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Caron Beaton-Wells[∗]
The last two decades have witnessed a colossal struggle between the government and the courts over judicial supervision of executive decisions with respect to migration. The struggle culminated in February 2003 with the High Court decision in Plaintiff S157/2002 v Commonwealth[1] concerning the privative clause in the Migration Act 1958 (Cth) ('the Act'). While upholding its constitutional validity, the Court rendered the privative clause effectively redundant by ruling it incapable of protecting decisions involving jurisdictional error.
It has been two years since S157 was handed down and hence it is now timely to consider its immediate practical impact.[2] In particular, the following issues are ripe for examination:
1. what has been the Federal Court's[3] response to S157 — how has the High Court ruling been interpreted and what has it meant for the grounds of judicial review available to applicants under the Act?
what has been the government's response to S157 — has the government finally conceded the limitations on its capacity to minimise judicial review in this area or is it pursuing new measures to this end and what will be their likely effect?
The key principle established by S157 was that, by reason of s 75(v) of the Constitution,[4] a privative clause cannot protect decisions involving jurisdictional error from review by the High Court.[5] Section 474(1) of the Act, it was held, does not purport to provide such protection because it is directed at 'privative clause decisions', defined in s 474(2) as decisions 'made … under this Act.' Decisions affected by jurisdictional error do not meet this description given that, consistent with the High Court's earlier ruling in Minister for Immigration and Multicultural Affairs v Bhardwaj,[6] the law does not recognise them as decisions. They are, adopting the High Court's terminology, 'purported' decisions and, as such, are not covered by s 474(1).[7]
With the exception of procedural fairness (the ground of review relied on by the plaintiff),[8] the High Court judgments provided scant guidance on the nature of the errors that might be characterised as jurisdictional so as to defeat the operation of the privative clause. The only general guidance offered was that an error is jurisdictional where, reading the Act as a whole (including the privative clause), it is seen to involve the breach of an 'inviolable', 'imperative' or 'indispensable' condition on the exercise of power under the Act.[9] Such a condition is one that can be reconciled with the otherwise inconsistent privative clause on the grounds that Parliament intended it to be essential to the validity of the exercise of power.[10] That said, the inviolability of a condition cannot be ascertained through the application of some pre-determined formula. It is to be approached as an exercise in statutory construction having regard to the condition in question.[11]
Given the lack of detailed guidance, it was not surprising that soon after S157 was handed down differences in opinion emerged on the Federal Court. There was the question whether, not technically having been overruled, the narrow approach taken by the majority of the five member Full Court of the Federal Court in NAAV v Minister for Immigration and Multicultural Affairs[12] should continue to apply.[13] According to that approach, the only grounds of review available to applicants were grounds derived from the R v Hickman; Ex parte Fox and Clinton line of authorities,[14] namely that the decision be a bona fide attempt to exercise power; relate to the subject matter of the Act
; be reasonably capable of reference to the power; and not contravene a so-called inviolable condition (limited in NAAV, in the case of tribunal review, to the making of a valid application for review and the valid constitution of the tribunal.)[15]
There was uncertainty as to the role that the privative clause should play in identifying jurisdictional error and whether effectively it could be ignored. Related to this was the question whether, having regard to the privative clause, jurisdictional error could continue to be conceived broadly in accordance with previous High Court decisions such as Craig v South Australia[16] and, more recently, Minister for Immigration and Multicultural Affairs v Yusuf.[17]
Within a matter of months, however, the differences in opinion had been laid to rest. The broad conception of jurisdictional error had prevailed, leaving little scope for the operation of the privative clause. This was the approach endorsed by several differently constituted Full Courts.[18] The majority decision in NAAV was seen as having been discredited and a standard interpretation of the principles established in S157 had begun to emerge.[19]
In SDAV v Minister for Immigration and Multicultural and Indigenous Affairs,[20] for example, the important point was made that the S157 approach for dealing with the privative clause
does not distinguish between jurisdictional errors that are and are not protected by the privative clause. It distinguishes between errors that are jurisdictional errors and those that are not jurisdictional errors.[21]
The Court went on to refer to the fact that the approach taken in NAAV has now been shown to be wrong and further, that the principles of jurisdictional error, as referred to in S157, are those principles earlier articulated in cases such as Craig and Yusuf.[22] The Court also took note of the High Court's more recent and possibly even more generous view of jurisdictional error in Dranichnikov v Minister for Immigration and Multicultural Affairs[23] (referred to further below).
An examination of the Federal Court jurisprudence since S157 reveals a wide range of errors that have been identified as jurisdictional in nature and hence sufficient to overcome the protection of the privative clause. The range appears to have been widened even further by subsequent High Court decisions. Based on this jurisprudence the following list of grounds of review has been compiled. These are grounds that, as a consequence of S157, are now recognised as available to applicants in challenging decisions under the Act.
As previously indicated, it was made clear in S157 that breach of the common law rules of procedural fairness constitutes jurisdictional error so as to overcome the effect of the privative clause. This was consistent with the view taken of procedural fairness by the High Court in earlier cases.[24] Since S157 there have been a number of Federal Court cases in which the Refugee Review Tribunal ('RRT') has been found to have committed jurisdictional error by virtue of having failed to provide the applicant with a fair hearing, in accordance with common law requirements. Such cases have included situations in which:
• the RRT relied on information concerning conditions in the applicant's country of origin in a manner adverse to the applicant's case, without bringing the information to the applicant's attention and allowing for a response;[25]
the RRT made adverse findings about the genuineness of documentary evidence without notifying the applicant of the risk of such findings and providing an opportunity for comment;[26]
the RRT refused to allow the applicant's solicitor to participate in the hearing;[27] and
there was a gross delay in decision-making (some five and a half years between the hearing and the RRT's decision).[28]
These have been cases in which the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) ('PF Act'),[29] discussed below, has not been relevant.
Albeit less common, there have also been cases since S157 in which jurisdictional error has been found to exist, applying the common law rules, in the form of actual bias or apprehended bias on the part of the tribunal member.[30]
The Act imposes the obligation on the RRT, and also the Migration Review Tribunal ('MRT'), on the application of an applicant to 'review' decisions made by the Minister (usually by his or her delegate) refusing a visa.[31] In a line of Federal Court jurisprudence preceding S157 the circumstances in which it may be established that the tribunal has failed in its 'review' obligation were extrapolated. The leading decision in this respect was in Minister for Immigration and Multicultural Affairs v Anthonypillai[32] in which the Full Court held that there would be a failure to conduct a 'review' where it could be said that the tribunal had not 'considered' the application for a visa at all.[33] Such a charge could be made out, for example,
were the Tribunal to misconceive the nature of its statutory obligation, as for example by mistakenly believing that it was engaged in appellate review of the Minister's decision (rather than a rehearing de novo), … [or] were the Tribunal to address the wrong question, rather than the question properly before it, … [or] were the Tribunal merely to pay lip service to its task, as for example by determining an application without reading the material filed before it.[34]
Under the former Part 8 of the Act such circumstances gave rise to the grounds of review under ss 476(1)(b) (person who made the decision did not have jurisdiction to make it) and (c) (the decision was not authorised by the Act) of the Act.[35] In Yusuf[36] these grounds were treated as the Part 8 equivalent of common law jurisdictional error.[37]
Since S157 it has been confirmed that a failure to 'review' the primary decision constitutes jurisdictional error. However, it appears no longer necessary to establish something akin to a pretence on the part of the tribunal in performing its function. Instead, the duty to review has been given a much broader construction than was adopted in Anthonypillai, such that it now encompasses the duty to accord natural justice and to comply with specific statutory procedures.[38] In the recent High Court decision in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, for example, the joint judgment described the RRT's failure to fulfil its verbal promise to the appellant to write to him concerning his evidence as a 'failure to complete the review process' and in that sense 'a failure to comply with the duty imposed by s 414(1) to conduct the review and the duty under s 425(1) to hear from the appellant.'[39]
Independently of the statutory duty to review, the Federal Court has also ruled since S157 that failure to comply with certain procedural obligations imposed by the Act amounts to jurisdictional error.[40] These are procedures that require the tribunals to give certain information to an applicant,[41] and invite the applicant to appear before the tribunal.[42] Such procedures reflect closely, albeit not comprehensively, obligations imposed by the common law to ensure applicants a fair hearing. By the PF Act amendments,[43] the intention was to make the statutory procedures exhaustive of the obligations to which the tribunals are subject in this regard. Whether the government will in fact succeed in achieving this aim will depend on the extent to which the courts find that the statutory procedures 'deal' with matters with which the common law would otherwise deal. This follows from the wording of the amendments. Section 422B of the Act (the PF Act provision relevant to the RRT), for example, provides that the subdivision in which it appears 'is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.'[44]
There is some irony in the fact that, despite the legislative intention underpinning the PF Act amendments having been to reduce judicial review of tribunal decisions on procedural grounds, that intention has been drawn upon by the Full Court to support the view that the statutory procedures are to be treated as inviolable conditions on the exercise of power so that, applying S157, their breach constitutes jurisdictional error.[45] This approach has been consistent also with the view that compliance with the statutory procedures is, as previously observed, part of the basic duty of the tribunal to review the application.
In a number of Federal Court cases following S157 the question of whether jurisdictional error occurred in the tribunal's interpretation of the relevant visa criteria was hotly contested.[46] At issue was whether a tribunal's satisfaction in relation to such criteria under s 65 of the Act constitutes a condition precedent to a valid decision. The controversy surrounding this question is canvassed further below, suffice to say for present purposes that it has been resolved recently against the government in a series of High Court rulings, the effect of which is that legal error in the interpretation of visa criteria is to be regarded as jurisdictional error.[47]
The traditional common law position is that a 'mere' error of fact on the part of an administrator is not susceptible to judicial review. Two exceptions to this generally have been recognised.[48] The first is where the 'fact' in question is a jurisdictional fact, that is, a precondition to the exercise of power. Such a precondition need not be a question of fact in an objective sense. It might also be a mixture of fact and opinion or, indeed, pure opinion where, for example, the existence of power is predicated upon the decision-maker reaching an opinion or being satisfied as to a particular matter.[49] Jurisdictional fact review has not featured prominently in the migration context, despite the suggestion by Gummow J in Minister for Immigration and Ethnic Affairs v Eshetu[50] that the satisfaction as to visa criteria required by s 65 of the Act was a jurisdictional fact that could be subject to a form of 'reasonableness review'.[51]
That said, outside of s 65, there have been some recent cases in which jurisdictional facts have been relied on by the Federal Court in its review of visa cancellation decisions. In Minister for Immigration and Multicultural and Indigenous Affairs v Schwart,[52] for example, an objective precondition to the valid exercise of the Minister's power under s 501(2) of the Act was said to be the nature of the visa that he was purporting to cancel. By contrast, in SHJB v Minister for Immigration and Multicultural and Indigenous Affairs,[53] the relevant jurisdictional fact giving rise to the power to cancel under s 109(1) was said to be the subjective opinion by the Minister that there had been non-compliance by the visa holder with the requirements in s 108.
