Wu v Minister for Immigration

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FEDERAL COURT OF AUSTRALIA

Wu v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1242

MIGRATION – error of law – Family visa – “special need relative” – whether Migration Review Tribunal erred in considering that the fact that the nominator was a very young child was insufficient to constitute a “serious circumstance” giving rise to a “permanent or long term need for assistance”.

MIGRATION – procedural fairness – Migration Review Tribunal promises a further oral hearing but fails to provide the hearing – whether hearing would have made a difference to the outcome – whether relief should be granted.

MIGRATION – privative clause – s 474(1) of the Migration Act 1958 (Cth) – whether privative clause validates a decision affected by error of law and denial of procedural fairness.

Constitution, s 75(v)

Judiciary Act 1903 (Cth), s 39B(1)
Migration Act 1958 (Cth), ss 359A, 359B, 474

Migration Regulations 1994 (Cth), reg 1.03, cll 806.213, 806.221

Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 642, cited.
Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39, followed.
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228, followed.
Craig v South Australia (1995) 184 CLR 163, cited.
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, cited.
Huang v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 95, cited.
Re Refugee Review Tribunal, Ex parte Aala (2000) 204 CLR 82, followed.
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, cited.
Mahon v Air New Zealand Ltd [1984] AC 808, followed.
Stead v State Government Insurance Commission (1986) 161 CLR 141, cited.
Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108, followed.
Rv Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, followed.
O’Toole v Charles David Pty Ltd (1991) 171 CLR 232, cited.
R v Murray; Ex parte Proctor (1949) 77 CLR 387, cited.
NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713, cited.
Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation (2001) 184 ALR 576, cited.
SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547, distinguished.
Kan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 923, distinguished.
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117, distinguished.
Re The Australian Bank Employees Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513, cited.

GUI RONG WU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 234 of 2001

SACKVILLE J
SYDNEY
10 OCTOBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 234 OF 2002

BETWEEN:

GUI RONG WU
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

10 OCTOBER 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

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Details
Case
[2002] FCA 1242
Decision Date

CaseChat Overview and Summary

Wu v Minister for Immigration is an application for writs of mandamus, prohibition and certiorari concerning the decision of the Migration Review Tribunal (MRT) made on 4 March 2002, which affirmed a decision of a delegate of the respondent, the Minister for Immigration, that the applicant was not entitled to a Change of Circumstances (Residence) class AG (subclass 806 – Family) visa. The applicant, a national of China, entered Australia in October 1996 on a temporary business visa and has remained in the country since then. She is the de facto partner of an Australian citizen and they have a child born in November 1997. The applicant applied for the visa on 5 December 1997, but the Minister's delegate refused the application on 24 March 1998, a decision affirmed by the MRT on 30 October 1999. An appeal to the Full Court was successful, and the matter was remitted to the MRT for reconsideration. The MRT again affirmed the delegate’s decision on 4 March 2002, finding that the applicant did not satisfy the requirement of being a "special need relative" of her son, the nominator, as at the date of the decision.

The legal issues before the court included whether the applicant was denied procedural fairness by the MRT and whether the privative clause in s 474(1) of the Migration Act 1958 (Cth) insulated the decision-maker from unlawfulness in the decision-making process. The court found that the applicant had indeed been denied procedural fairness by the MRT, as it did not offer her an opportunity to appear at a further hearing after inviting her to make supplementary written submissions. The court also considered the effect of the privative clause, holding that while it operates to insulate the decision-maker against unlawfulness, it is subject to the Hickman provisos and cannot be used to contravene a final limitation upon the powers, duties and functions of the decision-maker.

In its reasoning, the court examined the findings of the MRT and noted that while there was slight evidence to support the finding that the applicant’s husband had travelled to China on an Australian passport, this did not establish that there was no evidence to support it. The court further held that the privative clause in s 474(1) of the Migration Act operates to insulate the decision-maker from unlawfulness, subject to certain limitations. The MRT's decision was found to be a bona fide attempt to exercise its power and reasonably capable of reference to the power given to the body, but the denial of procedural fairness by not offering the applicant an opportunity to appear before the Tribunal prior to handing down its decision was a significant error.

The court ordered that the application be dismissed and that the applicant pay the respondent’s costs.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the respondent’s costs.

