FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140 MIGRATION – visa – student visa – Migration Review Tribunal relied on prior inconsistent statements of applicant to make negative finding on credit – whether obliged to provide particulars of information, and explanation of its relevance, to applicant – whether requirement to do so imperative duty on Tribunal or inviolable limitation on exercise of its power – whether jurisdictional error – criterion whether applicant a genuine applicant for entry and stay as a student, having regard to various matters – whether Tribunal erred by treating those matters as criteria – whether primary judge erred in exercise of discretion – whether discretion should be exercised against appellant Migration Act 1958 (Cth) ss 359A, 424A, 474 Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) Judiciary Act 1903 (Cth) s 39B Migration Regulations 1994 (Cth) item 560.224(1), Sch 2 Awan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 594, cited Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 (2001) 110 FCR 27, followed Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24, applied Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299, referred to Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323, referred to House v The King (1936) 55 CLR 499, referred to Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719, considered Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396, considered Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679, cited NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449, not followed Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1, considered Minister for Immigration and Multicultural Affairs v Wang (2003) 196 ALR 385, cited Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, considered Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, considered WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220, cited WAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 409, cited Annetts v McCann (1990) 170 CLR 596, cited Kanda v Government of the Federation of Malaya [1962] AC 322, cited Kioa v West (1985) 159 CLR 550, cited SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 121, cited VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74, cited Stead v State Government Insurance Commission (1986) 161 CLR 141, cited Bax v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 55, cited MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v IRFAN AHMED AWAN V 339 OF 2002 GRAY ACJ, MARSHALL AND MERKEL JJ 26 JUNE 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 339 of 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT AND: IRFAN AHMED AWAN RESPONDENT JUDGES: GRAY ACJ, MARSHALL and MERKEL JJ DATE OF ORDER: 26 JUNE 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 1. The appellant pay the respondent's taxed costs (if any) of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 339 of 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT AND: IRFAN AHMED AWAN RESPONDENT JUDGES: GRAY ACJ, MARSHALL and MERKEL JJ DATE: 26 JUNE 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT GRAY ACJ: The nature of the proceeding 1 This appeal is from the judgment of North J in Awan v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 594. His Honour granted a declaration that the decision of the Migration Review Tribunal ("the Tribunal") dated 7 November 2001, affirming a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), to refuse to grant to the respondent, Mr Awan, a student visa was made in excess of jurisdiction and was null and void. His Honour also ordered the Minister to pay Mr Awan's costs of the application. 2 The facts are set out in some detail in the reasons for judgment of Marshall J, which I have read in draft form. There is also an account of the facts in the reasons for judgment of Merkel J, which I have also read in draft form. Similarly, the relevant legislative provisions are set out by their Honours. It is unnecessary for me to set out those provisions, although it will be necessary for me to refer to them. I agree with their Honours that the Minister's appeal should be dismissed and that the Minister should be ordered to pay Mr Awan's costs of the appeal, in case he has incurred any. Because my reasons differ from those of their Honours, it will be necessary for me to set them out briefly. 3 In my view, three issues arise in the appeal. One is whether there was a failure by the Tribunal to comply with its obligation under s 359A of the Migration Act 1958 (Cth) ("the Migration Act"), because it failed to provide the appellant with written particulars of information that it must have considered would be the reason, or a part of the reason, for affirming the decision of a delegate of the Minister that the Tribunal was reviewing, to ensure that Mr Awan understood why the information was relevant to the review and to invite him to comment on the information. Both Marshall J and Merkel J deal with this issue. The second issue, in my view, is whether the Tribunal failed to perform its function by failing to apply the criterion in item 560.224(1) of Sch 2 to the Migration Regulations 1994 (Cth) ("the Migration Regulations"). That issue was not dealt with in the reasons for judgment of North J but, for reasons I give below, I am of the view that it should be dealt with in the appeal. Marshall J and Merkel J have expressed different views about that issue. In my view, the issue should be decided against the Minister. I am also of the view that it is central to the appeal and is a reason for dismissing the appeal, even if the Minister does not succeed in relation to s 359A. The third issue is the Minister's appeal from the manner in which North J exercised the discretion to grant relief to Mr Awan. 4 Before dealing with these issues, I should make some comment about Mr Awan. When the appeal was called on for hearing, Mr Awan was not present. He arrived some time later. During the hearing of the appeal, he left the courtroom and returned. While he was present, he sat at the bar table and read from a small book. He played no significant part in the hearing and put no submissions about the issues arising in the appeal. He had declined offers of assistance with legal representation. His failure to take any positive step in his own interests was perhaps a continuation of an uncooperative attitude displayed by him in earlier proceedings. Previous incidents are documented in the reasons for judgment of North J at [12] – [18], [30] – [31] and [35] – [40]. In his reasons for judgment, North J set out at [42] – [49] the reasons why his Honour granted Mr Awan an expedited hearing of his application to the Court at first instance. Those reasons included the recognition of Mr Awan's psychological problems, and of their possible association with a serious assault on him while he was driving a taxi. For reasons similar to those given by his Honour, it is necessary for the Court to bear in mind in relation to the conduct of this appeal the likelihood that Mr Awan's failure to take any step in his own interests is the result of his disability, and not of some calculated disdain for the Court. This conclusion is particularly relevant to the question whether the Court should entertain the second issue to which I have referred above. Failure to comply with s 359A 5 At some point, the Tribunal must have reached the state of mind that it considered that there was information that would be the reason, or a part of the reason, for affirming the delegate's decision. That information fell into two categories. The first category was a statement or statements made at an earlier hearing by the Tribunal, differently constituted, in relation to the cancellation of an earlier visa. The second category consisted partly of a statement made to that Tribunal hearing and partly of a statement made to an officer of the Department of Immigration and Multicultural Affairs (now the Department of Immigration and Multicultural and Indigenous Affairs) (in both cases, "the Department") on the occasion when Mr Awan lodged his application, the rejection of which by the delegate of the Minister became the subject of the review the Tribunal was conducting. It was the inconsistency between these two statements that was part of the reason for the Tribunal taking an adverse view of Mr Awan's credit. 6 The precise moment at which the Tribunal came to the state of mind contemplated by s 359A, that the information concerned would be the reason, or a part of the reason, for affirming the decision of the delegate does not matter. Section 359A requires compliance by the Tribunal once it has reached that state of mind, even if that point of time is immediately prior to the time at which the Tribunal would otherwise wish to give a decision. 7 The exception in s 359A(4)(a) did not apply. The information was specifically about Mr Awan, who was the applicant. It is unnecessary to consider what, in many cases, will be the very real difficulties created by the form of the second limb of that exception. 