FEDERAL COURT OF AUSTRALIA Kwan v Minister for Immigration & Multicultural Affairs [2002] FCA 498 MIGRATION – Migration Review Tribunal – student visa – visa subject to conditions – substitution of conditions – requirement to comply substantially with conditions attaching to earlier visa – when takes effect – error of law – privative clause – whether privative clause applies to narrow jurisdictional error – meaning of narrow jurisdictional error WORDS AND PHRASES – "complied substantially" Migration Act 1958 (Cth) s 474 Migration Regulations 1994 (Cth) Sch 2 cl 560.213, cl 560.611(1), Sch 8 condition 8202 Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) Sch 4 items 4(2), 4(3) Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 discussed Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438 discussed Craig v State of South Australia (1995) 184 CLR 163 applied Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 applied Edwards v Giudice (1999) 94 FCR 561 referred to Hunter Resources Ltd v Melville (1988) 164 CLR 234 referred to Hockey v Yelland (1984) 157 CLR 124 applied Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 referred to NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 discussed O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 referred to Public Service Association (SA) v Federated Clerks' Union of Australia (1991) 173 CLR 132 applied R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361 referred to R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 discussed R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 referred to Lord Bingham of Cornhill, "The New Despotism", Israel Law Review, Vol 33 No 2 169 KWAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V1160 of 2001 FINKELSTEIN J MELBOURNE 23 APRIL 2002 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1160 of 2001 BETWEEN: KAR LAM KWAN Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: FINKELSTEIN J DATE OF ORDER: 23 APRIL 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The decision of the Migration Review Tribunal made on 9 October 2001 be set aside. 2. The matter be remitted to the tribunal for its reconsideration in accordance with these reasons. 3. The respondent pay the applicant's costs of the proceeding. 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 1160 of 2001 BETWEEN: KAR LAM KWAN Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: FINKELSTEIN J DATE: 23 APRIL 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, Mr Kwan, sought, but was unable to persuade a delegate of the Minister that he was entitled to, the grant of a Student (Temporary) (Class TU) visa. His application to the Migration Review Tribunal for review of the delegate's decision was unsuccessful. He now asks for a writ of prohibition to prevent the Minister acting upon the tribunal's decision, and implicitly seeks the issue of a writ of certiorari to quash the decision, with an order requiring the tribunal to rehear the application. 2 As its name implies, a student visa is available to a non-citizen who wishes to enter and remain in Australia for the purpose of undertaking studies at an appropriate educational institution. It is granted for a limited period and is subject to conditions, including conditions relating to attendance at class and the achievement of satisfactory academic results. It will be necessary to look at these conditions in a little more detail in a moment, for they lie at the heart of this case. 3 It seems that it is not unusual for a non-citizen who seeks to undertake his (or her) education in Australia to require more than one student visa, because the length of time for which a student visa is granted is not always sufficient for the non-citizen to complete his chosen course of study. That is what occurred in the case of Mr Kwan. Originally he had been granted a student visa on 1 October 1996 which was valid until 26 February 1998. On that date a further visa was issued with an expiry date of 15 March 2001. This proceeding is concerned with Mr Kwan's application for a third student visa. 4 According to cl 560.611(1) of the second schedule to the Migration Regulations 1994 (Cth), one condition to which Mr Kwan's first visa was subject when it was granted was condition 8202 which was set out in Sch 8 of the Regulations. Condition 8202 was in the following terms: "The holder must: (a) be enrolled in a registered course; and (b) attend at least 80% of the classes and tutorials scheduled for the course, as evidenced by records of attendance of the education provider or otherwise; and (c) if attendance cannot be evidenced, achieve an academic result for the course that is certified by the education provider to be at least satisfactory; and (d) comply with any requirement of the education provider in relation to payment of fees for the course." 