Background

Background to the litigation

This is an application under s 39B(1) of the Judiciary Act 1903 (Cth) (“Judiciary Act”) for writs of mandamus, prohibition and certiorari in respect of the decision of the Migration Review Tribunal (“MRT”) made on 4 March 2002. The MRT affirmed a decision of a delegate of the respondent (“the Minister”) that the applicant was not entitled to a Change of Circumstances (Residence) class AG (subclass 806 – Family) visa (the “Visa”).BACKGROUND The applicant is a national of the Peoples’ Republic of China (“China”). She entered Australia in October 1996 on a temporary residence business visa and appears to have remained in this country ever since. The applicant is the de facto partner of an Australian citizen. They have a child (“the nominator”), born on 9 November 1997. On 5 December 1997, the applicant applied for the Visa. At the relevant time, the criteria for the grant of the Visa were set out in the Migration Regulations 1994 (Cth) (“Migration Regulations”). Clause 806.213 required an applicant, relevantly for present purposes, to be a “special need relative” of a “settled” Australian citizen. This requirement was expressed to apply at the time of the application. However, cl 806.221 required the applicant to continue to satisfy the criterion specified in cl 806.213 at the time of the decision. The expression “special need relative” was defined in reg 1.03 of the Migration Regulations as follows:“‘Special need relative’, in relation to an Australian citizen usually resident in Australia [or] an Australian permanent resident usually resident in Australia…means a relative who is willing and able to provide substantial and continuing assistance to the citizen or resident if:(a)the citizen or resident has a permanent or a long-term need for assistance because of death, disability, prolonged illness or other serious circumstances affecting the citizen or resident personally, or a member of his or her family unit; and(b)the assistance cannot reasonably be obtained from:(i)any other relative of the citizen or resident, being a relative who is an Australian citizen [or] an Australian permanent resident…; or(ii)welfare, hospital, nursing or community services in Australia”. On 24 March 1998, the Minister’s delegate refused the application for the Visa. The applicant sought review of the delegate’s decision in the MRT. The MRT affirmed the delegate’s decision on 30 October 1999. An application for judicial review of this decision was dismissed by Branson J (Wu v Minister for Immigration & Multicultural Affairs [2000] FCA 642). An appeal to the Full Court was allowed on 15 December 2000 and the matter was remitted to the MRT for reconsideration according to law: Wu v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 39 (“Wu”). On 4 March 2002, the MRT again affirmed the delegate’s decision. The MRT did so because it was not satisfied that the applicant was a “special need relative” of her son, the nominator, as at the date of the decision.

Evidence

Evidence Before The Court

In my view, the applicant has established that she was denied procedural fairness by the MRT. Putting s 474(1) of the Migration Act to one side, that denial of procedural fairness would entitle her to relief under s 39B(1) of the Judiciary Act. THE NO EVIDENCE POINT The short answer to the applicant’s contention that there was no evidence to support the finding that the applicant’s husband (the nominator’s father) had travelled to China on an Australian passport is that there was some evidence, albeit slight, to that effect. A document headed “Personal Particulars for Character Assessment”, lodged by the applicant with the Department on 28 November 1997, stated that her husband was an Australian national. The form required “all details” of citizenship or nationality “if more than one”. No other information was provided. In particular, the form did not reveal that her husband retained his Chinese citizenship. It was open, on that evidence, to the MRT to find that the applicant’s husband had travelled to China in 1999 and 2001 on an Australian passport. The fact that the finding has subsequently been shown to be wrong does not establish that there was no evidence to support it.THE EFFECT OF THE PRIVATIVE CLAUSE In NAAV, the five members of the Full Court delivered separate judgments. Three members of the Court (Black CJ, Beaumont and von Doussa JJ) took a different approach to the construction and operation of s 474(1) of the Migration Act from that of the minority (Wilcox and French JJ). There were also divergences of opinion within the majority, since Black CJ reached different conclusions from those of Beaumont and von Doussa JJ in two of the five appeals determined by the Full Court. I have examined the reasoning in NAAV v Minister at some length in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108 (“Zahid”), and I do not repeat the detailed analysis here. Despite their disagreements, all members of the Full Court accepted (as summarised in Zahid at [36]) that:“s 474(1) operates to insulate the decision-maker against what would otherwise be unlawfulness in the decision-making process:…. In the language of Dixon J in [R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598] at 614-615, a privative 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 act within the limits laid down by the instruments giving it authority’.In consequence of the process of statutory construction referred to earlier, this principle is subject to the three Hickman provisos. That is, the decision must be‘ a bona fide attempt to exercise its power, …relate to the subject matter of the legislation, and…[be] reasonably capable of reference to the power given to the body’.” (Citations omitted.)Their Honours also accepted (Zahid at [37]) that: “in addition to the Hickman provisos, there is another limitation on the validating effect of a privative clause. The purported exercise of power by the decision-maker must not be one that contravenes a “final limitation upon the powers, duties and functions of the decision-maker”…, an “inviolable limitation or restraint”… or a “structural” element in the operation of the Migration Act…. It follows that what is involved in applying a privative clause is a process of statutory construction, whereby apparently inconsistent statutory provisions are to be reconciled: that is, one statutory provision that seems to limit the powers of the decision-maker must be reconciled with another, the privative clause, which seems to contemplate that the decision-maker’s order is to operate free from any restriction”.

