FEDERAL COURT OF AUSTRALIA Takitaki v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 445 MIGRATION LAW - application under s 39B of the Judiciary Act 1903 (Cth) for relief by way of prerogative writ in relation to two decisions of the Migration Review Tribunal refusing applications for bridging visas – whether error made by Tribunal in the first decision fell outside the operation of privative clause – whether the Tribunal made an error of law in the second decision. Migration Act 1958 (Cth) ss 59, 474(1) Judiciary Act 1903 (Cth) s 39B R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 followed Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 cited NAAX v The Minister for Immigration and Multicultural Affairs [2002] FCA 263 cited NABE v The Minister for Immigration and Multicultural Affairs [2002] FCA 381 cited SIAATOUTAI TAKITAKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1649 OF 2001 SIAATOUTAI TAKITAKI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 181 OF 2002 HILL J 9 APRIL 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA GENERAL DISTRIBUTION NEW SOUTH WALES DISTRICT REGISTRY N 1649 OF 2001 BETWEEN: SIAATOUTAI TAKITAKI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HILL J DATE OF ORDER: 9 APRIL 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 181 OF 2002 BETWEEN: SIAATOUTAI TAKITAKI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HILL J DATE OF ORDER: 9 APRIL 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY BETWEEN: SIAATOUTAI TAKITAKI N 1649 OF 2001 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS BETWEEN: RESPONDENT AND: SIAATOUTAI TAKITAKI N 181 OF 2002 APPLICANT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: HILL J DATE: 9 APRIL 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Before the court is an application made under s 39B of the Judiciary Act 1903 (Cth) in effect seeking writs of mandamus, certiorari or prohibition against the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister"), in relation to two decisions of the Migration Review Tribunal ("the Tribunal") refusing his application for bridging visas and affirming decisions to that effect made by the Minister or a delegate of the Minister. 2 The history of applications made by the applicant since his arrival in Australia on 11 June 1988 is set out in a chronology appearing as part of the submissions put to me by counsel for the Minister. That history is a sorry one. It demonstrates that a person may remain in this country for some nine years continually making applications for visas which are rejected, sometimes remaining in the country illegally and contrary to law, working here. However, that history, sorry though it may be, has no particular relevance to the outcome of the present applications. the first decision 3 The first decision in respect of which the application is made is a decision of the Tribunal given on 10 December 2001 refusing the applicant's application for a bridging visa lodged by the applicant with the Minister on 27 November 2001. That application was brought in support of an application made by the applicant for a special eligibility-close ties visa. Application for a bridging visa was rejected by the Minister or delegate on 29 November 2001. Application was then made by the applicant to the Tribunal for review of the decision refusing to grant to him a bridging visa. 4 The Tribunal was obliged under the Migration Act 1958 (Cth) ("Act") to consider whether it was satisfied that the applicants met one or more of certain criteria set out inter alia in Part 050 of Schedule 2 of the Migration Regulations 1994 (Cth) ("the Regulations"). It is common ground that the only relevant criteria that the applicant might have complied with was that, at the time of the hearing before the Tribunal, and at the time of application, he had an outstanding application for merit in or judicial review in relation to the substantive visa. The Tribunal concluded that the applicant did not satisfy this criteria. In paragraph 38 of the Tribunal's reasons (10 December 2001) it dealt with the matter and concluded that there was no outstanding application still on foot. 5 It is conceded by counsel on behalf of the Minister that in reaching this conclusion the Tribunal erred. At the time the application for the bridging visa was made and at the time the decision was given by the Tribunal the application for a close ties visa had not been finally determined within the meaning of s 59 of the Migration Act 1958 (Cth). the second decision 6 The second matter before the court concerns a further application for a bridging visa lodged by the applicant on 25 January 2002. That application was refused by the Minister or delegate of the Minister on 30 January 2002 following which the applicant immediately made an application to the Tribunal to review the decision refusing to grant to him the bridging visa and affirming the Minister's decision accordingly. 7 The Tribunal, on this occasion, correctly determined that at the time of making the application and at the time of the Tribunal's decision the applicant's application for the special eligibility-close ties substantive visa had not been finally determined. The Tribunal then proceeded to determine what if any conditions would be imposed in connection with the grant of a bridging visa. It should be noted here that the applicant is in detention and has been for some time so that the issue before the Tribunal was inter alia whether, if released, he would abide by any conditions imposed. 