8 The exception in s 359A(4)(b) perhaps causes greater difficulty. It has been held that what a person who later applied for a protection visa said in an interview at the airport upon the person's arrival in Australia was not information that the person gave "for the purpose of the application". See Minister for Immigration & Multicultural Affairs v Al Shamry [2001] FCA 919 (2001) 110 FCR 27. In that case, for the reasons their Honours gave, the Full Court considered that the words "the application" in the equivalent provision in s 424A of the Migration Act were apt only to refer to the application before the Refugee Review Tribunal, that being the application to review a decision of a delegate of the Minister. Their Honours did not advert specifically to s 418(3) of the Migration Act, which has the effect that the Refugee Review Tribunal will be supplied with all of the documents held by the Department relevant to the review of a decision of a delegate. The equivalent provision in the case of the Tribunal is found in s 352(4). At least in most cases, this will include any information supplied by an applicant at an earlier stage of dealing with an application for a visa. In view of the fact that in all cases the Tribunal will have before it as a matter of course the documents available to the delegate who considered the application for the particular visa, it might be thought that parliament did not intend that the Tribunal should have to provide particulars of information in those documents to an applicant seeking review of the delegate's decision. In relation to information from elsewhere, s 57 imposes an obligation on the Minister and the Minister's delegates in terms similar to those imposed on the respective tribunals by ss 359A and 424A. An applicant could be expected to be cognisant of what he or she had said, at least in relation to an application for a particular visa. I am therefore inclined to the view that the words "the application" in s 359A and s 424A(3)(b) of the Migration Act are more apt to mean the application for the visa in question, and not just the application to the relevant tribunal for review of a decision of a delegate refusing the visa. 9 In the present case, s 359A(4)(b) could only be relevant to so much of the second category of information as consisted of the statement of Mr Awan on the occasion of his lodging the visa application. In view of the fact that the Tribunal was obliged to supply him with particulars of the rest of the information in the second category, namely the statement made to the earlier Tribunal hearing, and was obliged to explain to him the relevance of that information, it is difficult to see how it could have done so without making reference to the statement made to the departmental officer on the lodging of the application for the visa. It was the inconsistency between the two statements that the Tribunal must have considered would be part of the reason for affirming the decision of the delegate. It is therefore unnecessary for me to reach a final view as to the construction of s 359A(4)(b) in the present case. 10 No issue arose in the present case as to the application of the exception in s 359A(4)(c), relating to non-disclosable information, as that term is defined in s 5(1) of the Migration Act. Such information relates to the national interest, the public interest or information supplied in confidence. 11 The Tribunal did not give Mr Awan particulars of any of the information in either category. It did not give him any explanation of the relevance of that information. It therefore failed to comply with its obligation under s 359A of the Migration Act. North J was correct in reaching this conclusion. 12 I am also of the view that the failure to comply with s 359A is a jurisdictional error. If s 359A can be regarded as a statutory expression of the content of the rules of procedural fairness in the particular circumstance, as Merkel J (with whom the other two members of the Court expressed agreement) said of s 424A in Al Shamry at [39] – [40], there is little difficulty. Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2003) 195 ALR 24 is authority for the proposition that a denial of procedural fairness is a jurisdictional error. A purported decision tainted by such an error cannot be regarded as a decision made "under this Act", within the definition of "privative clause decision" in s 474(2) of the Migration Act. The purported decision will not receive the protection of s 474 and will ground an application for relief pursuant to s 75(v) of the Constitution, that being the relief this Court may grant pursuant to s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). 13 If s 359A is to be viewed separately from concepts of procedural fairness, simply as a statutory pre-requisite to the functioning of the Tribunal, it is necessary to undertake an analysis of its place in the scheme of the Migration Act, before it can be determined that a failure to comply with s 359A amounts to a jurisdictional error. The mandatory language of s 359A is important. So is the fact that the information to which it relates is central to the decision-making process of the Tribunal, in that it is "the reason, or a part of the reason" for affirming the decision under review. The obligation under s 359A, whilst procedural, is considerably more specific than the obligations found in s 353, to provide a mechanism of review that is fair, just, economical, informal and quick, and to act according to substantial justice and the merits of the case. Section 360 also contains a mandatory requirement. The Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to a decision under review. That provision and s 359A constitute the two duties of the Tribunal to take action in relation to the conduct of its review. Both appear in Div 5 of Pt 5 of the Migration Act, which is entitled "Conduct of review". These factors suggest that, if it fails to carry out its obligations under s 359A, the Tribunal cannot be regarded as having performed the function, entrusted to it by s 348, of reviewing a decision when a valid application is made to it. Even though it may make a purported decision, the Tribunal will not have carried out its task. The purported decision cannot therefore be regarded as a decision made under the Migration Act, for the purposes of the definition of "privative clause decision" in s 474(2). In other words, the decision will be tainted by jurisdictional error and the Court will have jurisdiction to grant relief with respect to it. 14 For my own part, the preferable basis for the conclusion that a failure to comply with s 359A gives rise to a jurisdictional error is the statutory interpretation argument. Parliament has given force, however, to the argument that s 359A is a specific application of the principles of natural justice by the passage of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), which adds to Div 5 of Pt 5 of the Migration Act s 357A, subs (1) of which provides: "This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with." Clearly, that provision is based on the assumption that at least some of the existing provisions of Div 5 constitute a statement or statements of the natural justice hearing rule. The amendment, which does not affect the present case because the application to the Tribunal was made before the operation of the new provision, lends support to the Al Shamry rationale for viewing s 359A as an application of the principles of natural justice. 15 Whatever the reasoning, the conclusion is clear that a failure by the Tribunal to comply with s 359A will give rise to jurisdictional error. Failure to consider the real question 16 By its terms, item 560.224(1) of Sch 2 to the Migration Regulations required the Tribunal to be satisfied of a single fact before it could grant Mr Awan the visa he sought. That single fact was that Mr Awan was a genuine applicant for entry and stay as a student. In reaching a conclusion about that issue, the Tribunal was obliged to have regard to the range of factors specified in pars (a), (b), (c) and (d). These were not themselves criteria that Mr Awan had to meet to the satisfaction of the Tribunal in order to succeed in his application. It is perfectly possible that the Tribunal could have found one or more of the factors to be adverse to Mr Awan's application, but still have found him to be a genuine applicant. In Qu v Minister for Immigration & Multicultural Affairs [2001] FCA 1299 at [11] – [13], I said in relation to the same item: "Subclause (1) of item 560.224 lays down a clear criterion which must be satisfied if a visa is to be granted. That criterion is that the applicant is a genuine applicant for entry and stay as a student. In determining whether that criterion is satisfied, a decision-maker is required to have regard to the matters referred to in pars (a) to (d) of the subclause. The first relates to financial ability to undertake the course without contravening any condition of the visa relating to work. The second relates to the visa applicant's comprehension of English for the purposes of the course. The decision-maker is empowered by subcl (2) to require the visa applicant to undertake an English language test. If such a requirement is imposed and the visa applicant does not undertake the test, or does not pass it, the visa is not to be granted. By this means, if (and only if) a test is imposed, comprehension of English is elevated to the status of a criterion which, if the visa applicant does not meet it, must lead to the refusal of the visa. If a test is not imposed, comprehension of English remains only one of the factors to be taken into account. The third factor is the intention of the visa applicant to comply with any conditions subject to which the visa is granted. The fourth condition, in par (d), refers to 'any other relevant matter'. Plainly, this does not set up any criterion which a visa applicant must satisfy in order to obtain the visa. What it does is to permit a decision-maker to 'determine if there were other matters relevant to whether the applicant was a genuine applicant for entry and stay as a student.' See Yong v Minister for Immigration & Multicultural Affairs [2000] FCA 1391 at [18]. As attachment A to the notification sent to the applicant in the present case indicates, some consideration has been given to what might be considered to be relevant matters. The list cannot be exhaustive of such matters. It is always possible that there will be matters relevant to an individual case that are peculiar to that case. It is plain that a decision-maker, in applying the criterion in item 560.224(1), is obliged to engage in a balancing exercise. The information available concerning financial ability, comprehension of English and intention to comply with conditions might suggest that a visa applicant's case may vary in strength as between the three factors. A consideration of other relevant matters might further complicate the position. The decision-maker might consider that there are factors weighing against the grant of the visa sought, but might nevertheless decide to grant it because the negative factors are outweighed by the strength of the positive factors. Even if there is a single negative factor which is considered to outweigh all others, the conclusion will be reached by means of a balancing exercise, and not by regarding the question as concluded simply because there is a weighty negative factor." 17 In its reasons for decision in the present case, the Tribunal made no finding at all about the applicant's comprehension of English for the purposes of his proposed course. There appears to have been no interpreter involved in the Tribunal's hearing, so there was at least a chance that the Tribunal would have found in favour of Mr Awan in relation to the factor in par (b) if it had addressed its mind to that factor. The Tribunal did not make a finding as to the factor in par (c). It made no finding about the applicant's intention to comply with any conditions attached to the visa. After making a finding about inconsistency on the part of Mr Awan, the Tribunal said that it was not able to find that he could undertake the course without contravening work conditions. This was the basis of the Tribunal's finding that Mr Awan "fails to meet" par (a). It made no finding about his intention with respect to conditions. Similarly, after discussing some matters favourable to Mr Awan and some unfavourable to him, the Tribunal expressed a finding that Mr Awan "fails to meet" par (d). Immediately, the Tribunal said: "The Tribunal therefore finds that the visa applicant does not meet subclause 560.224(1) and is not a genuine applicant for entry and stay as a student." 