The second exception to the ban on fact review has traditionally been where there is, literally, no evidence to support the fact as found by the decision-maker. A finding of fact made in the absence of any evidence to support it has been regarded as an error of law rather than an error of fact. The judgment of Mason CJ in Australian Broadcasting Tribunal v Bond[54] is generally cited as the authority for this ground; in particular, his Honour's observation that:
So long as there is some basis for an inference — in other words, the particular inference is reasonably open — even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[55]
While Mason CJ's reasoning in Bond has been criticised in recent High Court judgments,[56] it nevertheless appears to have been the case that, consistent with the Chief Justice's approach, at common law the '"no evidence" ground cuts out when even a skerrick of evidence appears.'[57]
The 'no evidence' ground was raised recently in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[58] in which the High Court allowed the Minister's appeal against a decision that the RRT had erred by determining that the applicant was suffering from post traumatic stress disorder ('PTSD') in the absence of any evidence.[59] However, the judgments in fact had little to say on the question of 'no evidence', with most of the attention being paid to issues of procedural fairness. Comments by Gummow and Hayne JJ did suggest that this question will only arise where the 'fact' for which there is alleged to be 'no evidence' is a jurisdictional fact.[60] Having referred to the satisfaction in s 65 as being such a 'fact', their Honours went on to say that 'inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.'[61] They subsequently noted that 'nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction' and hence '[n]o question of a "no evidence" ground of jurisdictional error arises.'[62] Furthermore, there was in any event ample material to support the RRT's finding.[63] Gleeson CJ agreed with the reasons of Gummow and Hayne JJ.[64] Kirby J, who dissented, found it unnecessary to deal with the Minister's criticisms of this aspect of the Federal Court's decision.[65] Callinan J, like Gummow and Hayne JJ, disposed of the issue by pointing to the 'abundant evidence' that justified the RRT's finding.[66]
Notwithstanding the strictness of the standard, there has been at least one migration case since S157 in which a 'no evidence' ground was made out. In SFGB v Minister for Immigration and Multicultural Affairs,[67] the Full Court articulated the essence of the applicant's argument as being that there was no information before the RRT from which it could realistically draw the conclusion that there was a government in control of the region in Afghanistan from which the appellant came that could or would protect the appellant from persecution for a Convention reason.[68] The Court held that this argument, if it were made out, would be sufficient to establish that the tribunal had made a jurisdictional error. Citing Mason CJ in Bond, the Court noted that
if the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error.[69]
In the case before it, the Court was satisfied that there was no material that supported two of the RRT's key findings concerning the leadership of the province from which the appellant had come and the involvement of the Taliban/Al Qaeda in that area. Notably this approach appears more generous than that of Gummow and Hayne JJ in SGLB, in that the Full Court did not make any explicit attempt to link the impugned factual findings to the jurisdictional fact of satisfaction in s 65. It is arguable therefore that the Full Court's approach recognises a broader ground of 'no evidence' than that suggested by at least two members of the High Court.
In addition to these two recognised exceptions to the traditional notion that factual error is immune from judicial review, the comments made recently by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 should be noted.[70] Their Honours indicated that in jurisdictions concerned with the grant of the constitutional writs, the distinction between jurisdictional and non-jurisdictional error is to be preferred over the distinction between errors of law and errors of fact. Unfortunately, the judgment goes no further in explaining the circumstances in which factual error might amount to jurisdictional error and hence, for present purposes, it seems safe to conclude that those circumstances are likely to be very limited.[71]
The position as regards judicial review of illogicality or irrationality in a decision-maker's fact-finding or reasoning process has proven to be more fluid than the position relating to errors of fact, particularly in recent times. Again, statements made by Mason CJ in Bond, referred to above, have been highly influential — 'want of logic', as the Chief Justice put it, 'is not synonymous with error of law.'[72] In Bond, as in earlier cases, Deane J took a different view. Deane J advocated that the duty of procedural fairness extends to the basis on which a decision is made, requiring that it not be based on considerations that were irrelevant or irrational or on findings or inferences of fact which were not supported by some probative material or logical grounds.[73]
Until recently it has generally been accepted that Mason CJ's approach represents the law in this country. This approach was endorsed by the Full Court in Minister for Immigration and Multicultural Affairs v Epeabaka,[74] albeit the Full Court acknowledged that illogicality in reasoning may indicate that there has not been a 'real' performance of the functions entrusted to the decision-maker.[75] In the migration context, Epeabaka has generally been cited in the Federal Court in answer to complaints about unsatisfactory reasoning on the part of the tribunal.[76] In Gamaethige v Minister for Immigration and Multicultural Affairs a majority of the Full Court adhered to Epeabaka.[77] The majority also regarded the Court as constrained by the exclusion of a Wednesbury-styled ground of unreasonableness under s 476(2)(b) of the Act, in the former Part 8. It was the majority's view that the alleged illogicality in the decision could only be challenged under that ground and that to recognise it as separately capable of constituting jurisdictional error would be to defeat the legislative intention underpinning s 476(2)(b).[78]
In dissent, Finkelstein J relied on a presumption that, in the absence of provision to the contrary, Parliament would intend decisions under the Act to be reached by a process of logical reasoning.[79] He sought to overcome the exclusion in s 476(2)(b) by relying on Gummow J's comments in Eshetu suggesting that where there is error of law in a finding on the existence of a jurisdictional fact, the resultant decision under s 65 would be without jurisdiction (s 476(1)(b)) or would not be authorised by the Act (s 476(1)(c)).[80] Furthermore, Finkelstein J was of the view that Wednesbury unreasonableness is relevant only to discretionary decisions and decisions of the tribunals under the Act are not of that character. Hence there was no overlap between the ground of illogicality constituting jurisdictional error and the ground excluded by s 476(2)(b).[81]
On appeal, much of Finkelstein J's approach met with the approval of the High Court in S20.[82] S20 is a difficult case from which to extract a clear statement or statements of principle. The majority (Kirby J dissenting) rejected the appellant's portrayal of the RRT's reasoning as illogical.[83] Nevertheless, in the course of their reasoning, four of the five judges[84] appeared more receptive than has ever previously been the case to the idea that extreme cases of illogicality might be reviewable.
The difficulty, however, is that not only was the reviewability of illogical reasoning explained on a slightly different basis in each of the judgments but also it is not entirely clear whether or not illogicality was seen as a ground in itself or whether it was limited to a manifestation of some other underlying error.[85] Aronson, Dyer and Groves have adopted the former characterisation of the case.[86] The Federal Court, however, is not as convinced. There have been several Federal Court decisions, including Full Court decisions, in which S20 has been seen as failing to justify a departure from the Epeabaka line of authorities in which illogicality was treated as capable only of sounding a 'warning note' as to the existence of some more fundamental error.[87]
The demanding nature of the ground known as Wednesbury unreasonableness[88] has meant that it has seldom been invoked and even less seldom with success, relative to other grounds of review. Applying its traditional formulation, the ground requires the reviewing court to be satisfied that the decision under review was so unreasonable that no reasonable decision-maker could have reached it. In the migration jurisdiction, this ground was expressly excluded by s 476(2)(b) under the version of Part 8 of the Act in force prior to the introduction of the privative clause. However, in S20, as previously mentioned, the Court, in effect, circumvented the exclusion by allowing for cases of gross illogicality or irrationality (concepts often treated as synonymous with or manifestations of unreasonableness) to be reviewed independently of the Wednesbury ground and arguably as species in themselves of jurisdictional error.
Three of the judges in S20 also agreed with Finkelstein J that Wednesbury unreasonableness was a ground relevant only to discretionary decisions.[89] As decisions made to refuse a visa under s 65 of the Act do not involve the exercise of discretionary power,[90] the effect of this is to limit significantly the practical relevance of the Wednesbury unreasonableness ground in the migration context. It is a ground that may continue nevertheless to be invoked by applicants challenging migration decisions other than those made under s 65, such as decisions to cancel a visa on character grounds under s 501. However, it remains the case that only in truly exceptional circumstances will applicants succeed in such challenges. As Gleeson CJ and McHugh J cautioned in Eshetu, and the Chief Justice again in S20, even 'emphatic disagreement' with the decision under review will not be sufficient to establish reviewable error on this ground.[91]
Since the High Court decision in Yusuf it has been settled that consideration of irrelevant material or the failure to consider relevant material in a manner that affects the exercise of power constitutes jurisdictional error.[92] Thus, applying S157, the privative clause has been treated as ineffective to protect decisions involving errors of this nature.[93]
The distinction between mere pieces of evidence or other material and considerations that are 'relevant' in the sense that the decision-maker is compelled to consider them has proven to be just as difficult in the migration context as in any other.[94] One approach that has gained popularity as a way of overcoming this difficulty is to ask whether or not the tribunal has failed to deal with an 'essential integer' of the applicant's case. If so, then it will have failed to consider relevant material and its decision will be found thereby to involve jurisdictional error. Such 'integers' have been characterised as material made mandatorily relevant by the Act for consideration in the sense discussed in Yusuf and have been distinguished in this respect from errant fact finding.[95]
Following the comments of Gummow and Callinan JJ in Dranichnikov, there may now be substantial overlap between this ground and the ground of procedural fairness.[96] It was held in that case that the RRT had committed jurisdictional error in that it had failed to address the applicant's claim of persecution by reason of his membership of a social group defined as 'businessmen in Russia who publicly criticised law enforcement authorities for failing to take action against crime.' The RRT had considered the application based on the more general social group of 'businessmen in Russia'. The majority accepted that the Tribunal misstated and failed to deal with the case presented to it, with Gummow and Callinan JJ expressing the view that:
[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord [the applicant] natural justice.[97]
It further appears that there will be jurisdictional error whether or not the so-called 'integer' ignored by the tribunal was articulated by the applicant in the presentation of his or her case. It has been stressed repeatedly in this jurisdiction that, while the tribunal is not obliged to make the case for the applicant, it is nevertheless required as an inquisitorial body to consider claims that may be available based on the evidence before it.[98] As a consequence, an important question to be considered in connection with this ground of review has been seen as whether the evidence before the tribunal sufficiently raised the relevant issue so that it was incumbent on the tribunal to deal with it.[99] More recently, it has also been emphasised by the High Court that this ground should not be used by applicants simply 'to re-canvass factual findings in an impermissible way and to argue their claim for judicial review in a matter significantly different from the argument advanced before the tribunal.'[100]
There have been cases since S157 in which the ground of inflexible application of policy has been confirmed as giving rise to jurisdictional error. In Jackson v Minister for Immigration and Multicultural and Indigenous Affairs,[101] for example, the Full Court held that the MRT had erred because it had taken the view that the terms in which the Procedures Advice Manual (the policy manual used by the Department) was expressed, excluded from consideration certain matters in connection with an application for a special need relative visa. The tribunal, it was found, did not treat the Manual as a guide but rather treated it as actually determining in a prescriptive way the question that the tribunal was required to answer. This was jurisdictional error.[102] Moreover, as had been held in similar circumstances in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs,[103] it had resulted in the tribunal failing to address the question raised by the applicable regulation — thereby satisfying the traditional formulation of jurisdictional error.
