Court’s jurisdiction under s 39B of the Judiciary Act in relation to a privative clause decision made on a review by a Tribunal under Part 5 or Part 7 of the Act.
Therefore, whether the applicant is entitled to relief arising from a breach of a requirement of the Act depends on the extent to which the Court is empowered to make an order under s 39B of the Judiciary Act given the terms of s 474.
Section 39B of the Judiciary Act vests the Court with original jurisdiction in identical terms to the jurisdiction given to the High Court under s 75(v) Australian Constitution (the Constitution). That jurisdiction is “with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth”.
In a number of decisions the High Court has formulated some limits on the effectiveness of privative clauses to prevent legal challenges, including under s 75(v) of the Constitution and, thus, under s 39B of the Judiciary Act.
The Hickman Case
In R v Hickman & Ors; Ex parte Fox and Anor (1945) 70 CLR 598 (Hickman) a Local Reference Board was empowered to settle disputes in the coal mining industry. The Board made orders that the prosecutors and their employee truck drivers were engaged in the coal mining industry, and that they were obliged to pay such drivers under a specified general award applicable to the coal mining industry. The prosecutors sought prohibition on the ground that the truck drivers were not engaged in the coal mining industry, and hence, the Board had acted outside its jurisdiction. A privative clause (regulation 17) provided that the decision of the Board “shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever.”
Dixon J said at 614-5:
“The presence of this provision in the Regulations makes it necessary to say whether and to what extent it is ineffectual to protect the decision of the Board from invalidation. In the first place, it is clear that such a provision cannot, under the Constitution, affect the jurisdiction of this Court to grant a writ of prohibition against officers of the Commonwealth when the legal situation requires that remedy. But a writ of prohibition is a remedy that lies only to restrain persons acting judicially from exceeding their power or authority. It is therefore necessary to ascertain before issuing a writ whether the persons or body against which it is sought are acting in excess of their powers; and that means whether their determination, when made, would be void. The Board derives its power from Regulations of which reg. 17 forms a part, and that regulation must be taken into account in ascertaining what are the true limits of the authority of the Board, and whether its decision is void.
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 reg. 17 is well 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.”
He continued at 616:
“It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution. The relevant subject matter in the present case is naval and military defence. It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg. 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity. In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid.
In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them. Further, if there is an opposition between the Constitution and any such provision, it should be resolved by adopting any interpretation of the provision that is fairly open.”
[emphasis added]Dixon J considered that the grant of prohibition was justified because the power of the Board was limited to the settlement of the disputes, and yet the orders made purported to determine the applicability of the general award to the employees of the prosecutors. That action was outside the power of the Board. Although consistent with Dixon J’s findings, the remaining members of the High Court based their decision that prohibition should lie on the basis that the Board could not determine, wrongly, that an employer was within the coal mining industry because that would purport to make an authoritative finding as to the limits of the coal mining industry which they were not empowered to make.
The approach to privative clauses which Dixon J outlined in Hickman has sometimes been called a “principle”. To so see it may be to deflect attention from its substance, and to tempt a mechanical application of formulae used in later cases as if they constituted fixed and rigid classes of cases in which privative clauses are or are not effective.
In truth, Dixon J explained that the presence of a privative clause gives rise to a need for statutory interpretation in order to attempt to reconcile the requirements stipulated for the exercise of statutory power on the one hand, and the apparent freedom from challenge of a failure to comply with the statutory requirements. A key passage in Hickman at 616 states:
“But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg. 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity.”
His Honour recognised that decisions, subject to the type of privative clause there in question, which were not made bona fide and which did not bear on their face an appearance of an attempt to exercise the power were not intended to be free from challenge. However, the reason for this conclusion is not stated, and it probably does not need to be. It is obvious that a decision which is so utterly divorced from the power granted would not be intended by the legislature to be protected from challenge unless such a consequence was expressed unambiguously. As to other transgressions as to the limits of power, his Honour explained that the inquiry is whether the legislature intended by the entire legislative scheme to “spell invalidity”, that is to say, whether such transgressions were to be regarded as leading to an invalid decision which could be challenged.
