Nation v Minister for Immigration - [2005] FMCA 620

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NATION v MINISTER FOR IMMIGRATION

[2005] FMCA 620

MIGRATION – Tourism visa cancelled by Minister’s delegate – application made to Court and not to Migration Review Tribunal – discretion to decline to exercise jurisdiction where statutory scheme for review ignored – notice of cancellation and alleged inadequacy of grounds – alleged bad faith of delegate.

Judiciary Act 1903, s.39B
Migration Act 1958, ss.41(1), 116, 116(1)(g), 119, 120, 192, 338, 338(3), 347, 349(1), 349(2), 353, 476, 476(1)

Plaintiff S157/2002 v the Commonwealth [2003] 211 CLR 476;
McGowan v Migration Agents [2003] 129 FCR 118
Krummery v MIMIA [2005] FMCA 264
Wang v MIMIA [2000] FC 167
Zubair v MIMIA [2004] FCA FC 248
William Tien v MIMIA (1998) 89 FCR 80
MIMIA v Eshetu (1999) 197 CLR 611
S106/2002 v MIMIA 198 ALR 59
Re Family Court of Australia; ex parte Herbert (1992) FLC 92-280
Dranichnikov v MIMIA [2003] HCA 26
Tooth & Co Ltd v Council of City of Parramatta (1995) 97 CLR 492
Re Minister for Immigration and Multicultural Affairs (2001) 206 CLR 57
R v Falmouth ex parte South West Water Ltd
SBBS v MIMIA [2002] FCA FC 36
Goldie v The Commonwealth [2002] FCA FC 100

Applicant:

JONATHAN PAUL NATION

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

ADG 21 of 2005

Judgment of:

Lindsay FM

Hearing date:

12 April 2005

Delivered at:

Adelaide

Delivered on:

13 May 2005

REPRESENTATION

Counsel for the Applicant:

Mr Patel

Solicitors for the Applicant:

Patel & Co

Counsel for the Respondent:

Mr Roder

Solicitors for the Respondent:

Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADG 21 of 2005

JONATHAN PAUL NATION

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903, seeking judicial review of a decision of a delegate of the Minister made on 4 February 2005. That decision cancelled the applicant's subclass 976 visa.
The applicant has not sought relief in the Migration Review Tribunal under Part 5 of the Migration Act (hereinafter "the Review procedure"). There was no dispute that the delegate's decision was reviewable by the Tribunal (see s.338 of the Migration Act 1958, hereinafter called "the Act"). It is also agreed that the time for filing such a review has now expired (see s.347 of the Act) and that no power to extend that time is available.
The jurisdiction of this Court pursuant to s.483A of the Act is the same jurisdiction of the Federal Court in relation to a matter arising under this Act, that jurisdiction relevantly being the Federal Court's judicial review jurisdiction under s.39B of the Judiciary Act1903 (Cth) subject to limitations under Part 8 of the Migration Act.
Mr Patel for the applicant put to me, and I accept, that those limitations, as interpreted by the High Court in Plaintiff S157/2002 v the Commonwealth [2003] 211 CLR 476 and subsequent cases, have the effect that the applicant must show a jurisdictional error in the decision of the Tribunal before he can obtain the relief he seeks.

Declining to exercise jurisdiction a threshold issue?

