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MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's refusal to grant a spouse visa - whether the MRT decision shows a lack of good faith - whether an inviolable pre-condition on the exercise of power by the MRT was breached - whether the applicant was misled by the MRT in the provision of information - whether the MRT applied the wrong definition of "spouse" - declaration of invalidity granted.

Kodama v Minister for Immigration [2002] FMCA 262 (29 November 2002)

Kodama v Minister for Immigration [2002] FMCA 262 (29 November 2002)
Last Updated: 3 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KODAMA v MINISTER FOR IMMIGRATION
[2002] FMCA 262



MIGRATION - Review of Migration Review Tribunal decision affirming a delegate's refusal to grant a spouse visa - whether the MRT decision shows a lack of good faith - whether an inviolable pre-condition on the exercise of power by the MRT was breached - whether the applicant was misled by the MRT in the provision of information - whether the MRT applied the wrong definition of "spouse" - declaration of invalidity granted.



Migration Act 1958 (Cth), ss.65, 353, 420, 474, 499

Migration Regulations 1994

Freedom of Information Act 1982 (Cth)

Privacy Act 1988 (Cth)

NAAV v Minister for Immigration [2002] FCAFC 228

NAGT of 2002 v Minister for Immigration [2002] FCAFC 319

NAIN v Minister for Immigration [2002] FMCA 177

SCAZ v Minister for Immigration [2002] FCA 1377

The Queen v Coldham; ex parte Australian Workers Union (1983) 153 CLR 415

WADK v Minister for Immigration [2002] FMCA 175

Wu v Minister for Immigration [2002] FCA 1242

Zahid v Minister for Immigration [2002] FCA 1108

Applicant:
NOBUKO KODAMA



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ418 of 2002



Delivered on:


29 November 2002



Delivered at:


Sydney



Hearing Date:


30 October 2002



Judgment of:


Driver FM



REPRESENTATION

Solicitors for the Applicant:


Mr R Turner

Yandell Wright Stell



Solicitors for the Respondent:


Mr G Peek

Australian Government Solicitor



THE COURT DELCARES THAT

(1) The decision of the Migration Review Tribunal made on 20 May 2002 is invalid and of no effect.

THE COURT DIRECTS THAT

(1) The parties have liberty to apply for further orders arising out of these orders on five days notice.

THE COURT ORDERS THAT

(1) The respondent is to pay the applicant's costs and disbursements of and incidental to the application, fixed at $3,800.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ418 of 2002

NOBUKO KODAMA


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. The applicant seeks judicial review of a decision of the Migration Review Tribunal ("the MRT") made on 20 May 2002. The MRT affirmed a decision of a delegate of the respondent Minister refusing to grant the applicant a spouse (migrant) (class BC) visa. The applicant is a Japanese national, born on 13 January 1970, who first applied for permanent residence on 26 July 1996. On 11 June 1997 the applicant was granted an extended eligibility (temporary) (class TK) sub class 820 visa.

2. The immigration history of the applicant shows that she entered Australia on a sub class 670 (tourist) visa on 20 June 1993. That visa expired on 21 September 1993 and she left Australia on 11 July 1993. She returned to Australia on a further sub class 670 (tourist) visa on 23 December 1994 and left Australia again on 7 January 1995. She then applied for and obtained a working holiday visa and arrived in Australia on 1 August 1995. During the life of that visa she applied for a sub class 820 (spouse) visa. After receiving an unfavourable decision from the Department regarding the sub class 801 visa and upon lodging her application for review to the RRT the applicant was issued with a bridging visa. She has held a series of bridging visas since then.

3. The applicant was granted an extended eligibility (temporary) (class TK) sub class 820 visa on 11 June 1997 on the basis that she was the spouse of David Ralph Filer. However, the applicant was refused a sub class 801 visa on the basis that she did not satisfy the prescribed criteria, relating to her de facto relationship with Mr Filer. Essentially, the delegate of the Minister did not accept that this relationship was genuine and continuing. Upon review, the MRT agreed.