8 Another issue for the Tribunal was whether security should be requested to ensure that the applicant would abide by any conditions it might impose and if so the amount of such security. The Tribunal considered that the imposition of certain conditions were appropriate. These included: that the applicant not engage in work in Australia and that he continue to live at a specified address. The Tribunal concluded that it was not satisfied, having regard to the history placed before it, that the applicant would abide by the no work condition. He had, after all, on his own evidence, admitted that he had worked unlawfully the whole time he had been in Australia since 1988. 9 The Tribunal was also not satisfied that the applicant would be able to reside at the relevant address with a Mr Da Fina. Accordingly the Tribunal found that the applicant would not abide by the conditions it thought appropriate and hence that the applicant did not meet the requirements of clause 050.223. Further, although the applicant told the Tribunal that Mr Terita Takitaki would be able to lodge the security of $6,000 the Tribunal was of the view that no amount of security would enable the Tribunal to be satisfied that he would abide by the conditions set out. It concluded that, in all the circumstances, requesting a security would not provide the necessary incentive for the applicant to abide by the nominated conditions. THE HEARING BEFORE ME 10 The applicant was not represented in the proceedings before me. He did, however, have the assistance of an interpreter and had arranged for the preparation of some submissions which had been prepared with the aid of a friend. In essence, those submissions say that the applicant satisfied the relevant criteria and that the second decision not to request a security was "inappropriate and wrong in law which has positive effect of keeping the applicant indefinitely in custody". I do not understand that in saying this the applicant is suggesting that the Tribunal member in some way reached his decision in bad faith and for a motive not permitted by the Act such as keeping a person indefinitely in custody. If that is suggested, I would reject the implication. There is nothing in the Tribunal's reasons that would suggest that its decision was so motivated. cONCLUSION IN RESPECT OF THE SECOND DECISION 11 Counsel for the Minister has submitted in respect of the second decision that no basis at all has been made out either to show jurisdictional error or error on the face of the record such as would found the grant of a prerogative writ. Indeed, it is clear to me that in this second decision the Tribunal has made no error of law at all. Its finding that the applicant would not comply with any condition imposed, even if security were given, is ultimately a matter for it. The Court has no jurisdiction to consider for itself whether that conclusion should be reached. The Court is not engaged in a review of the merits of the applicant's case. I would ordinarily dismiss the application relating to the second decision. There is no need for me to consider in respect of it the consequences of s 474(1) of the Act. CONCLUSIONS IN RESPECT OF THE FIRST DECISION 12 There is, however, a matter which arises in relation to the first decision to which I now turn. 13 It is submitted for the Minister that I should dismiss the application in respect of the first decision for three reasons. First, it is submitted that I should do so as a matter of discretion because the applicant subsequently made a further application for the same kind of bridging visa and that application has been dealt with by the Tribunal in the second decision and on its merits. Evidence before me shows also that yet a further application for a bridging visa was made by the applicant, refused by the Minister or a delegate and referred to the Tribunal. That further application was given on 5 April 2002 when the Tribunal affirmed the Minister's decision and found that he was not entitled to the grant of a Bridging Visa (Class WE). To return the matter again to the Tribunal would mean that within a very short space of time the same issues would be before the Tribunal. 14 It was pointed out also that s 74 of the Migration Act 1958 (Cth) would permit the applicant, within thirty days of the last refusal of a bridging visa again to apply for a new visa. I am told from the Bar Table that no fee is payable so it is said that to set aside the present decision and have it referred back to the Tribunal would in reality be an exercise in futility. 15 There is much to be said for the argument, although as counsel for the Minister conceded, the making of a new application could involve the lapse of further time during which the applicant would be still in detention. Further there is the possibility, although it is somewhat remote, that the applicant's circumstances might have changed since the last occasion he was before the Tribunal on 5 April 2002. 16 I prefer, however, to rest my decision on other grounds. 