It was not necessary for Dixon J to illustrate the types of transgressions which might demonstrate an intention that a decision would remain open to challenge, because he found that the action of the Local Reference Board did not bear on its face an appearance of the exercise of the power bestowed. In any event, his Honour’s starting point was that the question was one of statutory interpretation – an exercise which is specific to a particular statutory regime under examination.
In subsequent cases, the Court has approached the matter as one of statutory interpretation, and has asked the question whether the statute as a whole demonstrates an intention that the circumstances in which the particular decision was made would be free from challenge, or whether it was intended that the decision would still be open to challenge.
Some of the cases following Hickman are said to establish a further category of cases in which a challenge is permitted despite the presence of a privative clause. These are cases in which the decision is made in breach of inviolable conditions or restrictions on jurisdiction or is in breach of imperative duties.
In truth, this category merely describes the construction given to particular statutes under consideration in the individual cases. In each case, the underlying question was whether the legislature intended that the particular circumstances in which the decision was made would attract legal challenge, or whether the decision made in such circumstances was to be free from challenge.
Before reviewing certain of the authorities subsequent to Hickman, it is useful to refer to a recent authority which explained the scope of Hickman, after the passage of more than 40 years, in a way which brought together much of the evolved jurisprudence.
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the High Court dealt with two issues which bear upon the interpretation of privative clauses, although the case itself did not involve a privative clause.
The Court considered the need to reconcile apparently conflicting statutory provisions. The existence of an apparent inconsistency between statutory provisions is the situation in which the Hickman analysis applies. The majority (McHugh, Gummow, Kirby and Hayne JJ) said at par 69:
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.” [citations omitted]
The Court also considered the effect on the validity of an act done in breach of statutory requirement. The discussion is relevant to the construction of statutory duties and requirements where the issue arises as to whether a privative clause is effective to prevent challenge to the decision made. The majority said at par 91:
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on this issue.” [emphasis added] [citations omitted]
Their Honours then said that the traditional distinction between directory and mandatory provisions had outlived its usefulness as a test for determining the validity of action taken in breach of a statute. They continued at par 93:
“In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute”. [emphasis added] [citations omitted]
As the passage extracted in par 108 of these reasons states, the cases following Hickman are of some assistance in understanding the proper approach to the construction issues which arise in relation to privative clauses. The assistance is limited because the cases do not provide a bright line test. Rather, the circumstances of the decided cases can be applied by way of analogy to the cases which now arise. It is for that reason that it is useful to consider the authorities subsequent to Hickman.
Subsequent authorities
In R v the Commonwealth Rent Controller and Ors; Ex parte National Mutual Life Association of Australasia Limited (1947) 75 CLR 361 (Rent Controller) the High Court was concerned with a decision of the Commonwealth Rent Controller. The Rent Controller had fixed the fair rent for the National Mutual building. One tenant, Dorothy Clifford, sought a variation of the rent of her basement premises on the basis that the rent had previously been set on the assumption that the owner provided for the cleaning of the premises but, in fact, she paid for the cleaning herself. The Controller revoked the original determination and redetermined the rent of Ms Clifford, but also redetermined the rents of the thirty-nine other tenants. The owner of the building sought prohibition on the ground that the Controller had no statutory power to vary the rents of the other tenants in the absence of an application or applications by those other tenants. The Court held that the Controller acted without statutory power. It then had to consider the effect of regulation 38 which provided:
“Every determination of a Fair Rents Board or of the Controller shall, except as provided by this Part, be final and without appeal, and no writ of prohibition or certiorari shall lie in respect thereof.”
Latham CJ and Dixon J (with whom Rich J at 373 and Williams J at 377 agreed) 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 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 the case of the latter description: see R v Hickman; Ex parte Fox, at pp. 614-617. 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] [citations omitted]
The Court granted relief by way of prohibition.
The foundational importance to the rule of law of the right of a person to be confronted with evidence to be used by the government against that person was acknowledged in the United States by Chief Justice Warren delivering the opinion of the Supreme Court in Greene v McElroy (1959) 360 US 474 at 496-7 as follows:
“Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.