The relevant legislation

4. The Migration Act 1958 (Cth) ("the Migration Act") and the various regulations made under the Migration Act, principally the Migration Regulations 1994 ("the Regulations"), provide for different classes of visas, and the criteria for the grant of visas. In reaching a decision, the MRT is bound by the Migration Act, relevant regulations and written directions issued by the Minister under s.499 of the Migration Act.

5. Section 65 of the Migration Act also applies to decisions by the MRT to grant or refuse a visa. That section requires that, after considering a valid application for a visa, the decision maker, if satisfied that, among other things, the criteria prescribed by the Migration Act or the Regulations have been satisfied, is to grant the visa or, if not so satisfied, is to refuse to grant the visa. It is common ground that the relevant criteria and policy are item 1119 of schedule 1 to the Regulations, part 801 of schedule 2 to the Regulations and regulation 1.15A (definition of spouse). The criteria for a sub class 801 visa are set out in Part 801 of schedule 2 to the Regulations. In order to be granted a sub class 801 visa, the visa applicant must satisfy the criteria in clause 801.221 at the time of the decision. The terms of clause 801.221 are material to this application and accordingly, I quote the material parts:

(1) The applicant meets the requirements of sub clause (2), (3), (4), (5), (6) or (8);

(2) An applicant meets the requirements of this sub clause if:

(a) the applicant is the holder of sub class 820 visa; and

(b) the applicant continues to be sponsored for the grant of the sub class 820 (spouse) visa by:

(i) the sponsoring spouse; or

(ii) the Australian citizen, Australian permanent resident or eligible New Zealand citizen who sponsored the applicant for that visa; and

(c) the applicant is the spouse of the sponsoring spouse; and

(d) subject to sub clauses (6A) and (7), at least two years have passed since the application was made.

(6) An applicant meets the requirements of this sub clause if:

(a) the applicant is the holder of a sub class 820 visa; and

(b) the applicant would meet the requirements of sub clause (2) except that the relationship between the applicant and the sponsoring spouse has ceased;

(c) either or both of the following circumstances applies:

(i) either or both of the following:

(A) the applicant;

(B) a dependent child of the sponsoring spouse or of the applicant or of both of them;

has suffered domestic violence by the sponsoring spouse;

(ii) the applicant:

(A) has custody of, or access to; or

(B) has a residence order or contact order made under the Family La w Act 1975 relating to;

at least one child in respect of whom the sponsoring spouse:

(C) has been granted joint custody or access by a court; or

(D) had a residence order or contact order made under the Family Law Act 1975; or

(E) has an obligation under a child maintenance order made under the Family Law Act 1975, or any other formal maintenance obligation.

6. Although lengthy, the terms of the definition of "spouse" in regulation 1.151A are also relevant and I reproduce that regulation in full:

For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:

(a) in a married relationship, as described in subregulation (1A); or

(b) in a de facto relationship, as described in subregulation (2).

(1A) Persons are in a married relationship if:

(a) they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and

(b) the Minister is satisfied that:

(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii) the relationship between them is genuine and continuing; and

(iii) they:

(A) live together; or

(B) do not live separately and apart on a permanent basis.

(2) Persons are in a de facto relationship if:

(a) they:

(i) are of opposite sexes; and

(ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and

(iii) are not within a relationship that is a prohibited relationship for the purposes of subsection 23B (2) of the Marriage Act 1961; and

(b) they are of full age, that is:

(i) if either of the persons is domiciled in Australia -- both of them have turned 18; or

(ii) if neither of the persons is domiciled in Australia -- both of them have turned 16; and

(c) the Minister is satisfied that:

(i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii) the relationship between them is genuine and continuing; and

(iii) they:

(A) live together; or

(B) do not live separately and apart on a permanent basis; and

(d) subject to paragraph (e) and subregulation (2A), where either of them is an applicant for a permanent visa, a Partner (Provisional) (Class UF) visa, or a Partner (Temporary) (Class UK) visa -- the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship:

(i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii) the relationship between them was genuine and continuing; and

(iii) they had:

(A) been living together; or

(B) not been living separately and apart on a permanent basis; and

(e) where either of them is an applicant for a Resolution of Status (Residence) (Class BL) or Resolution of Status (Temporary) (Class UH) visa -- the Minister is satisfied (unless the applicant can establish compelling and compassionate circumstances for the grant of the visa) that, for the period of 12 months immediately preceding 13 June 1997:

(i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii) the relationship between them was genuine and continuing; and

(iii) they had:

(A) been living together; or

(B) not been living separately and apart on a permanent basis.