5 On 21 December 2000 the Migration Legislation Amendment (Overseas Students) Act 2000 (Cth) came into force. One consequence of the amending Act was to bring about a change in the conditions which attached to student visas. In particular, for all student visas that were in force on 21 December, condition 8202 was replaced by a new condition. The new condition was as follows: "(a) in the case of the holder of a Subclass 560 visa who is an AusAID or secondary school exchange student – the holder is enrolled in a full-time course of study; and (b) in any other case – the holder is enrolled in a registered course; and (c) in the case of a holder whose education provider keeps attendance records – the Minister is satisfied that the holder attends for at least 80% of the contact hours scheduled: (i) for a course that runs for less than a semester – for the course; or (ii) for a course that runs for at least a semester – for each term and semester of the course; and (d) in any case – the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester – for the course; or (ii) for a course that runs for at least a semester – for each term or semester (whichever is shorter) of the course." See item 4(3) of Sch 4 of the amending Act. 6 There are obvious differences between the old and the new condition. For present purposes, it is only necessary to note one difference. In the original condition, the holder of the visa was required to attend at least 80% of his classes or achieve a satisfactory academic result. Under the new condition, those requirements are cumulative. 7 To obtain his third student visa, Mr Kwan was required, at the time of his application, to satisfy the criteria set out in cl 560.21 of Sch 2 of the Regulations. One criterion was that Mr Kwan had "complied substantially with" the conditions to which his last visa was subject: cl 560.213. So, Mr Kwan had to show that he had complied substantially with the original condition 8202 while his visa was subject to that condition (that is until 21 December 2000), and thereafter he had to show that he had complied substantially with the new condition. In substance, Mr Kwan was only required to meet the new condition for ten days, namely from 5 March 2001, when the new academic year commenced, until 15 March 2001, when his previous visa expired. 8 The tribunal affirmed the decision of the delegate because it was of opinion that Mr Kwan had not substantially complied with condition 8202 in relation to his last visa. The tribunal reached this conclusion by making the assumption that the new condition applied to Mr Kwan's visa from the time of its grant. It found that Mr Kwan had not substantially complied with that condition, particularly in the years 1999 and 2000. The tribunal made a serious mistake in adopting this approach. It rejected the application for the reason that Mr Kwan had not satisfied a condition to which his visa was not subject, except for a period of ten days. It made no inquiry as regards whether Mr Kwan had satisfied the original condition 8202 during the period in which his visa was subject to that condition. 9 The Minister argued that all student visas that were current when the amending Act came into force not only became subject to the new condition, but that condition had retrospective effect, thereby replacing the old condition as if it had never existed. I reject this submission. In the first place there is nothing in the language of the amending Act which would produce that result. In the second place, I would not attribute to Parliament such a perverse intention unless I was compelled to do so by unambiguous language. In my opinion not only is the language of the amending legislation not ambiguous in that sense, it is to the opposite effect. The Minister drew particular attention to item 4(2) of Sch 4 of the amending Act which provides that "[c]ondition 8202 of each visa to which this item applies is taken for all purposes to be as set out in [the new provision] instead of as set out in [the old provision]". A useful example of how this provision has effect is the instant case. That is, for the purposes of Mr Kwan's third application, his last visa is to be treated as subject to the new condition. The item says nothing about the timing of the change. 10 This brings me to the consequences of the tribunal's legal error, for it is apparent that it has fallen into legal error, although it provided no explanation for adopting the approach that it did. I suppose it is possible that the tribunal made a mistake in its construction of the amending Act. Perhaps it did not consider the matter at all. Whatever be the cause of its error, however, it does not bear upon the legal consequences that will result from its mistake. 