Mr Roder for the Minister at the outset raised with the Court the issue of whether the application should be heard at all in the light of the applicant's failure to utilise the review procedure. The matter was treated as a threshold issue in the sense that the discretion which is said to exist to refuse judicial review where a statutory mechanism for review or appeal is available was one the Court was asked to exercise at the outset of the hearing rather than as a residual matter. I consider that generally speaking there is no impediment to the discretion being exercised in such a way. In other words, the application can properly be dealt with at the outset. The question of whether, if the Court elects to proceed in that way, it must in dealing with the application assume that the applicant would succeed but for this discretionary matter is a matter that troubled me and was the major reason, though not the only reason, I decided to hear the application in its entirety before ruling on the threshold point.
My difficulty arose from a consideration of the decision of Branson J in McGowan v Migration Agents [2003] 129 FCR 118 especially at [47] and at [48]. Her Honour was there considering dual applications to dismiss a judicial review application - on the ground agitated before me and also pursuant to s.19(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act. Her Honour clearly thought that she had to approach both exercises on the basis of the assumption of success of the application but for the discretionary matters, as one would determine an application to summarily dismiss an application under, say, Rule 13 of the Rules of this Court. Thus, her Honour says at the passage identified above:
“In a case like the present, where a claim for judicial review is made in the alternative under s 39B of the Judiciary Act, I consider that the power of the Court to dismiss the application summarily where it is clear that no order would be made in favour of the applicant if a hearing were conducted, extends to the alternative claim formulated by reference to s 39B of the Judiciary Act.
It is thus appropriate to proceed, as the respondent acknowledged, on the basis that, discretionary considerations aside, the applicant would succeed in her claims.”
The essence of the application is that the Court should not embark upon a hearing of the matter at all, not that the application is bound to fail. It is probably unhelpful then to cast the exercise in terms of assuming the applicant's success in all other aspects of the application. The merits of the application are not the focus of the submission, which is rather the forum chosen by the applicant.
Of course the merits could not be ignored if the case was plainly meritorious or where as here declining to exercise the jurisdiction would leave the applicant without remedy (albeit because of his own election). Similarly a plainly hopeless case might more readily be the subject of such a refusal. The point is that an evaluation of the merits, let alone an assumption of success, need not be an inevitable part of the exercise.
A resolve to hear the matter in its entirety before a decision is made as to whether the hearing should be embarked upon at all may seem paradoxical but the issue discussed above and the consequences of a refusal to exercise jurisdiction are the explanations for my proceeding in this way.

The evidence

The applicant wished to have three affidavits read in evidence in the hearing before me. The first was filed on 16 February 2005 and contains his account of events relevant to his travel and the circumstances of the cancellation of his visa. I hope I am right in saying that the respondent did not object to my receipt of that affidavit subject to the claim to be entitled to cross‑examine the deponent on issues relating to his claim that the delegate included matters in her description of the factual matters expressed to her by the applicant which were inaccurate. The second affidavit, also of the applicant, was filed on 29 March 2005 and contained annexures which the applicant wanted me to introduce into the evidence, namely:
a)a brochure received by him at the time of the grant of the visa;
b)written confirmation of flight arrangements from the applicant's travel agents; and
c)a Barclay Bank account statement in the name of the applicant.
He also seeks to rely upon an affidavit of one Bahal Singh Gill which annexes the result of a computer search of the Adelaide Land Titles Office.
The respondent objected to my receiving that affidavit or the annexures to it. I will discuss the basis of the objections hereafter.
The respondent relied upon an affidavit of the delegate filed on 7 April 2005. No objection was taken to that affidavit by the applicant.
The first ground of review relates to the adequacy of the notice procedure but before discussing that I summarise the relevant facts as follows.
The applicant first arrived in Australia in August 2004. He travelled on an electronic travel authority sub-class 976 visa valid until 6 February 2005 with a right of multiple entries. He lived with his girlfriend in Adelaide until returning to the United Kingdom on 12 September 2004. During this visit he was charged with assault and property damage. The victim was his girlfriend. He pleaded guilty. He was fined $520.
He returned to Australia on 6 November 2004. Once more he stayed with his girlfriend. Once more, this time on 31 December 2004, he was arrested and charged with assaulting her. He was granted bail on a cash surety of $2000. He did not provide the surety. He was held in custody in Yatala Prison. Whilst in custody he changed his departure date from 2 February 2005 to 11 September 2005.
On 3 February 2005 he attended the Adelaide Magistrates Court. The assault charge was withdrawn. As he left court he was detained by the delegate and another officer of the Department. It was determined he would be interviewed the following day. He was driven home. There was conversation between the delegate and the applicant. The second immigration officer who was present handed the applicant a notice of intention to cancel visa (hereinafter "the NOIC").
The NOIC specified that "ground may exist under s.116(1)(g) of the Migration Act and Regulation 2.43(1)(k)". It specified that the applicant:
a)was a non-genuine visitor;
b)had no travel plans;
c)had insufficient funds for a genuine visit;
d)had been charged with assault and unable to meet his bail in the amount of $2,000; and
e)had been held in custody for five weeks.
The delegate says that on the following day (4 February 2005) the applicant was given an opportunity to respond to the NOIC. She says that the applicant said that he had intended to travel to Sydney but that after a month in Adelaide he had decided to buy a house and stay with his girlfriend (or de facto spouse). He said that he was planning to apply for a working visa and to settle in Adelaide permanently. According to the delegate the applicant said that he had funds to support himself when he arrived in Australia but that he used them to purchase a house with his de facto spouse. He said he had $200. He said he was unable to obtain any bank statements. He said to her that his intention of visiting Australia for tourism purposes changed soon after his arrival and that he intended to migrate and stay in Australia permanent.
The applicant raises the following matters in relation to the above account:
a)He says he could have provided the cash surety but prison officers would not allow him to telephone his relations to arrange same.
b)He says that on 4 February 2005 and in response to the NOIC he told the delegate that his original travel plans had not changed. He had come to Australia to visit his mother and girlfriend.
c)He says that he told the delegate that he had funds in the bank in the United Kingdom (the annexure "JPN3" to the affidavit of 21 March 2005 is said to be evidence of that).
d)He says he told the delegate that he would have returned to the United Kingdom on 2 February 2005 if he had not been arrested, and intended to apply for a de facto spouse visa; if he was successful in obtaining such a visa he and his de facto spouse would look to buy a house in Adelaide.
e)He says that when he was advised by the delegate of her decision he pointed out that she had incorrectly recorded what he had said about the house but that she refused to amend it.
f)He complains that the delegate was very rude and disdainful in her treatment of him, particularly as it relates to the issue of the grant of a bridging visa.