It is clear from several Federal Court decisions since S157 that the failure by the tribunal to make a good faith (bona fide) attempt to exercise its power will constitute jurisdictional error in the sense intended in S157.[104] More recently, in SGLB, Gummow and Hayne JJ made the observation that:
To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act.[105]
Prior to S157, applying the majority approach in NAAV, it was considered that this ground was one of the few grounds still available to applicants in the face of the privative clause. Hence, substantial jurisprudence was developed in determining the parameters of the ground. In SBBS v Minister for Immigration and Multicultural and Indigenous Affairs[106] the Full Court distilled the following principles from this jurisprudence (omitting citations):
First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision-maker. Second, the allegation is not to be lightly made and must be clearly alleged and proved. Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition. Fourth, the presence or absence of honesty will often be crucial.
The fifth proposition is that the circumstances in which the court will find an administrative decision-maker had not acted in good faith are rare and extreme. This is especially so where all that the applicant relies upon is the written reasons for the decision under review.
Sixth, mere error or irrationality does not of itself demonstrate lack of good faith. … Bad faith is not to be found simply because of poor decision-making. It is a large step to jump from a decision involving errors of fact and law to a finding that the decision-maker did not undertake its task in a way which involves personal criticism.
Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness.
Eighth, the court must make a decision as to whether or not bad faith is shown by inference from what the tribunal has done or failed to do and from the extent to which the reasons disclose how the tribunal approached its task.
Ninth, it is not necessary to demonstrate that the decision-maker knew the decision was wrong. It is sufficient to demonstrate recklessness in the exercise of the power.[107]
Notwithstanding that this statement of principles was made prior to S157 there would appear to be no reason as to why it should not continue to be relevant in dealing with an allegation of bad faith. The reality, however, is that it is highly unlikely that an applicant will be forced to invoke this ground given the range of other grounds now available under the increasingly generous rubric of jurisdictional error. Equally, it is difficult to conceive of circumstances in which an applicant will have to rely on the related ground of improper purpose or the even rarer ground of fraud.
The government's response to S157 has been a combination of litigation (a series of appeals to the High Court) and proposed legislation. It also established a review of migration litigation which, albeit not explicitly related to S157, arguably would not have been necessary had the High Court allowed the privative clause to operate as the government had intended.
Initially the Minister sought to persuade the Federal Court that S157 did not necessarily overrule NAAV; that the High Court decision was authority only for the proposition that the privative clause could not protect decisions affected by jurisdictional error by way of breach of common law procedural fairness.[108] When these arguments were rejected in a series of Full Court decisions,[109] the Minister sought to have the High Court clarify the situation. Applications for special leave to appeal were made in three cases. In the first two, Scargill v Minister for Immigration and Multicultural and Indigenous Affairs[110] and Lobo v Minister for Immigration and Multicultural and Indigenous Affairs,[111] the Minister took issue with the Full Court view that tribunal errors in the interpretation of visa criteria constituted jurisdictional error.
In essence, the Minister's argument in these cases was based on an uncontroversial proposition, namely that not every error of law made by an administrative decision-maker in construing or applying statutory provisions is necessarily a jurisdictional error.[112] This proposition was consistent with recent High Court pronouncements confirming the common law distinction between jurisdictional and non-jurisdictional error and emphasising that administrative decision-makers may make errors of law that are within jurisdiction.[113]
Applying the approach articulated in S157, in determining which such errors are jurisdictional, it arguably was quite reasonable on the part of the government to expect that the privative clause would have some role to play. After all, by the privative clause it was clear that Parliament had manifested an intention that decision-makers may make some errors in construing and applying the Act and the regulations without such errors invalidating their decisions. Thus, it could be said that, to the extent that s 474 operates to protect a decision from review, it, in effect, alters the substantive law by expanding the powers of decision-makers.
There was support for such an approach in privative clause cases predating S157.[114] There were also statements made in S157 itself that appeared to support the argument that s 474 was capable of 'curing' what might otherwise have been characterised as jurisdictional error. In the joint judgment, for example, there was the following statement:
[I]t may be that, by reference to the words of s 474, some procedural or other requirements laid down by the Act are to be construed as not essential to the validity of a decision.[115]
The Chief Justice had said that '[t]here may not be a single answer' to the question of how to reconcile s 474 and the rest of the legislation.[116] Even in respect of procedural fairness, there were statements in S157 suggesting that not every breach of the rules of this doctrine would constitute jurisdictional error; only manifest, grave or serious breaches will suffice.[117] Moreover, in S20, McHugh J and Gummow JJ noted, albeit in a footnote, that 'the new s 474 effects a substantive change to the powers of decision-makers'.[118]
If the argument advanced by the Minister in Scargill and Lobo had been accepted, it would have limited the extent to which applicants can rely on misinterpretation or misapplication of visa criteria as a ground of judicial review. It would also have sounded a general warning to the Federal Court about the need to pay attention to the presence of the privative clause in the Act in identifying jurisdictional error.
However, the government was to be disappointed. Constituted by Gummow and Hayne JJ, the High Court refused special leave to appeal in Scargill and Lobo on 13 February 2004. Their exchanges with counsel for the Minister suggest that their Honours were somewhat surprised to learn that there was any doubt surrounding the effect of S157. Certainly they did not appear to have contemplated that there would be much difficulty associated with the notion that the privative clause is overcome by jurisdictional error. As far as Gummow J was concerned, it was quite straightforward: 'It is really quite simple, at the end of the day. … It is a neat Bauhaus construction and you want to start building a Gothic cathedral.'[119]
The third case in which special leave to appeal was sought by the Minister was SGLB.[120] Having obtained leave, the Minister took issue with several of the findings of error made by Selway J below.[121] In the alternative, and of relevance for present purposes, the Minister submitted that the errors, if made, had not been jurisdictional. The basis for this submission was essentially that the privative clause protected tribunal findings on credit because, invoking the first Hickman proviso, all that was necessary was that the tribunal reach a state of bona fide satisfaction as to its findings.[122] The submission was not well received. In the course of hearing argument on the appeal on 12 February 2004, the following telling exchange took place between members of the bench and counsel for the Minister:
Gummow J: I do not understand what you are saying, actually. What is the submission? You are changing the nature of jurisdictional error in some way or other, are you?
Gageler SC: Yes.
Gummow J: Why?
Gageler SC: As part of what your Honours have referred to as 'the reconciliation process'.
Gummow J: I see, whatever.
Kirby J: Reconciliation between whom?[123]
When counsel later returned to the matter of reconciliation between s 65 and s 474 Gummow J interrupted, saying:
The reconciliation achieved in this case [S157] is jurisdictional error [is] reviewable. That is what the case decides.[124]
As is evident from the transcript, Gummow J's views were shared by Hayne J[125] and this was confirmed at the special leave hearing in Scargill and Lobo the next day.
On 17 June 2004, the Court handed down its judgment. Not surprisingly given what had transpired both at the hearing and previously in the Scargill and Lobo applications, the Minister's submission on the privative clause was dealt with unfavourably in a joint judgment by Gummow and Hayne JJ.[126] Gleeson CJ agreed with the joint judgment.[127] Kirby J did not find it necessary to address the submission but had, in any event, expressed views (in his joint judgment with Gaudron J) in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002[128] that essentially were adopted by Gummow and Hayne JJ in SGLB. Callinan J was also able to dispose of the appeal on other grounds, thus obviating the need to deal with the privative clause point.[129]
In S134 Gaudron and Kirby JJ had explained the process of reasoning by which an error by the tribunal in reaching its state of satisfaction relevant to s 65 could be characterised as jurisdictional error.[130] In a passage described by Gummow and Hayne JJ in SGLB as 'compelling',[131] Gaudron and Kirby JJ had said:
The detailed specification of matters bearing upon the grant of a protection visa inserted into the Act at the same time as was s 474 makes it clear that the Parliament was not enacting provisions to the effect that decision-makers could validly grant or refuse to grant protection visas on the basis of a bona fide attempt to determine whether the criteria for the grant of a protection visa have been satisfied, as distinct from the decision-maker's actual satisfaction or lack of satisfaction as to those criteria. And as already pointed out, a decision-maker cannot be said to be satisfied or not satisfied if effect is not given to those criteria because, for example, they have been misconstrued or overlooked.[132]
In addition to dealing with the specific submission regarding s 65, Gummow and Hayne JJ made several general points about the effect of the privative clause, aimed, it seems, at dispelling any doubt left by S157 about the matter. Describing it as the 'critical holding', they set out the passage from the joint judgment in S157 in which it had been explained that the privative clause is ineffective insofar as jurisdictional error is concerned and that such error will arise where, for example, there has been a breach of a so-called inviolable limitation.[133] The question whether a limitation is of such a nature may be obvious, as in S157, where a breach of common law procedural fairness was alleged.[134] In other cases, that question will have to be answered by a process of legislative construction.[135] It had been by this process that Gaudron and Kirby JJ in S134 had reached the view that the satisfaction referred to in s 65 was a condition precedent to the making of a valid decision.
In relation to the Hickman line of authorities, Gummow and Hayne JJ reiterated what had been said in S157, namely that the three provisos must be shown to have been satisfied before a privative clause can apply, 'so that the satisfaction of them necessarily takes effect as an "expansion" or "extension" of the power of the decision-makers in question.'[136] Contrary to what had been submitted by the government in S157 (a submission that it was seen as attempting to 'resuscitate'[137] in SGLB), satisfaction of the provisos is not sufficient to allow the privative clause to protect decisions in the face of jurisdictional error.
The refusal of special leave in Scargill and Lobo and the judgment in SGLB must be seen as sounding the death knell for the privative clause. It should now be more than evident to the government that this is not an effective mechanism by which to attempt to reduce the volume of judicial review in this area. Indeed, as suggested by other recent events referred to below, the government appears to be well aware of this fact and of the need to explore alternative mechanisms in order to achieve its objectives.
On 27 October 2003, while judicial clarification of the effect of S157 was still being pursued, the government announced a review of migration litigation.[138] The review was 'aimed at leading to more efficient management of migration cases.'[139] It was headed by First Parliamentary Counsel, Hilary Penfold, assisted by a steering committee, the membership of which included a Federal Court judge, a federal magistrate, as well as deputy secretaries from the Attorney-General's Department, the Department of Prime Minister and Cabinet and the Department of Immigration and Multicultural and Indigenous Affairs.[140]
The announcement cited concerns about the increasing volume and delays in the resolution of migration cases, as well as the low success rates of applicants.[141] In this respect it echoed statements made by the government in connection with the 2001 introduction of the privative clause regime, and prior to that, the 1994 reforms that imposed limitations on the Federal Court's jurisdiction.[142] However, both the language used and message conveyed were arguably softer, almost conciliatory. The media release was entitled: 'Migration Litigation Review to Improve Access to Justice' and the Attorney-General was quoted as saying:
The Government is committed to applicants with genuine claims having their case properly considered, however great strain is being placed on the courts and the migration system more generally, by unmeritorious applications.[143]
For those familiar with the history of government policy and practice in this area, the irony in this statement by the former Minister was inescapable. For much of the last decade the government has been openly and unabashedly committed to curtailing the review rights of applicants, irrespective (so it has seemed) of the merit of their claims. This apparent contradiction may evoke several different responses.
