Walton v Ruddock

Case [2001] FCA 1839

FEDERAL COURT OF AUSTRALIA

Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839

MIGRATION – decision to cancel Electronic Travel Authority (Visitor) visa – whether holder’s intention is to visit Australia temporarily for tourist purposes – whether decision to cancel is a privative clause decision – whether a breach of the rules of natural justice – whether a breach of the statutory procedures prescribed in respect of the decision – whether error of law – consideration of the operation of the Hickman principle in relation to decisions in respect of visas under the Migration Act 1958 (Cth)

Migration Act 1958 (Cth) ss 116(1)(g), 120 and 474,
Judiciary Act 1903 (Cth) s 39B
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 - considered
Waterside Workers’ Federation of Australia v Gilchrist Watt & Sanderson Ltd (1924) 34 CLR 482 - cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 - cited
The King v The Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Limited (1947) 75 CLR 361 - cited
The King v Murray; Ex parte Proctor (1949) 77 CLR 387 - cited
R v Coldham; Ex parte The Australian Workers’ Union (1983) 153 CLR 415 - cited
Darling Casino Ltd v New South Wales Casino Control Authority (1997) 191 CLR 602 - considered
Craig v The State of South Australia (1995) 184 CLR 163 – cited
R v Metal Trade Employers’ Association: Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208 - cited
Abebe v The Commonwealth of Australia (1999) 197 CLR 510 – cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] 179 ALR 238 – considered
Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219 – cited
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 - considered
Century Metals and Mining NL v Yeomans (1988) 85 ALR 29 - considered
Blurton v Minister for Aboriginal Affairs (1991) 29 FCR 442 - cited
Magrath v Goldsborough Mort & Co Ltd (1932) 47 CLR 121 - cited
Bropho v State of Western Australia (1990) 171 CLR 1 - cited
O’Toole v Charles David Proprietary Limited (1991) 171 CLR 232 - cited
Singh v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 531 - cited
Pilbara Aboriginal Land Council v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 - considered
Sandoval v Minister for Immigration and Multicultural Affairs [2001] FCA 1237 – considered

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 50 FCR 189 - cited

DAN WALTON v PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 1196 of 2001

JUDGE:         MERKEL J
DATE:           20 DECEMBER 2001
PLACE:         MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 1196 OF 2001

BETWEEN:

DAN WALTON
APPLICANT

AND:

PHILIP RUDDOCK, THE MINISTER FOR IMMIGRATION AND MULTICULTURAL…

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AGLC
Walton v Ruddock [2001] FCA 1839
Case
[2001] FCA 1839
Decision Date

CaseChat Overview and Summary

Walton v Ruddock is a case in which the applicant sought judicial review of a decision made under the Migration Act 1958 (Cth) to cancel his visa. The applicant argued that the decision was unlawful and sought various forms of relief, including prohibition, certiorari, an injunction, and a declaration. The central issue was whether the statutory privative clause, section 474 of the Act, precluded judicial review of the cancellation decision. The court was required to determine whether the privative clause applied to the decision, and if so, whether it effectively excluded judicial review even in cases where the decision was made in breach of statutory requirements or the rules of natural justice.

The court considered the nature and scope of the privative clause, which provides that certain decisions are final and conclusive and cannot be challenged in any court. The court explored whether the clause validates decisions made in breach of statutory requirements or in breach of natural justice, and whether such decisions could still be considered "decisions made under the Act". The court referred to the principle established in Hickman v Camm, which limits the effect of privative clauses to jurisdictional error, narrow jurisdictional error, or mala fides. The court examined whether the cancellation decision fell within the scope of the privative clause, and if the privative clause applied, whether it precluded judicial review in this case.

The court concluded that the privative clause applied to the cancellation decision, and that the clause precluded judicial review of the decision. The court held that the privative clause effectively immunized the decision from review, except on limited grounds such as jurisdictional error or mala fides. The court found that the decision, despite any alleged breaches of statutory requirements or natural justice, was still a decision made under the Act and therefore subject to the privative clause. Consequently, the application for judicial review was dismissed.