The relevant regulations and statutory provisions

Section 41(1) of the Act provides:
“The regulations may provide that visas, or visas of a specified class, are subject to specified conditions”.
Regulation 2.05(1) provides:
“For the purposes of subsection 41(1) of the Act (which deals with conditions that apply to a visa), the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the Part of Schedule 2 that relates to visas of the subclass in which the visa is included”.
Schedule 2 provides under the heading "Subclass 976" at 976.6:
“Conditions 8101, 8201, 8527 and 8528 must be imposed”.
These conditions were set out in the NOIC. They relate to the following matters as set forth in schedule 8: conditions 8101, 8201, 8205, 8527 and 8528.
As I have previously held, in Krummery v MIMIA [2005] FMCA 264:
“A 956 visa cannot issue without the conditions imposed. When it does issue it must be taken to issue replete with the conditions. It would not be a valid 956 visa if it did not. So much is clear from s 41(1) and Regulation 2.05. So I do not consider the Act and Regulations require a separate act of imposition of conditions.”
Once this is understood, the argument relating to the brochure (see par 10(a) above), that it filled the gap in the visa as to description of conditions, can be disposed of. No endorsements are required.
Section 116 of the Act provides:
“(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a)any circumstances which permitted the grant of the visa no longer exist; or
(b)it holder has not complied with a condition of the visa; or
(c)another person required to comply with a condition of the visa has not complied with that condition; or
(d)if its holder has not entered Australia or has so entered but has not been immigration cleared – it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e)the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or
(f)the visa should not have been granted because the application for it, or its grant was in contravention of this Act or of another law of the Commonwealth; or
(fa) in the case of a student visa:
(a)its holder is not, or is likely not to be, a genuine student; or
(b)is holder has engaged, is engaging, or is likely to engage, while in Australia in conduct (including omissions) not contemplated by the visa; or
(g)a prescribed ground for cancelling a visa applies to the holder.”
In relation to s.116(1)(g) Regulation 2.43(1)(k) provides:
“In the case of the holder of a Subclass 976 (Electronic Travel Authority (Visitor)) visa – that, despite the grant of the visa, the Minister is satisfied that the visa holder did not have, at the time of the grant of the visa, or has ceased to have, an intention only to visit Australia temporarily for tourism purposes.”
Thus a subclass 976 visa can be cancelled if the holder has ceased to have an intention to visit Australia for tourism purposes.
Tourism is defined in Regulation 1.04 as follows:
“participation in activities of a recreational nature including amateur sporting activities, informal study courses, relaxation, sightseeing and travel.”
It is against the background of this legislative scheme that the adequacy of the notice is to be assessed.
Section 119 of the Act provides:
“(1)Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a)give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i)those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2)The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3)The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4)The other provisions of this Subdivision do not apply to a cancellation:
(a) provision other than section 116; or
(b) to which Subdivision F applies.”
It is complemented by Section 120 of the Act which provides:
“(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for cancelling a visa; and
(b)is specifically about the holder or another person and is not just about a class of persons of which the holder or another person is a member; and
(c)was not given by the holder; and
(d)was not disclosed to the holder in the notification under section 119.
(2)The Minister must:
(a)give particulars of the relevant information to the holder; and
(b)ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and
(c)invite the holder to comment on it.
(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.”