On one view, and taking it at face value, the announcement could be taken to signal a substantial change in attitude by the government involving a genuine commitment to ensuring that those with meritorious applications are able to have them fully and properly considered by the courts. The involvement of judicial representatives on the review steering committee does suggest, at the very least, a shift by the government from an adversarial to a more cooperative approach. The government would have been heartened in this regard by recent judicial comments critical of abuse of the process of review by some applicants. In NARS v Minister for Immigration and Multicultural and Indigenous Affairs,[144] for example, Madgwick J, with whom the other members of the Court agreed, had had this to say:
The entire conduct of the matter, both before the Tribunal and before this Court suggests that the proceedings have been but a solemn farce intended only to secure the appellant's presence in Australia for a longer period than was apparently justified. It is difficult to know what to do about such cases, which are increasingly common. In my view, this Court does no more important work than to deal with the cases of people who genuinely claim to be refugees within the meaning of the relevant Convention. In such cases, to adopt a phrase used by Toohey J, in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 407, 'human fate' itself is at stake. The prevalence of worthless appeals, of which this is an example, however, tends to de-value the importance of that other cases, the importance of that kind of work and suggests to the uninformed that the Court is in some way a party to what it is not unfair to call a racket, whereby considerable numbers of people are without warrant, staying in Australia almost certainly for the purpose of obtaining work to which they are not entitled.
The importance of the genuine cases, however, operates as a signal barrier against draconian measures being introduced by the Court itself to the extent that it could or at its behest. These matters are presently the subject of consideration by an advisory committee to the relevant Minister and it is inappropriate that I should say more. But I should not let the occasion pass without it being made clear that the Court is aware of the pattern that is emerging and views the matter with concern and displeasure.[145]
Taking a less generous view, the Attorney-General's announcement could be seen as an attempt by the government to put a positive spin on the position into which it effectively has been forced by the High Court's stand in relation to the privative clause. Equally, it is inevitable that there will be those who view the government's statements with scepticism and suspicion, concerned that any measures that it decides to take in consequence of the review will, as in the past, be aimed at reducing rather than enhancing access to justice in migration cases.
Six months after the review was established, in May 2004 the Attorney-General and the Minister made a joint statement announcing a 'package of reforms to improve migration litigation processes.'[146] The principal announcement was of the allocation of $34.2 million in the 2004–05 budget to enable eight additional federal magistrates to be appointed. Several other key measures were also announced. Those measures have since been incorporated in the Migration Litigation Reform Bill 2005 (Cth) that was introduced to the House of Representatives on 10 March 2005, and referred to the Senate Legal and Constitutional Committee on 16 March 2005. The Committee is due to report on the Bill by 11 May 2005.
In the announcement of these reforms it was stated that the government had 'drawn on the comprehensive recommendations' of the Penfold review. Unfortunately, a full appraisal of the reforms is hampered by the fact that neither those recommendations nor the report produced by the review have been released. The Attorney-General has said that he does not intend to release it as it contains information to be used in Cabinet deliberations.[147]
The objective of the Reform Bill is stated as being 'to improve the overall efficiency of migration litigation.'[148] As explained by reference to its key provisions below, the Bill seeks to achieve this objective in a variety of ways.
Introducing new definitions
The definition given by the High Court in S157 to 'privative clause decision' (as a decision not affected by jurisdictional error) not only negated the effectiveness of the privative clause but also cast doubt (and, in some cases, undermined altogether) the operation of several other, mostly procedural, provisions in the Act. The most prominent of these, discussed below, were the time limit provisions. In order to deal with this definitional conundrum, the Reform Bill creates a new species of decision – a 'migration decision'. A 'migration decision' is defined as meaning:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non-privative clause decision.[149]
The definition of 'privative clause decision' in s 474(2) remains unchanged.[150] Reflecting terminology used in S157, a 'purported privative clause decision' is defined in a new s 5E as meaning:
... a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.[151]
The distinction made between 'privative clause decisions' and 'purported privative clause decisions' under the new definitions makes it possible for certain provisions, such as those that relate to time limits, to apply regardless of whether or not a decision is affected by jurisdictional error.
A 'non privative clause decision' is defined in a new s 476(6) as meaning a decision mentioned in the current s 474(4) or specified in regulations made under the current s 474(5).[152] As the name suggests, 'non privative clause decisions' are a small category of decisions to which the privative clause will not apply.
Directing migration cases to the Federal Magistrates Court
The Reform Bill, in effect, makes the Federal Magistrates Court the court of first instance in all but a handful of migration cases. In short, this is achieved by directing the vast majority of migration cases to the Federal Magistrates Court, drastically limiting the original jurisdiction of the Federal Court and ensuring that the High Court remits migration cases directly to the Federal Magistrates Court.[153]
This approach is consistent with the original vision for the Federal Magistrates Court as one that would be able to deal expeditiously with a high volume of relatively straightforward cases. Continuing the approach taken since 2001 (since 1993 with respect to the Federal Court), the only major exclusion from the Court's jurisdiction is that of primary decisions, namely decisions that are or would have been reviewable by the Migration Review Tribunal or Refugee Review Tribunal.[154] There are then some additional, relatively minor, exclusions, being cases in respect of which the Federal Court retains original jurisdiction.
The Federal Court retains original jurisdiction in the following categories of case only:[155]
(1) cases transferred by the Federal Magistrates Court under s 39 of the Federal Magistrates Act 1999 (Cth) (it is expected that the Federal Magistrates Court will only transfer those matters that are sufficiently complex as to warrant the attention of a superior court)[156];
(2) cases involving judicial review of decisions of the Administrative Appeals Tribunal made under s 500 of the Act (these matters remain within the jurisdiction of the Federal Court given that it is thought preferable to avoid having decisions of presidential members of the Tribunal, including members who are or were judges, reviewed by Federal Magistrates)[157];
(3) cases involving judicial review of decisions made personally by the Minister under ss 501-501C of the Act (apparently it is considered more appropriate that decisions made personally by the Minister be reviewed by the superior court);[158]
(4) cases involving non-privative clause decisions on appeal from the Administrative Appeals Tribunal under s 44(3) of the Administrative Appeals Tribunal Act 1975 (Cth) (an appeal from the Tribunal to the Federal Court on a question of law under s 44(3) is excluded in relation to a privative clause decision or purported privative clause decision)[159]; and
(5) cases where the Administrative Appeals Tribunal refers a question of law to the Federal Court under s 45(2) of the Administrative Appeals Tribunal Act 1975 (Cth) arising in a proceeding involving a migration decision.
In addition, the High Court's power of remittal under s 44 of the Judiciary Act 1903 (Cth) is curtailed, in that, where it exercises its discretion to remit, the Court must remit all migration cases in which the Federal Magistrates Court has jurisdiction to that court.[160] Currently, migration cases are remitted to the Federal Court which then transfers the majority of them to the Federal Magistrates Court. As seen below, the Reform Bill also makes provision for expediting of the remittal process.
By way of a new s 484, the Reform Bill seeks to put beyond doubt that only the High Court, Federal Court and Federal Magistrates Court have jurisdiction in relation to migration decisions.[161] The purpose of this provision is stated as being, not to confer jurisdiction on those courts, but to exclude other courts from jurisdiction in respect of migration decisions. And, further '[t]o avoid doubt', it is reinforced that neither the Supreme Court of the Northern Territory nor any court under the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) have any such jurisdiction.[162]
The Bill also amends Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), inserting 'purported privative clause decisions' into the Schedule and thereby exempting such decisions from review under that Act.[163] The Schedule already includes 'privative clause decisions'.[164] 'Non privative clause decisions' remain reviewable under the ADJR Act.[165]
Ensuring identical grounds of review in migration cases
In what can only be hailed as a long overdue and most welcome measure, the Reform Bill abandons the previous approach of attempting to restrict the grounds of review available in the lower courts. Inherent in this abandonment is the concession that, subject only to a return to the ADJR Act (an option the government plainly is not prepared to entertain), the only workable system is one in which those grounds are the same as the grounds available in the High Court.
This is achieved by expressly providing that the new jurisdiction of the Federal Magistrates Court and the Federal Court is 'the same original jurisdiction ... as the High Court has under paragraph 75(v) of the Constitution.'[166] In short, having regard to the approach taken by the High Court to its constitutional jurisdiction, the effect of this is to recognise jurisdictional error as the exclusive basis for review of migration decisions by all courts – a basis which, in turn, embraces a wide and seemingly open-ended range of grounds.
Imposing uniform time limits
The proposed time limit provisions apply to 'migration decisions', thereby overcoming the difficulty posed by S157, by virtue of the fact that such decisions explicitly include decisions affected by jurisdictional error (that is, the category of decision now to be known as 'purported privative clause decisions').
The current 28 day time limit that applies to the commencement of proceedings in the Federal Court and Federal Magistrates Court will apply also to proceedings in the High Court (rather than 35 days as the Act presently provides).[167] However, each court will have a discretion to extend this period by a further 56 days if 'an application … is made within 84 days of the actual (as opposed to deemed) notification of the decision' and if the Court 'is satisfied that it is in interests of the administration of justice to do so.'[168] The effect of the proposed amendments is that while the courts are given some discretion to extend time, it is limited in two respects:
1. there is no such discretion if the application is made after 84 days of actual notification of the decision; and
2. the discretion allows for extensions of no more than 56 days.