…
This Court has been zealous to protect these rights from erosion. It has spoken out not only in criminal cases, … but also in all types of cases where administrative and regulatory actions were under scrutiny. E. g., Southern R. Co. v Virginia, 290 U.S. 190; Ohio Bell Telephone Co. v Public Utilities Commission, 301 U.S. 292; Morgan v United States, 304 U.S. 1, 19; Carter v Kubler, 320 U.S. 243; Reilly v Pinkus, 338 U.S. 269.”
It is obvious from the approach of the common law reflected in Australian, UK, and US decisions that the opportunity to be told of adverse information to be used by a government against a person in administrative decision making, and the opportunity for that person to respond to such information, is regarded as a fundamental requirement of fair process. If further confirmation is needed, it is provided in a very recent decision of the Supreme Court of Canada.
In Suresh v Canada (Minister of Citizenship and Immigration) 2002 SCC 1 the Supreme Court considered a number of questions concerning the deportation of Mr Suresh to Sri Lanka. He was a senior figure in the Liberation Tigers for Tamil Eelam. He had been granted refugee status several years before this case was heard. The migration legislation, however, allowed for deportation where the Minister formed the view that the person was a danger to the security of Canada. Where the Minister formed that view, the person could be deported even if the person faced the risk of torture on return. The Minister received a written recommendation from a departmental officer that Mr Suresh should be deported. Mr Suresh was not entitled to an oral hearing under the statute. One question was whether he was entitled to a copy of the departmental recommendation and to an opportunity to respond to its contents. It is useful, first, to record the approach which the Court took to the issues raised by the case in general. At pars 2, 3 and 4 the court said:
“The appeal requires us to consider a number of issues: the standard to be applied in reviewing a ministerial decision to deport; whether the Charter precludes deportation to a country where the refugee faces torture or death; whether deportation on the basis of mere membership in an alleged terrorist organization unjustifiably infringes the Charter rights of free expression and free association; whether ‘terrorism’ and ‘danger to the security of Canada’ are unconstitutionally vague; and whether the deportation scheme contains adequate procedural safeguards to ensure that refugees are not expelled to a risk of torture or death.
The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Government, expressing the will of the governed, need the legal tools to effectively meet this challenge.
On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society – liberty, the rule of law, and the principles of fundamental justice – values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitutional and our international commitments.”
[emphasis added]
The question of the entitlement of Mr Suresh to a copy of the recommendation and to an opportunity to respond is particularly relevant to the present case as it raises the same question of principle. The issue in Suresh was whether the Canadian Charter of Rights and Freedom (the Charter) required Mr Suresh to be provided with such procedural protections. Section 7 of the Charter provides:
“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
[emphasis added]
Mr Suresh argued that the chance to see and respond to the recommendation was necessitated by “the principles of fundamental justice”. The Court said at par 113-4:
“This appeal requires us to determine the procedural protections to which an individual is entitled under s. 7 of the Charter. In doing so, we find it helpful to consider the common law approach to procedural fairness articulated by L’Heureux-Dubé J. in Baker, supra. In elaborating what is required by way of procedural protection under s. 7 of the Charter in cases of this kind, we wish to emphasize that our proposals should be applied in a manner sensitive to the context of specific factual situations. What is important are the basic principles underlying these procedural protections. The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty. As Professor Hogg has said, ‘The common law rules [of procedural fairness] are in fact tenets of the legal system, and they have evolved in response to the same values and objectives as s. 7’: see P.W. Hogg, Constitutional Law of Canada, (loose-leaf) Vol. 2, at para. 44.20. In Singh v Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13, Wilson J. recognized that the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness. Section 7 protects substantive as well as procedural rights: Re B.C. Motor Vehicle Act, supra. Insofar as procedural rights are concerned, the common law doctrine summarized in Baker, supra, properly recognizes the ingredients of fundamental justice.
We therefore find it appropriate to look to the factors discussed in Baker in determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of s. 7. In saying this, we emphasize that, as is the case for the substantive aspects of s. 7 in connection with deportation to torture, we look to the common law factors not as an end in themselves, but to inform the s. 7 procedural analysis. At the end of the day, the common law is not constitutionalized; it is used to inform the constitutional principles that apply to this case.
