Pro-forma argument - s474 of the Migration Act
The plaintiff wishes to institute proceedings against the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), and the Refugees Review Tribunal (“the Tribunal”), invoking the jurisdiction of the High Court under s75 (v) of the Constitution to issue writs of prohibition and mandamus against officers of the Commonwealth, and the power to grant ancillary relief in the form of certiorari.
The plaintiff is an asylum seeker who has unsuccessfully applied to the Minister for a protection visa. The present proceedings concern a decision of the Tribunal confirming the Minister’s refusal to grant the plaintiff a protection visa. The plaintiff challenges the decision on the ground of a denial of natural justice, in that… [insert details here].
The decision that the plaintiff challenges is a “privative clause decision” according to s474 (2) of the Migration Act 1958 (Cth) and thus, subject to protection that the section purports to provide. However, the plaintiff submits that the decision is flawed for reasons of a failure to comply with the principles of natural justice, thus is not a “privative clause decision” for the purpose of s474. It follows that s474 does not, upon its true construction, protect the decision of the Tribunal.
The authority for this proposition is Plaintiff S157/2002 v Commonwealth of Australia.[1] In their joint judgment, Gaudron, McHugh, Gummow, Kirby and Hayne JJ spoke of a privative clause generally, saying that it cannot protect against ‘a failure to make a decision required by the legislation in which that clause is found or against a decision which, on its face, exceeds jurisdiction’.[2] Thus, a “privative clause decision” as defined in s474 (2) must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of jurisdiction conferred by the Act. As an administrative decision which involves jurisdictional error is ‘regarded in law, as no decision at all’, their Honours held that ‘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 s474 (2) as “a decision…made under this Act” and is, thus, not a “privative clause decision”…’.[3] The “imperative duties” or “inviolable limitations” may arise from the rules of natural justice.
This view was echoed by Gleeson CJ, who delivered a separate judgment. In his Honour’s view, the requirement of natural justice is, on the true construction of the Act as a whole, an “inviolable limitation” upon the Tribunal.[4] Gleeson CJ stressed that ‘[p]eople whose fundamental rights are at stake are ordinarily entitled to expect more than good faith’ and that is, fairness.[5] Fairness and detachment are the essential elements of natural justice, and ‘involve “the absence of the actuality or the appearance of disqualifying bias and the according of an appropriate opportunity of being heard”’.[6] His Honour clearly stated that as a general principle of statutory construction, ‘courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language’.[7] In construing s474, Gleeson CJ said that s474 does not sufficiently manifest Parliament’s 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.[8] Consequently, the Tribunal’s decision made in breach of the rules of natural justice is not within the scope of protection afforded by s474.[9]
The next question is then to what extent the rules of natural justice must be followed so as not to breach “inviolable limitations”. The Court did not spell out the content of natural justice which must be afforded to the plaintiff, as ‘the precise content of the requirements…may vary according to the statutory context’.[10] However, Callinan J suggested that there must be a ‘grave, or serious breach of the rule of natural justice’ to attract the remedies under s75 (v) of the Constitution.[11]…
Effect on privative clause of decision of High Court in Plaintiff S157 [2003] HCA 2
Gleeson CJ in S157 said:
“[3] The first step in the plaintiff's argument, in support of the contention that s 474is invalid, is an assertion that the section means what it says. It is argued that, in their ordinary and natural meaning, the words of s 474purport to prevent any applicant from seeking, and any court, including this Court, from granting, any relief with respect to any application for review of a decision of an administrative character (save for some minor exceptions) under the Act. Therefore, the section purports to oust the jurisdiction conferred upon this Court by s 75(v) of the Constitution. The Parliament has no power to do that.
….
[37] 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..”
The joint majority judgment of Gaudron, McHugh, Gummow, Kirby, Hayne JJ contains the following:
“[76] Once it is accepted, as it must be, that s 474 is to be construed conformablywith 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"[78]. Thus, if there has been jurisdictional error because, for example, of a failure to discharge "imperative duties"[79] or to observe "inviolable limitations or restraints"[80], 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[81].
[77] 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.
[78] 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.”
In the present context, the plaintiff submits that the failure on the part of the Tribunal to afford natural justice amounts to a breach of “inviolable limitations”. [insert the facts of the case here] The plaintiff submits that this breach is grave and serious, resulting in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction. Thus, there is no “decision” made under the Act to which s474 purports to provide protection.