The adequacy of the notice

So I return to the submission about the adequacy of the notice. It is said that it is defective because none of the matters set out in it are capable of establishing a ground for cancellation. Reliance is placed on Wang v MIMIA [2000] FCA 167 at [27] to [33]. That decision of Mansfield J dealt with the different provisions relating to the cancellation of visas of persons outside Australia. The major difference in the scheme is that the notice of grounds is given after cancellation of the visa has been effected to provide an opportunity for reconsideration of the decision. Nevertheless what his Honour says at [33], that a defective notice vitiates a precondition to entitlement to making a cancellation decision, is of relevance to the cancellation of visas pursuant to s.116. The applicant's response to a notice under either part of the legislative scheme can only be said to have engaged the relevant issue if the notice contains the properly particularised grounds in the first place.
But how is it that the notice is said not to raise a matter relating to a ground for cancellation? The delegate was concerned as to whether the applicant was no longer here on tourism purposes. She averred that the applicant was a "non‑genuine visitor" and put forward matters she considered material to that exercise: namely lack of funds, his arrest and lack of travel plans. Whether the grounds are adequate is another matter. The delegate has not made a decision at this stage. She cannot do so unless and until the applicant has had an opportunity to respond to the notice. What the applicant says may enlarge or modify the grounds claimed in the notice.
I am satisfied that the delegate complied with s.119 in that the notice provided set forth the grounds on which she proposed to rely to cancel the visa.
Of course were I not satisfied that the requirements of notice had been given, the only course I would have open to me would be to quash the cancellation and send the matter back to the delegate for her further consideration. That position is in contrast with the powers which could be exercised by the Migration Review Tribunal in such a case (see Zubair v MIMIA [2004] FCA FC 248).
The applicant complains that the delegate could not rely upon the alleged statements as to the purchase of a house because they were not in the NOIC. That they were not mentioned in the NOIC is agreed – the delegate acknowledges this information came from the applicant in response to the service of the NOIC. But this is said by the applicant to be the problem. It is contended that s.120 provides that the Minister must not take into account information provided by the applicant or at least that such information can only be utilised if a fresh notice containing that information is given. Reliance is placed on the decision of Goldberg J in William Tien v MIMIA (1998) 89 FCR 80 at [93] where his Honour said:
“I am therefore satisfied that Ms Leonardi took into account two particulars of information in considering and making a decision to cancel Mr Tien's visa which a correct application of the law precluded her from taking into account. The scheme of Sections 119 and 120 is such that it requires the minister or the minister's delegate to take into account only information which would be a reason for cancelling a visa where that information has not been given by the visa holder and has been provided to the visa holder in the manner set out in Sections 119, 120 and 121.”
That passage is not read properly if it is read to bear the meaning contended by the applicant. Section 120 of the Act prescribes certain information to be provided by the delegate. What must be provided does not include information given by the applicant himself or herself. That is the plain meaning of the section and his Honour's summary of it does not convey anything different in my view.