[emphasis added]The court then examined the context in which the ministerial decision had to be made. A number of features pointed to the need for procedural protections. For instance, there was no right of appeal from a decision, and no right to make any further requests to remain in Canada. Further, the right to stay in Canada was of great significance to Mr Suresh because he faced the danger of torture upon return to Sri Lanka. This factor was particularly important because the Executive had bound itself to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36. The court concluded at pars 122-3:
“We find that a person facing deportation to torture under s. 53(1)(b) must be informed of the case to be met. Subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents, this means that the material on which the Minister is basing her decision must be provided to the individual, including memoranda such as Mr Gautier’s [the departmental officer] recommendation to the Minister. Furthermore, fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister. While the Minister accepted written submissions from the appellant in this case, in the absence of access to the materials she was receiving from her staff and on which she based much of her decision, Suresh and his counsel had no knowledge of which factors they specifically needed to address, nor any chance to correct any factual inaccuracies or mischaracterizations. Fundamental justice requires that written submissions be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her. The Minister must then consider these submissions along with the submissions made by the Minister’s staff.
Not only must the refugee be informed of the case to be met, the refugee must also be given an opportunity to challenge the information of the Minister where issues as to it’s validity arise. Thus the refugee should be permitted to present evidence pursuant to s. 19 of the Act showing that his or her continued presence in Canada will not be detrimental to Canada, notwithstanding evidence of association with a terrorist organization. The same applies to the risk of torture on return. Where the Minister is relying on written assurances from a foreign government that a person would not be tortured, the refugee must be given an opportunity to present evidence and make submissions as to the value of such assurances.
[Emphasis added]The court remanded the case to the Minister for reconsideration in accordance with the procedures set out in the reasons.
Of course, this case depends on its own particular constitutional, statutory, and factual circumstances. However, its significance is that the court treated the constitutional principles of fundamental justice as informed by the requirements of procedural fairness at common law. The approach is of particular significance because it was enunciated very recently by the highest court in Canada. The decision was a unanimous decision of nine justices. It was made against the background of the statutory and governmental responses to the recent threats of terrorism. The case was clearly treated as an important test case. There was representation not only on behalf of the parties, but also on behalf of the United Nations High Commissioner for Refugees, Amnesty International, the Canadian Bar Association, and the Canadian Council of Churches. Even at this time of much heightened sensitivity to the threat of terrorism, the Supreme Court of Canada recognised that the right to receive and respond to adverse information is one of the “values fundamental to our democratic society”.
Section 359A(1) mirrors the particular common law obligation enforced in Aala, namely the duty of an administrative decision maker to give adverse information and an opportunity to comment to an applicant before it. The fact that a breach of such a requirement is regarded as an excess of jurisdiction for the purpose of the grant of prohibition does not necessarily mean that the same breach falls outside the operation of a privative clause. However, the fundamental nature of the requirement bears upon the likelihood that a breach was intended to carry a remedy. The nature of the obligation, as explained in Aala and Miah, albeit for a different purpose, and as recognised in the international jurisprudence referred to above, suggests that a decision made in breach of that obligation was not intended to be valid. If the failure to have a quorum in Proctor was not intended to lead to a valid decision, it is difficult to imagine that the breach of s 359A(1) was not intended to lead to invalidity.
It is the basic nature of the common law obligation to accord procedural fairness which means that it applies to a decision made under statute unless expressly and clearly excluded. It follows that where the same obligation is found in a statute it should be presumed that, absent an unmistakable intention to the contrary, a decision made in breach of the obligation is an act of the decision maker taken outside jurisdiction. The nature of the obligation is so fundamental that compliance is a prerequisite to a valid decision.
Second reading speech to the Migration Legislation Amendment (Judicial Review) Bill 2001
Before going to the terms of the Act reference should be made to the Minister’s second reading speech on the Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth) which introduced s 474. The Minister explained that the policy objective of the government in introducing the amendment was to restrict judicial review to exceptional cases.