Albeit limited, the grant of some discretion to extend time suggests an acknowledgement of the injustice that may result from non-extendible time limits. In migration cases, the harshness of the removal of discretion is compounded by the particular difficulties faced by many applicants for protection visas, including poor English and limited recourse to qualified interpreters; lack of understanding of the Australian legal system and, in particular, the complexities of this area of the law; difficulty in obtaining legal advice for reasons of scarce resources and, in many instances, physical location; and having to rely on others (usually detention centre personnel) to send an application to the Court.[169]
Currently, as far as the time limits applicable to the Federal Court and Federal Magistrates Court are concerned, time begins to run from the date that the applicant is notified of the decision.[170] In relation to documents that are prepaid posted to applicants (as is usually the case with tribunal decision records), applicants are deemed to have been notified 7 days after the date of the document.[171] The effect of this is that the issue of whether or not a person was actually notified of the decision is irrelevant to determining whether the application has been brought within time. The position in relation to the High Court is different in that time only begins to run from actual notification.[172]
An earlier version of the Reform Bill had proposed to alter the time limit provision relating to the High Court so as to make it consistent with those applicable to the lower courts, requiring applications to be brought within 28 days of deemed notification of the decision.[173] Before an inquiry by the Senate Legal and Constitutional Legislation Committee, this raised concerns, not only about the fairness of deemed notification, but also about the constitutionality of imposing a time limit of this nature on the High Court.[174] While it regarded the 84 day time limit to be reasonable, the Committee noted 'that there may be instances where parties do not receive practical or effective notification, and when combined with an absolute time limit, injustice could result.'[175] The Committee thus recommended that the Bill be amended to restore the requirement of actual notification, and subject to that amendment, the Committee was prepared to recommend that the Bill proceed.[176] Evidently, the government took heed of the Committee's recommendation, indeed going further to alter the provisions applicable to the Federal Magistrates Court and Federal Court also so as to make them operable, consistent with the High Court provision, upon actual rather than deemed notification.
Improving court processes
With the overall aim of expediting the handling of migration cases, the Reform Bill addresses current court processes in three respects. First, the Bill contains a provision requiring judicial review applicants to disclose previous applications for judicial review of the same tribunal decision.[177] The disclosure requirement applies to the commencement of judicial review proceedings in the Federal Magistrates Court, Federal Court and High Court.[178] As explained in the Explanatory Memorandum, this provision:
…is designed to assist the courts to identify applications which have already been the subject of proceedings for judicial review of tribunal decisions and discourage applicants from attempting to re-litigate these matters, including as a means to delay their removal from Australia.[179]
Secondly, the Reform Bill provides that appeals from the Federal Magistrates Court under the Act will be heard by a Federal Court judge sitting alone unless a judge considers it appropriate to refer the matter to a Full Court.[180] This alters the current situation in which there has to be a direction made by the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the Full Court be constituted by a single judge. Currently almost all migration appeals from the Federal Magistrates Court are heard by a single Federal Court judge in accordance with such a direction.
Thirdly, the Reform Bill confirms that the High Court may remit a matter or part of a matter (notably this is not confined to migration matters) under s 44 of the Judiciary Act 1903 (Cth) without an oral hearing. In other words, remittal may be undertaken on the papers.[181]
Deterring unmeritorious applications
The Reform Bill contains three measures aimed at deterring the institution of unmeritorious judicial review proceedings in migration cases. The first involves broadening the circumstances in which a proceeding may be summarily dismissed. Provisions are to be inserted in the Federal Magistrates Court Act 1999 (Cth), Federal Court of Australia Act 1976 (Cth) and Judiciary Act 1903 (Cth) that empower the relevant courts under those Acts to give judgment for either party if the court is satisfied that the other party 'has no reasonable prospect of successfully prosecuting [or] defending [whichever the case may be] the proceeding.'[182] It is to be provided further that for the purposes of the section, a prosecution or defence of a proceeding need not be '(a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success.'[183] The rationale for this provision is stated in the Explanatory Memorandum as being to signal a move:
… away from the approach taken by courts in construing the conditions for summary judgment by reference to the “no reasonable cause of action” test in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 and General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. These cases demonstrate the great caution which the courts have exercised in regard to summary disposal, limiting this to cases which are manifestly groundless or less tenable.[184]
Aside from indicating an intention that the test for summary disposal be relaxed, the courts are left by the proposed provisions to develop the appropriate approach to determining when there is 'no reasonable prospect' of successful prosecution or defence of a proceeding. It may well be that a similar approach is adopted to that taken to cases in which an extension of time in which to appeal from a decision is sought. One of the requirements that the courts have imposed as necessary to obtain such an extension is that the appeal be shown to be 'arguable' or to have sufficient prospects of success.[185]
The second measure that is to be introduced with a view to discouraging the prosecution of unmeritorious proceedings involves the imposition of an obligation under a new Part 8B.[186] Section 486E of the new Part will provide as follows:
(1) A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if:
(a) the migration litigation has no reasonable prospect of success; and
(b) either:
(i) the person does not give proper consideration to the prospects of success of the migration litigation; or
(ii) a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve.
(2) For the purposes of this section, migration litigation need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
(3) This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant.[187]
This proposed provision raises a plethora of issues that courts will have to resolve in its application. Some of the obvious ones are as follows:
• what behaviour will be necessary to constitute encouragement for the purposes of s 486E(1);
• relatedly, is there any limitation on the type of person who may be the subject of the relevant obligation (it does not appear to be limited to legal representatives or migration agents);
• what is the test for determining whether or not litigation has 'no reasonable prospect of success'; s 486E(2) indicates that the litigation need not be hopeless or bound to fail, but as with the summary disposal provisions, the test is otherwise left open;
• how is it to be determined whether or not a person has given 'proper consideration' to the prospects of success of a proceeding for the purposes of s 486E(1)(b)(i) and what is the standard to be applied in this regard (presumably, the standard will vary depending on the qualifications of the person concerned); and
• how is it to be determined whether or not a person has a purpose of the kind contemplated by s 486E(1)(b)(ii) and what purposes may be said to be 'unrelated to the objectives which the court process is designed to achieve' (the Explanatory Memorandum cites the purpose of delaying removal from Australia as an example,[188] but it seems artificial to distinguish such a purpose from the purpose of having an adverse tribunal decision set aside and remitted for reconsideration, the latter being a purpose that the court process clearly is designed to achieve).
The sanction for breach of the obligation under s 486E(1) is a personal costs order under s 486F.[189] The courts are given a range of options for such orders, including orders that the person concerned pay the costs of the other party incurred because of the commencement or continuation of the litigation, the costs of the litigant where the litigant has already paid the costs of the other party, and where the person is a lawyer, the costs that the litigant has paid to the lawyer.
Notably, s 486F(2) makes it compulsory for a court to consider whether or not to make any such orders if, at the time of giving substantive judgment, the court finds that the litigation had no reasonable prospects of success. An order may be made under the section either on the motion of the court or on the application of a party to the litigation (s 486F(3))[190] and the motion or application must be considered at the time the question of costs in the litigation is decided (s 486F(4)). Finally, a person is prohibited from demanding or recovering from the litigant any part of an amount that the person has been ordered to pay under the section (s 486F(5)).
In accordance with a new s 486G, a court will not be entitled to make an order under s 486F unless the person concerned 'has been given a reasonable opportunity to argue why the order should not be made.' And, significantly, under a new s 486H the person may produce a document, record or information in support of such an argument notwithstanding that to do so would otherwise amount to a denial of legal professional privilege (s486H(1)). The proposed provisions make it clear that a communication does not cease to be subject to legal professional privilege for any other purpose (s 486H(2)(a)). To facilitate preservation of the privilege for such other purposes, a court must make such orders as are necessary to protect the confidentiality of a privileged communication (s 486H(2)(b)).
While at first glance these new provisions may appear dramatic, they are not without basis in existing jurisprudence, particularly jurisprudence that has begun to emerge in the migration context in recent years as the courts have sought to grapple with the large number of what have been perceived as unmeritorious applications. In several cases in this context the courts have shown a readiness to impose personal costs orders against the representatives of applicants and their discussion of the issues that arise and principles that ought to be applied in such cases is reflected to a large extent in the proposed Part 8B.[191]
Finally, the third measure adopted in the Reform Bill with a view to deterring unmeritorious applications is a requirement that a lawyer[192] commencing migration litigation certify in writing that 'there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.'[193] A court is required to refuse to accept a document commencing migration litigation if the necessary certification has not been given.[194] Certification in circumstances where it is subsequently found that the lawyer did not give proper consideration to the prospects of success of the litigation (so as to suggest that the belief on which certification must be based was not genuinely held) will no doubt be a matter relevant to the question whether or not a personal costs order under s 486F ought to be made. It is a matter that may also have professional disciplinary consequences.
From the overview in this article of the grounds of review recognised as available to applicants under the Act since S157, two conclusions may be drawn. First, from a practical perspective, the privative clause is now no obstacle to applicants in pursuing their judicial review rights. Those rights are preserved provided an allegation of jurisdictional error is made. As far as the scope of that ground is concerned, for practical purposes it is no longer all that relevant to ask 'what is jurisdictional error', but rather 'what is NOT jurisdictional error.' Indeed, applicants are in a far better position under the privative clause regime than they were under the former Part 8 given that they then had no recourse in the Federal Court to several key common law grounds, including the grounds of natural justice, unreasonableness and relevant/irrelevant considerations.[195]
Secondly, there now appears to be little difference between the grounds of review available under the ADJR Act and the grounds available under s 39B(1) of the Judiciary Act 1903 (Cth).[196] There is considerable irony in this given that the ADJR Act was introduced with a view to overcoming the limitations of the common law and the grant of what are now known as the constitutional writs. In particular, the ADJR Act was intended to overcome the difficulties associated with distinguishing between jurisdictional and non-jurisdictional error. This is a distinction that has no application under the ADJR Act and the grounds under that Act should therefore be more generous than the common law/constitutional grounds available under s 39B(1) of the Judiciary Act 1903 (Cth).[197]
It is true that the ADJR Act allows an applicant to rely on a non-jurisdictional error of law whether or not the error appears on the face of the record[198] whereas, applying S157, applicants are validly precluded by the privative clause from relying on such an error.[199] However, the effect of the High Court rulings in Scargill, Lobo and SGLB is that there will be very few errors of law made under the Act that the government is likely to persuade the courts are non-jurisdictional errors. It remains to be seen whether the distinction between jurisdictional and non-jurisdictional error retains some meaning for the misinterpretation of statutory criteria outside of the migration context.
More generally, the similarity that now exists between the grounds of review under the ADJR Act and those available to the Federal Court generally under s 39B(1) of the Judiciary Act 1903 (Cth), as well as to both the Federal Court and Federal Magistrates Court in migration cases under the Reform Bill, may cast some doubt on the future significance of the ADJR Act.[200] This is particularly so bearing in mind that the ADJR Act is restricted in its application — it does not apply to decisions that are not 'administrative in character', such as the making of regulations, or to decisions that are not made 'under an enactment', such as decisions made pursuant to prerogative powers or non-statutory administrative schemes.[201] The impact of these restrictions has been highlighted by recent High Court decisions,[202] leading to renewed calls for reform to widen the scope of the Act.[203]
The ADJR Act grounds clearly reflect and their application has been informed by the common law.[204] However, the reformers apparently also expected that the statutory grounds might develop beyond the traditional common law grounds. This expectation is manifested in those ADJR Act grounds that contemplate 'that the decision was otherwise contrary to law'[205] or involved 'any other exercise of power in a way that constitutes abuse of the power.'[206] In what may now be seen as a missed opportunity, this invitation to develop the ADJR Act as an avenue of review significantly advanced on that available at common law does not appear to have been realised. Instead we have reached a point where the common law has not only caught up but, bearing in mind the developments in cases such as S20,[207] may shortly overtake the ADJR Act in terms of the breadth of the grounds available to applicants.
