Judicial Review of Migration Decisions: Life after S157

AuthorCaron Beaton-Wells
Publication Date01 March 2005
Date01 March 2005
Caron Beaton-Wells
The last two decades have witnessed a colossal struggle between the government and
the courts over judicial supervision of executive decisions with respect to migration.
The struggle culminated in February 2003 with the High Court decision in Plaintiff
S157/2002 v Commonwealth1 concerning the privative clause in the Migration Act 1958
(Cth) ('the Act'). While upholding its constitutional validity, the Court rendered the
privative clause effectively redundant by ruling it incapable of protecting decisions
involving jurisdictional error.
It has been two years since S157 was handed down and hence it is now timely to
consider its immediate practical impact.2 In particular, the following issues are ripe for
1. what has been the Federal Court's3 response to S157 — how has the High
Court ruling been interpreted and what has it meant for the grounds of
judicial review available to applicants under the Act?
2. what has been the government's response to S157 — has the government
finally conceded the limitations on its capacity to minimise judicial review
in this area or is it pursuing new measures to this end and what will be
their likely effect?
The key principle established by S157 was that, by reason of s 75(v) of the Constitution,4
a privative clause cannot protect decisions involving jurisdictional error from review
BA/LLB (Hons), LLM (Melb), PhD (Melb); Senior Lecturer, Melbourne Law School,
University of Melbourne; Victorian Bar.
1 (2003) 211 CLR 476 ('S157').
2 Broader questions concerning the impact of S157 on the Australian constitutional system
have been explored elsewhere. See, eg, Duncan Kerr and George Williams, 'Review of
Executive Action and the Rule of Law Under the Australian Constitution' (2003) 14 Public
Law Review 219.
3 Decisions under the Act have been reviewable also by the Federal Magistrates Court since 2
October 2001. The jurisprudence of this Court is not specifically referred to in this article
given that it is bound by and, as a matter of practice, follows Federal Court precedent.
4 Section 75(v) of the Constitution confers original jurisdiction on the High Court in 'all
matters … in which a writ of Mandamus or prohibition or an injunction is sought against
an officer of the Commonwealth'.
142 Federal Law Review Volume 33
by the High Court.5 Section 474(1) of the Act, it was held, does not purport to provide
such protection because it is directed at 'privative clause decisions', defined in s 474(2)
as decisions 'made … under this Act.' Decisions affected by jurisdictional error do not
meet this description given that, consistent with the High Court's earlier ruling in
Minister for Immigration and Multicultural Affairs v Bhardwaj,6 the law does not recognise
them as decisions. They are, adopting the High Court's terminology, 'purported'
decisions and, as such, are not covered by s 474(1).7
With the exception of procedural fairness (the ground of review relied on by the
plaintiff),8 the High Court judgments provided scant guidance on the nature of the
errors that might be characterised as jurisdictional so as to defeat the operation of the
privative clause. The only general guidance offered was that an error is jurisdictional
where, reading the Act as a whole (including the privative clause), it is seen to involve
the breach of an 'inviolable', 'imperative' or 'indispensable' condition on the exercise of
power under the Act.9 Such a condition is one that can be reconciled with the
otherwise inconsistent privative clause on the grounds that Parliament intended it to
be essential to the validity of the exercise of power.10 That said, the inviolability of a
condition cannot be ascertained through the application of some pre-determined
formula. It is to be approached as an exercise in statutory construction having regard
to the condition in question.11
Given the lack of detailed guidance, it was not surprising that soon after S157 was
handed down differences in opinion emerged on the Federal Court. There was the
question whether, not technically having been overruled, the narrow approach taken
by the majority of the five member Full Court of the Federal Court in NAAV v Minister
for Immigration and Multicultural Affairs12 should continue to apply.13 According to that
approach, the only grounds of review available to applicants were grounds derived
from the R v Hickman; Ex parte Fox and Clinton line of authorities,14 namely that the
5 For a detailed explanation of the decision, see Caron Beaton-Wells, 'Restoring the Rule of
Law — Plaintiff S157/2002 v Commonwealth of Australia' (2003) 10 Australian Journal of
Administrative Law 125; Kerr and Williams, above n 2; Duncan Kerr, 'Deflating the Hickman
Myth: Judicial Review after Plaintiff S157/2002 v The Commonwealth' (2003) 37 AIAL Forum 1;
Mark Seymour, 'Privative Clauses in Administrative Law: Recent Developments' (2003) 77
Australian Law Journal 757.