11 Ordinarily one would expect the tribunal's decision to be set aside as of course, so that it can reconsider the matter in the manner it was required to do. But this is not an ordinary case. Now limitations have been imposed upon the ability of the court to set aside decisions made under the Migration Act or the Regulations. These decisions are divided into two categories, privative clause decisions and decisions that are not privative clause decisions. The decision of the tribunal affirming the delegate's refusal to grant the student visa is a "privative clause decision" by virtue of the definition in s 474(2). According to s 474(1) "[a] privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called into question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 12 Notwithstanding its apparent breadth, a provision such as s 474(1) is subject to significant limitations. Indeed privative provisions of this type have had limited success in protecting administrative decisions from judicial review. The leading case is R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. In that case it was held that such a clause requires an "invalid" decision to be treated as valid if the three conditions stated by Dixon J are satisfied. However, as Mason CJ pointed out in O'Toole v Charles David Pty Ltd (1990) 171 CLR 232, 249, the scope and content of the conditions in the Hickman principle, have not been examined in any detail. And there is no need to conduct that examination in the present case. I can dispose of this case by applying the principle that a privative clause such as is found in s 474(1) is not effective to oust prerogative relief for what is sometimes referred to as narrow jurisdictional error. As to the inability of a privative clause to oust this court's jurisdiction in the case of narrow jurisdictional error see Hockey v Yelland (1984) 157 CLR 124, 130 per Gibbs CJ ("[A] provision that a decision shall be final does not prevent the issue of certiorari for excess of jurisdiction or error of law on the face of the record, and in my opinion the addition of the words 'and conclusive' does not have that effect"); Public Service Association (SA) v Federated Clerks' Union of Australia (1991) 173 CLR 132, 141 per Brennan J ("[T]his Court construes general privative clauses as impliedly exempting certiorari for jurisdictional error from the ouster of supervisory jurisdiction"), 160 per Dawson and Gaudron JJ ("[A] clause which is expressed only in general terms may be construed so as to preserve the ordinary jurisdiction of a superior court to grant relief by way of the prerogative writs of mandamus or prohibition in the case of jurisdictional error constituted by failure to exercise jurisdiction or by an act in excess of jurisdiction"); Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602, 633-634, per Gaudron and Gummow JJ ("[A] clause which merely provides that a decision is to be final and conclusive is construed as not excluding certiorari for error of law on the face of the record. So, too, a clause which provides only that a decision may not be called into question in a court of law is construed as not excluding review on the ground that the decision involved jurisdictional error"). 13 The meaning of jurisdictional error in the sense now under consideration was explained in Craig v State of South Australia (1995) 184 CLR 163. There the High Court said (at 177-178) that one way in which an administrative decision maker may fall into jurisdictional error is by disregarding a matter which it was required to take into account in deciding the case. Whether or not Mr Kwan satisfied the original condition may be such a matter. Another way a decision-maker may fall into jurisdictional error is if he misconceives the nature of the function which he is performing or the extent of his powers in the circumstances of the particular case. This is precisely what occurred when the tribunal considered Mr Kwan's case. It applied the new condition as if Mr Kwan's last visa had always been subject to it, even though the condition, in its practical operation, had applied to him for only ten days. 14 I do not think that the conclusion I have reached is directly inconsistent with NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263, a case which concerned the failure by the tribunal to comply with the rules of natural justice. That is not to suggest that I agree with all that Gyles J said, especially as regards whether a privative clause will protect decisions that suffer from jurisdictional error. Prior to 1969 there was a distinction drawn between what some lawyers referred to as "narrow jurisdictional error" and other errors of law in relation to an act done by an administrative body the doing of which was within its general power but which was done in error. "'Jurisdiction' in the narrow original sense" (here I use the language of Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171) involved a serious or manifest error of law and included errors such as the following: giving a decision in bad faith, making a decision which the decision maker had no power to make, failing to accord natural justice, refusing to take into account something which the decision maker was required to take into account, basing his decision on something the decision maker was not permitted to take into account and situations where the decision maker has, as in this case, "in perfect good faith…misconstrued the provisions giving [him] power to act so that [he] failed to deal with the question remitted to [him] and decided some question which was not remitted to [him]": Anisminic at 171. 