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Wang v Minister for Immigration & Multicultural & Indigenous Affairs

Wang v Minister for Immigration & Multicultural & Indigenous Affairs

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FEDERAL COURT OF AUSTRALIA
Wang v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 167
MIGRATION – cancellation of Business Entry (Class UC) Subclass 457 Business (Long Stay) Visa – whether requirement to give notice of cancellation of visa complied with – power to revoke cancellation of the visa – whether consideration of a response to a notice of cancellation constituted an essential pre-condition to the exercise of the power to revoke or refuse to revoke the cancellation.
MIGRATION – operation of privative clause – whether privative clause precluded review of a decision made in the absence of an essential pre-condition to the exercise of the power to
make the decision.
Migration Act 1958 (Cth) – ss 103, 116, 128, 129, 131, 474, 475A, 476
Judiciary Act 1903 (Cth) – s 39B, 39B(1A)
Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 – considered
Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 – referred to
Green v Daniels (1997) 51 ALJR 463 – referred to
O’Toole v Charles David Pty Ltd (1990) 171 CLR 232 – referred to
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 – considered
R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 – applied
R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 – applied
R v Murray; Ex parte Proctor (1949) 77 CLR 387 – applied
Tickner v Chapman (1995) 133 ALR 226 – applied
Walton v Ruddock [2001] FCA 1839 - considered
JIAN ZHONG WANG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
S.187 of 2001
MANSFIELD J
27 FEBRUARY 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S.187 OF 2001

BETWEEN:

JIAN ZHONG WANG
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

27 FEBRUARY 2002

WHERE MADE:

ADELAIDE

THE COURT DECLARES THAT:
1.The decision of the respondent refusing to revoke the cancellation of the applicant’s visa is invalid and of no effect.

THE COURT ORDERS THAT:
2.Leave is given to the applicant to apply for such further orders in the light of the reasons for decision as he may be advised.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S.187 OF 2001

BETWEEN:

JIAN ZHONG WANG
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE:

27 FEBRUARY 2002

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
INTRODUCTION

This application seeks orders under s 39B of the Judiciary Act 1903 (Cth) declaring that a decision of a delegate of the respondent made under s 131 of the Migration Act 1958 (Cth) (the Act) on 2 October 2001 is invalid and of no effect, and setting aside that decision. The application was lodged with the Court on 22 October 2001, so the Act as amended by the Migration Legislation Amendment (Judicial Review)…

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.

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Details

Case: [2002] FCA 167
Decision Date: 27 FEBRUARY 2002

CaseChat Overview and Summary

In Wang v Minister for Immigration & Multicultural & Indigenous Affairs, the applicant sought judicial review of a decision made by the Minister under the Migration Act 1958 (Cth). The central issue was whether the Court had jurisdiction to review the decision given the presence of a privative clause in the legislation, which typically precludes such review. The applicant argued that the privative clause did not entirely oust the Court's jurisdiction under certain circumstances, while the respondent acknowledged the Court's jurisdiction to the extent permitted by the Constitution.

The court was required to determine the extent to which the privative clause could limit the Court’s jurisdiction to review administrative decisions. The court examined the statutory language and relevant precedents to ascertain whether the privative clause could fully exclude judicial review or if there were any exceptions that permitted such review. The court considered the principles established in R v Hickman; Ex parte Fox and Clinton and R v Coldham; Ex parte Australian Workers’ Union, which indicated that a privative clause would not validate an administrative decision that went beyond the statutory power or was not a bona fide attempt to exercise the power.

The court held that the privative clause did not fully oust the Court's jurisdiction. It reasoned that the clause could not deprive the Court of the authority to review decisions that clearly exceeded statutory powers or were not genuine exercises of the conferred authority. The decision in Hickman established that where a privative clause purports to exclude the Court's jurisdiction, it must be interpreted in a manner consistent with the Constitution, which preserves the Court’s role in ensuring that administrative bodies do not exceed their powers. The principles from Coldham further supported this interpretation, stating that a privative clause would only validate an administrative decision if it met specific conditions, including being a bona fide attempt to exercise statutory power and not going beyond it.

The court granted leave for the applicant to apply for further orders in light of the reasons provided, indicating that the case would proceed based on the established principles of judicial review and the limitations imposed by privative clauses.

Orders

Orders of the court

2. Leave is given to the applicant to apply for such further orders in the light of the reasons for decision as he may be advised.

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

MANSFIELD J

Section 474(2) defines privative clause decision as follows:“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).”Section 474(3) identifies the decisions to which reference is made in the definition of privative clause decision to include the “ …revoking or refusing to make an order …”, and the “doing or refusing to do any other act or thing”: s 474(3)(a) and (g). As the applicant has acknowledged that, if regularly made, the decision of 18 July 2001 would be a privative clause decision, it is not necessary to explore further whether the decision under review does have that quality. The respondent acknowledges that the Court has jurisdiction under s 39B of the Judiciary Act to review the decision of the delegate. He also accepts that, despite the literal width of s 474(1) apparently ousting the jurisdiction of the Court in circumstances such as the present, there are limited circumstances in which the Court may nevertheless review decisions under the Judiciary Act. That jurisdiction exists under s 39B at least because it relates to a matter arising under a law of the Parliament: s 39B(1A). The reason why the respondent acknowledges that s 474(1) cannot operate fully according to its terms emerges from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616 (Hickman):“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. … 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 [a privative clause] 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 [in this case] 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 R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 (Coldham) Mason ACJ and Brennan J at 418 said:“However, it has been established by a long course of judicial decisions in this Court that a privative clause in the form to be found in s 60 of the [Conciliation and Arbitration Act 1904 (Cth)] will validate an award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled … “namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (ie does not on its face go beyond the power) …” to use the words of Kitto J in Reg v Commonwealth Conciliation and Arbitration Commission; Ex Parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 252-253.” [Further references omitted.]

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.187 OF 2001

BETWEEN:	JIAN ZHONG WANG APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	27 FEBRUARY 2002
WHERE MADE:	ADELAIDE

JUDGE:	MANSFIELD J
DATE:	27 FEBRUARY 2002
PLACE:	ADELAIDE