(2A) Paragraph 2 (d) does not apply if:

(a) the applicant is applying as:

(i) the spouse of a person who:

(A) is, or was, the holder of a permanent humanitarian visa; and

(B) before that permanent humanitarian visa was granted, was in a relationship with the applicant that satisfies the requirements of subparagraphs (2) (c) (i), (ii) and (iii) and of which Immigration was informed before the visa was granted; or

(ii) a member of the family unit of a person who is an applicant for a permanent humanitarian visa; or

(b) the applicant can establish compelling and compassionate circumstances for the grant of the visa.

(3) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for:

(ab) a Special Eligibility (Residence) (Class AO) visa; or

(ad) a Partner (Migrant) (Class BC) visa; or

(ae) a Partner (Provisional) (Class UF) visa; or

(af) a Partner (Residence) (Class BS) visa; or

(ag) a Partner (Temporary) (Class UK) visa;

the Minister must have regard to all of the circumstances of the relationship, including, in particular:

(a) the financial aspects of the relationship, including:

(i) any joint ownership of real estate or other major assets; and

(ii) any joint liabilities; and

(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and

(iv) whether one party to the relationship owes any legal obligation in respect of the other; and

(v) the basis of any sharing of day-to-day household expenses;

(b) the nature of the household, including:

(i) any joint responsibility for care and support of children, if any; and

(ii) the parties' living arrangements; and

(iii) any sharing of responsibility for housework;

(c) the social aspects of the relationship, including:

(i) whether the persons represent themselves to other people as being married or in a de facto relationship with each other;

(ii) the opinion of the persons' friends and acquaintances about the nature of the relationship; and

(iii) any basis on which the persons plan and undertake joint social activities;

(d) the nature of the persons' commitment to each other, including:

(i) the duration of the relationship; and

(ii) the length of time during which the persons have lived together; and

(iii) the degree of companionship and emotional support that the persons draw from each other; and

(iv) whether the persons see the relationship as a long-term one.

(4) In forming an opinion whether 2 persons are in a married relationship, or a de facto relationship, in relation to an application for a visa of a class other than a class specified in paragraph (3) (ab), (ad), (ae), (af) or (ag), the Minister may have regard to any of the factors set out in subregulation (3).

(5) If 2 persons have been living together at the same address for 6 months or longer, that fact is to be taken to be strong evidence that the relationship is genuine and continuing, but a relationship of shorter duration is not to be taken not to be genuine and continuing only for that reason.

The applicant's case

7. Mr Turner, for the applicant, submits that the decision of the MRT is vitiated by reviewable error, notwithstanding the privative clause in s.474(1) of the Migration Act. He submits that the MRT decision was not a bona fide attempt to exercise the decision making power conferred on the MRT because there was a failure by the MRT to consider all of the relevant elements of the criteria contained in clause 801.221. In particular, Mr Turner submits that there was a complete failure to consider the application of paragraph 6 of clause 801.221.

8. Further, or in the alternative, Mr Turner submits that s.65 of the Migration Act is an inviolable pre-condition on the exercise of decision making power by the MRT and that the section was breached in that the MRT failed to have regard to necessary criteria in arriving at the state of satisfaction required to grant or refuse a visa.

9. In response to a further issue having been raised by me, Mr Turner further submitted that the MRT had failed to comply with s.353(2)(b) of the Migration Act in that the MRT had misled the applicant as to the grounds she should advance in order to sustain her application for a visa.