The government appears now to have conceded that the privative clause has failed abjectly as a means of limiting the grounds, and thereby the volume, of judicial review of migration decisions. This failure is a direct result of the S157 interpretation of the privative clause and the Federal Court's and High Court's subsequent application of S157. Comments made in S157 also appear to have ruled out certain other alternatives to the privative clause that might have been contemplated (even if only theoretically). The joint judgment cast doubt, for example, on whether it would be a valid exercise of legislative power if Parliament was to delegate to the Minister 'power to exercise a totally open-ended discretion as to what aliens can and what aliens cannot come to and stay in Australia' or if it amended the Act as to say, in effect, '"[h]ere are some non-binding guidelines which should be applied", with the "guidelines" being the balance of the statute.'[208]
That said, it does still appear open to the government to take advantage of the S157 emphasis on statutory construction on a case-by-case basis as the process for discerning whether the privative clause has any effect. In any given case the relevant test would appear to be whether Parliament intended that the requirement alleged to have been breached is a requirement that is essential to the validity of a decision. Having regard to this test, there may be greater scope for Parliament's intention to be spelled out in relation to the effect of non-compliance with specific requirements in the Act.
Support for such an approach can be found in the recent decision of the High Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme[209] in which the Court held that a failure by the Minister to comply with s 501G(1) of the Act (a provision that obliges the Minister to provide a statement of reasons for a decision to cancel a visa on character grounds) did not constitute jurisdictional error. In so holding the Court gave effect to the legislative intention stated in s 501G(4) as follows: '[a] failure to comply with this section in relation to this decision does not affect the validity of the decision.'[210]
There are already a number of other provisions in the Act that contain a similar statement, all of which relate to notification of decisions on visa applications and cancellations.[211] However, whether this device would be effective in relation to the procedural fairness procedures discussed earlier would have to be highly questionable given the apparently conflicting statement of legislative intention reflected in the amendments made by the PF Act.
The nature of the reforms contained in the Reform Bill does suggest a substantial shift in government policy, from attempting to eliminate as far as possible judicial review of migration decisions to attempting to manage the volume of applications more efficiently and to deter unmeritorious applications. The conferral of jurisdiction on the Federal Magistrates Court and Federal Court equivalent to that of the High Court under s 75(v) of the Constitution can only be interpreted as an acknowledgement by the government of the limits on its capacity to place substantive restrictions on judicial review. This must be seen as a major victory for supporters of judicial review rights. It spells the retreat of the Executive and Parliament from any attempt to prescribe or circumscribe the grounds of review, leaving that task to the judiciary, to be led by the High Court in its ongoing development of s 75(v) as the ultimate safeguard of the rule of law in this country. To many, this is as things should be (and should always have been).
It is not surprising then that, aside from its jurisdictional elements, the Reform Bill focuses predominantly on the procedural aspects of migration litigation. This is not to downplay the potential significance of some of the proposed reforms. The conferral of a discretion (albeit limited) on the courts to extend the time in which judicial review proceedings are commenced and the recognition that time should run from actual rather than deemed notification represent major advances in terms of access to justice, at least when compared with the current position. Nevertheless there will undoubtedly be those who argue that these reforms do not go far enough and that there should be unlimited discretion to extend time. There will also inevitably be an argument as to the constitutionality of the time limit provision proposed for the High Court. However, those are debates for another day.
The most controversial of the reforms are likely to be the provisions aimed squarely at penalising the small group of applicant representatives who encourage clients to bring applications for judicial review without first properly considering or simply without caring whether or not the proceeding has any prospects of success. The activities of these representatives have been a concern for the courts, as much as for the government,[212] and given the presence of members of the judiciary on the Migration Litigation Review committee, it might be expected that the reforms have the approval of the courts. It is important nevertheless that potentially far-reaching provisions such as those proposed in the Reform Bill do not have the effect of deterring representatives who legitimately seek to invoke the court process and who may not have the resources to undertake the often complex and usually hazardous task of evaluating an application's prospects. This can be expected to weigh heavily in the minds of judges as they set about interpreting and applying the new provisions.
Overall, reflecting on the tumultuous events of the past two decades in the area of migration litigation, one might tentatively conclude that we are about to enter a more settled period. There might now be the opportunity to step back and examine the impact of the developments that have taken place in this area on Australian administrative law in general. There is no space for that examination here.[213]
[∗] BA/LLB (Hons), LLM (Melb), PhD (Melb); Senior Lecturer, Melbourne Law School, University of Melbourne; Victorian Bar.
[1] (2003) 211 CLR 476 ('S157').
[2] Broader questions concerning the impact of S157 on the Australian constitutional system have been explored elsewhere. See, eg, Duncan Kerr and George Williams, 'Review of Executive Action and the Rule of Law Under the Australian Constitution' (2003) 14 Public Law Review 219.
[3] Decisions under the Act have been reviewable also by the Federal Magistrates Court since 2 October 2001. The jurisprudence of this Court is not specifically referred to in this article given that it is bound by and, as a matter of practice, follows Federal Court precedent.
[4] Section 75(v) of the Constitution confers original jurisdiction on the High Court in 'all matters … in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth'.
[5] For a detailed explanation of the decision, see Caron Beaton-Wells, 'Restoring the Rule of Law — Plaintiff S157/2002 v Commonwealth of Australia' (2003) 10 Australian Journal of Administrative Law 125; Kerr and Williams, above n 2; Duncan Kerr, 'Deflating the Hickman Myth: Judicial Review after Plaintiff S157/2002 v The Commonwealth' [2003] AIAdminLawF 7; (2003) 37 AIAL Forum 1; Mark Seymour, 'Privative Clauses in Administrative Law: Recent Developments' (2003) 77 Australian Law Journal 757.
[6] [2002] HCA 11; (2002) 209 CLR 597.
[7] S157 (2003) 211 CLR 476, 488 [19], 495 [41] (Gleeson CJ), 505–6 [75]–[77] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[8] Ibid 494 [38] (Gleeson CJ), 508 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[9] This language was taken from a line of cases, starting with R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598 and subsequently including R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387 and R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208.
[10] S157 (2003) 211 CLR 476, 504 [69].
[11] Ibid.
[12] [2002] FCAFC 228; (2002) 123 FCR 298 ('NAAV').
[13] There were some members of the Federal Court who considered NAAV [2002] FCAFC 228; (2002) 123 FCR 298 should be adhered to. See Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 144 [12]–[15] (Gyles J); Koulaxazov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 75; (2003) 129 FCR 79, 85 [14] (Gyles J); 103–6 [65]–[73] (Conti J).
[14] R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598; see above n 9.
[15] NAAV [2002] FCAFC 228; (2002) 123 FCR 298, 475 [625] (von Doussa J).
[16] [1995] HCA 58; (1995) 184 CLR 163, 179 ('Craig'), where it was said that if an administrative tribunal
falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
[17] [2001] HCA 30; (2001) 206 CLR 323, 351 [82] ('Yusuf') where, having set out the passage from Craig [1995] HCA 58; (1995) 184 CLR 163, it was said that:
'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act
suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
[18] See SDAH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 49, [17]–[18], Minister for Immigration and Multicultural and Indigenous Affairs v WAAG [2003] FCAFC 60, [5]; Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116; (2003) 129 FCR 259, 261 [3]–[5]; NAEB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 25, [4]; SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 121; (2003) 199 ALR 281, 285–6 [19]–[20]; NAAG of 2002 v Minister for Immigration and Multicultural Affairs [2003] FCAFC 135 [45]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, 558 [21]; Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 131 FCR 1, 26–7 [104]; SDAV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 129; (2003) 199 ALR 43, 51–2 [33]–[35].
[19] See the formulation, for example, in Phuc v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 118, [43]–[44] and Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93, 106-7 [45].
[20] [2003] FCAFC 129; (2003) 199 ALR 43.
[21] Ibid 51 [33].
[22] Ibid 51–2 [34]–[35].
[23] (2003) 197 ALR 389 ('Dranichnikov').
[24] See Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.
[25] WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597; Applicant A179 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1547.
[26] WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171; (2003) 131 FCR 511; WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597; NAQZ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 898; (2003) 200 ALR 662.
[27] Applicant WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30; (2004) 134 FCR 271.
[28] NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1; (2004) 134 FCR 85.
[29] The PF Act took effect on 4 July 2002.
[30] In NAQS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1137; (2003) 77 ALD 424 a claim of actual bias was upheld and in VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and, more recently, NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, claims of apprehended bias were upheld.
[31] See Migration Act 1958 (Cth) s 348(1) (MRT), s 414(1) (RRT).
[32] [2001] FCA 274; (2001) 106 FCR 426.
[33] Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274; (2001) 106 FCR 426, 444 [78] ('Anthonypillai').
[34] Ibid 444 [79]. For cases applying the Anthonypillai approach under the former Pt 8, see, eg, Minister for Immigration and Multicultural Affairs v Tedella [2001] FCA 832; (2001) 195 ALR 84; Pollocks v Minister for Immigration and Multicultural Affairs [2001] FCA 689; (2001) 195 ALR 73.
[35] These grounds were the direct counterpart of the grounds under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(c)–(d).
[36] [2001] HCA 30; (2001) 206 CLR 323.
[37] Yusuf [2001] HCA 30; (2001) 206 CLR 323, 350–2 [81]–[83].
[38] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, [48]–[51].
[39] (2004) 211 ALR 660, 666 [26]–[27], 668 [32].
[40] See Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 in relation to Migration Act 1958 (Cth) s 425 (RRT), s 360 (MRT); Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 131 FCR 1 in relation to Migration Act 1958 (Cth) s 424A (RRT), s 359A (MRT).
[41] See Migration Act 1958 (Cth) s 424A (RRT), s 359A (MRT).
[42] See Migration Act 1958 (Cth) s 425 (RRT), s 360 (MRT). With respect to s 425, see the High Court's recent ruling in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 660, above n 39.
[43] See above n 29.
[44] See WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220, [57]; Wu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1249, [22]–[24]; WAJR v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 624, 638 [59].
[45] See Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140; (2003) 131 FCR 1, 7 [14] (Gray ACJ), 26 [103] (Merkel J).
[46] See, eg, Ruykys v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 433; (2003) 128 FCR 538; Nassif v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 481; (2003) 129 FCR 448; Scargill v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 116; (2003) 129 FCR 259.
[47] See below, Part II(a) — High Court appeals.
[48] Aside from these exceptions, errant fact-finding, together with other conduct by the decision-maker, may constitute the basis for a finding of apprehended or actual bias. See, eg, NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328.
[49] See, eg, Re Polites; Ex parte Construction, Forestry, Mining and Energy Union (2002) 117 FCR 212, 231, 236; Graham Barclay Oysters Pty Ltd v Great Lakes Council [2002] HCA 54; (2002) 211 CLR 540, 609 [183]. For cases in which the relevant jurisdictional fact was a 'fact' in the objective sense, see Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55.