Jurisdictional error

It is contended that in being satisfied that a ground for cancellation of the visa existed, the delegate relied on facts which did not exist or that were not supported by probative material or upon irrelevant material.
Mr Patel for the applicant was at some pains to contend that such a submission was one which was an attack upon the legality of the decision rather than an attempt to agitate matters relating to the merit of the application. I accept that (see the discussion by Gummow J in MIMIA v Eshetu (1999) 197 CLR 611 of the decision of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at [136] to [140]).
But if I accept the account given by the delegate of how she reached her decision - that is, if I accept that the applicant told her what she says he told her - it is difficult to see how such a decision could be attacked on grounds of reliance on irrelevant material or irrationality. The account she says he gives to her must mean that the temporary tourism purpose has ceased to exist, for he is expressing a desire to reside in Australia and has taken steps to acquire a house here. The change in temporary tourist purpose would have occurred at the point he decided not to travel to Sydney but to reside in Adelaide.
But it is said that these are the very matters that are in dispute. The applicant denies that he purchased a house and seeks to introduce the results of a computer search at the Lands Title Office to prove it (“the Gill affidavit”). He denies the lack of cash, he denies the change in travel plans and says all along that he intended to visit his girlfriend and mother.
If the delegate took into account facts which did not exist in reaching her decision then that is clearly capable of amounting to a jurisdictional error. The matters said to provide the grounds for the decision are a combination of facts and inferences drawn from fact. With the exception of the allegation as to purchase of a house, the facts were not in dispute but the validity of the inferences drawn from those facts were. That the applicant did not provide a cash surety to the Court is not disputed. What is disputed is what the delegate then infers from that fact, ie that the applicant has no cash. The lack of a travel plan is not disputed. The inference drawn from that (in conjunction with other facts and inferences) that the applicant is not here on temporary tourist purposes is disputed. It is not disputed that a plan to go to Sydney was shelved; again it is the inference drawn from that which is disputed.
The inferences drawn are clearly open to be drawn in each case. Whether this court would have drawn them in the same or a similar way is beside the point. What must be demonstrated in an application for judicial review is that the use made of such facts or inferences from facts has resulted in a jurisdictional error.
As Kirby J said in S106/2002 v MIMIA 198 ALR 59 at [114]:
“Regardless of the supervisory jurisdiction invoked in a particular case, judicial review is said to be limited to reviewing the legality of administrative action. Such review, ordinarily, does not enter upon a consideration of the factual merits of the individual decision. The grounds of judicial review ought not be used as a basis for a complete re-evaluation of the findings of fact, a reconsideration of the merits of the case or a relitigation of the arguments that have been ventilated, and that failed, before the person designated as the repository of the decision-making power.”
Mr Patel relies upon the formulation of the "reasonableness" review ground expressed by Gummow J in MIMIA v Eshetu (supra at [145]):
“Where the issue whether a statutory power was enlivened turns upon the further questions of whether the requisite satisfaction of the decision-maker was arrived at reasonably, I would not adopt the criterion advanced by Lord Wilberforce. I would prefer the scrutiny of the written statement provided under s 430 by a criterion of ‘reasonableness review’. This would reflect the significance attached earlier in these reasons to the passage extracted from the judgment of Gibbs J in Buck v Bavone. It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.”
His Honour elaborated on that formulation in S106/2002 v MIMIA (supra at [36]):
“It was pointed out in Eshetu that some stricter view perhaps should be taken of what must be shown to make out a case of error grounding relief under s 75(v) of the Constitution where the legislation, as does s 65, conditions the attraction of jurisdiction upon the attainment by the decision-maker of satisfaction that a certain state of affairs exists and that state of affairs includes factual matters. Such a stricter view would appear to have been taken with the distinction drawn in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd. This contrasts insufficiency of evidence to support a conclusion of fact by an administrative decision-maker and the absence of any foundation I fact for the fulfilment of the conditions upon which, in law, the existence of a power depends. In Melbourne Stevedoring, Dixon CJ, Williams, Webb and Fullagar JJ went on:
‘The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact’,”
When one looks at the material identified by the delegate in aggregate it is very difficult to categorise her reliance upon it as irrational. Far from it. It is highly suggestive of a change in travel plans. The inference can readily be drawn that the temporary tourism purpose had dissolved and been replaced with an intention to reside in Adelaide and with the de facto spouse.
When I referred in the preceding paragraph to "the material" I was consciously excluding the information relating to the purchase of a house from that material. The applicant says that he never said that to the delegate. He said something altogether different - that once he had residence in Australia he would acquire a house then. It was contingent on him being granted a spouse visa. Furthermore, the delegate refused to correct that error when he drew it to her attention. The delegate says that what happened was that he gave a different version of these matters and that she refused to allow him to resile from his first account; that is to say she had reached her decision on his first (according to her) version and she refused to change her decision in the light of what she says was his second account.
The competing versions of the two parties of the "first" account given by the applicant cannot both by correct. One or other of them is mistaken or not telling the truth. I postulated during argument the possibility that the applicant gave the first account as described by the delegate but gave it falsely, but that version is not open to me to find – the applicant says that he told the delegate, after he read the decisions, that he never said what she recorded about the purchase of a house. Though he does not go on in his affidavit to make it plain, his counsel made it plain that he told her that because in fact he never said it and because in fact it was not true.
The applicant says I must hear the evidence of each of them and determine where the truth lies. Only then can I determine whether the decision was vitiated by a reliance on a fact that was untrue.
Mr Roder for the respondent made the concession that this might be necessary but - and I trust I am not misstating his argument – only if I regarded this disputed fact was a jurisdictional fact and not simply a fact within jurisdiction. But insofar as the distinction between those two kinds of facts has utility in matters such as this, the jurisdictional fact here is the fact of the satisfaction of the delegate that the prescribed ground for cancelling the visa exists. Reliance on an untrue state of affairs as part of the process by which that state of satisfaction was reached must be capable of constituting a jurisdiction error, however. I have already indicated that (supra at [43]) absent this particular fact the inference drawn as to change of purpose was one reasonably drawn by the delegate from the other material available.
But there are broader considerations, in any event, to bring to bear on this contingent jurisdictional error question.

