REDEFINING THE ROLE OF THE COURTS:
THE IMPLICATIONS OF RECENT DEVELOPMENTS IN THE JUDICIAL REVIEW OF MIGRATION DECISIONS
By Dr Mary Crock, Legal Practitioner and Lecturer in Law, University of Sydney
and Mr Mark Robinson, Barrister, Member of the Sydney Bar
The issue of the proper role of the courts has rarely received as much public attention as it has in recent times in this country. Decisions concerning the common law land rights of indigenous Australians have lead to quite unprecedented attacks by some politicians on the High Court. In recent weeks a direct appeal by the Chief Justice of this court to the federal Attorney General to speak out in defence of the courts has been rebuffed. If the idea of constitutionally protected land rights is being depicted as a threat from within, migrants are emerging as the threat from without. The rise of the Member of Oxley, the Honourable Ms Hanson has ensured that equal prominence has been given to migration and the rights of non-citizens seeking a place in this country. Put together the two issues of judicial activism and migrants’ rights and all the ingredients are there for a real scene stealer in the unpopularity stakes.
In this paper we examine some recent developments in the migration field. Although a specialised sub-species of applied administrative law, the developments that we will chronicle represent in many respects a microcosm of trends in public law and administration generally. The account brings us to examine some of the really big questions: whether we need courts at all in the review of administrative action. Are specialist tribunals a sufficient alternative to judicial review? If the courts are to play a role, what is to be the extent of their powers to determine the procedures followed or the decisions reached by specialist tribunals? At another level, the migration review system provides insights into how we can expect administrative review to function in the future. When the Immigration Review Tribunal (IRT) was established in 1989, it represented something of a novelty in the Australian context. The quasi-inquisitorial procedures were unusual against the adversarial norm of the Administrative Appeals Tribunal (AAT) and its various subsidiary tribunals. In spite of complaints about the process for appointing members to the IRT, the migration experiment seems to have enjoyed a degree of success. When the AAT is re-born as the Administrative Review Tribunal (ART) some time in the new year, the new body is expected to be modelled as an inquisitorial, rather than adversarial tribunal.
This paper begins by examining some of the legislative developments affecting the review of migration decisions. We look at the measures already in place to restrict the role of the courts in this field and examine the two Bills that are currently before Parliament. The first concerns the processes for reviewing the merits of migration decisions, while the second seeks to oust the courts altogether from the migration field. As well as noting the state of play of these Bills, we look briefly at the aims and likely effect of the proposed changes.
The second part of the paper examines developments in the jurisprudence coming from the courts in their review of migration cases. We argue that the trends emerging from the Federal Court reveal a complex interplay of factors. On the one hand, the courts are under considerable pressure from the politicians to show deference to the decisions made by the specialist migration tribunals. On the other hand the cases coming before the courts appear to be generating their own tensions as they highlight complexities in the law, errors in the administration of the law and inadequacies in the system for review ing the merits of migration decisions. The paper explores a few areas of recent controversy: the relationship between Part 8 of the Migration Act 1958 (Cth) (the Act) and the common law rules of procedural fairness and broad ultra vires; the reviewability of the Minister’s residual discretion to overrule an adverse tribunal decision; and the recent points cases.
POLITICS AND JUDICIAL REVIEW: PROPOSALS TO REFORM THE MIGRATION REVIEW SYSTEM
The government’s preoccupation with the judicial review of migration decisions extends back to the 1980s. In those years the nature of the migration legislation, with its open-ended discretions and poorly defined procedures made the jurisdiction a prime target for judicial intervention. Although hardly the “fault” of the courts, many of the changes to the Act since 1989 have been made with a view to refining and confining the role that the courts can play in the review of migration decisions. Most significant in this process has been the codification of decision making through regulation and the institution of specialist tribunals to review the merits of migration decisions. The absence of a proper merits review mechanisms was arguably the most significant factor that contributed to the explosion in judicial review in the 1980s. The problem for the government is that legislative change has not induced a drop in the number of people seeking judicial review of migraiton decisions. By the end of the next financial year, the number of “migration” applications to the Federal Court is expected to exceed 900 per annum.
