GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS APPELLANT
AND
RAJIV BHARDWAJ RESPONDENT
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 14 March 2002 S37/2001
ORDER
Appeal dismissed with costs.
On appeal from the Federal Court of Australia
Representation:
J Basten QC with R T Beech-Jones for the appellant (instructed by Australian Government Solicitor)
D F Jackson QC with J R Young for the respondent (instructed by Newman & Associates)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Minister for Immigration and Multicultural Affairs v Bhardwaj
Immigration – Immigration Review Tribunal – Powers and duties of Tribunal – Capacity of Tribunal to correct own error – Decision cancelling visa – Failure to consider correspondence from respondent – Reconsideration of decision – Whether decision involving jurisdictional error is a nullity – Whether Tribunal may of its own motion reconsider its decision – Whether validity of decision open to collateral attack.
Administrative law – Judicial review – Procedural fairness – Administrative decision – Tribunal required to give respondent opportunity to appear – Decision made after Tribunal mistakenly assumed respondent declined to appear – Whether jurisdictional error constituted by denial of procedural fairness – Whether failure to exercise jurisdiction – Whether Tribunal authorised to make fresh decision – Whether invalidity of decision could be raised in collateral attack on validity of decision in proceedings.
GLEESON CJ. This appeal concerns an administrative tribunal's capacity to correct its own error when, in consequence of that error, it has failed to discharge its statutory function.
The respondent, whose student visa was cancelled by a delegate of the appellant, applied to the Immigration Review Tribunal ("the Tribunal") for a review of the decision. The application was received on 21 August 1998. The Tribunal proposed to deal with the matter on 15 September 1998, and invited the respondent to attend a hearing. Late in the afternoon of 14 September 1998 the Tribunal received, from the respondent's agent, a letter stating that the respondent was ill and would be unable to attend the next day, and requesting an adjournment. By an administrative oversight, the letter did not come to the attention of the member of the Tribunal to whom the matter had been assigned. The Tribunal dealt with the matter on 15 and 16 September, adversely to the respondent, and notified the respondent and his agent on 17 September. The reason given for the Tribunal's decision was that the respondent had not provided any information which suggested that the cancellation of his visa was unfair or inappropriate. When the respondent's agent was informed of the decision, the attention of the Tribunal member was drawn to the letter of 14 September. A new…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Minister for Immigration and Multicultural Affairs v Bhardwa...
Sign in free to access the full text
Details
AGLC
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11
Case
[2002] HCA 11
Decision Date
CaseChat Overview and Summary
The Minister for Immigration and Multicultural Affairs appealed to the High Court of Australia against a decision of the Full Federal Court. The dispute concerned the Immigration Review Tribunal's power to reconsider and revoke its own earlier decision to cancel Mr. Bhardwaj's student visa. The Minister argued that the Tribunal lacked the authority to treat a decision involving jurisdictional error as a nullity and then make a subsequent decision on the same matter.
The central legal issues before the High Court were whether the Tribunal had the power to reconsider its own decision, particularly when that decision was affected by jurisdictional error, and whether the validity of the Tribunal's later decision could be challenged collaterally. The Court also considered whether the Tribunal's initial decision, which affirmed the cancellation of Mr. Bhardwaj's visa, was a nullity due to a denial of procedural fairness, and if so, whether the Tribunal was authorised to make a fresh decision.