In passing, it may be wondered whether this policy objective required any change to the legislation. The Minister stated “[o]f the cases that go on to substantive court hearings the merits based decision is currently upheld in around 90 per cent of cases” (Commonwealth, Parliamentary Debates, House of Representatives, 26 September 2001, 31560). On those figures it might be thought that only exceptional cases succeeded under the pre-existing system. It is fair to regard ten per cent as a figure representing exceptional cases. The problem appears to be that non-exceptional cases are commenced and fail, rather than that non-exceptional cases succeed.
The second policy objective referred to was the need to make the jurisdiction of the Federal Court and the High Court coextensive. This is to avoid the “potential to erode the proper role and purpose of the High Court” by burdening that court with the trial of a large number of migration cases falling within its constitutional jurisdiction but falling outside the jurisdiction of the Federal Court. The Minister said: (Commonwealth, Parliamentary Debates, House of Representatives, 26 September 2001, 31561):
“The options available to the government were very much shaped by the Constitution. While the government accepts that the precise limits of the privative clauses may need examination by the High Court, there is no other practical option open to the government to achieve its policy objective.”
Taking both objectives into account, the government introduced s 474. It expressly accepted that this clause was subject to the law as formulated by the High Court in the cases following Hickman. Thus, whatever result the application of Hickman produces in respect of the policy objectives, the government clearly meant that s 474 would be construed in accordance with Hickman and the jurisprudence which has been established on the basis of that case.
The statutory context of s 359A(1)
Consideration of the context in which s 359A(1) appears in the legislation is central in assessing the significance of the right given by the section, and in assessing the intended consequence of any breach.
The Tribunal is bound to conduct a review of a decision if an application is properly made (s 348). The applicant is entitled to provide a written statement of the facts and a written statement of the arguments relating to the decision under review (s 358(1)). The Secretary of the Department is entitled to give the Tribunal a written argument in relation to the decision under review (s 358(2)). The Tribunal may get additional information which it considers relevant (s 359(1)), and may invite a person to give additional information to the Tribunal (s 359(2)). Section 359A(1) requires certain adverse personal information to be provided to the applicant and requires the Tribunal to give the applicant an opportunity to comment on it. The manner in which additional information sought under s 359 is to be given, for instance, whether it is to be given in writing or at an interview, is at the discretion of the Tribunal. Similarly, the way in which an applicant is permitted to comment on adverse material provided under s 359A(1) is at the discretion of the Tribunal (s 359B). The Tribunal must invite the applicant to appear to give evidence and present arguments relating to the decision under review (s 360). Subject to certain exceptions, the applicant is entitled to access to any written material given to the Tribunal for the purpose of the review (s 362A). The applicant is entitled to have an assistant present at the hearing, but the assistant may not present argument or address the Tribunal except in exceptional circumstances (s 336A(1) and (2)).
When the Tribunal has arrived at a decision, the Tribunal must prepare a written statement setting out the decision on review, the reasons for the decision, the findings on any material questions of fact, and referring to the evidence or any other material on which the findings of fact were based (s 368(1)). Generally, the Tribunal must invite the applicant to be present when the decision is handed down (s 368A(1)). The Tribunal is bound to carry out its functions with the objective of providing a mechanism of review that is fair, just, economical, informal and quick. It is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case (s 353).
The outcome of the process provided by these provisions is a reasoned decision based on an analysis of material before the Tribunal. The provisions contemplate an explanation of the decision making process similar to the outcome expected in judicial proceedings. However, the process which is prescribed is very different to ordinary judicial proceedings. There is no provision for a contradictor before the Tribunal. The applicant is limited in the way such a person may present a case. An applicant is not entitled to legal or other assistance at the hearing except in exceptional circumstances. The Tribunal is given an inquisitorial function. It is entitled to seek information for itself, and has a wide discretion as to the manner in which the material is to be provided to the Tribunal. In this context the obligation of the Tribunal to permit the applicant an opportunity to comment on adverse personal information can be seen as essential to the fairness of the process provided by the statute.
In Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 301 Merkel J described the significance of s 359A(1) at par 35 as follows:
“The statutory entitlement of an applicant under ss 359A and 362A to have access to the information upon which the MRT may act in any particular case is the means by which the legislature has ensured that an applicant is afforded an opportunity to address and deal with information that is relevant to that applicant’s claim. In the absence of those statutory provisions an applicant would have no statutory entitlement to be informed of the material upon which the MRT may act. The extent of the protection afforded by ss 359A and 362A to an applicant therefore assumes fundamental importance to the fair operation of the statutory scheme of review by the MRT.” [emphasis added]
Although the Full Court disagreed with Merkel J’s conclusion that there had been a breach of the section, it did not take issue with the above description of the function of the provision.
Finally, it is relevant to the consequences flowing from a breach of the duty provided for in s 359A(1) to note that the hearing to which the duty attaches is the final merits review provided for by the statute. The applicant has no other opportunity to answer adverse material. That contextual factor again supports the conclusion that the legislature did not intend that the decision maker had power to make a valid decision without observing the requirements of s 359A(1).
In Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397 Heerey J may have expressed the opposite view. He said at par 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.” [emphasis added]
This statement is general in its terms. It does not refer to the particular statutory provisions in question in this case, or to the other provisions which use contrasting language and to which I refer in the next section of these reasons. In my view, the mere fact that s 474 was introduced by way of amendment does not change the nature of the provisions or the consequences for their breach.
The statutory context of s 359A(1) strongly points to the conclusion that compliance with the section is a precondition for the exercise of the power to determine a review.
The language of s 359A(1)
Support for the conclusion just expressed is to be found in the language of s 359A(1). This section provides that the Tribunal “must” give certain information to the applicant. This is language of compulsion. The language can be contrasted to the language of s 359(2) which relates to the Tribunal obtaining additional information for itself. In that situation, the Tribunal “may” invite a person to give additional information. Gaudron J in Miah at par 94 describes an earlier similar provision (s 57(2)) as “mandatory” and specifies “what the Minister must do”. She describes other provisions similar to s 359(2) as “permissive” or “facultative”. The same mandatory language is used in relation to other obligations which one would regard as essential to a fair process of adjudication, namely, the obligation to invite the applicant to a hearing (s 360(1)), the obligation of the Tribunal to have regard to the applicant’s request to call witnesses (s 361(3)), the obligation to conduct the hearing in public (s 365(1)), and the obligation to provide an interpreter (s 366C).
Section 359A(1) is part of Division 5. Section 360 is also found in that Division and provides that:
“The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
It can hardly be thought that the legislature intended a decision made in breach of s 360(1) to be a valid decision.
Such an approach is reflected in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 where the High Court held that a failure to conduct a hearing required by statute was a jurisdictional error which could be corrected by the grant of mandamus. In that case Mr Bhardwaj sought review by the Immigration Review Tribunal (IRT) of a decision of the delegate to cancel his student visa. The hearing date was fixed. Mr Bhardwaj was invited to attend. On the evening before the date fixed for the hearing the IRT received a letter stating that Mr Bhardwaj was ill, could not attend, and sought an adjournment. By an administrative oversight the letter did not come to the attention of the IRT member. Consequently, the IRT member rejected the application on the basis that Mr Bhardwaj had not provided any information to challenge the cancellation. Then, the member learned of the letter seeking an adjournment. A new hearing date was arranged. After conducting that hearing, at which Mr Bhardwaj gave evidence, the IRT found in his favour and revoked the cancellation of the visa. The question then arose whether the IRT had power to proceed with the hearing after it had made the initial decision. The High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that the IRT did have such power.