The most obvious factor in moves to reduce review rights is what the Minister readily concedes are concerns about the cost (and productivity) of the system. In the financial year 1995-6, the budget for the IRT was $7,446,000,(1) while that of the Refugee Review Tribunal (RRT) was $15,207,000.(2) Between them the two tribunals finalised 5,666 cases over the same period. This translates as $3,270 per decision for the IRT and $4,500 per decision for the RRT. The cost of internal review by the Migration Internal Review Office (MIRO) was $2,854,000.(3) The Federal Government’s litigation budget for the present financial year is $7.4 million. For the economic rationalist and the politician who believes in down-sizing the role of the government, such statistics make alarming reading.
The Minister has spoken also about the delays engendered by judicial review. In the case of matters going from the RRT to the Federal Court, the average duration of the judicial review process is now 354 days, while IRT appeals to the Federal Court are taking on average 488 days to complete.
The Minister proposes a two-pronged solution to the problem of litigious migration applicants. The two Bills now before Parliament are designed to simplify and clarify the system for reviewing migration decisions. First, it is intended to merge MIRO with the IRT to create the Migration Review Tribunal (MRT),(4) with the possibility of a further merger between the IRT and the RRT. At the other end of the spectrum, Migration Legislation Amendment Bill (No 5) 1997 (Cth) (Bill No 5) seeks to oust the courts altogether from the review of most migration decisions. An adjunct measure to these reforms has been the hefty increase in the fees payable for migration appeals. An application for review by MIRO now costs $500, while the IRT process comes with a fee of $850. More controversial still is the imposition of a “post-application” fee for refugee claimants of $1,000. This fee is payable only by refugee claimants who do not succeed in their appeal to the RRT. (5)
Migration Legislation Amendment Bill (No 4) 1997
Aside from the merger of MIRO and the IRT, the proposals in Bill No 4 include a number of measures designed to improve the efficiency of the tribunal. For example, Principal Members are to be given specific powers to issue practice directions governing when, how and by whom appeals are to be heard.(6) There is (or was) a proposal to remove the right to an oral hearing before the MRT and to allow the RRT discretion to conduct hearings by telephone or video link up.(7) The Report of the Senate Legal and Constitutional Legislation Committee (28 October 1997) reveals that the Opposition and minor parties have concerns about a number of these proposed reforms, placing a question mark over their future. The applicant’s right to an oral hearing before the review bodies appears to have survived, with consequent changes to the original Bill No 4. In relation to the proposals to strengthen the powers of the Principal Member, the minority report highlights the potential for abuse of process if the new proposed changes were to be used so as to remove a case from an individual member mid-hearing so as to prevent the member from deciding the case in a particular way. (See pp 50-51 of the Committee’s Report). Concerns were raised also about the moves to remove the obligations placed on the migration tribunals to publish their rulings “to the world”.
The most striking aspect of the minority report into Bill No 4 is the detailed account of the apparent drop in the independence of decision-making by the RRT over the period in April – June 1997 when the contracts of the existing RRT members were up for renewal. According to evidence submitted to the Committee, the “set-aside” rate – or the proportion of claimants being accepted by the RRT as refugees – dropped steadily as the renewal process progressed. In April 1997 – the month when interviews for contract renewal were held – the Sydney RRT granted refugee status to 2.1% of claimants, down from 7.9% in the previous month. In the preceeding year set aside rates of 14% were more the norm.(8) As the minority members of the committee noted, the most disturbing aspect of these trends are the apparent correlation between the fall in approvals and statements made by the Minister for Immigration and Multicultural Affairs criticising RRT decisions and warning members that their reappointment prospects would be harmed by an overly generous interpretation of the Convention relating to the Status of Refugees.
Other features of Bill No 4 that that has met with criticism are the codes of procedures for the processing of both refugee claims and general immigration appeals. These codes supplement the current enjoinder in the Act that the review authorities “pursue the objective of providing a mechanism of reviwe that is “fair, just, economical, informal and quick” and that they act “according to substantial justice and the merits of the case”.(9) The provisions are designed to overcome the arguments that have arisen over the extent to which the Common Law rules of procedural fairness continue to apply to the migration appeal bodies. Not surprisingly, the complaints made about the new codes relate to the apparent gap between the statutory procedures in Bill No 4 and the procedures that are required at Common Law.(10)
Migration Legislation Amendment Bill (No 5) 1997(11)
The most controversial of the two Bills before Parliament is Bill No 5. This would introduce into the Act broadly-worded privative clauses designed to take migration decisions outside the jurisdiction of both the Federal Court and, to the extent that it is able, the High Court. The effect of such clauses, in the Minister’s words, would be “to expand the legal validity of the acts done and the decisions made by decision-makers. In practical terms it narrows the scope for judicial review to that of narrow jurisdictional error and malafides.”(12) The measure recognises, at least to some extent, that Part 8 of the Act has failed to meet the expectations of either the government or the Department of Immigration and Multicultural Affairs.