Decision

Reasons for decision

SACKVILLE J
The letter went on to say that written comments should be provided within twenty-eight days. The letter included this paragraph:“If you make comments, the Tribunal will consider your comments carefully. If the Tribunal is still unable to make a decision in your favour, it will then provide you with an opportunity to appear before the Tribunal”. (Emphasis added.) In response to this invitation, the applicant made supplementary written submissions, which were received by the MRT on 15 January 2002. It is common ground that the MRT did not offer the applicant an opportunity to appear at a further hearing prior to handing down its decision.THE MRT’S REASONS The MRT said that the applicant’s claim was that the nominator had a special need of assistance because of his young age and because his father had chronic hepatitis. It noted that the assistance said to be provided by the applicant was the normal care that a mother provides for a child of tender years, as well as extra care to ensure that the child was not infected with his father’s disease. The MRT referred to a number of decisions of this Court interpreting the definition of “special need relative”. In particular, the MRT referred to the Full Court’s decision in Wu (involving the applicant herself), which had held, according to the MRT, that “the definition of ‘special need relative’ could comprehend the situation where the nominator is a young child in need of substantial and continuing assistance from a relative and the need is a long-term one.” Next, the MRT found that the nominator was a relative of the applicant and that the nominator was an Australian citizen, usually resident in Australia at the time of the application. The MRT observed that it was also necessary for the applicant to establish that the nominator was “settled” in Australia at the time of the decision. There was evidence before the MRT that the nominator had departed Australia on 12 April 1999 and returned on 17 June 2001. The MRT did not find it necessary, however, to make a finding as to whether the nominator had been “settled and usually resident in Australia” at the time of the decision, because of its later finding that the applicant did not satisfy the definition of “special need relative”. Under the heading “The permanent or long term need for assistance”, the MRT said that it was satisfied, at the time of the decision, that the nominator was four years of age and that he continued to have a long-term need for assistance, at least until he attained an age when he would be able to care for himself. The MRT then considered whether the nominator’s need for assistance was because of “death, disability, prolonged illness or other serious circumstances” within the meaning of reg 1.03(a). The MRT said this:“38. The question of whether the tender age of a child amounts to ‘serious circumstance’ is a question that has been examined by the courts on various occasions as discussed elsewhere. The approach of the courts has varied from a wide beneficial approach to one that was much narrower, but as discussed above has been expanded again in Wu’s case so that the ‘definition of ‘special need relative’ can comprehend a situation where the citizen is a young child in need of substantial and continuing assistance from a relative and the need is a long term one.39. At the time of application he was one month old. At the time of this decision he is a young child of four years. The Tribunal needs to consider whether there are other factors beside from [sic] the age of the nominator that would constitute special circumstances.”It should be noted that the MRT appears to have taken the expression “special circumstances” from the judgment of the Full Court in Wu. The expression used in reg 1.03(a) is in fact “serious circumstances”.

Ratio Decidendi

Legal Principle Established

Established by: SACKVILLE J

Full text does not contain this section.