18 The Tribunal conducted a balancing exercise of sorts to reach its conclusion in relation to (d). It did not conduct any such balancing exercise in relation to the single question it was required to determine, namely whether Mr Awan was a genuine applicant. It regarded itself as bound by its conclusions as to pars (a) and (d) to reach the conclusion that Mr Awan failed the test of genuine applicant. This is the probable explanation for the Tribunal's failure to make findings in relation to pars (b) and (c). It probably took the view that it would have to find in Mr Awan's favour on these matters, but that to do so would have been irrelevant because it was enough that he had "failed to meet" one of the other paragraphs. 19 In approaching the matter as it did, the Tribunal made an error of law. It failed to carry out its legal obligation of considering whether Mr Awan met the criterion of a genuine applicant by balancing the various matters to which pars (a) to (d) relate. Its error certainly affected its decision. The sole basis on which the Tribunal affirmed the decision of the Minister's delegate, rejecting Mr Awan's application for a visa, was its finding that he was not a genuine applicant for entry and stay as a student. Mr Awan was entitled to have this criterion applied, and as a consequence the entire review conducted, according to law. 20 The Tribunal clearly asked itself a wrong question or identified a wrong issue, when it took the view that what it identified as a failure to meet par (a) or par (d) or both was sufficient to dictate a finding that Mr Awan was not a genuine applicant. It misconceived its function in applying the relevant criterion. It failed to apply it at all, but nevertheless rejected Mr Awan on the basis of his failure to satisfy the criterion. It did not carry out its function under s 348 of the Migration Act to review the delegate's decision. It made an error of law of a kind that deprived it of jurisdiction, in the sense in which error of law was described in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed. In my view, such an error was a jurisdictional error in the terms in which the High Court used that phrase in Plaintiff S157. As a result, the decision of the Tribunal is not protected by the privative clause in s 474 of the Migration Act. 21 The Tribunal's failure to apply the correct criterion was not dealt with in North J's reasons for judgment. No-one adverted to it at that time. Nor was it raised on the appeal by Mr Awan who, as I have said, did not make any significant submissions. This does not mean that it cannot arise on the appeal. Counsel for the Minister was alert to the issue. A list of authorities filed on behalf of the Minister in advance of the hearing of the appeal contained a reference to Qu. Counsel for the Minister very properly raised the issue with the Court. He attempted to argue that the Tribunal had not fallen into error. In the light of Mr Awan's disability, and the fact that, as a consequence, he did not have legal representation, I am of the view that the Court should entertain the issue. For the reasons I have given, I am of the view that the Court should decide it against the Minister. By itself, it is a sufficient basis for dismissing the appeal against North J's judgment, because the Tribunal's failure to exercise its function was sufficient ground for the declaration made by North J. The question of discretion 22 North J recognised, correctly, that he had a discretion to refuse relief of the kinds the Court may grant pursuant to s 39B of the Judiciary Act. In essence, that is the jurisdiction given to the High Court of Australia by s 75(v) of the Constitution. It is clear that remedies of the kind specified in s 75(v) are discretionary. North J opted to make a declaration, thereby exercising the power given to the Court by s 21 of the Federal Court of Australia Act 1976 (Cth) to make a declaration of right in a matter in which the Court has jurisdiction. Such a remedy is also discretionary. 23 The exercise of a discretion is a matter on which minds may differ. There are defined principles which an appellate court is obliged to apply when considering an appeal from an exercise of a discretion. The classic statement of them is in House v The King (1936) 55 CLR 499 at 504 – 505: "The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so." 24 North J did not discuss the question of discretion at length in his reasons for judgment. He simply said, "there are no discretionary reasons for refusing relief." In my view, his Honour fell into error in so saying. The fact that the information of which the Tribunal was obliged to provide particulars pursuant to s 359A was information emanating from Mr Awan was itself a discretionary factor. So was the fact that the Tribunal did give Mr Awan an opportunity to comment on at least part of the information in its hearing. It raised specifically with Mr Awan the statement he made in conjunction with the lodging of his visa application. It asked Mr Awan about his finances, although it does not appear to have raised specifically with him the inconsistent statements made at the earlier Tribunal hearing. To exercise his discretion properly, North J was obliged to consider whether the failure to comply with s 359A had a substantial effect in depriving Mr Awan of a fair hearing. If it did not do so, relief would have been refused. 25 Against these factors, there are factors favouring the grant of relief. They include factual errors on the part of the Tribunal that his Honour identified. Although these would not constitute a ground of relief, if taken by themselves, they would be appropriate matters to take into account if the occasion existed for the grant of relief and the exercise of discretion arose for consideration. 26 The one factor in the present case that would dictate the exercise of the discretion in favour of granting relief, even if it does not constitute a ground for relief in its own right, is the failure of the Tribunal to exercise its function by applying the correct criterion. If it fell to this Court to exercise the discretion itself, my view would be that this factor would be overwhelming. Conclusion 27 If the only issues in this case had been the failure to comply with s 359A of the Migration Act and the failure of the primary judge to exercise his discretion on a proper basis, I should have been in favour of allowing the appeal. As to whether it would have been proper to exercise the discretion at the appellate level, or to return the matter to North J for the exercise of the discretion, it is unnecessary to make a decision. Because the issue has arisen whether the Tribunal failed to perform its function, and because I have taken the view that that issue should be decided in favour of Mr Awan, I join with Marshall J and Merkel J in ordering that the appeal be dismissed with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Peter R A Gray, Acting Chief Justice. Associate: Dated: 26 June 2003 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 339 of 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT AND: IRFAN AHMED AWAN RESPONDENT JUDGES: GRAY ACJ, MARSHALL and MERKEL JJ DATE: 26 JUNE 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT MARSHALL J 28 This is an appeal from a judgment of North J ("the primary judge"), delivered on 9 May 2002. The primary judge made a declaration in the following terms: "the decision of the Migration Review Tribunal dated 7 November 2001, affirming a decision of a delegate of the respondent, Minister for Immigration, Multicultural and Indigenous Affairs, to refuse to grant the Applicant, Irfan Ahmed Awan, a student visa was made in excess of jurisdiction and is null and void." 29 The application for review of the Migration Review Tribunal ("MRT") decision was governed by the Migration Act 1958 (Cth) ("the Act") as it stood following amendments to Part VIII of the Act introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), and which came into effect on 2 October 2001. Background 30 The respondent to this appeal, Mr Awan, is a citizen of Pakistan. He entered Australia on 29 June 1996 as the holder of a Student (Temporary) (Class TU) subclass 560 visa, which expired on 30 June 1998. 31 Further student visas were granted to Mr Awan on 12 January 1998 and 17 July 1998. The visa granted on 17 July 1998 was valid until 1 August 2000. On 1 August 2000, Mr Awan was granted a bridging visa. On 7 August 2000, he was granted a further visa which was valid until 30 April 2001. 32 Mr Awan's record of study in Australia is as follows: · 1997 – completion of Certificate Level 14 in Textiles (Manufacturing Technology) at the Melbourne Institute of Textiles · 1998 – completion of Diploma of Textile Manufacturing Technology at the Melbourne Institute of Textiles · 1999 – completion of Graduate Certificate in Management course at Central Queensland University · 2000 – completion of Master of Information Systems course at Central Queensland University (this degree was completed on 6 April 2001) 33 On 19 April 2001, Mr Awan sought to apply for a further student visa in order to study for a Master of Business Administration at Central Queensland University. He was advised to leave Australia and apply offshore for the visa, given the course was not due to start until 16 July 2001. 34 On 20 April 2001, Mr Awan again sought to apply for a further student visa at the Preston office of the appellant's department. He claimed to be enrolled in a course that was due to commence on 30 April 2001. The course was an Advanced Diploma of Business (International Trade Marketing) from Cambridge International College. 