The introduction of Part 8 of the Migration Act 1958 (Cth) (the Act) on 1 September 1994 created a special regime for the judicial review of migration decisions. For “judicially reviewable” migration decisions made after 1 September 1994,(13) both the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act“) and s 39B of the Judiciary Act 1903 (Cth) ceased to apply to most migration decisions. Access to the High Court remained an option because of the guarantees of s 75(v) of the Constitution. However, the High Court’s ability to remit migration cases back to the Federal Court under s 44 of the Judiciary Act 1903 (Cth) was restricted to the grounds set out in Part 8 of the Act.(14) As well as confining the range of people eligible to seek judicial review of a migration decision, restrictions were placed on the grounds of review so as to prevent the Federal Court from reviewing migration decisions on the key matters of natural justice, apparent bias, relevancy and reasonableness.
If Bill No 5 is enacted – and the possibilities of this occurring appear to be remote – Part 8 would be repealed and replaced by a new scheme of judicial review to cover decisions under the Act. Unlike the current legislation, the Bill purports to make the new judicial review scheme applicable to the High Court as well as the Federal Court. The pivotal provision of the new scheme is the privative clause, which reads:
A privative clause decision:
(a) is final and conclusive; and
(b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
A “privative clause decision” is defined as a decision of an administrative character made under the Act or regulations (cl 474(2)). The Bill provides a comprehensive list of decisions that are not privative clause decisions (see cl 474(4)). A quick perusal of the list confirms that most migration related decisions are to be privative clause decisions. It is intended that where a privative clause decision has been made by the MRT or the RRT, judicial review by the Federal Court and the High Court will be excluded.
The government clearly has the power to exclude judicial review by the Federal Court. This Court is merely a creature of statute, and the extent of its judicial powers are limited by the statute which creates it. As such, its jurisdiction is subject to limitation or removal by a further legislative amendment or enactment. However, it was recognised that merely restricting access to the Federal Court in migration legislation matters would, in practice, deflect many cases to the High Court, potentially undermining and eroding the proper role and purpose of the High Court.(15) To remedy this perceived problem, the privative clause also attempts to restrict access to the High Court to the extent that it is able.
The High Court, however, is a constitutional Court. To restrict access to the High Court entirely a constitutional amendment would be required. This is because s 75(v) of the Constitution invests the High Court with original jurisdiction whenever a remedy is sought against an officer of the Commonwealth. This would include a Tribunal member. As s 75(v) is a constitutional grant of jurisdiction, it is beyond the power of the Parliament to withdraw any matter from the grant of jurisdiction or to abrogate or qualify the grant.(16)
As the government is precluded from ousting the jurisdiction of the High Court by s 75(v) of the Constitution, the success of the restrictive clauses will depend at least some to extent on the willingness of the courts to accept the constraint on their jurisdiction. As Creyke(17) comments, the available jurisprudence on privative clauses provides no guarantee that the courts will do this, the so-called Hickman principles notwithstanding.(18) The High Court has made it plain in recent cases that privative clauses will not prevent the Court from intervening in decisions involving “imperative duties” or which go beyond “inviolable limitations or restraints”.(19) While there are cases which suggest that the Court will give some effect to such clauses,(20) comments from the bench in Craig v South Australia(21) suggest that the Court might be reluctant to make these concessions in instances where the final decisions are being made by tribunals whose members may not have legal training. Creyke argues with some force that the judiciary may feel even more compelled to intervene where the merits review authority is a “one-stop shop”. She might have added, more especially where the true merits of a case may receive scant attention.