[50] [1999] HCA 21; (1999) 197 CLR 611.
[51] Eshetu [1999] HCA 21; (1999) 197 CLR 611, 656 [145]. See also more recently in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, 20 [37]–[38] (Gummow and Hayne JJ) ('SGLB').
[52] [2003] FCAFC 229, on appeal from Schwart v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 169.
[53] [2003] FCAFC 303; (2003) 134 FCR 43. Special leave to appeal to the High Court from this decision was refused on 11 August 2004.
[54] [1990] HCA 33; (1990) 170 CLR 321.
[55] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356. See also Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744; (2001) 65 ALD 141, 149 [34].
[56] Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222, 238–9 (Gaudron and McHugh JJ); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, 72 [57] (McHugh and Gummow JJ).
[57] Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004) 239. The Administrative Decisions (Judicial Review) Act 1977 (Cth) no evidence ground is more generous: see ss 5(1)(h), 5(3). The corresponding ground under the former Pt 8 of the Act was recently considered by the High Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222.
[59] Ibid.
[60] Ibid 20 [37].
[61] Ibid 21 [38].
[62] Ibid 21 [39].
[63] Ibid 21 [41].
[64] Ibid 14 [3].
[65] Ibid 28 [68].
[66] Ibid 48 [121].
[67] SFGB v Minister for Immigration and Multicultural Affairs [2003] FCAFC 231; (2003) 77 ALD 402.
[68] Ibid 407 [18].
[69] Ibid 407 [19].
[70] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, 71–3 [53]–[60] ('S20').
[71] This was the conclusion drawn by the Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, [54]. See also the comment by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen [2001] HCA 10; (2001) 177 ALR 473, 481 [35] that
Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.
[72] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356.
[73] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666, 688–90; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 621, 366–7.
[74] [1999] FCA 1; (1999) 84 FCR 411, 421 [22]–[23] ('Epeabaka').
[75] Ibid 422 [25].
[76] See, eg, Applicant RV v Minister for Immigration and Multicultural Affairs [2001] FCA 1034; (2001) 113 FCR 204, 217 [70]. The statement by Kenny J in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220, 257 [146] that 'the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis or because it adopts unsound or unquestionable reasoning' has also commonly been relied upon.
[77] Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 109 FCR 424, 427–8 [13], 428 [16] (Hill J), 444 [86] et seq (Stone J).
[78] Ibid 428 [14]–[15] (Hill J), 446 [92] (Stone J).
[79] Ibid 431–2 [26]–[28].
[80] Ibid 432[31]; Cf Stone J's characterisation of Gummow J's comments at 445–6 [87]–[91].
[81] Ibid 433 [33].
[82] S20 [2003] HCA 30; (2003) 198 ALR 59, the name of the case having changed in accordance with the anonymity provision in the Migration Act 1958 (Cth) s 91X.
[83] Ibid 63 [12]–[14] (Gleeson CJ), 70–1 [49]–[52] (McHugh and Gummow JJ).
[84] Gleeson CJ, McHugh and Gummow JJ and Kirby J. Callinan J agreed with the reasons of McHugh and Gummow JJ: S20 [2003] HCA 30; (2003) 198 ALR 59, 98 [173]–[174].
[85] Ibid 62 [9] (Gleeson CJ), 71–3 [54]–[60] (McHugh and Gummow JJ), 87 [127] (Kirby J). In the more recent decision in SGLB (2004) 207 ALR 12 questions of illogicality were touched on only in the joint judgment of Gummow and Hayne JJ (20–1 [38]) in which their Honours appeared to endorse the approach suggested by McHugh and Gummow JJ in S20 [2003] HCA 30; (2003) 198 ALR 59.
[86] Aronson et al, above n 57, 247.
[87] See, eg, Minister for Immigration and Multicultural and Indigenous Affairs v W306/01A [2003] FCAFC 208, [44]; NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235, [22], [29]; NAMM of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 32; Truong v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1035, [37]–[40]; NATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 52, [25]–[27]; VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286, [18]
[88] After the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 229–30.
[89] S20 [2003] HCA 30; (2003) 198 ALR 59, 76 [73]–[74] (McHugh and Gummow JJ), 90 [142] (Kirby J). Gleeson CJ and Callinan J did not address this question.
[90] Eshetu [1999] HCA 21; (1999) 197 CLR 611, 650 [127] (Gummow J); Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293, 306–7 (Gleeson CJ, Gaudron, Gummow and Hayne JJ); SGLB (2004) 207 ALR 12, 20 [37] (Gummow and Hayne JJ).
[91] Eshetu [1999] HCA 21; (1999) 197 CLR 611, 626 [40]; S20 [2003] HCA 30; (2003) 198 ALR 59, 61 [5].
[92] Yusuf [2001] HCA 30; (2001) 206 CLR 323, 350–2 [80]–[83].
[93] See, eg, SAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 65, [39]–[40]; SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625.
[94] See, eg, Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1512; (1994) 35 ALD 225, 236–7; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396, 423 [78]; Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294, [57]–[58] and the cases cited therein.
[95] The expression 'essential integer' was first used in cases under the former Pt 8: see Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396, 423 [78]–[79]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, 259 [42]. However, its usage has continued under the privative clause regime and following the decision in S157: see, eg, SCAT v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 625; SDAE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 111. More recently, a failure to deal with a claim made by an applicant, either expressly or impliedly, has been characterised by the Full Court as a failure by the tribunal to fulfil its statutory obligation to 'review' the application: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, [48]–[51], [55]–[63].
[96] See Dranichnikov (2003) 197 ALR 389.
[97] Dranichnikov (2003) 197 ALR 389, 394 [24]. Kirby J adopted a more traditional approach to characterising the error as jurisdictional (at 407 [87]–[88]). In NAGO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1302 [16], Beaumont ACJ cited Dranichnikov in holding that the RRT's failure to address a claim made by the applicant meant that he was denied natural justice. See also NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 [37] (Beaumont J).
[98] The authorities generally cited for this proposition are Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28, 63; Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287, 293–4.
[99] W396/01 v Minister for Immigration and Multicultural Affairs (2002) 68 ALR 69, 79–80 [35]; SBBA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 90, [8]; SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 129 FCR 137, 146 [19], 148 [26], 149 [32]; Minister for Immigration and Multicultural and Indigenous Affairs v VFAY [2003] FCAFC 191, [97]; NAPU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 193, [34]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263, [60]
[100] Minister for Immigration and Multicultural Affairs v Respondents S152
/2003 [2004] HCA 18; (2004) 205 ALR 487, 520 [123] (Kirby J). See similarly Kirby J's comment in Dranichnikov (2003) 197 ALR 389, 405 [78], as well as Gleeson CJ's remarks in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 203 ALR 112, 113–14 [1].
[102] Ibid 648–9 [20].
[103] [2003] FCAFC 168; (2003) 200 ALR 359, 370–1 [42], 377 [65].
[104] Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168; (2003) 132 FCR 93, 106-7 [45], followed in NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1046, [31]. See also Minister for Immigration and Multicultural and Indigenous Affairs v NASS [2003] FCA 477; (2003) 77 ALD 721, 726 [30].
[105] SGLB (2004) 207 ALR 12, 20–1 [38].
[106] (2002) 194 ALR 749 ('SBBS').
[107] Ibid 756 [43]–[48]. In Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, [7]–[11] the Full Court said that they adopted what the Full Court had said with respect to the bad faith ground in SBBS (2002) 194 ALR 749, 756 [42]–[47], but with this qualification to the ninth proposition (ibid 756 [48]) at [8]:
As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision — in the case of the RRT, affirming the rejection of a protection visa application — which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty.
[108] See Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 144, [12].
[109] See above n 18.
[110] [2003] FCAFC 116; (2003) 129 FCR 259 ('Scargill').
[111] [2003] FCAFC 168; (2003) 132 FCR 93 ('Lobo').
[112] Transcript of Proceedings, Minister for Immigration and Multicultural and Indigenous Affairs v Scargill, Minister for Immigration and Multicultural and Indigenous Affairs v Lobo (High Court of Australia, 13 February 2004).
[113] See, eg, Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, 227–8; Dranichnikov (2003) 197 ALR 389, 407 [87]–[88]; S20 [2003] HCA 30; (2003) 198 ALR 59, 71–3 [53]–[59].
[114] See Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23; (1995) 183 CLR 168, 194; O'Toole v Charles David Pty Ltd (1991) 171 CLR 232, 275.
[115] S157 (2003) 211 CLR 476, 504 [69] (footnotes omitted).
[116] Ibid 493 [33].
[117] See ibid 484–5 [12]–[13], 487–8 [18] (Gleeson CJ), 533–4 [159]–[160] (Callinan J).
[118] S20 [2003] HCA 30; (2003) 198 ALR 59, 66 [29] n 11.
[119] Transcript of Proceedings, Minister for Immigration and Multicultural and Indigenous Affairs v Scargill, Minister for Immigration and Multicultural and Indigenous Affairs v Lobo (High Court of Australia, Gummow J, 13 February 2004).
[120] SGLB (2004) 207 ALR 12.
[121] SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 176.
[122] Transcript of Proceedings, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (High Court of Australia, 12 February 2004).
[123] Ibid.
[124] Ibid.
[125] Ibid.
[126] SGLB (2004) 207 ALR 12, 18–19 [29], 20–1 [37]–[38], 23–6 [48]–[57].
[127] Ibid 13 [1].
[128] [2003] HCA 1; (2003) 211 CLR 441, 466–71 [71]–[85] ('S134'). See also Kirby J's dissent in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212, 247–8 [121].
[129] SGLB (2004) 207 ALR 12, 51 [130].
[130] In S134, it was alleged that the RRT failed to consider a material fact, namely the plaintiff's eligibility for a protection visa on the grounds that she satisfied the criterion of being a member of the same family unit as a person who held a temporary protection visa. The majority dismissed the application, finding that while s 65(1) of the Migration Act 1958 (Cth) obliged the Minister, and thus the RRT, to determine their satisfaction as to whether or not the relevant visa criteria had been fulfilled, that obligation was limited to satisfaction of only those criteria on which the applicant had relied. As the applicant had made claims for protection in her own right and had not relied on the alternative criterion (of being a member of a family unit of a person holding a protection visa), neither the Minister nor, on review, the RRT was obliged to consider it. In consequence, it was held that there had been no misapplication of the relevant criteria by the Tribunal and hence no jurisdictional error. Gaudron and Kirby JJ dissented, being of the view that the obligation of considering an application under s 65(1) of the Act requires consideration of the criteria specified for the relevant visa and that failure to consider one such criterion will involve jurisdictional error even where no specific claim is made in that regard.
[131] SGLB (2004) 207 ALR 12, 24 [51].
[132] S134 [2003] HCA 1; (2003) 211 CLR 441, 471 [85].
[133] SGLB (2004) 207 ALR 12, 23 [48], setting out at 18–19 [29] the passage from the reasons in S157 (2003) 211 CLR 476, 506 [76].