The failure to utilise the statutory procedure

Relief under s.39B is discretionary and one of the grounds for refusing to exercise the jurisdiction is the availability of traditional appellate relief in another forum.
Where the High Court is asked to grant prerogative writ relief in respect of decisions of Judges of the Family Court, the relief has often been refused for that reason (see, for example, Brennan CJ's observations in Re Family Court of Australia; ex parte Herbert (1992) FLC 92-280 at 79,082:
“Following upon the observations by some members of this Court in Reg v Cook; Ex parte Twigg (1980) 147 CLR 15, deprecating the practice of prematurely applying to this Court for a prerogative writ instead of pursuing the remedy of appeal within the Family court, and the endorsement of those observations by all members of the Court sitting in Re Wilkie; Ex parte Johnston (1980) 55 Aljr 191 AT 192; 33 ALR 660, at 661, the judgments delivered in Reg v Ross-Jones; Ex parte Green (1984) 156 CLR 185, show that this Court will regard as premature an application for prerogative relief where an appropriate remedy is available on appeal to the full court of the family Court, at least in a case where the main dispute is not on a question of the constitutional limit of legislative power: see the judgments at pages 193 – 195, 214 – 215, 217 – 218 and 222.”)
Branson J in McGowan (supra) clearly thought that the jurisdiction under s 39B of the Judiciary Act when being exercised by the Federal Court was discretionary (see [42] to [45] of Her Honour's judgment). Her Honour referred at [44] to the High Court decision of Dranichnikov v MIMIA [2003] HCA 26 and in particular to the decision of Gummow and Callinan JJ at [33]. The relief was refused in the circumstances of the case where their Honours said:
“Relief under s 75(v) of the constitution is, like prerogative relief generally, discretionary. One often compelling discretionary bar is the availability of other relief.”
It is also helpful to consider the decision of Dixon CJ in Tooth & Co Ltd v Council of City of Parramatta (1955) 97 CLR 492 at 498, which was a consideration of an application for special leave to appeal against an order of the New South Wales Supreme Court discharging an order nisi for mandamus in relation to a council's decision not to approve various applications relating to a proposed hotel. The relevant legislation gave various remedies for the various refusals, including an appeal to the Minister and an appeal to the land and valuation division of the Supreme Court. In relation to those remedies his Honour said:
“The general rule is that the court exercises its discretion against granting a writ of mandamus where a remedy is provided by way of appeal or the like which is equally convenient, beneficial and effective. If the writ of mandamus does not provide the party with a more convenient and better remedy, the court, in such a case, leaves the party with that which has been provided.
………….. We think that their Honours correctly applied the principle in holding that the appeal to the Land and Valuation Court was an equally convenient, beneficial, effective and appropriate remedy; indeed it appears better calculated to lead to a proper result. The appeal to the Minister with respect to s 352R is, of course, not a judicial remedy, but it is that appointed by statute for dealing with an administrative problem even if, contrary to my opinion, the case falls within the provision. Having regard to the considerations I have stated, we would not be warranted in granting special leave to appeal.”
In dealing with the discretion from the perspective of delay rather than forum choice, Kirby J (with whom all the Judges who expressed a view on this topic agree) made these observations in Re Minister for Immigration and Multicultural Affairs (2001) 206 CLR 57 at [217]:
“The recent decision in Aala establishes that, whatever may have been the differential availability of the prerogative writs of prohibition and mandamus in English law, the writs provided by s 75(v) of the Constitution are discretionary remedies. It is equally clear, as stated by Gibbs CJ in R v Ross-Jones; Ex parte Green, that where a party aggrieved establishes a want or excess of jurisdiction, the writ of prohibition will issue ‘almost as of right’. This dictum was approved in Aala. This court therefore retains a discretion to grant or refuse relief. However, it is a discretion to be exercised judicially, with a clear appreciation that the constitutional remedy exists not simply to uphold the private rights of the party invoking it but also to ensure obedience to the law by officers of the Commonwealth, which is a matter of wider concern.”