The Minister has conceded that the limits of the privative clause may need examination by the High Court. However, the Minister has pointed to the High Court’s own interpretation of privative clauses, in a line of authority where the privative clause has been effective to narrow the scope of judicial review by the High Court to that of narrow jurisdictional error and mala fides.(22)
The government has recognised that providing that a privative clause decision is “final and conclusive” will not of itself be enough. A finality clause only makes the decision final on the facts – but not final on the law. The remedy of certiorari will still be available to quash a decision for error of law on the face of the record.(23) Instead, the government has been far more ambitious, inserting a provision which endeavours to exclude all judicial review. The government has clearly attempted to endow the privative clause with as much force as is possible to ensure a judicial review embargo to the extent that is constitutionally possible. In our view, it is not at all certain that the clause will have the effect desired by the government.
The “Hickman” principle
The High Court decision of R v Hickman; Ex parte Fox and Clinton(24) concerned the interpretation of a privative clause similarly worded to that which appears in the Bill. In Hickman’s case the National Security (Coal Mining Industry Employment) Regulations 1941 (Cth) empowered a Local Reference Board to settle industrial disputes arising in the “coal mining industry”. The privative clause in question provided that a decision of the Board could not be challenged, appealed against, quashed, or be called into question, or be subject to prohibition, mandamus or injunction in any court on any account. The prosecutors in Hickman were engaged in haulage contracting. The Local Reference Board had determined that they were engaged in the coal mining industry due to the fact that a substantial number of their drivers carried coal exclusively. Despite the privative clause which purported to protect this determination, all members of the High Court determined that prohibition would lie.
The High Court held that prohibition would lie because the decision of the Board had been based on an erroneous finding that the matter was within the ambit of the coal industry. Each member of the Court expressed an opinion as to how the privative clause was to be construed. It is in the judgment of Dixon J, however, that what has come to be known as the Hickman principle can be found. In examining the privative clause, his Honour stated that such a clause is to be interpreted to mean:(25)
no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.
The Hickman principle has been cited with approval time and time again.(26) In Deputy Commissioner of Taxation v Richard Walter Pty Ltd,(27) the High Court was given a further opportunity to examine the Hickman principle. This case concerned the judicial review of a determination made under the Income Tax Assessment Act 1936 (Cth). The determination purported to be conclusive. The question for the High Court was whether the privative clause preserved the validity of the determination notwithstanding the fact that it may have been made in disregard of the general provisions of the Act which prescribed the rules which were prima facie binding on the decision-maker in the course of making a decision.
The High Court confirmed the Hickman principle as a rule of statutory construction. It was found that the reason for interpreting a privative clause in conformity with the Hickman principle is that it is necessary to reconcile the prima facie inconsistency between a statutory provision which appears to limit the powers of a Tribunal, and the privative clause which appears to contemplate that the Tribunal’s order will operate free from any restriction.(28) This reconciliation is effected by reading the two provisions together and giving effect to each. The High Court held that the privative clause is effective, despite non-compliance with the provisions governing the exercise of the power, but only if the purported exercise of the power is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation; and it is reasonably capable of reference to the power given to the body purporting to exercise it.(29) Effectively, the validity of acts done by a repository of power is expanded.(30)
What the privative clause cannot do is oust the jurisdiction of the High Court to review decisions and orders which exceed Constitutional limits.(31) As was stated by Gaudron and Gummow JJ in the more recent High Court case of Darling Casino Ltd v New South Wales Casino Control Authority,(32) the terms of s 75(v) of the Constitution would be defeated if a privative clause operated to protect against jurisdictional errors being refusal to exercise jurisdiction, or excess of jurisdiction, in the latter case whether by reason of the constitutional invalidity of the law relied upon or the limited terms of a valid law. However, their Honours could find no constitutional reason why a privative clause might not protect against errors of other kinds by, within the limits of the relevant legislative powers, operating to alter the substantive law to ensure that the impugned decision or conduct or refusal or failure to exercise a power is in fact valid and lawful. The comments of Gaudron and Gummow JJ on the issue are, however, purely obiter.
3 SOME REFLECTIONS ON HOW THE PRIVATIVE CLAUSE MIGHT (OR MIGHT NOT) WORK IN PRACTICE.
It is interesting to consider whether the privative clause in Bill No 5 would have its intended effect of restricting access to judicial review in all but exceptional cases. As has been noted, Bill No 4 contains codes of procedure that the Tribunals must follow in the course of making a decision. The question that arises is whether the privative clause will protect a decision being impugned by the Courts if there has been a failure to follow the code of procedure.