15 With few exceptions, purported decisions that suffer from narrow jurisdictional error are not decisions at all: see generally Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117. Subject to an important qualification, it was only in respect of that kind of error that prerogative relief would go, until Anisminic extended the meaning of jurisdictional error for which prerogative relief was available to all errors of law, so that now, at least in England, the expression "jurisdictional error" no longer has relevance in this context. Anisminic is regarded as a decision of fundamental importance. The Lord Chief Justice, Lord Bingham of Cornhill referred to it as one of the "two decisions which, more than any other, showed that the courts were willing once again to recognise and discharge their historic responsibilities": see his article "The New Despotism", Israel Law Review, Vol 33, No 2, 169 at p. 189. The examples of jurisdictional error given by the High Court in Craig in the passage to which I referred earlier concern errors of "jurisdiction in the narrow original sense". 16 One reason that moved Gyles J to conclude that purported decisions flawed by jurisdictional error could be rendered effective by a general privative clause was that to hold otherwise would leave "privative clauses virtually devoid of content": NAAX at par 30. This approach ignores the fact that the remedies of certiorari and prohibition were developed by the King's Bench to quash, or prevent the enforcement of, decisions which suffered from defects of form on the record; that is for error on the face: Holdsworth "History of English Law" vol VI, 112, 263 and vol X, 115; R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338. It was not until much later that the remedies were used in relation to decisions that suffered from excess of jurisdiction. If a general privative clause is confined to "prevent prohibition going in cases of procedural deficiencies" (R v Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd (1947) 75 CLR 361, 369 per Latham CJ and Dixon J, a case upon which Gyles J relied), that is, if the privative clause is confined to errors of law on the face of the record, it can hardly be said that the clause is given virtually no operation. 17 I should also make passing reference to Boakye-Danquah v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 438. In that case, which was also concerned with a decision of the tribunal, Wilcox J said "[a] particular error of law is either a jurisdictional error or it is not. If it is a jurisdictional error, the High Court may grant relief under s 75(v) of the Constitution; so this Court also has jurisdiction to grant relief, under s 39B(1) of the Judiciary Act. If the error is not jurisdictional, s 75(v) relief is unavailable". I accept that it might be necessary to retain the distinction between an error of law and a jurisdictional error of law when considering the effect of a privative clause, as the High Court has done in the cases to which I have referred. Perhaps that is the only point that Wilcox J was making. If, however, Wilcox J was expressing the view that in Australia there should still be maintained the distinction between narrow jurisdictional error of law in respect of which judicial review will be granted, and other errors of law, where judicial review is not available, I am unable to agree with him. For the reasons I gave in Edwards v Giudice (1999) 94 FCR 561, whenever an administrative decision maker commits an error of law his decision should be amenable to review, unless that right is removed by a lawful enactment. 18 Before leaving this case there is one final point I wish to mention, lest it be thought that I have overlooked it. Clause 560.213 requires the tribunal to determine whether an applicant for a student visa has "complied substantially with" the conditions of his last visa. On one view, if the various components of condition 8202, either in its original or new form, are looked at individually, it may not be possible to comply substantially with each of these. In some cases (for example the requirement to obtain certification of satisfactory academic results) they are either complied with or they are not complied with: compare Hunter Resources Ltd v Melville (1988) 164 CLR 234, 248. Although the point was not argued, I incline to the view that the way compliance with a condition such as condition 8202 should be approached is to determine generally what is required by the condition and see whether or not there has been substantial compliance with that general requirement. If the tribunal adopts that approach, cl 560.213 can be given its full scope. In this case it does not appear that this is what the tribunal did. 19 In the result I will quash the purported decision of the tribunal and remit the matter back for its reconsideration. Mr Kwan will have his costs of the proceeding. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 23 April 2002 Counsel for the Applicant: Ms S Frederico Solicitor for the Applicant: Wayne Wong & Associates Counsel for the Respondent: Ms H Riley Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 5 April 2002 Date of Judgment: 23 April 2002