35 In a memorandum dated 20 April 2001, two compliance officers employed in the appellant's department observed of Mr Awan: "Staff required that he submit further documentation in support of this application and to provide information why he was now studying in a different field. He refused to do this and demanded that his student application be decided that day and that all other information requested was irrelevant. It was also noticed that the nature of this course was not a natural progression of the type of courses that he had been taking in the past. Compliance staff were advised that Mr [Awan] became abusive and aggressive to Preston staff. He threatened to douse himself with petrol and set himself alight if a visa was not granted to him on the spot." 36 Mr Awan filed his application for a student visa but was otherwise uncooperative with departmental staff and was placed in immigration detention. Later on the same day a delegate of the appellant's department, Mr Windsor, interviewed Mr Awan. Mr Windsor made a file note of the interview in which he recorded Mr Awan as saying that: "(h)e was concerned at the prospect of having to return to Pakistan to apply for a visa for this course. He could not afford the travel expenses and was concerned about the delay in visa processing." 37 On 21 April 2001, a delegate of the appellant decided to cancel the visa issued to Mr Awan on 7 August 2000. The delegate did not consider that Mr Awan was a genuine student. 38 On 30 April 2001, a delegate of the appellant refused Mr Awan's application for a further student visa. The delegate found that Mr Awan failed to satisfy all of the criteria for the grant of a student visa, including whether Mr Awan was seeking to stay in Australia for the purpose of study or would leave Australia at the end of his authorised stay. 39 On 30 April 2001, Mr Awan applied to the MRT for a review of the 21 April 2001 decision to cancel the student visa issued to him on 7 August 2000. On 7 May 2001, the MRT affirmed the decision of the delegate to cancel Mr Awan's student visa ("First MRT"). The First MRT decision was challenged in this Court, but dismissed by Weinberg J on 3 August 2001. 40 On 21 May 2001, Mr Awan applied to the MRT for a review of the decision of 30 April 2001 to refuse Mr Awan's application for a further student visa. The review hearing took place on 1 October 2001 ("Second MRT"). On 7 November 2001, the Second MRT affirmed the decision of the delegate to refuse Mr Awan's application for a further student visa. 41 On 3 December 2001, Mr Awan filed an application for an order of review in respect of the decision of the Second MRT. The primary judge heard the application on 10 February 2002. On 9 May 2002, the primary judge declared the Second MRT decision was made in excess of jurisdiction. The legislative context 42 Pursuant to s65 of the Act, the appellant is required to grant a visa if, inter alia, he is satisfied that the criteria prescribed by the Act, or the regulations made under the Act, have been satisfied. 43 Schedule 2 to the Migration Regulations 1994 (Cth) ("the Regulations") in subclauses 560.224 thereof sets out the criteria prescribed for the grant of a student visa. So far as it presently material, sub-clause 560.224(1) provides that: "…the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard: (a) to the financial ability of the applicant to undertake the course without contravening any condition of the visa relating to work; and (b) subject to subclauses (2) and (3), to the applicant's comprehension of English for the purposes of the course; and (c) to whether the applicant intends to comply with any conditions subject to which the visa is granted; and (d) to any other relevant matter." The Second MRT 44 At [33] of its decision, the Second MRT stated: "At this hearing the visa applicant stated that he was supported by his father and did not need to work, but at the hearing on 7 May 2001 he gave evidence that his father paid for his education expenses but other expenses were met through part-time employment. The evidence given under oath by the visa applicant at the two hearings is inconsistent. In addition the statement by the visa applicant that he could not afford to return to Pakistan to apply offshore is not consistent with the statement that he wanted to travel widely in Australia or that he wanted to apply for a visa to tour and play cricket in England. The Tribunal finds that the visa applicant is not a credible witness and is prepared to say whatever at the time he believes will best help his application." 45 In the passage of the Second MRT decision quoted above, the MRT raised what it considered was: (1) an inconsistency between evidence given to it and evidence given to the First MRT; and (2) an inconsistency between part of a statement given to a delegate of the appellant's department on 20 April 2001 and evidence given at the First MRT hearing. 46 In the concluding part of [33] of its decision, the Second MRT said: "In view of the conflicting evidence given by the visa applicant the Tribunal cannot accept the statement that he is fully supported by his father and therefore is not able to find that [the] visa applicant can undertake the course without contravening work conditions. Consequently the visa applicant fails to meet subclause 560.224(1)(a)." 47 The Second MRT went on to state at [34]: "The delegate also found against the visa applicant under subclause 560.224(1)(d). The delegate took into account the events of 19 – 23 April 2001, with the rapid change of courses and educational institutions, as evidence of the fact that study was just an excuse to remain in Australia. The delegate also took into account the fact that the visa applicant had little idea of the content of the course or its relevance to future employment or what that employment might be. By the time of the hearing on 7 May 2001 the evidence of future employment was stronger in that the visa applicant talked about returning to the family cotton business. By this hearing the visa applicant had improved his evidence and now was sure that he was to be employed in the business. However on being questioned it transpired that the family business was that of landlords and cotton growers and not textile manufacturers, although they did have an equity share in a textile business that is managed by a friend of his fathers and where he may find employment." 48 At [36], after making a further reference to Mr Awan not being a credible witness, the Second MRT said: "The visa applicant has complied with immigration laws in the past and has a good academic record. The visa applicant claims that he will leave on the completion of his course in June 2002 but he may find another course that he wishes to study and thus prolong his stay in this country. He could also renew his application for permanent residence. The course at Cambridge has commenced and the visa applicant is studying but the level of the course namely TAFE is not consistent with his academic achievement, which was a Master of Information Systems at CQU. Taking these other factors into account the Tribunal finds that the visa applicant fails to meet subclause 560.224(1)(d). The Tribunal therefore finds that the visa applicant does not meet subclause 560.224(1) and is not a genuine applicant for entry and stay as a student." 49 The Second MRT affirmed the decision of the delegate to refuse Mr Awan a student visa. It said at [38]: "The visa applicant is not a genuine applicant for entry and stay as a student, and thus fails to meet [cl] 560.224." The primary judge's reasons relevant to the appeal 50 The primary judge considered that the Second MRT failed to comply with s359A of the Act. That section provides: "(1) Subject to subsection (2), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies – by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person. (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 51 His Honour found that the two inconsistencies in the evidence of Mr Awan referred to at [18] above constituted "information that the Tribunal considers would be… part of the reason, for affirming the decision that is under review". Accordingly the primary judge considered that the MRT was obliged to ensure that Mr Awan understood why the question of inconsistent evidence was relevant to the review and to invite him to comment on it. 52 In referring to the first inconsistency mentioned by the Second MRT at [33] of its decision, his Honour said at [67]: "This inconsistency was one of the two inconsistencies in the evidence of Mr Awan upon which the Tribunal relied to find that Mr Awan was not a reliable witness. The Tribunal based its conclusion to reject Mr Awan's application on the finding that Mr Awan was not a credible witness. In other words, the finding was critical to the decision. Hence, the need to comply with s359A(1) was of particular significance in the determination of this case." 53 In respect of the second inconsistency referred to by the Second MRT, the primary judge said at [74]: "The evidence given at the cancellation review hearing was information which, by reason of its inconsistency with the statement made to Mr Windsor, was considered by the Tribunal to be a part of the reason for affirming the decision under review. The Tribunal was, therefore, bound to give Mr Awan particulars of the information, to explain to him why it was relevant to the review, and to invite him to comment on it. The Tribunal failed to do any of these things, and it thereby acted in breach of s359A(1)." Compliance with s359A 54 Counsel for the appellant contended that the MRT did not fail to comply with the requirements of s359A. He submitted that the inconsistencies referred to by the MRT were related to its conclusion that Mr Awan did not meet the requirements of sub-clause 566.224(1)(a) of Schedule 2 of the Regulations. He stressed that the MRT independently considered that sub-clause 560.224(1)(d) had not been satisfied. It followed, so the argument ran, that the MRT's decision was independently supported by its consideration of factors extraneous to the inconsistencies in Mr Awan's evidence. 