The question has taken on greater significance since the decision of the Full Federal Court in Eshetu v Minister for Immigration and Multicultural Affairs,(33) which determined that a breach of the procedural requirements of the current legislative scheme was judicially reviewable by the Federal Court.
The Federal Court had been struggling with the nature of the relationship between the procedural requirements of s 420 of the Act and the terms of s 476 which sets the grounds for the judicial review of migration decisions. On its face, s 476(1)(a) and 476(2) precludes the Federal Court from reviewing “judicially reviewable” decisions on grounds of denial of natural justice and unreasonableness. The predominant approach taken by the Federal Court has been to accept this constraint on its jurisdiction, even in cases where it was found that the decision in question would have been held unlawful in other circumstances. In Eshetu, however, a majority of the Federal Court determined that a breach of the procedural requirements is a ground for review under s 476(1). This appears to have widened the available grounds of review under the Act, effectively frustrating the government’s hopes to restrict access to the Federal Court.(34)
The code of procedure in the Bill similarly appears to limit the powers of the relevant Tribunal in the conduct of a review. The privative clause, however, contemplates that the Tribunal’s decision will operate free from any restriction. The Hickman principle reconciles these two inconsistent statutory provisions by protecting the decision from being impugned provided that:
the exercise of the power is a bona fide attempt to exercise the power;
it relates to the subject matter of the legislation; and
it is reasonably capable of reference to the power given to the body purporting to exercise it.
If these provisos are satisfied there appears to be very little scope for the judicial review of migration decisions. If the Bill is passed, the judicial review door that was forced open in Eshetu may once again be slammed shut. In the Darling Casino case, a decision of the High Court made earlier this year, the High Court appeared to affirm the interpretation of the privative clause. This would seem to indicate that the High Court as currently constituted would uphold the intended effect of the privative clause. However, there has been some indication from particular members of the Court that they will scrutinise the Bill very carefully if they are given the opportunity.
One such example is in the High Court proceedings in the Lorenzo Ervin visa cancellation matter.(35) Mr Ervin had his visa cancelled on character grounds. The Minister issued a “conclusive” certificate under s 502 of the Act, effectively excluding merits review by the Administrative Appeals Tribunal. Judicial review by the Federal Court was also inaccessible by virtue of Part 8 of the Act. As a consequence the matter immediately proceeded to the High Court. Brennan CJ was particularly unimpressed that his Court had become a court of first instance.
In the course of the hearing, it was submitted on behalf of the Minister that the High Court had no jurisdiction to hear the matter. This submission was clearly insupportable and was met with a degree of amazement from Brennan CJ, as the Act does not currently attempt to limit the jurisdiction of the High Court in any way. Nevertheless, Brennan CJ’s response to the submission provides some insight into the Chief Justice’s views on the Bill and the attempts to restrict access to the High Court. He stated that the submission advanced on behalf of the Minister:
is a proposition which I regard as completely inconsistent with the notion of judicial review for it would isolate the Executive from judicial control in respect of acts done which are unlawful, and that cannot be, surely, the intention that one would either attribute to the Constitution or to the Parliament.
His Honour considered it a matter of the gravest constitutional importance to think that the proposition would be advanced on behalf of the Minister that the High Court did not have the jurisdiction to control unlawful acts committed by a Minister.
Similarly, Dawson J has used a High Court hearing as a forum to indicate his opinion that there will be constitutional difficulties with the Bill and the legislative attempt to restrict the avenue of reviewing decisions under the Migration Act.(36)
Whatever personal views are expressed by the members of the High Court, it cannot be forgotten that the Hickman principle has come to be regarded as “classical”(37) and it stands as a strong indication of Parliamentary intention that the courts refrain from intervening in the review of migration cases. On the other hand, the court has chosen to ignore the Hickman principle on many occasions. If the Bill is passed, what is certain is that High Court scrutiny of the privative clause will be inevitable.
4 RECENT DEVELOPMENTS IN THE JUDICIAL REVIEW OF MIGRATION DECISIONS
At the time the legislation incorporating Part 8 of the Act was passed in 1992, the willingness of the judiciary to stray into the realm of merits review so as to achieve substantive fairness for applicants was widely considered to be a “pull factor” for litigants. Five years later, it is difficult to maintain this view of how the courts are behaving. The persistent rise in the number of migration cases being heard by the Federal Court has been matched by an equally steady decline in the success rate of applicant migrants.