The majority decided that the initial decision was not a decision on a review as contemplated by the Act, and thus, did not prevent the IRT from conducting the subsequent hearing and making a decision on the review. The initial decision was made in breach of the requirement of the Act to give Mr Bhardwaj an opportunity to be heard. As a result, the IRT failed to perform the duty imposed on it by the statute. This failure amounted to a jurisdictional error which would have justified the grant of mandamus or prohibition under s 75(v) of the Constitution (Gaudron and Gummow JJ at par 44, McHugh J at par 67, Hayne J at par 147-149). For instance Hayne J elaborated at par 149 as follows:
“The error committed by the Tribunal in reaching its September decision [the initial decision] was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act. As the availability of mandamus demonstrates, the September decision was not a decision of the review that the respondent had sought in relation to the decision of the Minister’s delegate. The error made by the Tribunal in this case must be contrasted with other, non-jurisdictional, errors that a decision-maker may commit. In particular, a jurisdictional error of the kind made in relation to the September decision is fundamentally different from a case where, for whatever reason, a decision-maker has second thoughts about such matters as findings of fact. No doubt the word ‘error’ can be applied to the circumstances last mentioned, but the legal significance of such error is, for the reasons given by Brennan J in Attorney-General (NSW) v Quin, radically different from the significance of a jurisdictional error. As his Honour said:
‘The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. … The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.’
[emphasis added] [citations omitted]
The right to notice of a hearing is so basic that it would take express and unambiguous language to disclose a legislative intention that a decision made without inviting the applicant to a hearing would be valid. Section 359A is closely positioned to s 360 in the Act because it reflects the same fundamental requirements for a fair process.
Furthermore, the statute employs a variety of techniques to indicate duties of lesser importance and lesser consequence than the duty imposed by s 359A(1). For instance, applicants are entitled to notify the Tribunal that they want the Tribunal to obtain oral evidence from a person (s 361(2)). Section 361(3) relevantly provides:
“If the Tribunal is notified by an applicant … the Tribunal must have regard to the applicant’s notice but is not required to comply with it.”
On the other hand, s 366C(2) provides:
“The Tribunal must comply with a request [for an interpreter] made by a person under subsection (1) unless it considers that the person is sufficiently proficient in English.”
The legislature was well aware of the way in which to express an intention that non-compliance would not lead to invalidity. Thus, s 353A(1)-(3) provides:
“(1)The Principal Member may, in writing, give directions, not inconsistent with this Act or the regulations, as to:
(a)the operation of the Tribunal; and
(b)the conduct of reviews by the Tribunal.
(2)In particular, the directions may relate to the application of efficient processing practices to the conduct of reviews by the Tribunal.
(3)The Tribunal should, as far as possible, comply with the directions. However, non-compliance by the Tribunal with any direction does not mean that the Tribunal’s decision on a review is an invalid decision.”
[emphasis added]
It follows that the legislature intended a decision made in breach of s 359A(1) to be subject to challenge despite the existence of s 474.
For the same reasons, the decision made in breach of s 359A(1) is made in excess of jurisdiction, in the sense required for the grant of a writ of prohibition. Further, there are no discretionary reasons for refusing relief.
MISTAKE OF FACT
As Mr Awan is entitled to relief arising from the Tribunal’s breach of s 359A(1) it is not necessary to consider further whether the mistakes of fact identified earlier in these reasons would also entitle him to relief.
However, in the event that I am wrong in granting Mr Awan relief in relation to the Tribunal’s breach of s 359A(1), it is useful for me to indicate my view of the consequences of the mistakes of fact referred to earlier in these reasons.
There is a divergence of views in very recent cases as to the circumstances which will amount to jurisdictional error such that s 474 will not operate to exclude challenge. See Walton v Ruddock [2001] FCA 1839; NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263; NABE v Minister for Immigration & Multicultural Affairs [2002] FCA 281; Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311; Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438; and Turcan v Minister for Immigration & Multicultural Affairs [2002] FCA 397.
Whatever view one takes in this debate, the mistakes of fact made by the Tribunal in this case did not amount to jurisdictional errors. They were errors of fact made within jurisdiction. Hence, they do not provide any right to relief.
ORDERS
As the Tribunal is not a party to this proceeding it is not appropriate to order the issue of writs of mandamus or prohibition directed to the Tribunal. The appropriate course is to make a declaration that the decision of the Tribunal is null and void: see Boakye-Danquah at par 72.
I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.
Associate:
Dated: 9 May 2002
Counsel for the Applicant:
The appellant appeared in person
Counsel for the Respondent:
Mr C Horan
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
10 February 2002
Date of Judgment:
9 May 2002
20
12
0