55 I reject that submission. Although it was not the sole basis for the MRT's decision in the review before it, the MRT's reliance on the inconsistencies in the evidence of Mr Awan formed part of the reason for the MRT deciding to affirm the decision of the delegate of the appellant. I agree with the primary judge that the MRT failed to comply with s359A of the Act. 56 In any event, submissions of the appellant are founded upon a misunderstanding of the proper operation of sub-cl 560.224(1) of the Regulations. There is one issue requiring the appellant's satisfaction. That issue is whether the applicant is a genuine applicant for "entry and stay as a student". The matters referred to in paragraphs (a) to (d) of sub-cl 560.244(1) are factors that the appellant is entitled to have regard to in reaching the requisite state of satisfaction. When the sub-clause is read in that context, it is apparent that a finding by the MRT of a lack of credibility in the respondent is fatal to the respondent's prospects of obtaining a visa, irrespective of whether any one of the factors referred to in paragraphs (a) to (d) are adverse to him. Consequently, a finding by the MRT that the respondent failed to meet sub-cl 560.224(1)(a), viewed together with its approach to his credibility, must form part of the reason of the MRT in coming to its decision. Discretion 57 Counsel for the appellant submitted that the primary judge erred in holding that there were no discretionary reasons to refuse Mr Awan's application for review. He contended that any breach of s359A did not affect the outcome of the MRT's decision because of its independent reliance on sub-clause 566.224(1)(d) of the Regulations. Counsel also contended that any failure to comply with s359A was "merely technical" and did not prejudice Mr Awan, as he should be taken to be aware of any previous inconsistent statements made by him to Mr Windsor, the First MRT and the Second MRT. Counsel submitted that the object of s359A is to give an applicant for a visa an opportunity to comment on personal information received from third parties and not information which has been provided by the appellant himself. 58 I reject those submissions. Section 359A(4)(b) excludes from the reach of the section information "that the applicant gave for the purpose of the application". Section 359A(4)(b) is referrable to information given for the purpose of the review. Sub-section (4) sets out what information is not caught by the section. If Parliament intended that other types of information which were given by the applicant for a visa should not come within the purview of s359A it would have said so. It is beside the point that the breach of s359A may be said to be technical. The critical consideration is whether the MRT failed to comply with a section of the Act which it was bound to comply with in the course of conducting a review. 59 For the above reasons, and additionally for the reasons advanced by Merkel J, I do not regard the primary judge erred in the exercise of his discretion. Consequences of the breach of s359A(1) 60 The question which next arises for consideration is whether a failure by the MRT to comply with the requirements of s359A is essential to the validity of the MRT's decision; see Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 at [69] and [70] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. 61 I have read, in draft form, the reasons for judgement of Merkel J. I agree with Merkel J, for the reasons he gives, that s359A(1) imposed an imperative duty on the MRT and an inviolable limitation on its powers of review, and that s474 does not have contrary effect. 62 In my opinion the appeal should be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 26 June 2003 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 339 of 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS APPELLANT AND: IRFAN AHMED AWAN RESPONDENT JUDGES: GRAY ACJ, MARSHALL and MERKEL JJ DATE: 26 JUNE 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT MERKEL J: Introduction 63 The present appeal concerns whether a decision of the Migration Review Tribunal ("the Tribunal") is invalid in the event that the Tribunal has failed to comply with s 359A(1) of the Migration Act 1958 (Cth) ("the Act"). Section 359A(1) requires the Tribunal to give to an applicant for a visa particulars of information that it considers would be the reason, or part of the reason, for making an adverse decision. The issue is of some importance as ss 57 and 424A of the Act impose almost identical obligations on the Minister and the Refugee Review Tribunal respectively. Background 64 The respondent is a citizen of Pakistan. Since June 1996 he has held a student visa which permitted him to pursue studies at education institutions in Australia. On 21 April 2001 the respondent's student visa was cancelled after a delegate of the appellant ("the Minister") concluded that the respondent was not a genuine student. The respondent's applications to a differently constituted Tribunal and to the Federal Court to review the decision to cancel his visa were unsuccessful. 65 The respondent was also unsuccessful in his application to a delegate of the Minister for a further student visa and in his subsequent application to the Tribunal to review the decision of the delegate. However, the respondent successfully applied to the primary judge (North J) for an order to review the Tribunal's decision. The primary judge made a declaration that the decision of the Tribunal affirming the decision of the delegate of the Minister to refuse to grant the respondent a student visa was made in excess of jurisdiction and was null and void. The Minister has appealed to a Full Court against the declaration of the primary judge and against his Honour's order that the Minister pay the respondent's costs of and incidental to his application to the Court. 66 The respondent has had no legal training but insisted on being self-represented before the primary judge and before the Full Court. As has been explained by Gray J, the respondent put no submissions in relation to the issues arising on the appeal. The Tribunal's decision 67 Section 65 of the Act provides that the Minister is required to grant a visa if, inter alia, he is satisfied that the criteria prescribed by the Act or the Migration Regulations 1994 (Cth)("the Regulations") in respect of the visa have been satisfied, but if the Minister is not so satisfied s 65 requires him not to grant the visa. The relevant criteria for the student visa applied for by the applicant are set out in subcl 560.224(1) of the Regulations which, at the date of the relevant decision, required that the Minister be satisfied that the applicant for the visa: "is a genuine applicant for entry and stay as a student, having regard: (a) to the financial ability of the applicant to undertake the course without contravening any condition of the visa relating to work; and (b) subject to subclauses (2) and (3), to the applicant's comprehension of English for the purposes of the course; and (c) to whether the applicant intends to comply with any conditions subject to which the visa is granted; and (d) to any other relevant matter." 68 The respondent claimed that he was a genuine student. In support of that claim he stated that his father supported him financially thereby enabling him to undertake his studies without needing to work to support himself. He also said that one of the reasons why he wished to pursue further studies in Australia was that those studies would assist him in joining his family's business on his return to Pakistan. 69 The Tribunal did not accept the respondent's claims. It observed that the delegate of the Minister found that the respondent "did not satisfy paragraphs (a) or (d)" of subcl 560.224(1) and it went on to consider those paragraphs. The Tribunal found that the respondent was not a "credible witness" and, as a consequence, did not accept his evidence that he was fully supported by his father and did not have to work. The ground given by the Tribunal for rejecting the respondent's evidence was the inconsistency between the evidence given by the respondent at the hearing before this Tribunal and evidence given under oath by the respondent to the differently constituted Tribunal that heard the application to review the cancellation decision and statements he had made to an officer of the Department for the purposes of his application for the further student visa. The Tribunal found that, in view of the "conflicting evidence" given by the respondent, it could not accept the statement that he was fully supported by his father and therefore it was not able to find that the respondent would undertake the course without contravening work conditions. The Tribunal stated that the respondent therefore failed "to meet subclause 560.224(1)(a)". 70 The Tribunal then turned to consider subcl 560.224(1)(d). It considered other inconsistencies in the respondent's evidence and stated that it had difficulty in assessing "the future position" of the respondent in Pakistan because of its finding that he was not a credible witness. The reference to the future position of the respondent in Pakistan appears to be a reference to whether the respondent was genuine in his statement that he wished to pursue further study in Australia to enable him to join his family's business on his return to Pakistan. In considering "other relevant matter[s]" for the purposes of subcl 560.224(1)(d) the Tribunal referred to a number of matters, some of which were favourable to the respondent and others which were not, and concluded that the respondent "fails to meet subclause 560.224(1)(d)". 71 The reference to the respondent not meeting subcl 560.224(1)(d) is unfortunately expressed as that subclause requires the Tribunal to have regard to "any other relevant matter". However, on a fair reading of the Tribunal's reasons it appears to have decided on the basis of the matters to which it referred, including the respondent's lack of credibility, that it was not satisfied that the respondent wished to undertake further study in Australia for the purpose of returning to Pakistan to join the family business when he completed that study. 72 The Tribunal concluded that the respondent did not meet subcl 560.224(1) and was not "a genuine applicant for entry and stay as a student". 73 The Tribunal's reasoning is difficult to follow. On a literal reading of its decision it appears to have not had regard to the matters set out in subcll 560.224(b) and (c) and to have made an adverse finding against the respondent solely on the basis of the "matters" referred to in subcll 560.224(1)(a) and (d). If that were a correct reading of the Tribunal's reasons then it would have failed to have regard to all of the matters to which it was required to have regard to under subcl 560.224(1) and would therefore have failed to have satisfied a condition for the exercise of its jurisdiction. 