10. The applicant filed in court on 30 October 2002 an affidavit in which she deposed as to the breakdown of her relationship with Mr Filer in the first half of 2002 and an assault upon her by Mr Filer on 9 June 2002 leading to the granting of an apprehended violence order. The applicant did not raise before the MRT any issue of domestic violence or the breakdown of her relationship with Mr Filer. Mr Turner has submitted that she did not do so because she was deterred from doing so by a letter sent to her by the MRT on 3 April 2002 which attached a sheet indicating the evidence the applicant would need to advance in support of her visa application. That sheet dealt only with evidence establishing a genuine continuing relationship. It said nothing concerning evidence relating to the exception dealt with in paragraph 6 of clause 801.221, concerning relationship breakdown and domestic violence. Mr Turner has submitted that the applicant was deterred from revealing those issues by the letter she received from the MRT and that, if the MRT had dealt with the issues properly and comprehensively, the true facts would have emerged.

11. Following the trial of this matter on 30 October 2002 I received a letter from Mr Filer marked "personal and confidential". I passed the letter to my associate to read. I have not read it. The letter is lengthy. My associate has informed me that in the letter Mr Filer explains why he did not attend court on 30 October 2002 and why he did not give evidence. He may say other things but I do not know. Mr Filer was not called as a witness and he was not required to attend court. No explanation from him about his non attendance was required or expected. Whatever else may be in the letter is not evidence in these proceedings and I cannot be influenced by its contents. It may be relevant to a future consideration of the applicant's claims to a spouse visa. I have directed that the letter be held on the court file in a sealed envelope, not to be opened except by leave of the court. The provisions of the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth) would probably be relevant to any request for access to the letter.

The respondent's case

12. Mr Peek, for the Minister, has submitted that there is no evidence to suggest that the MRT acted on other than a bona fide basis. He submits that at most, the evidence advanced by the applicant relates to alleged incidents occurring after the MRT decision on 20 May 2002 which could not have been put before the MRT in any event. He further submits that there has been no breach of an inviolable pre-condition or limitation on the exercise of power by the MRT. Mr Peek points out that the applicant put nothing before the MRT which might have alerted the MRT that there was any issue of relationship breakdown or domestic violence to be considered. He further submits that the applicant could not have satisfied the formal requirements for proving domestic violence. He submits that the applicant never departed from her original assertions that she was in a genuine and continuing de facto relationship with Mr Filer and that the Department had put the applicant on notice on two occasions in 2000 that issues of domestic violence or marital breakdown could be raised pursuant to paragraph 6 of clause 801.221: court book pp.111 and 119. He also submits that issues of relationship breakdown or domestic violence only become relevant once a continuing relationship has been established.

13. Mr Peek submits that in the absence of proof of bad faith or the breach of an inviolable pre-condition on the exercise of power, there is no basis for this Court to interfere with the decision of the MRT in the face of the privative clause.

The additional matter

14. During the course of the trial on 30 October 2002 I raised a further issue. That is that it appears that the MRT applied the wrong definition of "spouse" in regulation 1.15A. In paragraph 9 in the reasons for its decision (court book page 168) the MRT reproduced that part of the definition of spouse in regulation 1.15A which it apparently saw as relevant. Sub regulation (1) as reproduced is clearly relevant. Sub regulation (1A) as reproduced is clearly irrelevant. It relates to persons in a married relationship and the applicant and Mr Filer were known to be in a de facto relationship: paragraph 17 MRT reasons for decision - court book page 170. The relevant part of the definition of "spouse" that should have been reproduced is that contained in sub regulation (2). The definitions of "married spouse" and "de facto spouse" are mutually exclusive. If one applies the other cannot. Mr Peek conceded that the wrong part of the definition had been quoted by the MRT and that the result was clumsy and unhelpful. He submits, however, that it is apparent from the decision and reasons read as a whole that the MRT was referring to relevant elements of the definition of "spouse" which are, for present purposes, essentially the same whether one is dealing with a married couple or a de facto couple. Mr Turner submits that the incorrect use of the definition of "spouse" by the MRT is indicative of further legal error vitiating the MRT decision.