The decision of the delegate was a MRT‑reviewable decision (see s.338(3) of the Act). Once an application is made the tribunal must review the decision. The tribunal's way of operating is described in s.353:
“(1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)shall act according to substantial justice and the merits of the case”.
A Tribunal can call witnesses or obtain written material from persons.
It has broad powers to dispose of the Review (see s.349(2)) and can exercise all the powers and discretions that are conferred upon the delegate (s.349(1))
Part 5 of the Act must be seen to constitute a comprehensive mechanism for review of Ministers' decisions. The Tribunal is replete with wide powers and is directed to conduct the hearings before it in a way that facilitates opportunity to deal with all relevant issues.
The decision of the delegate was a primary decision in terms of s.476 of the Act. Section 476(1) of the Act is a clear indication of the legislature's intention with respect to the jurisdiction of this Court in relation to such matters, subject of course to those considerations already referred to relating to jurisdictional error.
The applicant says that he brought this application rather than instituting an MRT review because of the expense involved in lodging the MRT review (I was told it was $1,400). Apparently no filing fee is applicable in relation to judicial review proceedings in this Court.
That is not a significant matter when weighed in the scales against the significant benefits inuring to the applicant from utilising the detailed statutory review procedure detailed above. The applicant would have had the opportunity to give evidence himself on all of the areas of disputation. He could have asked the tribunal to call his de facto partner. He would have had the opportunity to cross‑examine the delegate. He could have asked the Tribunal to make the order he says the delegate should have made in the first place without being fettered by the obligation to demonstrate jurisdictional error. All I can do is send the matter back to the minister for redetermination. His complaints about the adequacy of the NOIC could have been addressed by him calling evidence and making submissions on any matter referred to in the decision of the delegate.
Not only are these significant disadvantages to the applicant but proceeding in this way constitutes surely a circumvention of the remedy made available by the statute. The payment of a filing or hearing fee can surely not justify a decision to ignore the scheme provided by statute for the orderly determination of review of ministerial decisions in this area.
No doubt it was with these kinds of considerations in mind that Pill LJ in the English Court of Appeal in R v Falmouth ex parte South West Water Ltd made the following observations as to an applicant's choice of judicial review over statutory appeal in a case involving public health considerations (and where, to, it must be said, permission to bring judicial review proceedings was required):
“Given the public health context and the provision of a statutory remedy, I question whether matters of convenience and expedition should be allowed to permit proceedings by way of judicial review the ffect of which is to circumvent or, as Mr Gordon puts it, subvert a detailed statutory procedure. If the statutory intention is to provide that any appeal is to be to the magistrates’ court, the aim must be to make that remedy effective rather than to surmise that it is so ineffective that judicial review is permitted. I do not accept for a moment the water undertaker’s submission that magistrates’ court proceedings could not have been brought on within the three month period. There are also procedures by which conclusions of law in the magistrates’ court can be challenged in the High Court. I see no reason why the procedure laid down by Parliament should not be made an effective procedure. It is the duty of the courts to ensure that it is.”
I have already indicated that the material available to the delegate, excluding the controversial matter of the home purchase, was enough of itself to explain the decision as one made rationally and reasonably under the Act. The only evidence that would have been taken, had I considered it necessary to do so on the judicial review, would have been in relation to that one topic. That only emphasises the inappropriateness of this procedure. The Tribunal could have informed itself on all aspects of the evidence, rather than one in isolation.
I bear in mind that the Tribunal procedure is no longer open to the applicant. That of itself can never be significantly determinative of the judicial review application and, in fairness, Mr Patel did not suggest that it should be. This situation is one of the applicant's own making.