74 The Tribunal appears to have treated its adverse findings under subcll 560.224(1)(a) and (d) as sufficient to enable it to determine the application adversely to the respondent. However, on a fair reading of the Tribunal's reasons it may have decided that, irrespective of any finding it may make as to the respondent's comprehension of English (see subcl 560.224(1)(b)) which may not have been treated as an issue before the delegate or before the Tribunal, the applicant was not a genuine student. Although the Tribunal did not make any finding in respect of subcl 560.224(1)(c) it is implicit in its adverse finding under subcl 560.224(1)(a) that it was of the view that the applicant did not intend to comply with the work conditions in his visa. 75 Although there is some difficulty in discerning the precise reasoning of the Tribunal one matter is clear. A reason, or part of the reason, for the decision of the Tribunal to affirm the decision of the delegate was its conclusion that the respondent was not a credible witness as a result of the prior inconsistent statements that he had made. The respondent's lack of credibility was the sole basis for the adverse finding against the respondent in respect of the requirements set out in subcl 560.224(1)(a) and, by implication, in subcl 560.224(1)(c). It was also relevant to the Tribunal's adverse finding against the respondent in considering "other relevant matter[s]" under subcl 560.224(1)(d). The Primary Judge's decision 76 The primary judge found that the Tribunal acted in breach of s 359A(1) of the Act because it failed to give particulars to the respondent of his earlier inconsistent statements, which the Tribunal considered was a reason or part of the reason for affirming the decision under review. The inconsistent statements, which concerned financial support from the respondent's father and the respondent's travel plans, were the statements referred to above which were made by the respondent in evidence to the previous Tribunal and in an interview with a departmental officer in relation to his application for the student visa. 77 The primary judge carefully considered the role of s 359A(1) in the Act and concluded at [186] that the legislature intended that a decision made in breach of s 359A(1) is made in excess of jurisdiction, in the sense required for a grant of a writ of prohibition under s 75(v) of the Constitution, and is subject to challenge despite the existence of s 474. In arriving at that conclusion his Honour endeavoured to reconcile the mandatory requirements of s 359A(1) and the privative clause in s 474. The primary judge stated at [161]: "Section 359A(1) mirrors the particular common law obligation enforced in Aala, namely the duty of an administrative decision maker to give adverse information and an opportunity to comment to an applicant before it. The fact that a breach of such a requirement is regarded as an excess of jurisdiction for the purpose of the grant of prohibition does not necessarily mean that the same breach falls outside the operation of a privative clause. However, the fundamental nature of the requirement bears upon the likelihood that a breach was intended to carry a remedy. The nature of the obligation, as explained in Aala and Miah, albeit for a different purpose, and as recognised in the international jurisprudence referred to above, suggests that a decision made in breach of that obligation was not intended to be valid." 78 After considering the context in which s 359A(1) appears in the legislation, and the provisions of the Act which deal with the duties and obligations of the Tribunal, the primary judge concluded that the legislature did not intend that s 474 would apply to a decision made in contravention of s 359A(1) and, after stating that there were no discretionary reasons for refusing relief, his Honour determined that the appropriate course was to make a declaration that the Tribunal's decision was null and void. 79 The Minister contends that the primary judge erred in concluding that: · the Tribunal failed to comply with s 359A(1) of the Act; · a failure to comply with s 359A(1) of the Act constituted jurisdictional error; and · s 474 did not operate to prevent the Court from granting declaratory relief in respect of the Tribunal's decision. Section 359A 80 Section 359A provides: "(1) Subject to subsection (2), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies – by one of the methods specified in section 379A; or (b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person. (4) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 81 The operation of ss 359A and 424A has been considered in a number of cases. In Carlos v Minister for Immigration and Multicultural Affairs (2001) 183 ALR 719 at 725-726 [21] ("Carlos") I stated: "The operation of s 424A of the Act, which is the counterpart of, s 359A in relation to the Refugee Review Tribunal (the RRT), has been considered in a number of cases. The following propositions can be taken to have established: · The obligation to provide the information in question is enlivened when the tribunal forms the view that there is knowledge communicated about some fact or circumstance that is material to the review and is adverse to the applicant: see Naing v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 336 at [32]; Nader v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 548 at [58]-[59]; Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109; BC200004607 at [52]-[54]; Bhasani v Minister for Immigration and Multicultural Affairs [2000] FCA 1773; BC200007867 at [8]-[9]; · If information adverse to an applicant is relied upon in the reasons of the tribunal, a failure to have complied with the statutory requirements in respect of that information will found a ground of review: see Naing at [33]; · Untested assertions communicated to, or received by, the tribunal can constitute information irrespective of whether the information received is reliable or has a sound factual basis; thus, the section can apply when the tribunal has received information 'regardless of its source' if it considers the information would be a reason or part of the reason for affirming the delegate's decision: see Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 56 [18]-[20]; · The section is concerned with information of which the tribunal becomes aware, rather than with its subjective decision-making process: see Tin at [54]." 82 In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 ("Al Shamry") Iobserved at 40 [39]: "Section 424A does not require the RRT to provide to an applicant all of the information upon which it proposes to act, other than information provided by an applicant for the purpose of the review. Rather, the section requires the RRT to provide the applicant with 'particulars of any information' that the RRT considers would form part of its reason for refusing the application for review, to explain to the applicant why that information is relevant to the review and to invite a response to it." 83 In Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 ("Paul") at 427-428 [94] Allsop J (with whom Heerey J agreed) referred to the above passages stating: "It is necessary to say something about s 424A. First, the word 'would' is used, not 'could'. I see no warrant to view the section as 'crystallising' or 'enlivening' any obligation merely because the Tribunal member in considering the matter forms the view that information could, or could possibly, be relevant to the determination of the claims. The Tribunal must give the particulars which have a certain character: particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision. It is not just a question of general adverse relevance. No time for compliance is identified. I have difficulty in seeing how there can be a failure to observe a procedure unless and until a decision is handed down without compliance with s 424A. To this extent I disagree with the views of Hill J in Naing v Minister for Immigration and Multicultural Affairs at 342 [32] and in Nader v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 352 at 366 [58] and [59] and of Merkel J in Carlos, and Al Shamry, as to the time of the obligation arising and their Honours' views of the general nature of the relevance of the information. If the Tribunal delivers its decision without complying with the requirement of s 424A, it will have failed to observe procedures laid down for it by the Act." 84 The difference between the views expressed in Carlos, Al Shamryand Paul may be a difference in form rather than substance. The summary of the principles in Carlos and Al Shamry offers guidelines to a tribunal to enable it to ensure that it has complied with ss 359A or 424A (as the case may be) when it hands down its decision. However, Allsop J is clearly correct in emphasising that a failure to comply with the requirements of those sections can only arise where the Tribunal considers that the information in question would, rather than could,be the reason or a part of the reason for affirming the decision under review. But it is more difficult to accept that the obligations in ss 359A(1) and 424A(1) are only enlivened when a decision is handed down without compliance with these sub-sections. 85 As I discussed in Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [21]-[22], the obligation to give particulars under ss 359A(1) and 424A(1) only arises when the Tribunal considers that information falling within the terms of the sections would be the reason or part of the reason for affirming the decision under review. In some cases the obligation under ss 359A(1) and 424A(1) may only be enlivened when the Tribunal has prepared and is ready to hand down its reasons. At that time the Tribunal will have determined that the information in question would form the reason or part of the reason for its decision. However, that need not always be the case. The Tribunal may form the view at an earlier stage that certain information adverse to an applicant would form part of its reasons for affirming the decision under review. If it forms that view it is required to comply with ss 359A(1) or 424A(1) in order to afford the applicant an opportunity to respond to that information prior to the Tribunal handing down its decision. While it is unlikely that a failure to comply with the sections could be ascertained until reasons for the decision are actually handed down, the obligation to give particulars of the relevant information is intended by the legislature to be discharged, and therefore it must have been enlivened, prior to the handing down of the Tribunal's reasons. If the position were otherwise the section could lose its utility. 86 Of course, the opinion that the information in question would be a reason for the decision is necessarily subject to the applicant's response to the particulars of the information given to the applicant pursuant to the sections. However, there is no anomaly in that view being taken of the operation of ss 359A(1) and 424A(1) as it gives effect to their obvious purpose, namely the opportunity by the applicant to respond to adverse information: see NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 ("NAAV") at 561 [457] per French J; and the Second Reading Speech to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) (which introduced ss 359A and 424A), Hansard, House of Representatives, 2 December 1998 at 1123. Further, as was observed by Lord Diplock in "The Courts As Legislators" The Lawyer and Justice 1978 at 274: "if … the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed". 