Consideration and findings

15. I have decided first to consider the operation of the privative clause. The Full Federal Court authoritatively ruled on the operation of the privative clause in NAAV v Minister for Immigration [2002] FCAFC 228. That decision is binding upon me. All of the judges in that case found that the privative clause in s.474 of the Migration Act is valid and that the effect of the clause is to expand the range of lawful decision making open to decision makers so as to protect from judicial review decisions of the MRT or the Refugee Review Tribunal which might otherwise be found to be invalid by reason of jurisdictional error. All of the judges also found that some decisions evidencing jurisdictional error would not be protected from review by the privative clause, but they differed as to the extent to which the privative clause would apply. I have previously held (NAIN v Minister for Immigration [2002] FMCA 177) that there remain five and possibly six grounds of review available following the decision in NAAV. The available grounds differ in number depending on how they are expressed. However, for present purposes, there are only two relevant grounds: that the decision was not made in good faith or that the decision was made in breach of an express statutory limit or condition upon a power which, as a matter of construction, notwithstanding s.474, must be observed for the effective exercise of the power. This may also be described as an inviolable pre-condition to the exercise of power, or a jurisdictional pre-requisite.

16. The question of what is a bona fide exercise of power in the light of the decision in NAAV was considered by his Honour Sackville J in Wu v Minister for Immigration [2002] FCA 1242. That decision has received Full Court endorsement in NAGT of 2002 v Minister for Immigration [2002] FCAFC 319 at paragraph 27. In Wu Sackville J was dealing with an assertion that the MRT had been reckless or incompetent in the purported exercise of its powers to a degree sufficient to establish bad faith. At paragraph 58 his Honour adopted the following passage from the judgment of his Honour von Doussa J in NAAV:

A failure by a decision-maker to follow directory provisions in the Act may in the circumstances of a particular decision be important in determining whether its making was an honest attempt to deal with the subject matter confided to the Tribunal and to act in pursuance of the powers of the Tribunal...A blatant disregard of statutory directions about a decision making process laid down in the Act is unlikely to meet the Hickman proviso that the decision be one that is a bona fide attempt to exercise the relevant power. Unless that requirement is met, s.474(1) cannot validate the decision.

17. Sackville J observed that there may be cases where the disregard of statutory requirements or, indeed, of the evidence, is so "blatant" that an inference can be drawn that the decision-maker has not honestly attempted to exercise the relevant statutory power. His Honour von Doussa J reached a similar conclusion in relation to a capricious or arbitrary conduct of tribunal proceedings: SCAZ v Minister for Immigration [2002] FCA 1377.

18. In this case, Mr Turner submits that the MRT has blatantly failed to follow the obligations imposed by s.65 (by failing to have any regard to relevant criteria in arriving at the requisite state of satisfaction) and s.353(2)(b) (by misleading the applicant as to what she needed to establish in order to obtain the visa she sought). Mr Turner submits that the disregard of the relevant criteria in clause 801.221(6) is blatant in both these respects and is sufficient to establish a lack of bona fides.

19. It is clear that the applicant was given incomplete information by the MRT on 3 April 2002 when the MRT sent to the applicant an information sheet with the invitation to appear (court book p149). The information sheet was sent in circumstances where the MRT knew that it was dealing with an original visa application based upon an assertion of a genuine continuing de facto relationship. However, two years previously, the applicant had been given complete information by the Department which included reference to paragraph 6 of clause 801.221. It is unclear why the MRT sought to draw the applicant's attention to only part of the criteria contained in clause 801.221. The applicant now asserts that the relationship between her and Mr Filer had broken down by the time that she appeared before the MRT and that, at least since the MRT made its decision, she has been subject to domestic violence. She asserts that she was deterred from saying anything about that because of the information sheet she had been given by the MRT. She was put on notice two years previously by the Department that she could raise issues of domestic violence and relationship breakdown but it is understandable that she may have forgotten about that after two years. In addition, it is understandable and reasonable for an applicant, having been advised by the MRT as to what issues are considered relevant, to limit herself to those issues. The failure by the MRT to direct the applicant's attention to all possible relevant criteria relating to the class of visa she was seeking meant that the applicant was not properly informed of the case she had to make. The provision of complete information was not a difficult thing to do. The Department had done it properly previously twice. There was no obligation on the MRT to advise the applicant of what she needed to establish to succeed in her review application. However, having elected to provide advice, the advice given should have been accurate and complete. It was not complete. The subsequent hearing before the MRT was, because of the failure of the MRT to properly inform the applicant of the case she had to make, procedurally unfair. However, in the light of the privative clause and the decision of the Full Federal Court in NAAV, that is no longer an available ground of review.

