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In his opening address to the 1997 Australian Institute of
Administrative Law Forum in Canberra on 1 May, the Minister for
Immigration and Multicultural Affairs, Philip Ruddock, foreshadowed a
number of changes to the system of review of decisions made under the Migration
Act 1958, including judicial review(1).
The main thrust of those changes are now before Parliament in the Migration
Legislation Amendment (Judicial Review) Bill 1998 ("the
Bill").
Migration law has often been used as a testing ground for
administrative law here and elsewhere. In September 1994, the Migration
Act became the first substantial piece of legislation to be taken out of
the mainstream judicial review system governed by the Administrative
Decisions (Judicial Review) Act 1977 (the ADJR Act). The Minister noted in
his speech that while the total number of applications to the Federal
Court from Migration Act decisions has continued to rise, some 40% are
withdrawn before hearing and of the remainder, the respondent (ie the
Minister himself) wins about 90%. Despite this, it appears that the
government is intent on pushing further ahead, by hauling out a relic of
the wartime legislative panoply in the form of a blanket privative (or
more precisely, validating) clause that prevents even the High Court from
granting relief against an administrative decision unless it fails to
satisfy what has become known as the Hickman principle.
The clause is to operate on any "privative clause decision",
defined in the Bill as "a decision of an administrative character
made, proposed to be made, or required to be made, as the case may be,
under [the] Act (whether in the exercise of a discretion or not)",
with the exception of certain decisions relating to property of detainees,
detention centres, constitution of Tribunals, and other machinery type
decisions. The terms of the clause are that a "privative clause
decision":
- is final and conclusive; and
- shall not be challenged, appealed against, reviewed, quashed or
called in question in any court; and
- is not subject to prohibition, mandamus, injunction, declaration or
certiorari in any court on any account.
The Bill goes on to restrict the jurisdiction of the Federal Court so
that only those decisions for which there is no avenue of merits review
(eg independent migrant visa applications, most visitor visa applications)
can be brought before that Court. Challenges to the bulk of visa decisions
will therefore have to be brought directly in the High Court under its
original jurisdiction. In what can only be described as a bold challenge
to the Constitution, the Bill directs that any such application must be
brought within 28 days of notification of the decision and that neither
the Federal Court nor the High Court can make an order allowing an
application to be lodged after that time.
In Hickman(2), a regulation
governing a coal industry body called the Local Reference Board provided
that decisions of the 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"(3).
Delivering the leading judgment in the case, Dixon J said (at pp 615-6):
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.
[...]
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. The relevant subject
matter in the present case is naval and military defence. 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 such a clause as is contained
in reg. 17, 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 to the Regulations 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.
The principle as expounded by Dixon J in Hickman has been
applied in a number of cases since 1945, particularly in relation to s 177
of the Income Tax Assessment Act 1936 and s 60 of the Conciliation and
Arbitration Act 1904. In the Richard Walter case(4),
Mason CJ summed up the effect of the principle in relation to privative
clauses (p 180):
[Such clauses] are effective to protect an award or order from
challenge on the ground of a mere defect or irregularity which does not
deprive the tribunal of the power to make the award or order.
The previous government's attempt to limit access to judicial review
for Migration Act decisions was embodied in Part 8 of the Act, which took
effect from 1 September 1994. By s
485, the Act removes the jurisdiction of the Federal Court in regard
to most decisions under the Migration Act, except to the extent provided
for by that Act. The extent of the Court's jurisdiction under the Act is
circumscribed by s
476.
Specifically excluded as grounds on which the Court may review a
decision are such traditional administrative review grounds as denial of
natural justice, unreasonableness, taking into account irrelevant
considerations or failing to take into account relevant considerations,
and exercise of the power in bad faith. In a number of cases since 1994,
the Federal Court has treated the provisions of Part 8 as effectively
removing its jurisdiction to make orders except on grounds allowed for by
s 476(5).
It is to be noted that nothing in Part 8 of the Act validates or
legitimises decisions made in contravention of the legal principles
excluded by s 476. The effect of the provisions is entirely
jurisdictional, with the result that some Federal Court judges felt
compelled to identify errors of law which they then admitted they were
powerless to do anything about. In one such case, Eshetu(6),
Hill J commented:
So zealously does the Australian Parliament desire to implement its
United Nations Treaty obligations to assist refugees, that it has enacted
legislation specifically to ensure that it is acceptable for a decision
on refugee status to be made by the Tribunal which not merely denies
natural justice to the applicant but also is so unreasonable that no
reasonable decision-maker could ever make it. At least in this Court,
although not in the High Court, the grounds of judicial review are
narrowly confined.