87 I need not pursue the above matters further as the time at which the obligation under s 359A(1) is enlivened is not an issue in the present case as it is not in dispute that the Tribunal did not give particulars of the earlier inconsistent statements to the respondent. It is also not in dispute that the information is specifically about the respondent and is not "non-disclosable information", as defined in s 5 of the Act. Further, having regard to the decision of the Full Court in Al Shamry that the exclusion in s 424A(3)(b) (and it must follow s 359A(4)(b)) in respect of information that an applicant gave "for the purpose of the application" is a reference to information that the applicant gave for the purpose of the application for review by the particular Tribunal (see Al Shamry at 33-34 [17] and 38-39 [35]), it is clear that the prior inconsistent statements relied upon by the Tribunal in the present case were not given "for the purpose of the application". 88 However, senior counsel for the Minister contended that s 359A(1) was not contravened because the Tribunal arrived at its conclusion that the respondent was not a genuine student independently of its adverse credibility finding. Thus, so it is argued, the credibility finding was not a reason for the decision. I do not accept that contention. The issue of whether the respondent is "a genuine applicant for entry and stay as a student" will usually, as was the situation in the present case, involve findings as to the credit of an applicant. As explained above, on a fair reading of the Tribunal's reasons it is clear that the adverse credit finding was a reason or part of the reason for the Tribunal affirming the decision of the delegate. 89 The circumstances in the present case are analogous to those in Al Shamry,where the Refugee Review Tribunal's decision was set aside because of a failure to comply with s 424A. Al Shamry concerned discrepancies between an applicant's airport interview and later statements of the applicant which led the Tribunal to make an adverse finding as to credit which, together with other matters, resulted in the Tribunal not accepting the applicant's claim. The Tribunal was found to have breached s 424A(1) by not giving to the applicant particulars of the relevant statements. 90 In my view, the primary judge was correct in concluding that the Tribunal failed to comply with s 359A(1). Section 474 91 The main issue on the appeal concerned the reconciliation of the mandatory requirement in s 359A(1) with s 474 of the Act, which provides: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)." 92 In Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 ("Plaintiff S157/2002") the High Court considered whether s 474 was inconsistent with s 75(v) of the Constitution and, if so, invalid. In concluding that there was no inconsistency, in their joint judgment Gaudron, McHugh, Gummow, Kirby and Hayne JJ made a number of observations concerning reconciling s 474 with the procedural requirements laid down by the Act. Their Honours stated at 44 [69] - [70]: "Although s 474 does not purport to effect a repeal of statutory limitations or restraints, it should be noted that it 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. However, that is a matter that can only be determined by reference to the requirement in issue in a particular case. Of course, the process of reconciliation elaborated by Dixon J in Murray which may result in some procedural or other requirement being construed as not essential to the validity of an act or decision, is necessary only if there is an apparent conflict between the provisions which impose those requirements and the privative clause in question. Thus, if reliance is placed on a privative clause, the first step must be to ascertain its meaning or, as Dixon J put it in Murray, to ascertain 'the protection it purports to afford'." [Footnotes omitted] and at 45-46 [76] - [78]: "Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression 'decision[s] ... made under this Act' must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all'. Thus, if there has been jurisdictional error because, for example, of a failure to discharge 'imperative duties' or to observe 'inviolable limitations or restraints', the decision in question cannot properly be described in the terms used in s 474(2) as 'a decision ... made under this Act' and is, thus, not a 'privative clause decision' as defined in ss 474(2) and (3) of the Act. To say that a decision that involves jurisdictional error is not 'a decision ... made under [the] Act' is not to deny that it may be necessary to engage in the reconciliation process earlier discussed to ascertain whether the failure to observe some procedural or other requirement of the Act constitutes an error which has resulted in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction. The effect of s 474 is to require an examination of limitations and restraints found in the Act. There will follow the necessity, if s 474 is constitutionally valid and if proceedings are brought by the plaintiff in accordance with the draft Order Nisi, to determine, in those proceedings, whether, as a result of the reconciliation process, the decision of the Tribunal does or does not involve jurisdictional error and, accordingly, whether it is or is not a 'privative clause decision' as defined in s 474(2) of the Act." [Footnotes omitted] 93 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 195 ALR 1, Gaudron and Kirby JJ stated at 18 [79] - [81]: "As explained in Plaintiff S157/2002 v The Commonwealth of Australia, it is necessary, if there is apparent conflict between a privative clause and a statutory provision imposing limitations or restraints upon jurisdiction or power, to attempt a reconciliation of those provisions. It is not necessary that a reconciliation be effected. Indeed, a reconciliation with the particular provision in question may be impossible, as will be the case if, for example, it imposes an 'inviolable' jurisdictional restraint. However, if reconciliation is possible, the provision pursuant to which the act in question has been done or the decision taken will be construed so that observance of specified requirements or restraints is not essential to the validity of that act or decision. It may be that there is no insuperable difficulty in reconciling a particular provision with s 474 of the Act in the case of a power to do some act or to make some decision that involves a significant discretionary element or in respect of which there is no detailed specification as to matters that must be satisfied before a particular act is done or a particular decision taken. In such a case it may be possible to construe the provision governing that act or decision as one which does not impose restraints or limitations which must be observed if the act or decision is to be valid. On the other hand, reconciliation of a particular provision with s 474 of the Act is very difficult, if not impossible, if, as in the case of s 65(1) of the Act, there is detailed specification of conditions which must be satisfied before a particular act can be done or a particular decision taken and there is also prescription of the precise act that must be done or the precise decision that must be reached if the specified conditions are met." [Footnotes omitted] 94 In endeavouring to ascertain whether s 359A(1) can be reconciled with s 474 it is necessary to consider whether s 359A(1) imposes a duty on the Tribunal or a limitation or restraint on its powers which, if breached, will result in invalidity, or whether observance of those duties, limitations or restraints is not essential to the validity of the decision. While the decisions have referred to "imperative duties" and "inviolable limitations or restraints" those terms merely emphasise that observance of the duty, limitation or restraint is essential to the validity of the decision. 95 It is in that context the role of s 359A(1) is to be considered. Div 3 of Pt 5 of the Act provides for the "Review of decisions by Migration Review Tribunal", which are decisions in respect of visas (other than protection visas) that satisfy the criteria in s 338. Section 348 provides that the Tribunal "must review the decision" if an application for review is properly brought in respect of a decision under s 347. The conduct of the review is provided for in the procedural and machinery provisions set out in Div 5 of Pt 5. Some of the provisions provide for the applicant for review or the Tribunal to take particular steps in relation to the review (see for example, ss 358, 359, 361, 362 and 366). Other provisions create entitlements in favour of an applicant (see for example, s 362A) or confer powers on the Tribunal (see for example, ss 363, 364). 96 I considered the role of s 424A in the context of a merits review by the Refugee Review Tribunal of decisions in respect of protection visas in Al Shamry at 40 [39] - [40], in a passage which Ryan and Conti JJ concurred at 34 [20]: "s 424A enacts a basic principle of the common law rules of natural justice that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah(2001) 75 ALJR 889 at 912; 179 ALR 238 at 269 per McHugh J. By enacting s 424A and its counterparts elsewhere in the Act, the legislature has accepted that fairness dictates that an opportunity must be provided to applicants for visas or for review to respond to, or deal with, the adverse information. An applicant for a protection visa will have provided information relevant to the outcome of the application prior to applying for the review of a delegate's decision. Such information may, in some cases, have been provided prior to the application for a visa. The prescribed application form requires that the basis for the application be stated. Further, the information given may be supplemented by information provided subsequently to the Department or to the delegate of the Minister. An applicant may have no record of the information provided but, more importantly, may not be aware of its significance to the review ultimately to be conducted by the RRT. It is therefore understandable that the legislature would require that, in fairness, any adverse information provided prior to review, the significance of which the applicant may be unaware, be disclosed to the applicant to enable him or her to respond to it. That approach has particular importance in the context of the inquisitional and non-adversarial nature of proceedings before the RRT: see Paramananthan v Minister for Immigration and Multicultural Affairs(1998) 94 FCR 28 at 62-63." The same observations apply to the role of the Tribunal under s 359A. 97 The non-adversarial and inquisitorial nature of the review conducted by the Tribunal is significant: see for example Minister for Immigration and Multicultural Affairs v Wang (2003) 196 ALR 385 at 389 [12], 390 [18], 394 [37] and 403 [71]. It is inherent in the nature of such a review that, unbeknown to an applicant, the Tribunal will acquire information that may be adverse to the applicant's claim. In enacting s 359A(1) the legislature required that, unless the information falls within s 359A(4), particulars of it must be given by the Tribunal to the applicant if the information would be a reason for making an adverse decision. Plainly, s 359A(1) plays a critical role in securing procedural fairness in the decision-making processes of the Tribunal. 