There continue to be some judges who are so moved by the plight of particular applicants that they have attempted to read down the restrictions placed on their ability to review decisions. An example in point is the ruling by Merkel J in the case of Ozmanian v Minister for Immigration and Ethnic Affairs.(38) There his Honour found that the prohibition on the courts reviewing a migration ruling on grounds of denial of natural justice did not prevent the Federal Court from reviewing the conduct engaged in for the purposes of making a decision. In this way, the judge held that s 6 of the ADJR Act continued to apply to the making of migration decisions. However, Merkel J’s ruling did not survive the Minister’s appeal. The Full Federal Court was unanimous in its finding that Part 8 of the Act was intended plainly to both exclude review under the ADJR Act and to preclude review on grounds of denial of natural justice.(39)
The trend towards greater deference to the tribunal decisions is apparent at all levels of the federal judiciary. In Wu Shan Liang v Minister for Immigration and Ethnic Affairs(40) the High Court rebuked the Full Federal Court for scrutinizing too closely the written reasons of the RRT and the way in which the tribunal construed the test for determining refugee status.(41) If the cases emanating from the Federal Court are any indication, it would appear that – in the main – the lower court is heeding this reproach and that the terms of Part 8 of the Act are having a dramatic effect on the judges’ preparedness to intervene in migration cases. After the Full Federal Court’s decision in Eshetu, the Federal Court has begun to divide in its approach to the question of the relationship between s 420 and the Common Law rules of procedural fairness.
RRT Decisions and the Federal Court(42)
This trend is illustrated by a series of cases in which litigants have raised points of law on the procedures followed by the RRT in reaching decisions. The cases explore the relationship between the common law rules of procedural fairness and reasonableness and s 420 of the Act, which requires the RRT to “pusue the objective of providing a mechanism for review that is fair, just, economical, informal and quick.”(43) In each instance the applicants failed in their quest for curial intervention. If this fact in itself is indicative of the new trend in the courts, the shift towards judicial deference is even more apparent when the cases are examined closely. I think it is fair to say that many of the applicants involved would have achieved a different result if they had applied for judicial review under the ADJR Act.
“Natural justice” is no longer a ground of review under Part 8 of the Act (s 476(2)). However, the Federal Court can still scrutinise RRT rulings to determine whether the procedures required to be observed in connection with the making of a decision have been observed (s 476(1)(a)). Procedures required to be followed by the RRT include the duty to grant an oral hearing to claimants where cases cannot be determined favourably on the papers (s 425(1)(a)). There are also positive duties to observe the privacy of claimants (s 429) and to publish written reasons for decisions (s 430).
Until the High Court’s decision in Wu Shan Liang some judges of the Federal Court justified their criticisms of RRT decisions by linking failure to provide adequate reasons for a decision with failure to follow prescribed procedures.(44) A more enduring issue for the RRT has been the content, if any, of s 420 and whether an unfair, unjust hearing can constitute a breach of a procedural requirement for the purposes of s 476(1)(a).
There is some older judicial authority to the effect that the phrases “fair and just” and “substantial justice” set standards that are at least equivalent to the Common Law rules of procedural fairness.(45)Within the Federal Court in more recent times, two lines of authority have emerged in cases where applicants have tried to use s 420 as a vehicle for seeking judicial review on grounds of denial of procedural fairness. Before the Full Federal Court’s ruling in Eshetu the dominant outcome for the applicants is that the arguments raised did not succeed. In Velmurugu v Minister for Immigration and Ethnic Affairs,(46) Olney J declined an invitation to resurrect unreasonableness as a head of review under the auspices of failure to make a decision according to substantial justice and the merits of a case (s 420(2)(b) of the Act). His Honour took judicial notice of Parliament’s desire to restrict the ability of the courts to review the merits of migration decisions and found that s 420(2)(b) of the Act could not be regarded as a matter involving “procedures” for the purposes of s 476(1)(a).(47) The comments by Davies J in the Full Federal Court case of Dai v Minister for Immigration and Ethnic Affairs(48) were more ambivalent. His Honour opined that if the RRT fails to act in a manner that is “fair” and just” an applicant will be entitled to relief under s 476(1)(a) of the Act. However, on the facts of the case the Court was not prepared to find an impropriety in the way the decision was made.(49) Similarly in Asrat‘s case, O’Loughlin J accepted that a failure by the RRT to put adverse material to an applicant would constitute “unfairness” for the purposes of s 420 and a breach of required procedures under s 476(1)(a). However, his Honour was not prepared to accept that the RRT had failed in the hearing it gave to give the applicant.(50)
The “no” case is represented most forcefully in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs(51) where Lindgren J agreed with the comments made in Asrat. His Honour held that s 420 of the Act did not establish procedures that have to be followed by the RRT. Rather, it contained general “exhortatory” provisions or objectives for the tribunal. In this way his Honour drew a distinction between “procedures” required to be followed and prescribed “standards”. Lindgren J said:
a mere conclusion that a mechansim of review in its operation in a particular case did not satisfy one or more of the epithets in s 420(1) would not necessarily establish that the RRT had not been pursuing the specified objective. The difficulty, perhaps practical impossibility, of proving a failure to pursue that objective in some cases suggests that the requirement of s 420(1) was not required to fall within the ground of review described in s 476(1)(a).