7 S157 (2003) 211 CLR 476, 488 [19], 495 [41] (Gleeson CJ), 505–6 [75]–[77] (Gaudron,
McHugh, Gummow, Kirby and Hayne JJ).
8 Ibid 494 [38] (Gleeson CJ), 508 [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
9 This language was taken from a line of cases, starting with R v Hickman; Ex parte Fox and
Clinton (1945) 70 CLR 598 and subsequently including R v Murray; Ex parte Proctor (1949) 77
CLR 387 and R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering
Union, Australian Section (1951) 82 CLR 208.
10 S157 (2003) 211 CLR 476, 504 [69].
11 Ibid.
12 (2002) 123 FCR 298 ('NAAV').
13 There were some members of the Federal Court who considered NAAV (2002) 123 FCR 298
should be adhered to. See Lobo v Minister for Immigration and Multicultural and Indigenous
Affairs [2003] FCA 144 [12]–[15] (Gyles J); Koulaxazov v Minister for Immigration and
Multicultural and Indigenous Affairs (2003) 129 FCR 79, 85 [14] (Gyles J); 103–6 [65]–[73]
(Conti J).
14 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; see above n 9.
2005 Life After S157 143
decision be a bona fide attempt to exercise power; relate to the subject matter of the
Act; be reasonably capable of reference to the power; and not contravene a so-called
inviolable condition (limited in NAAV, in the case of tribunal review, to the making of
a valid application for review and the valid constitution of the tribunal.)15
There was uncertainty as to the role that the privative clause should play in
identifying jurisdictional error and whether effectively it could be ignored. Related to
this was the question whether, having regard to the privative clause, jurisdictional
error could continue to be conceived broadly in accordance with previous High Court
decisions such as Craig v South Australia16 and, more recently, Minister for Immigration
and Multicultural Affairs v Yusuf.17
Within a matter of months, however, the differences in opinion had been laid to
rest. The broad conception of jurisdictional error had prevailed, leaving little scope for
the operation of the privative clause. This was the approach endorsed by several
differently constituted Full Courts.18 The majority decision in NAAV was seen as
15 NAAV (2002) 123 FCR 298, 475 [625] (von Doussa J).
16 (1995) 184 CLR 163, 179 ('Craig'), where it was said that if an administrative tribunal
falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong
question, to ignore relevant material, to rely on irrelevant material or, at least in some
circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the
tribunal's exercise or purported exercise of power is thereby affected, it exceeds its
authority or powers. Such an error of law is jurisdictional error which will invalidate
any order or decision of the tribunal which reflects it.
17 (2001) 206 CLR 323, 351 [82] ('Yusuf') where, having set out the passage from Craig (1995)
184 CLR 163, it was said that:
'Jurisdictional error' can thus be seen to embrace a number of different kinds of error,
the list of which, in the passage cited from Craig, is not exhaustive. Those different
kinds of error may well overlap. The circumstances of a particular case may permit
more than one characterisation of the error identified, for example, as the decision-
maker both asking the wrong question and ignoring relevant material. What is
important, however, is that identifying a wrong issue, asking a wrong question,
ignoring relevant material or relying on irrelevant material in a way that affects the
exercise of power is to make an error of law. Further, doing so results in the decision-
maker exceeding the authority or powers given by the relevant statute. In other words,
if an error of those types is made, the decision-maker did not have authority to make
the decision that was made; he or she did not have jurisdiction to make it. Nothing in
the Act suggests that the Tribunal is given authority to authoritatively determine
questions of law or to make a decision otherwise than in accordance with the law.
18 See SDAH v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC
49, [17]–[18], Minister for Immigration and Multicultural and Indigenous Affairs v WAAG [2003]
FCAFC 60, [5]; Scargill v Minister for Immigration and Multicultural and Indigenous Affairs
(2003) 129 FCR 259, 261 [3]–[5]; NAEB of 2002 v Minister for Immigration and Multicultural
and Indigenous Affairs [2003] FCAFC 25, [4]; SBBG v Minister for Immigration and
Multicultural and Indigenous Affairs (2003) 199 ALR 281, 285–6 [19]–[20]; NAAG of 2002 v
Minister for Immigration and Multicultural Affairs [2003] FCAFC 135 [45]; Minister for
Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553, 558 [21];
Minister for Immigration and Multicultural and Indigenous Affairs v Awan (2003) 131 FCR 1, 26–
7 [104]; SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199
ALR 43, 51–2 [33]–[35].

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