The High Court, by majority, dismissed the Minister's appeal. The Court reasoned that the September decision, which affirmed the visa cancellation, had not been the subject of a timely application for judicial review to the Federal Court. Consequently, it was not open to the Minister to collaterally attack the validity of that decision in proceedings challenging the Tribunal's later October decision. The Court held that the statutory scheme provided specific avenues for challenging the Tribunal's decisions, and these had not been invoked within the prescribed timeframes. Therefore, the September decision stood, and the Tribunal, having made a valid decision, was *functus officio* and lacked jurisdiction to make the subsequent October decision revoking the cancellation.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
In this appeal, the appellant, the Minister for Immigration and Multicultural Affairs ("the Minister"), argues that the Immigration Review Tribunal ("the Tribunal") has no power to cure an error in its decision-making process by treating a decision involving jurisdictional error as a nullity and, then, proceeding to make a further decision on the same matter.The facts and the history of the proceedings The respondent, Rajiv Bhardwaj, was granted a student visa to study in Australia. Initially, he enrolled at Holmesglen Institute of Technical and Further Education but later transferred to the Australian International College of Business ("the Australian International College") and, later still, to the Kookaburra College. The Department of Immigration and Multicultural Affairs ("the Department") was informed that Mr Bhardwaj had failed to commence his course with the Australian International College but, apparently as a result of some oversight by the Kookaburra College, was not informed that he had commenced studies at the latter college. Upon being informed that Mr Bhardwaj had failed to commence his studies with the Australian International College, the Department notified him that he should provide reasons why his visa should not be cancelled. No reply was received and, on 6 August 1998, a delegate of the Minister cancelled his visa ("the delegate's decision"). On 20 August 1998, he applied for a review of that decision. On 2 September, he was notified that the Tribunal would conduct a review hearing on Tuesday, 15 September 1998. Apparently Mr Bhardwaj became ill on 13 September. Sometime after 6 pm on 14 September, his agent sent an urgent facsimile message to the Tribunal informing it of that fact and seeking another hearing date. The facsimile was received at 6.40 pm but did not come to the attention of the person constituting the Tribunal for the purpose of conducting the review requested by Mr Bhardwaj. On 16 September, the Tribunal affirmed the delegate's decision to cancel his visa ("the September decision"). That decision was then communicated to the Department and to Mr Bhardwaj. No application was made to the Federal Court for review of the September decision. Nor was an application made to this Court under s 75(v) of the Constitution. Rather, on 18 September, Mr Bhardwaj's agent sent a further urgent facsimile message to the Tribunal referring to his earlier facsimile of 14 September. In consequence, the Tribunal wrote to Mr Bhardwaj "confirm[ing] that the time for [the] hearing ha[d] been changed." A hearing then took place on 23 September. On 22 October, the Tribunal published a decision revoking the cancellation of Mr Bhardwaj's visa ("the October decision"). On 19 November 1998, the Minister applied to the Federal Court for review of the October decision, seeking an order that that decision be set aside. In essence, the Minister argued that, by reason of the September decision, the Tribunal lacked power and/or jurisdiction to make the October decision[12]. The application was dismissed by Madgwick J. A subsequent appeal to the Full Federal Court was dismissed by majority (Beaumont and Carr JJ, Lehane J dissenting). The Minister now appeals to this Court.[12]The amended grounds upon which review was sought were:"1.The decision involved an error of law.Particulars(1)The Tribunal erred in law by purporting to make a decision in respect of an application for review before it when it had previously made a decision in respect of the same application and was functus officio.2.The person who purported to make the decision did not have jurisdiction to make the decision....3.The decision was not authorised by the Act."The Minister referred to the particulars provided for the first ground of review in particularising the second and third grounds.The statutory scheme
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
GAUDRON AND GUMMOW JJ
(dissent)
HUGH J
(dissent)
KIRBY J
(dissent)
HAYNE J
(dissent)
CALLINAN J
(dissent)
In addition to the above matters, it was argued that it was consistent with general principles relating to administrative decisions reached in breach of the rules of natural justice for the Tribunal to revisit or reconsider its September decision. In this last regard, reference was made to statements in a number of decided cases, including Ridge v Baldwin[22], which endorse the proposition that, as a general rule, an administrative tribunal may cure a breach of the rules of natural justice by subsequently providing a proper hearing to the person thereby affected.[22][1964] AC 40 at 79 per Lord Reid, 99 per Lord Evershed, 129 per Lord Hodson. See also Twist v Randwick Municipal Council (1976) 136 CLR 106 at 115-116 per Mason J; R v Kensington and Chelsea Rent Tribunal, Ex parte MacFarlane [1974] 1 WLR 1486 at 1492-1493; [1974] 3 All ER 390 at 395-396; Calvin v Carr [1980] AC 574 at 592; R v Hertfordshire County Council, Ex parte Cheung (TLR 4 April 1986); Posluns v Toronto Stock Exchange [1968] SCR 330 at 340 per Ritchie J; Re Trizec Equities Ltd and Area Assessor Burnaby-New Westminster (1983) 147 DLR (3d) 637 at 643 per McLachlin J; Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 862-863 per Sopinka J (with whom Dickson CJ and Wilson J concurred), 872-873 per L'Heureux-Dubé J (dissenting, with whom La Forest J concurred).The September decision Procedural fairness, which is one aspect of the rules of natural justice, requires that a person who may be affected by a decision be informed of the case against him or her and that he or she be given an opportunity to answer it[23]. The opportunity to answer must be a reasonable opportunity[24]. Thus, a failure to accede to a reasonable request for an adjournment can constitute procedural unfairness[25].