20. Neither does a lack of procedural fairness necessarily establish a lack of good faith. It is true that the MRT had no regard to paragraph 6 of clause 801.221. However, there was nothing before the MRT which would have reasonably required the MRT to make enquiries relevant to the operation of that paragraph. The reason why there was nothing before the MRT, on the applicant's evidence, is that she was not properly informed of the case she had to make out. It is relevant, in this connection, to note that the applicant did not have a migration agent. She was self represented. That fact underscores my view that the proceedings before the MRT were procedurally unfair. Having elected to provide advice the MRT should have given complete advice. The applicant, as a self represented applicant, should have been properly informed, before she attended the MRT, of what she would need to satisfy the MRT about in order to support her application for a visa. However, I am not persuaded that that failure to afford procedural fairness (in particular the failure to provide a fair hearing) is sufficient to establish a flagrant breach of any procedural or other statutory obligation upon the MRT sufficient to sustain the assertion of a lack of bona fides. The decision of the MRT, while deficient in this respect, and the proceedings before the MRT, while procedurally unfair, constituted a bona fide attempt by the MRT to exercise the power conferred upon it.

21. The next issue is whether any inviolable pre-condition upon the exercise of power by the MRT was breached. In Zahid v Minister for Immigration [2002] FCA 1108 at paragraph 37 his Honour Sackville J explained succinctly what is meant by an inviolable limitation or restraint on the exercise of power by a decision-maker. In NAIN I said that s.65 of the Migration Act is such an inviolable restraint. In WADK v Minister for Immigration [2002] FMCA 175 I made a similar statement about s.420(2)(b). I have not changed my view.

22. The applicant relies upon the same asserted facts in support of this element of her case. Procedural unfairness is not sufficient to sustain an allegation of a breach of s.353(2)(b) of the Migration Act: WADK v Minister for Immigration at paragraph 39. Further, procedural unfairness does not of itself establish a breach of s.65 of the Migration Act. The MRT reached the degree of satisfaction required of it to refuse the application for a visa, based upon the material that was before it. Nothing was put before the MRT by the applicant that would have indicated a need to enquire about domestic violence or relationship breakdown. There is no general obligation on the MRT to make enquiries at large. The failure by the MRT to have any regard to paragraph 6 of clause 801.221 is explicable and justifiable, given that there was nothing before the MRT to indicate that that paragraph might be relevant. As I have already noted, there was nothing before the MRT on that issue because of the failure by the MRT to properly inform the applicant of all of the possible grounds upon which she might support her application for a visa. I have already noted that that was a failure by the MRT to inform the applicant properly of the case that she needed to make out. However, that breach of procedural fairness is a separate matter from the question of whether, on the material before the MRT, the MRT paid proper regard to apparently relevant criteria in arriving at the degree of satisfaction required of it under s.65.

23. In the circumstances of this matter, I am not satisfied that the s.65 has been breached by reference to the criteria contained in clause 801.221. The decision of the MRT was reasonably based on the material before it at the time. For the same reasons I conclude that s.353(2)(b) has not been breached.

24. The remaining question is whether s.65 has been breached upon the basis that in arriving at the requisite state of satisfaction required by that section, the MRT made a serious legal error in its assessment of the application. That error is asserted to be the adoption of the wrong definition of "spouse" under regulation 1.115A. In NAAV at paragraph 30, Black CJ said that:

I take s.474(1) to express the Parliament's intention that the Minister's satisfaction is to be taken to exist even if the Minister (or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material.