On appeal(7), Davies and Burchett JJ,
with Whitlam J dissenting, ruled that the grounds of review available in
the Federal Court were not nearly so "narrowly confined" as Hill
J had thought. Davies J said (p 11):
In my opinion, that approach is wrong. The Migration Act has
substituted for the rules developed by the common law and the rules
incorporated in the ADJR Act rules of its own. Section
420 provides that the mechanism of review shall be "fair, just,
economical, informal and quick" and shall be directed to arriving at
the "substantial justice and merits of the case". If the
procedures of the Tribunal have not met that prescription, the decision
of the Refugee Review Tribunal may be set aside. It matters not that the
breach may also have amounted to a breach of the rules of procedural
fairness developed by the common law. The matter is to be determined not
by the common law but by the words of the statute. A breach of the
statute is not saved by s.476(2) [which excludes natural justice and
unreasonableness as grounds].
The Federal Court is of course a creature of Federal statute, as is its
jurisdiction. The jurisdiction of the High Court, however, is conferred by
s
75 of the Constitution and is therefore outside the reach of the
Federal Parliament. Even before the Full Court in Eshetu ruled that
the limitations on the Court's jurisdiction were not so restrictive as
might previously have been thought, the Achilles' heel of Part 8 was
always that it could not prevent an application going direct to the High
Court, where Parliament could not interfere. This was recognised by the
Minister in his speech to the AIAL Forum.
It is becoming apparent that the High Court is not at all happy with
the prospect of being called upon to exercise its original jurisdiction in
precisely the type of individual cases that the Federal Court was set up
to deal with over 20 years ago. In considering an application for an order
nisi to quash the cancellation of a visitor visa granted to a
controversial Americal political activist, the Chief Justice commented(8):
It leaves the situation thus, does it not, that this Court is the only
Court with this jurisdiction which is obviously a jurisdiction that
requries the consideration of what might be contested questions of fact,
a jurisdiction which this Court is singularly unfitted to exercise. But
if it must exercise it, as the Constitution requires, it will exercise
it...
Later in the same matter he commented further:
[...] I must say that so long as the legislation is in the form in
which it now appears to be, which deprives the Federal Court of
jurisdiction, it will be necessary for this Court to consider the form of
interlocutory orders which it will have to devise to deal with cases of
this kind in order to ensure that it can perform the remainder of its
constitutional functions, but I do not think I need say any more about
that at the moment. It may be thought that the Chief Justice's bemusement
at the need to bring such cases before the High Court will only be
increased by the proposed amendments in the Bill.
In Richard Walter, Deane and Gaudron JJ touched on the essential
difference between provisions of the type contained in Part 8 and
privative clauses such as s
177 of the Income Tax Assessment Act 1936 (p 207):
An enactment of the Parliament will be inconsistent with s 75(v) [of
the Constitution] and invalid to the extent that it purports to withdraw
or diminish that jurisdiction of the [High] Court. An enactment will
purport to diminish that jurisdiction and be ultra vires by reason of
inconsistency with s 75(v) if, and to the extent that, it purports to
preclude the Court in such a matter from determining whether the relevant
conduct or decision is in fact unlawful, unauthorised or invalid. On the
other hand, such an enactment will not purport to diminish that
jurisdiction and will not be inconsistent with s 75(v) by reason only of
the fact that it alters the substantive or procedural law to be applied
by the Court in the exercise of the jurisdiction.
Essentially, where a Commonwealth Act that is within power under the
Constitution declares a way of proceeding by a Commonwealth officer to be
lawful, the jurisdiction of the High Court under s 75(v) is not interfered
with but, at least within the limits of the Hickman principle, the
Court is constrained to find that there are no grounds for the making of
an order against the officer. The so-called "privative clause"
is, in reality, a validating clause the effect of which is to render any
other constraints on the decision maker, other than jurisdictional ones,
at best directory rather than mandatory.
Since 1989, Australia's immigration laws have taken the form of a
catalogue of detailed procedural and substantive requirements which, if
satisfied by an applicant, give rise to an obligation on the part of the
Minister to issue the appropriate visa (see s
65). Assuming that Bill passes into law, what effect will that have on
Federal and High Court litigation?
Firstly, it must be observed that if the Minister is already winning
90% of the less than two thirds of cases that proceed to hearing (as the
Minister claimed in his speech), there does not seem to be much scope for
improvement. As has been clearly stated in Richard Walter and very
recently in the Darling Casino(9)
case, these clauses do not remove jurisdiction. Both Courts will therefore
have to proceed to hear any case where the applicant insists on
proceeding, regardless of the likelihood of success.
The author's observation is that most of the 10% of immigration cases
in which applicants are successful in the Federal Court involve
statututory interpretation. This was the case for example in the recent
high profile decision of the Full Court in Jong(10),
where an East Timorese applied for a visa to remain in Australia on the
grounds of being a refugee within the meaning of the International
Convention and Protocol relating to the Status of Refugees (the Refugee
Convention). The decision to refuse was made by the Refugee Review
Tribunal. If the "privative clause" had been in effect at the
time, would the Court have been able to reach the conclusion it did in
Jong? The Tribunal was charged with taking the place of the Minister to
determine whether the applicant satisfied the prescribed criteria for a
class of visa known as a "protection visa". If it concluded that
he did, then the applicant was entitled to the visa (s 65). The key
criterion was formulated as follows (Migration
Regulations, Schedule 2 Part 866):
The Minister is satisfied that the applicant is a person to whom
Australia has protection obligations under the Refugees Convention.
