Ratumaiwai v Minister for Immigration & Multicultural Affairs

Case [2002] FCA 311


FEDERAL COURT OF AUSTRALIA

Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311        

ADMINISTRATIVE LAW – jurisdictional error – whether Tribunal made jurisdictional error in failing to consider claim that applicant provided financial or emotional assistance so as to entitle applicant to visa – claim rejected in course of hearing although not referred to in reasons – whether really failure to consider claim – whether error of fact or law involved – whether privative clause precluded court from granting prerogative writ – principle in R v Hickman

Migration Act 1958 (Cth) ss 474,476
Judiciary Act 1903 (Cth) s 39B

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied
Darling Casino Ltd v New South Wales Casino Authority (1997) 191 CLR 602 discussed
Craig v The State of South Australia (1995) 184 CLR 163 applied
Paramanantham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 cited
Ahvazi v Minister for Immigration and Multicultural Affairs [2002] FCA 279 cited
R v Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 KB 338 (CA) cited
Anisminic v Foreign Compensation Commission [1969] 2 AC 147 referred to
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 discussed
Minister for Immigration and Multicultural Affairs, Re; Ex parte Cohen (2001) 177 ALR 473 distinguished
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 followed
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 cited
Wu v Minister for Immigration and Multicultural Affairs (2000) 182 ALR 548 referred to
R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australia Ltd (1947) 75 CLR 361 cited
R v Murray; Ex parte Proctor (1949) 77 CLR 387 cited
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (1967) 118 CLR 219 cited
R v Metal Trades Employers’ Association; Ex parte Amalgamated Engineering Union (1951) 82 CLR 208 cited
R v Members of the Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd (1959) 101 CLR 246 cited
Coal Miners’ Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd (1960) 104 CLR 437 cited
R v Coldham; Ex parte Australian Workers Union (1983) 153 CLR 415 cited
O’Toole v Charles David Pty Ltd (No 2) (1991) 171 CLR 232 cited
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 cited
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 referred to
Lednar v Magistrates’ Court (2000) 117 A Crim R 396 cited
WC & AC Morin Pty Ltd v Queensland Fisheries Authority [2000] QSC 169 cited
Walton v Ruddock, Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1839 referred to
Wang v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 167 referred to
NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 approved

Aronson and Dyer Judicial Review of Administrative Action 2nd ed. 2000
Leslie Zines, “Constitutional aspects…

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AGLC
Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311
Case
[2002] FCA 311
Decision Date

CaseChat Overview and Summary

The case of Ratumaiwai v Minister for Immigration & Multicultural Affairs involved the applicant seeking judicial review of a decision by the Minister for Immigration and Multicultural Affairs to refuse a Family (Residence) (Class AO) visa under the Migration Act 1958 (Cth). The applicant contested the refusal on the grounds of alleged jurisdictional error by the Administrative Appeals Tribunal (AAT) in its review of the decision. The central legal issue before the court was whether section 474(1) of the Migration Act, which provides that privative clause decisions are final and conclusive, precluded the court from reviewing the AAT's decision. The court needed to determine whether the AAT had indeed made a jurisdictional error and, if so, whether the privative clause precluded judicial review.

In addressing these issues, the court first examined the criteria for a subclass 806 Family Visa and the reasons provided by the AAT for affirming the delegate’s decision. The court found that there was no jurisdictional error made by the AAT in its review of the delegate’s decision. Consequently, the applicant conceded that if there was no jurisdictional error, the application must be dismissed, and the court would not need to consider the effect of section 474(1) of the Act. The court concluded that since the AAT's decision did not contain a jurisdictional error, the privative clause did not preclude the court from dismissing the application.

The court dismissed the application, ruling that the AAT had not made a jurisdictional error and that the privative clause did not bar the court from dismissing the application in these circumstances. The court also ordered that the applicant pay the Minister's costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the Minister’s costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HILL J
The Minister opposed the grant of any writ on the basis of s 474(1) of the Migration Act1958 (Cth). That subsection provides:“(1) A privative clause decision:(a) is final and conclusive; and(b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account”.Subsection (2) of the same section defined “privative clause decision” in the following terms:“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).” There is no dispute between the parties that the Tribunal’s decision to affirm the decision of the delegate was a decision of an administrative character made, or at least, purporting to have been made under the Act. It is also common ground that the Tribunal’s decision does not fall within subsections (4) or (5) of s 474 so as to fall outside the definition of privative clause decision. The question which thus falls for decision is the effect of s 474(1) in the present case and, particularly, whether it operates to require the Court, as counsel for the Minister submits, to dismiss the present application. Because the submissions of counsel for the applicant depend upon it being shown that the Tribunal made a jurisdictional error in the way it dealt with the review before it, it is first necessary to set out the relevant legislative or regulatory requirements for the issue of a subclass 806 Family Visa and outline the Tribunal’s reasons for decision so as to see whether it is correct to conclude that the Tribunal made a jurisdictional error. If it did not then the applicant concedes that the application must be dismissed and that it would be unnecessary to determine what the effect of s 474(1) is in the present case. If, however, it is the case, as the applicant submits, that the Tribunal made a jurisdictional error, then, but only then, will it be necessary to consider the effect of s 474(1) of the Act. The legislative background The criteria which an applicant for a Family (Residence) (Class AO) visa (the relevant subclass here is subclass 806) are to be found in clause 806.213 of Schedule 2 to the Migration Regulations1994 (“the Regulations”). At relevant times the clause required that at the time of application and at the time of decision the applicant for a visa be a “special need relative” of a person who has nominated the visa applicant for the grant of the visa. The nominator must be “settled”, a term defined in regulation 1.03. The question whether the brother was “settled”, (a person will be “settled” where the person is “lawfully resident in Australia for a reasonable period”) was not in issue.

Ratio Decidendi

Legal Principle Established

Established by: HILL J

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