98 It is now well established that a failure to accord procedural fairness in respect of a decision provided for in the Act in relation to a visa can result in the decision being made in excess of jurisdiction for the purposes of s 75(v) of the Constitution: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ("Aala") at 89, 91, 130-131, 143 and 156. The High Court has also held that the Act, prior to the enactment of s 474, did not manifest an intention to exclude the rules of natural justice in respect of decisions of the Minister or his delegate concerning visas: see Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 ("Miah") at 75, 83-85 per Gaudron J, 97-98 per McHugh J and 111-115 per Kirby J; cf 73-75 per Gleeson CJ and Hayne J. Plainly, on the reasoning of the majority in Miah the same conclusion would be reached in respect of decisions of the Tribunal (and the Refugee Review Tribunal) reviewing decisions of the Minister or his delegate: see WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [52]-[56]; cf WAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 409 at [36]. 99 In Plaintiff S157/2002 it was accepted that s 474 does not operate to exclude the rules of natural justice or to validate a decision made in breach of those rules. In the joint judgment at 47 [83] their Honours stated: "Because, as this Court has held, the constitutional writs of prohibition and mandamus are available only for jurisdictional error and because s 474 of the Act does not protect decisions involving jurisdictional error, s 474 does not, in that regard conflict with s 75(v) of the Constitution and, thus, is valid in its application to the proceedings which the plaintiff would initiate. The plaintiff asserts jurisdictional error by reason of a denial to him of procedural fairness and thus s 474, whilst valid, does not upon its true construction protect the decision of which the plaintiff complains. A decision flawed for reasons of a failure to comply with the principles of natural justice is not a 'privative clause decision' within s 474(2) of the Act." Gleeson CJ stated at 36 [37] - [38]: "The principles of statutory construction stated above lead to the conclusion that Parliament has not evinced an intention that a decision by the Tribunal to confirm a refusal of a protection visa, made unfairly, and in contravention of the requirements of natural justice, shall stand so long as it was a bona fide attempt to decide whether or not such a visa should be granted. Decision-makers, judicial or administrative, may be found to have acted unfairly even though their good faith is not in question. People whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If Parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law does not require fairness on the part of the Tribunal in order for its decisions to be effective under the Act, then s 474 does not suffice to manifest such an intention. It follows that, in my view, if the Tribunal's decision in relation to the plaintiff was taken in breach of the rules of natural justice, as is alleged, then it is not within the scope of protection afforded by s 474. It is not, relevantly, a decision to which s 474 applies." 100 Underlying the above observations in the joint judgment and in the judgment of Gleeson CJ is the rule of construction that privative clauses are to be strictly construed (see 34-35 [29]-[33] of the judgment of Gleeson CJ and 44 [72] of the joint judgment). Further, the courts do not impute to the legislature an intention to abrogate fundamental rights unless such an intention is clearly manifested by unmistakable and unambiguous language (see 34 [30]). Thus, plain words of necessary intendment are required if a statute is to be taken to exclude the rules of natural justice in relation to decisions by a public officer that may defeat or prejudice a person's rights, interests or legitimate expectations: see Annetts v McCann (1990) 170 CLR 596 at 598 and Miah at 93 per McHugh J. Further, in the Act where the legislature intends to exclude the rules of natural justice in respect of a decision under the Act it has said so: see for example s 501(5) of the Act. 101 As explained above, s 359A(1) enacts an important aspect of the rules of natural justice, albeit in a somewhat more restricted form. For example, the rules of natural justice require disclosure of adverse information that could, rather than would, be prejudicial: see Kanda v Government of the Federation of Malaya [1962] AC 322 at 337 and Kioa v West (1985) 159 CLR 550 at 603, 629, 634. The observations to which I have referred in Aala, Miah and Plaintiff S 157/2002; the more restricted form of s 359A(1); its mandatory nature and its central importance in ensuring a fair review by the Tribunal; afford strong reasons for not construing s 474 as manifesting a legislative intent that a decision made in contravention of the requirements of s 359A(1) is validated by s 474. The above matters have led me to conclude that s 474 does not manifest a legislative intent that a decision made without compliance with s 359A(1), irrespective of how unfair that may have been, is nonetheless a valid decision. 102 For the above reasons the primary judge was correct in concluding that s 359A(1) imposes an imperative duty on the Tribunal and an inviolable limitation on its powers of review. Put another way, s 474 does not have the consequence that observance of s 359A(1) is not essential to the validity of the Tribunal's decision. It must follow that the decision made by the Tribunal in breach of s 359A(1) is invalid and the primary judge's declaration to that effect was properly made. 103 I have not made reference to or relied upon the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) as the Tribunal's decision was made before the commencement of this Act: see s 7(5). While the operation of the amending Act is yet to be determined it is clear that the legislative intent was to treat the statutory provisions enacting aspects of the natural justice hearing rule as exhaustive of the requirements of that rule. If the amending Act was to the effect that ss 359A and 424A is a code in respect of the Tribunal's obligation to inform an applicant of adverse information, that would reinforce the conclusions at which I have arrived. 104 Brief reference should be made to the decisions of the Full Court in NAAV. Although the five cases considered by the Full Court did not involve ss 359A or 424A the majority view was that s 474 operated to validate a decision that involved a failure to accord procedural fairness. Plainly, that decision cannot stand in the light of Plaintiff S157/2002: see SBBG v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 121 at [19]. Similarly, dicta in NAAV to the effect that s 474 would validate decisions made in breach of those sections unless the Hickman conditions were satisfied (see Beaumont J at 486 [116] – [119] and von Doussa J at 623 [672]; cf French J at 586-588 [532] – [536]) are inconsistent with the reasoning in Plaintiff S157/2002. 105 Finally, if I am wrong in my view that the decision is invalid by reason of the failure to comply with s 359A(1) that would raise the question of whether it is invalid in any event on the ground that there was a failure by the Tribunal to accord procedural fairness to the respondent: see VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [31]. In view of the conclusion I have reached it is unnecessary to consider that question. Discretion 106 The Minister contended the Court should exercise its discretion to refuse relief as the breach of s 359A(1) was merely technical and did not affect the outcome. Generally, relief for a failure to comply with a requirement of procedural fairness is withheld only where the Court concludes that compliance with the requirement "could have made no difference": see Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145. As was noted in Bax v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 55 at [18] such an outcome will be a rarity and it is no easy task to convince a court to adopt it. While the above observations were made in relation to refusal of relief where there has been a failure to comply with the common law requirements in respect of procedural fairness I see no reason for not applying them to the failure to comply with s 359A(1) that has occurred in the present case. 107 As explained earlier in these reasons the failure to comply with s 359A(1) related to matters concerning the respondent's credibility, which was critical to the decision of the Tribunal against the respondent. In those circumstances I am not satisfied that compliance with s 359A(1) "could have made no difference". Thus, the Minister has not established that the trial judge erred in not exercising his discretion to dismiss the application notwithstanding the Tribunal's failure to comply with s 359A(1). Accordingly, I am not satisfied that the trial judge erred in concluding that he should not exercise his discretion to refuse relief. Conclusion 108 For the above reasons it is my view that the appeal is to be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 26 June 2003 For the Appellant: Mr Anthony Cavanough QC with Mr Chris Horan Solicitor for the Appellant: Australian Government Solicitor For the Respondent: The respondent appeared in person Date of Hearing: 26 November 2002 and 27 February 2003 Date of Judgment: 26 June 2003