His Honour found that the exclusion of natural justice as a ground of review under s 476(2)(a) of the Act suggests that the legislature did not intend the “procedures” of s 476(1)(a) to embrace the standards which s 420(1) requires the RRT to pursue. In these cases the judiciary seems to be acknowledging that the jurisdiction of the Federal Court is created by Parliament; it is only in respect of the High Court (and s 75(v) of the Constitution) that it is possible to speak of a “right” to a judicial remedy.(52)
In theory, the case of Eshetu v Minister for Immigration and Multicultural Affairs(53) should have represented a major turning point in the debate about the continued relevance of the rules of procedural fairness in the review of migraiton decisions. The case concerned a citizen of Ethiopia, who came to Australia in 1993 and claimed refugee status on the ground that he feared persecution because of his involvement in student demonstrations in Addis Ababa. On appeal, the RRT rejected his evidence that a number of his friends and colleagues from university had been detained, disappeared or killed after his departure from Ethiopia. The Tribunal accepted that the applicant feared return to Ethiopia, but held that his fear of persecution was not well founded. The applicant sought judicial review of the RRT’s decision refusing his application for refugee status. He claimed that the Tribunal failed to observe the procedures that were required to be observed under s 420 of the Migration Act 1958 (Cth) (the Act).
In the majority, Davies and Burchett JJ held that s 420 of the Act sets out procedures with which the Tribunal is bound to comply and that a breach of them is a ground for review under s 476(1) of the Act. They found that s 420 is mandatory in its requirements that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case. Section 476(1)(a) is limited to the procedures adopted and does not permit review of the merits of a decision.(54)
What is significant is that the Court held that , in the context of s 420, the term “substantial justice” has an operation wider than the earlier reference to “fair, just” procedure: at the very least it would seem to incorporate the notions of fairness developed at Common Law. The majority held that a breach of this (statutory) requirement is not saved by s 476(2).(55)
The majority in Eshetu ruled that the exclusion of certain grounds of review in Part 8 of the Act does not have the effect of excluding examination of a decision to determine whether an error of law has occurred in the interpretation of the applicable law. Burchett J went so far as to hold that where a matter is uncertain, statutory provisions should be construed so as to give effect to fundamental and universally recognised principles of fairness and to Australia’s obligations at international law.(56) The majority identified certain errors in the way the RRT had interpreted the definition of refugee and on this basis found for the applicant. The case was taken immediately on appeal to the High Court.
In spite of its potential to restore a good deal of life to the Federal Court’s ability to intervene in migration cases, few members of the court have chosen to do more than pay lip service to the decision. Those who are minded to maintain a deferential approach to the legislative regime have sided with the dissentient, Whitlam J. Justice Whitlam took the view that the majority’s statements on the effect of s 420 of the Act were obiter dictum that did not go to the actual findings made in Eshetu’s case.(57) What is interesting is that a preponderance of judges now appear to be either siding with the majority interpretation of s 420 in Eshetu, or to be placing another – equally “interventionist” interpretation on the relationship between ss 420 and 476 of the Act. However, in terms of the outcomes of individual cases, little has changed. Very few refugee decisions are being overturned by the courts.