The reference to the Refugee Convention brought into play the
definition of a refugee in that instrument. Interpretation of the
Convention therefore became a matter of law, and any error in the
Tribunal's interpretation was open to review by the Court under Part 8.
Part of the definition contained the following exclusion, known as the
dual nationality principle:
In the case of a person who has more than one nationality, the term
"the country of his nationality" shall mean each of the
countries of which he is a national, and a person shall not be deemed to
be lacking the protection of the country of his nationality it, without
any valid reason based on well-founded fear, he has not availed himself
of the protection of one of the countries of which he is a national.
The Tribunal found that the applicant was a national of both Indonesia
and Portugal, and that he had no fear of persecution in Portugal. It then
found that he was excluded by the dual nationality principle from the
definition of a refugee, and therefore Australia did not have a
"protection obligation". Thus, the key criterion for the visa
was not satisfied.
The Court ruled that the Tribunal erred in law in its interpretation of
the dual nationality principle. It held that before the principle could be
used to exclude an applicant from the protection afforded by the
Convention, the Tribunal had to enquire into whether his Portuguese
nationality (which the Court agreed he had, at least in a formal sense)
offered him "effective protection" from persecution. The
application was remitted to the Tribunal for reconsideration in accordance
with the Court's statement of the law.
Applying Mason CJ's summary of the Hickman principle, the
question becomes one of whether the error detected by the Court would be
one that would deprive the Tribunal of the power to make the decision as
to whether the applicant was eligible for the visa. In all probability, it
would not. Applying the fuller formula of Dixon J, the Court would very
likely have found that regardless of the error in interpreting the
Convention the decision had been a bona fide attempt to exercise the power
given to the Tribunal, that the decision related to the subject matter of
the legislation, and that it was reasonably capable of reference to the
power given to the Tribunal.
It is difficult to think of an immigration case which would not satisfy
the Hickman principle. In Rahman(11)
the Court found that the Tribunal had applied a policy which the Minister
had no authority to make. The effect of the error, however, worked on the
Tribunal's finding of fact concerning the applicant's occupational
classification, not on its jurisdiction. In Teoh(12),
the High Court's ruling that in a matter involving the interests of
children there is a legitimate expectation that the terms of the
Convention on the Rights of the Child will be taken into account also did
not involve a decision that would appear to offend the Hickman
principle.
Essentially, the jurisdiction of decision makers under the Migration
Act extends to the grant or refusal of visas to non-citizens, the
detention and removal of non-citizens who do not have visas, or to the
cancellation of visas already held. Unless perhaps a person facing
deportation was able to show that he or she was an Australian citizen, it
is unlikely that any error of law would have the effect of depriving the
decision maker of the power to make a decision.
Decisions of this type can have dramatic consequences for the people
involved and their families, as in both the Jong and Teoh
cases. Unlike the taxation and employment fields where validating clauses
have been used in the past, issues of personal liberty, safety and even
life or death arise in the immigration and refugee jurisdictions. Whether
this fact will be convince the Court to take a different approach is
impossible to predict. For the moment, it must be said that the best hope
for the protection of the individual vis-à-vis the executive lies with
the Senate, which has yet to agree to the passage of the Bill.
Notes
1 The text
of the speech is available from the Department of Immigration website. Return
2 The
King v Hickman and ors; ex parte Fox and anor (1945) 70 CLR 598. Return
3 National Security (Coal Mining Industry Employment)
Regulations, reg 17. Return
4 Deputy
Commissioner of Taxation v Richard Walter Pty Ltd (1994-95) 183 CLR
168. Return
5 See Dai
Xing Yao v Minister for Immigration and Ethnic Affairs 1996 69 FCR 583.
Return
6 Eshetu
v Minister for Immigration and Multicultural Affairs & anor
(unreported, Hill J, 31/01/97) Return.
7 Eshetu
v Minister for Immigration and Multicultural Affairs(1997) 71 FCR 300.
Return
8 Re
the Minister for Immigration and Multicultural Affairs; ex parte Ervin,
transcript. Return
9 Darling
Casino Ltd v NSW Casino Control Authority and Ors (1997) 71 ALJR 540.
Return
10 Jong
Kim Koe v Minister for Immigration and Multicultural Affairs (1997)
143 ALR 695. Return
11 Rahman
v Minister for Immigration and Multicultural Affairs, unreported,
Davies J, 06/02/97. Return
12 Minister
for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 69 ALJR
423; 128 ALR 353. Return
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