The orders of the court were that the application be dismissed and that the applicant pay one-half of the respondent’s costs of the proceeding, excluding any additional costs incurred as a result of senior counsel representing and appearing for the respondent.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay one-half of the respondent’s taxed costs of the proceeding excluding any additional costs incurred as a consequence of senior counsel representing and appearing for the respondent.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 474 of the Act limits judicial review in respect of a “privative clause decision”, which is defined in s 474(2):“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).” The decisions referred to in ss 474(4) and 474(5) are not relevant for present purposes. Accordingly, subject to the question of whether the cancellation decision was “made, proposed to be made, or required to be made, as the case may be, under [the] Act” it plainly satisfies the other criteria for a privative clause decision. Section 474(1) provides:“A private 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.” Section 474 raises a number of questions. The first is whether it operates to validate, and therefore immunises from review, a decision which is made in breach of, or after a failure to comply with, a statutory requirement in respect of the decision. The second is whether it operates to exclude from judicial review a decision made in breach of the rules of natural justice. The third is whether a decision that has breached or failed to comply with legal requirements imposed in respect of the decision is a decision made under the Act and therefore a privative clause decision. I turn to consider each of those questions.(a) The Hickman principle Paragraphs 14 and 15 of the revised explanatory memorandum in respect of the Migration Legislation Amendment (Judicial Review) Bill 2001 explain s 474 as follows:“New subsection 474(1) introduces a privative clause for decisions made under the Migration Act, regulations made under that Act or other instruments under that Act except for decisions made under the provisions set out in new subsection 474(4) or as prescribed under new subsection 474(5). A privative clause affects the extent of judicial review by both the Federal Court and the High Court of decisions covered by the clause.A privative clause is a provision which, although on its face purports to oust all judicial review, in operation, by altering the substantive law, limits review by the courts to certain grounds. Such a clause has been interpreted by the High Court, in a line of authority stemming from the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598, to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides.” R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 (“Hickman”) concerned a regulation that provided that a decision of a Local Reference 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”. The Hickman principle was explained by Dixon J (at 615) as follows:“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.”

Ratio Decidendi

Legal Principle Established

After the cancellation of his visa the applicant was placed in immigration detention pending his removal from Australia. He commenced a proceeding in the Court pursuant to s 39B of the Judiciary Act 1903 (Cth) and ss 477, 478 and 479 of the Act, for prohibition and certiorari, and for an injunction and declaration, in relation to the cancellation decision. I granted an interlocutory injunction preventing the respondent from removing the applicant from Australia prior to the hearing and determination of the proceeding, which was fixed for hearing on 3 December.The Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) The grounds for the relief sought by the applicant were that the cancellation decision was made without statutory authority and the decision maker committed an error of law, constituting jurisdictional error, on the face of the decision. The grounds require consideration of the amendments made to Pt 8 of the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which commenced on 2 October 2001. It is common ground that the Court has jurisdiction in respect of the cancellation decision pursuant to s 39B of the Judiciary Act 1903 (Cth), which confers jurisdiction on the Court “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”. The jurisdiction under s 39B is co-extensive with the jurisdiction of the High Court under s 75(v) of the Constitution. Section 474 of the Act limits judicial review in respect of a “privative clause decision”, which is defined in s 474(2):“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).” The decisions referred to in ss 474(4) and 474(5) are not relevant for present purposes. Accordingly, subject to the question of whether the cancellation decision was “made, proposed to be made, or required to be made, as the case may be, under [the] Act” it plainly satisfies the other criteria for a privative clause decision. Section 474(1) provides:“A private 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.” Section 474 raises a number of questions. The first is whether it operates to validate, and therefore immunises from review, a decision which is made in breach of, or after a failure to comply with, a statutory requirement in respect of the decision. The second is whether it operates to exclude from judicial review a decision made in breach of the rules of natural justice. The third is whether a decision that has breached or failed to comply with legal requirements imposed in respect of the decision is a decision made under the Act and therefore a privative clause decision. I turn to consider each of those questions.(a) The Hickman principle