[23]See Delta Properties Pty Ltd v Brisbane City Council (1955) 95 CLR 11 at 18 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ; Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109-110 per Barwick CJ, 112 per Mason J; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 495 per Murphy J, 498-499 per Aickin J; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 350 per Gibbs CJ, 360 per Mason J, 376 per Aickin J; Kioa v West (1985) 159 CLR 550 at 569-570 per Gibbs CJ, 582 per Mason J, 602 per Wilson J, 628 per Brennan J, 633 per Deane J; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 75 ALJR 889 at 906 [99] per Gaudron J, 910 [127] per McHugh J; 179 ALR 238 at 260, 266-267.[24]See Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J; R v Ludeke; Ex parte Customs Officers' Association of Australia (1985) 155 CLR 513 at 528 per Brennan J; Re Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 519 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ; Re Association of Architects of Australia; Ex parte Municipal Officers Association of Australia (1989) 63 ALJR 298 at 305 per Gaudron J; Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 per Tucker LJ; Kanda v Government of Malaya [1962] AC 322 at 337 per Lord Denning. But cf Kioa v West (1985) 159 CLR 550 at 615 per Brennan J; Roderick v Australian and Overseas Telecommunications Corporation Ltd (1992) 39 FCR 134 at 142 per Hill J (with whom Keely and O'Loughlin JJ concurred).[25]See Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J; Murray v Greyhound Racing Control Board of Queensland [1979] Qd R 111 at 117-118; Opitz v Repatriation Commission (1991) 29 FCR 50 at 58-59; Ex parte Bone; Robins and the Shire of Greenough [1990] WAR 94; Shadforths Ltd v Human Rights Commission (1991) 32 FCR 303; Rose v Humbles (Inspector of Taxes) [1972] 1 WLR 33 at 44 per Sachs LJ; [1972] 1 All ER 314 at 322; R v Thames Magistrates' Court, Ex parte Polemis [1974] 1 WLR 1371; [1974] 2 All ER 1219; Ostreicher v Secretary of State for the Environment [1978] 1 WLR 810 at 815-816 per Lord Denning MR; [1978] 3 All ER 82 at 86.
Ratio Decidendi
Legal Principle Established
Established by:
No application was made to the Federal Court by either party for judicial review of the September decision. The primary judge correctly held that, by the time the matter was before him, that decision could not be impugned[163]. As the September decision had not been made the subject of a valid application for judicial review, it would contradict the explicit constraints applied by the Parliament on the jurisdiction of the Federal Court[164] to hold that, in an application challenging the October decision, it was open to a party well out of time for doing so, to challenge the September decision. In the Full Court, Lehane J concluded that the assumption by the Federal Court of any jurisdiction in relation to the September decision would, in the circumstances, be inconsistent with the express provisions of s 485(1) of the Act[165]. I agree. A collateral challenge to the validity of an administrative decision may sometimes be available[166]. But, having regard to the explicit language of the Act, it was not available in this case. Least of all in a proceeding where no such collateral attack was properly mounted. The provisions of the Act that expressly allowed a challenge in the Federal Court to the validity of the September decision were unavailing because no party had invoked those provisions within time.[163]Minister for Immigration and Multicultural Affairs v Bhardwaj [1999] FCA 1806 at [16].[164]The Act, s 485(1).[165]Bhardwaj (2000) 99 FCR 251 at 266 [64].[166]Ousley v The Queen (1997) 192 CLR 69 at 91, 109, 130-131, 147-148.Discretionary considerations favour relief Under s 481(1) of the Act, on an application for review of a "judicially-reviewable decision", the Federal Court had a discretion to provide (and hence to withhold) relief in terms of the section. Whatever doubt might have existed if the section had simply used the word "may"[167], this was removed by the express statement in the Act that the orders specified were "in [the] discretion" of the Federal Court. [167]cf Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 applied in Walton v Gardiner (1993) 177 CLR 378 at 414; Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd (1994) 182 CLR 51 at 97; Mitchell v The Queen (1996) 184 CLR 333 at 345; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 563; Pyrenees Shire Council v Day (1998) 192 CLR 330 at 425 [253]. Nonetheless, a discretion must be exercised by the repository of the power consistently with the character of that body, the reasons for which the power has been afforded and the interests involved in the decision in question which (in a public law matter) will commonly involve the community's interest in lawful administration, as well as the individual interest of a party anxious to win its case. It follows that the Tribunal acted beyond its powers, having made a "decision" under the Act, in purporting to make a second "decision" and thereby to revoke the earlier decision which it had made[168]. The circumstances found by the Tribunal in its October decision appeared to warrant the provision of some relief to the respondent from the effect of the September decision. But whilst that "decision" remained in place, the provision of that relief was reserved in the case of this Tribunal to the Federal Court in accordance with the Act or to this Court in accordance with the Constitution.[168]Scarfe v Federal Commissioner of Taxation (1920) 28 CLR 271; Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 444; Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 316-317.