25. His Honour went on to say that where, however, the decision under review was subject to an inviolable pre-condition on the achievement of a degree of satisfaction and where a fundamental legal error is committed at arriving at that state of satisfaction that is "centrally definitional to `satisfaction'", the decision will not be protected by the privative clause. His Honour was referring to the degree of satisfaction required to cancel, rather than to grant or refuse a visa and he did regard visa cancellation and revocation of visa cancellation as a separate and distant area of decision making: Zahid at [71]. However, his Honour made the following general observation at paragraph 15 of NAAV:

It is difficult to formulate a precise principle for determining exactly when a provision in an Act containing a Hickman clause may be said to be outside the operation of such a clause and to have the character of an "inviolable limitation". Constitutional considerations aside, the cases where "inviolable limitations" have been identified by the High Court can be seen, however, as cases in which, if the legislation were interpreted in a particular way, essential structural elements created by the legislation would be violated, or else some other quite fundamental aspect of the legislation would change its character in a way and to an extent that the Parliament could not be taken to have intended.

26. As I have already noted, I have previously taken the view that s.65 is an essential structural element governing the grant or refusal of a visa and that a fundamental legal error in arriving at the state of satisfaction necessary to grant or refuse a visa will not be protected by the privative clause. This is a different issue to simple factual error or misapplication of relevant statutory provisions: Zahid at [79] and [80]. It is a different thing from the misinterpretation of a definition: NAGT v Minister. A misinterpretation of the definition of "de facto spouse" by the MRT would be protected by the privative clause. However, a failure by the MRT to have any regard to the definition of "de facto spouse" would, in my view, not be protected. That is because, if the MRT failed to have regard to the definition of "de facto spouse" it could not properly decide whether or not the applicant was the spouse of Mr Filer. If it could not properly decide that question, the MRT could not achieve the level of satisfaction required of it under s.65. It is important, in this connection, to note that while s.65 speaks of the decision maker being satisfied, the terms of the Migration Act and Regulations as they now stand leave little, if any, room for the exercise of discretion. The attainment of the requisite degree of satisfaction requires reference to the relevant criteria in the Regulations relating to the class of visa in question. The decision making regime as it stands today is highly prescriptive. In substance, what is required is not the exercise of discretion but the ascertainment of facts necessary to exercise the jurisdiction. The facts relating to the relevant criteria are thus jurisdictional facts. If the decision maker fails to apply the correct criteria the relevant jurisdictional facts cannot be ascertained. A privative clause will not protect such an error: The Queen v Coldham; ex parte Australian Workers Union (1983) 153 CLR 415.

27. It is clear in these proceedings that the applicant and Mr Filer were said to be in a de facto relationship. In the circumstances, the definition of a married spouse apparently relied upon in paragraph 9 in the reasons for the MRT decision was irrelevant. The definition relied upon relates to married persons, not persons in a de facto relationship. The MRT made no express reference in its reasons to the correct and relevant definition of a de facto relationship. It is unclear whether the MRT in fact had regard to the correct definition because, in material respects, the definitions operated in much the same way. The MRT in its reasons referred to elements of the definition of "spouse" that are common to both a married spouse and a de facto spouse. However, the definition of "de facto spouse" also contains unique elements. None of these were referred to by the MRT in its reasons. I am entitled to conclude, on the basis that the MRT referred expressly to the irrelevant definition of persons in a married relationship, and throughout its reasons dealt only with elements referable to that definition, that the MRT failed to have any regard to the relevant definition. I regard that as a fundamental failure to establish a jurisdictional fact, amounting to a failure to satisfy a jurisdictional pre-requisite. In the circumstances I conclude that the reasons for decision of the MRT on their face disclose a fundamental legal error sufficient to vitiate the decision of the MRT, for the reasons advanced by Black CJ in NAAV.

28. I will therefore make a declaration of invalidity concerning this decision of the MRT. I will give the parties liberty to apply should further prerogative relief be required.

29. I will hear the parties as to costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 29 November 2002
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