Bad faith, unlawful detention and futility

Three other matters need to be addressed.
Firstly, it was suggested that the delegate did not exercise the powers to cancel the visa in good faith. Reliance is placed on the delegate having given the applicant only a two‑day bridging visa following the decision to cancel the visa. This left the applicant with only two days to file a review but that must be seen in the light of the applicant's own decision to delay his flight until September, many months after the expiration of the visa. The delegate might well have thought she was dealing with someone who was not intending to comply with the provisions of the visa in any event. It is difficult to say. In any event another bridging visa was ultimately issued once these proceedings were instituted. It is also said that this bad faith manifested itself in the delegate refusing to correct the account of the information given by the applicant with respect to the home purchase. It is not disputed that the applicant asked the delegate to change her account of his information on this topic. She refused. I do not think it follows that the delegate was acting in bad faith. She says that she accurately recorded what she was first told on the topic. The applicant disagrees. It is not enough that the delegate may have been mistaken. She must be shown to have knowingly misstated the applicant's account or have been reckless as to what she recorded, surely, for a question of bad faith to arise. There is no basis for me to draw such an inference here. Next it is said that the very reliance on the information utilised by the delegate in coming to her decision demonstrates bad faith. I have dealt with such criticism passim. Very far from considering that the delegate acted unreasonably or beyond her powers in reaching her decision, on the contrary I have found that the powers were exercised lawfully. These bad‑faith criticisms do not have any greater validity in aggregate than they do individually. I have been assisted in this determination on this topic by the decision of the Full Court of the Federal Court in SBBS v MIMIA [2002] FCA FC 361 at [42] – [49].

An issue arose as to the applicant's detention on 3 February 2005. The source of the power to detain was s.192 of the Act. The applicant said that he was not aware he was being detained until he read Ms Maloney's affidavit filed on 7 April 2005. He says the detention was unlawful, having regard to what the Full Court of the Federal Court said in Goldie v The Commonwealth [2002] FCA FC 100 of the "reasonably suspects" phrase in another context under the Act. It was not entirely clear to me what the consequence of any unlawfulness is said to be, especially whether it was to be used as a basis for excluding an account of all that followed. That would raise difficulties, given the delegate's obligation pursuant to s.119 and s.120 of the Act, but in any event this aspect was not pressed. I understood the submission as one that really was intended to augment the bad‑faith submission. I do not think it adds anything to it. The officer was entitled to harbour such a reasonable suspicion that the visa was liable to be cancelled, given the period in which the applicant had been incarcerated and the fact that the charges which led to that were the second of their kind.
Finally there is the question as to whether the relief sought should be refused on account of the futility of the outcome in the sense that the visa has expired by now in any event. The public interest criteria as specified in the regulations can be brought to bear on this applicant if his visa was cancelled because of non-compliance with a condition of the visa (see Criterion 4013(2)(b) in the Regulations) but not if he were to seek a permanent or temporary spouse visa (which he says he told the delegate was his intention). It is not a clear case but I do not think that this application was liable to be refused on account of a submission of futility.
For the foregoing reasons the application for judicial review is dismissed.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Lindsay FM

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