17 Secondly, it was submitted that the error made by the Tribunal was not one that went to the Tribunal's jurisdiction nor was it an error on the face of the record in the sense that those words are used in connection with writs of certiorari. In my view the error made was not one which went to jurisdiction. The question of what the record is in cases of writs of certiorari is not an easy one and the present is not a case in which it is appropriate to consider whether the reasons of the Tribunal form a part of the record in a relevant sense. 18 The third submission was that the court is precluded from reviewing the first decision by virtue of section 474(1) of the Act because the decision is a "privative clause decision" as defined in that section. Being a privative clause decision it is final and conclusive and cannot be challenged in a court. Specifically it is not subject to prohibition, mandamus, declaration or certiorari. 19 There have been many cases in the High Court which have considered privative clauses either in legislation or in regulations in virtually identical form to s 474(1) 20 The leading case is the decision in R v Hickman; Ex parte Fox v Clinton (1945) 70 CLR 598. The long line of cases which have followed Hickman has continued until Darling Casino Limited v New South Wales Casino Authority (1997) 191 CLR 602. It is not necessary to summarise in detail these decisions. Some principles have however emerged. 21 First, it is clear that a question of construction arises where legislation on the one hand prescribes various conditions surrounding the exercise of a power and on the other hand contains a privative clause. The court is bound to give effect to legislation which parliament has passed, but considered as a whole. However it is clear that where, for example, legislation requires a tribunal to proceed with a quorum a decision made by the Tribunal without the quorum being present will not be saved by the privative clause, and Parliament cannot be taken to have intended to permit the absence of such a quorum, a matter of great significance, to be in effect ignored by the privative clause. On the other hand, where legislation requires a tribunal to consider a particular issue and the tribunal does not do so because it makes some error, a privative clause will generally be interpreted as operating to protect the tribunal's decision. The question of construction will obviously depend upon the particular legislation and the particular error which has been committed. 22 There have been a number of cases in recent times in this court where privative clauses have been considered and discussed. I mention only two of them because they are referred to by counsel for the Minister in the submissions. These are the decision of Gyles J in NAAX v The Minister for Immigration and Multicultural Affairs [2002] FCA 263 and the decision of Tamberlin J in NABE v The Minister for Immigration and Multicultural Affairs [2002] FCA 281 at 30. The legislation in these cases is basically the same as in the present case although the particular matters under consideration were different from those arising here. 23 Whatever the outer limits of a privative clause may be in the present context, the error committed by the Tribunal in making its first decision is in my view not such as to fall outside the operation of the privative clause. The case is one where the Tribunal did in fact exercise its jurisdiction but for whatever reason, be it error of fact or error of law, reached the wrong conclusion on the question whether the outstanding substantive visa application had been finally determined. 24 It should be also said that the three exceptions discussed in the judgment of Sir Owen Dixon in Hickman as standing outside the operation or effect of a privative clause are not met in the present case. Specifically it is obvious that the decision was a bona fide attempt to exercise the Tribunal's power. Secondly, the decision does relate to the subject matter of the legislation and thirdly it is reasonably capable of reference to the power which is given to the Tribunal. In my view the mistake made by the Tribunal arose bona fide and bore on its face every appearance of an attempt to exercise the power which was sought to be exercised. Accordingly the Tribunal's exercise of power obtains the protection of s 474(1) of the Act and is conclusive. Thus I have no jurisdiction to grant the relief which the applicant seeks even if, otherwise, the error made would be contrary to my view, such as to ground prerogative relief. I would accordingly dismiss the application. 25 An application is made by the Minister that Mr Takitaki pay the costs of the hearing. That would include all the costs up to date. It is normal for a litigant who loses to be ordered to pay the costs. Before I make any order, however, I will listen to any submission Mr Takitaki may wish to make as to why I should not make such an order. As no submissions were made by Mr Takitaki the applicant is ordered to pay the Minister's costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 9 April 2002 Counsel for the Applicant: The applicant appeared in person assisted by an interpreter Solicitor for the Applicant: Counsel for the Respondent: G Kennett Solicitor for the Respondent: Sparke Helmore Date of Hearing: 9 April 2002 Date of Judgment: 9 April 2002