[134] SGLB (2004) 207 ALR 12, 23–4 [49].
[135] Ibid 24 [50].
[136] Ibid 26 [57], referring to S157 (2003) 211 CLR 476, 502 [64].
[137] Ibid 19 [30].
[138] Philip Ruddock, 'Migration Litigation Review to Improve Access to Justice' (Press Release, 27 October 2003).
[139] Ibid.
[140] Ibid.
[141] Ibid. In relation to the High Court, in 2002–03 the number of applications for constitutional writs increased from 300 in the previous year to 2131; 99% of such applications involved migration matters. In the same year 66.5% of Federal Court appeals were migration appeals, compared to 36% in 1999–2000 and 8% in 1995–96. The number of migration applications filed in the Federal Magistrates Court grew from 182 in 2001–02 to 1397 in 2002–03. Information provided to the Senate Legal and Constitutional Legislation Committee by the Department indicated that in 2003–04, 93% of applications were unsuccessful: see Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on Provisions of the Migration Amendment (Judicial Review) Bill 2004 (2004) 8 [3.5].
[142] See the Minister's Second Reading Speech in relation to the Migration Reform Act 1992 (Cth): Commonwealth, Parliamentary Debates, House of Representatives, 4 November 1992, 2621 (Gerry Hand, Minister for Immigration, Local Government and Ethnic Affairs) and the Minister's Second Reading Speech in relation to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth): Commonwealth, Parliamentary Debates, House of Representatives, 26 September 2001, 31559 (Philip Ruddock, Minister for Immigration and Multicultural Affairs).
[143] Ruddock, above n 138.
[145] NARS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 287, [13]–[14]. See to similar effect the comments made in NAUJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1192; NALO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 114, [3]; SZAEM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 66, [2]–[5] and Aliluzzaman v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 166, [5].
[146] Amanda Vanstone and Philip Ruddock, 'Reforms to Improve Efficiency of Migration Litigation' (Press Release, 11 May 2004).
[147] This was conveyed by the Department, recorded in Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on Provisions of the Migration Amendment (Judicial Review) Bill 2004 (2004) 12 [3.24].
[148] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 1.
[149] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 11, inserting the new definition into s 5(1) of the Act.
[150] Note, however, that a new s 474(7) is to be inserted identifying several categories of decision as privative clause decisions so as ' [t]o avoid doubt'. Among those identified are decisions of the Minister not to exercise or not to consider to exercise his discretion under various provisions, including s 417 of the Act (that is, the provision that confers power on the Minister, in effect, to overrule an adverse decision of the Refugee Review Tribunal on humanitarian grounds). The decisions in s 474(7) will not be reviewable by the Federal Magistrates Court: see Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 17, inserting s 476(2)(d).
[151] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 14.
[152] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 15.
[153] See Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 17, which repeals ss 475A and 476 and inserts new ss 476, 476A and 476B into the Act. The Bill also repeals the current s 483A which provides that the Federal Magistrates Court has concurrent jurisdiction with the Federal Court in relation to matters arising under the Act. See Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 28.
[154] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 div 2 item 17, inserting a new s 476(2)(a) (setting out the decisions in respect of which the Federal Magistrates Court does not have jurisdiction) and s 476(4) (defining 'primary decision') into the Act.
[155] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 17, inserting a new s 476A into the Act.
[156] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 13 [14].
[157] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 12 [9].
[158] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 12 [10].
[159] See Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 27, inserting a new s 483 into the Act.
[160] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 17, inserting a new s 476B into the Act.
[161] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 29.
[162] Ibid.
[163] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 1, inserting a new paragraph (da) of Schedule 1 into the Administrative Decisions (Judicial Review) Act 1977 (Cth).
[164] See Administrative Decisions (Judicial Review) Act 1977 (Cth), Schedule 1, paragraph (da).
[165] Indeed, the new s 476(3) will state that : 'Nothing in this section affects any jurisdiction the Federal Magistrates Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) or section 44AA of the Administrative Appeals Tribunal Act 1975': see Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 17.
[166] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 div 2 item 17, inserting new s 476(1) and s 476(2) into the Act.
[167] See Migration Act 1958 (Cth) s 486A.
[168] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 18, inserting a new s 477 (relating to the Federal Magistrates Court) and s 477A (relating to the Federal Court), and item 30, inserting a new subsection 486A (relating to the High Court).
[169] There have been a number of cases in which applicants have been denied access to judicial review on account of the failure of detention centre personnel to fax their applications within time. See, eg, Kucuk v Minister for Immigration and Multicultural Affairs [2001] FCA 535; Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995; WAFE of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 254; (2002) 70 ALD 57.
[170] See Migration Act 1958 (Cth) s 379C (MRT), s 441C (RRT).
[171] See Migration Act 1958 (Cth) s 477.
[172] See Migration Act 1958 (Cth) s 486A(1).
[173] Migration Amendment (Judicial Review) Bill 2004 (Cth) sch 1 pt 1, item 10. This Bill lapsed upon the calling of the federal election in late 2004.
[174] The constitutionality of the current s 486A (which imposes a non-extendible 35 day time limit on High Court proceedings) was challenged in S157. The Court resolved (or perhaps avoided) the issue by pointing to the fact that the time limit in s 486A, like the privative clause in s 474(1), operated, in terms, only in respect of 'privative clause decisions'. Hence, the time limit was effectively inoperative in respect of decisions involving jurisdictional error (see S157 (2003) 211 CLR 476, 510 [91] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ)). Only Callinan J addressed the more general question of validity raised by the imposition of an absolute time limit on proceedings in the High Court. In his view, legislation imposing time limits would be authorised by the exercise of the express incidental powers conferred on Parliament under s 51(xxxix) of the Constitution, providing that the legislation was regulatory in character (see S157 (2003) 211 CLR 476, 538 [176] (Callinan J)). Section 486A, according to Callinan J, was not of such a character. Rather it was 'in substance a prohibition' because, having regard to the difficulties faced by non-English speaking applicants detained in remote places, it rendered 'any constitutional right of recourse virtually illusory’ (see 538 [176]).
[175] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Report on Provisions of the Migration Amendment (Judicial Review) Bill 2004 (2004) 24 [3.67].
[176] Ibid 24 [3.68], 30 [3.89].
[177] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 37, inserting a new s 486D into the Act. 'Tribunal decision' is defined in s 486D(5) as meaning 'a privative clause decision or purported privative clause decision made on review by a Tribunal under Part 5 or 7 or section 500.'
[178] 'Judicial review proceeding in relation to a tribunal decision' is also defined in the new s 486D(5).
[179] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 18 [51].
[180] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 3, inserting a new s 25(1AA) into the Federal Court of Australia Act 1976 (Cth).
[181] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 10, inserting a new s 44(4) into the Judiciary Act 1903 (Cth). I use the word 'confirms' here as the Court almost certainly already has the inherent power to remit matters in this way.
[182] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 7 (inserting a new s 31A into the Federal Court of Australia Act 1976 (Cth), item 8 (inserting a new s 17A into the Federal Magistrates Court Act 1999 (Cth)), and item 9 (inserting a new s 25A into the Judiciary Act 1903 (Cth)).
[183] Ibid.
[184] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 6-7 [21]-[25].
[185] See, eg, Eloujenko v Minister for Immigration and Multicultural Affairs [2001] FCA 1791 [6] and the cases cited therein.
[186] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 38.
[187] Ibid.
[188] Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 18 [56].
[189] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 38.
[190] According to the Explanatory Memorandum, the Office of Legal Services Coordination in the Attorney-General's Department has issued some guidance to Commonwealth agencies on the proper approach to be taken to an application for a personal costs order. That guidance includes the following: 'a personal costs order should be sought only where such action is demonstrably warranted; the litigant should be properly informed why, in the Commonwealth's view, their argument has no reasonable prospect of success; and an intention to seek a personal costs order should not be used tactically to intimidate a litigant or their lawyer into abandoning a legitimate case. 'See Explanatory Memorandum, Migration Litigation Reform Bill 2005 (Cth) 9 [65].
[191] See, eg, Applicant VCAT of 2002 v MIMIA [2003] FCAFC 141 [60]-[62]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 945; Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18; SPCB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 26; Sithloo v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 34; Buksh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 32.
[192] 'Lawyer' is defined in s 275 of the Act to mean a barrister, solicitor, barrister and solicitor or legal practitioner of the High Court or a Supreme Court of a State or Territory.
[193] Migration Litigation Reform Bill 2005 (Cth) sch 1 pt 1 item 38, inserting a new s 486I into the Act. A similar certification requirements exists in other jurisdictions, such as under Part 11, Division 5C of the Legal Profession Act 1987 (NSW) in relation to a claim or defence of a claim for damages. Court Rules may also require lawyers to certify that pleadings have a proper basis (see eg Federal Court Rules, Order 11, rule 1B).
[194] Ibid.
[195] These grounds were excluded by Migration Act 1958 (Cth) ss 476(2)–(3). But note that the considerations grounds became available under the rubric of jurisdictional error (covered by the grounds in Migration Act 1958 (Cth) ss 476(1)(b)–(c) of the former Pt 8) following the High Court's decision in Yusuf [2001] HCA 30; (2001) 206 CLR 323: see above n 17.
[196] See Migration Act 1958 (Cth) s 475A.
[197] S20 [2003] HCA 30; (2003) 198 ALR 59, 72 [57] (McHugh and Gummow JJ). See also Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55, 74–6 [68]–[73].
[198] See the ground under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(f).
[199] S157 (2003) 211 CLR 476, 507 [81].
[200] Of course, there may still be other benefits (in relation to standing and remedies, for example) of proceeding under the Administrative Decisions (Judicial Review) Act 1977 (Cth). As to the flexibility of the remedies under s 16(1), see Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55.
[201] See the definition of a 'decision to which this Act applies' in the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3(1).
[202] Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277; Griffith University v Tang [2005] HCA 7.
[203] See, eg, Mark Aronson, 'Is the ADJR Act hampering the development of Australian administrative law?' (2004) 15 Public Law Review 202.
[204] See, eg, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 (Mason J).
[205] Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(j).
[206] Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5(1)(e), (2)(j).
[207] As to which see the discussion of Illogicality in fact-finding in Part I(e) above.
[208] S157 (2003) 211 CLR 476, 512–13 [101]–[102] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
[209] [2003] HCA 56; (2003) 216 CLR 212.
[210] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212, 217 [10], 223 [37], 225 [45] (Gleeson CJ, Gummow and Heydon JJ), Kirby J (dissenting) 247–8 [121], 250–1 [129].
[211] See Migration Act 1958 (Cth) ss 66(4), 127(3), 129(3), 500A(10).
[212] As evidenced, for example, by Madgwick J's comments in NARS v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 287 [13]-[14], set out in Part II(b) above.
[213] A start has been made, however, in Caron Beaton-Wells, 'Australian Administrative Law: The Asylum-Seeker Legacy' [2005] Public Law 265 (forthcoming).
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