The majority line in Eshetu was endorsed by the court in Umerlebee v Minister for Immigration and Multicultural Affairs,(58) Khan v Minister for Immigration and Multicultural Affairs,(59) Navaratne v Minister for Immigration and Multicultural Affairs,(60) Thambythurai v Minister for Immigration and Multicultural Affairs(61) and Aruliah v Minister for Immigration and Multicultural Affairs.(62) By way of contrast, Madgwick J in Drekevutu v Minister for Immigration and Multicultural Affairs(63) rejected the contention that s 420 had the effect of prescribing procedures for the purposes of s 476(1)(a) of the Act. However, his Honour continued (at p 11 of the transcript):
I see no reason why a breach of s 420(2)(b) at least when constituted by an undue failure to inquire, would not be prima facie remediable under s 476(1)(d) or 476(1)(c)…
As noted earlier, the other common feature of these cases is that none of the applicants involved were able to identify either a breach of the prescribed procedures or other error of law so as to win an order from the court. Put another way, the Federal Court seems to be guarding its jurisdiction in theory, while continuing in practice to defer to the decision makers.
IRT Decisions and the Federal Court
Within the body of Federal Court rulings on general migration cases, the shift towards non-intervention is also apparent, although less pronounced. Examples can be cited of a more conservative approach being taken to the definition of terms such as “special need relative”, so as to restrict the circumstances in which this ground can be invoked by parents desiring to use their infant children as a lever for gaining residence in the country.(64) The Federal Court has also expressed its disquiet with the rigidity of the legislative scheme and with its inability to offer relief in the face of what it perceived to be injustice.(65) Nevertheless, when the opportunity presents itself, the Federal Court has demonstrated some willingness to interpret the law so as to offer relief to the applicant migrant. One notable example is Wang v Minister for Immigration and Multicultural Affairs.(66) In that decision Merkel J refused to adopt an interpretation of the word “notified” in s 478 of the Act that would lead to an operation of the law that flouted common sense and justice. His Honour was particularly concerned that the construction of s 478 reflect its role in the overall scheme for statutory review of IRT and RRT decision, as these decisions may have fundamental consequences for the life and future well being of the individuals concerned.(67) His Honour found that as the primary function of the statutory notification in s 478 is the commencement of the 28 day period of review, it is an implied condition of the valid exercise of the power of notification that it not be exercised in a manner which frustrates or negates that function.(68) Merkel J concluded that the Law was accessible to the applicant.
A further example can be found in Kumar v Minister for Immigration and Ethnic Affairs.(69) In this decision, Tamberlin J concluded that the IRT had made an error of law with respect to its interpretation and application of the phrase “extreme hardship”. By concluding that there had been an error of law, the Court was able to remit the matter for reconsideration by the Tribunal. The Federal Court has also taken quite a strict approach to cases in which the Department has been remiss with the technical requirements of delegated authority from the Minister. In Din v Minister for Immigration and Multicultural Affairs(70) the Federal Court ruled unlawful an entire series of English language tests because the authority to conduct the examinations had not been given by the Minister.
The Minister’s Residual Discretion
In the Ozmanian decision (see above, notes 38 & 39) the Federal Court considered the special provisions in the Migration Act which give the Minister a personal and apparantly non-delegable power to permit certain repeat visa applications to be made by applicants in section 48B and to overturn certain decisions of the appeals tribunals in this area, section 417. Far from introducing certainty into the decision-making process, as they clearly designed to attempt, these provisions have created a huge amount of complex litigation in the Federal and High Courts and after a number of decisions, the final position is far from settled by the courts.
In the first instance decision of Ozmanian, the Court was told the case was “selected” as a test case by the parties’ representatives. It concerned the application of section 417 of the Migration Act 1958. That section is in relevantly identical terms to section 48B. There was then said by the Minister to be 40 cases awaiting the outcome of the case. In the case, the applicant’s visa request was assessed by an offficer of the Minister (the second respondent) and was not referred to him at all before being rejected. At first instance, the Ozmanian case raised the following 5 main issues and answered them in the following way:
(a) Has any reviewable decision been made under section 417 of the Migration Act 1958?
(i) There are three categories of decisions provided for under section 417:
A decision to exercise the power;
A decision to refuse to exercise the power; and
A decision not to consider the exercise of the power (a summary refusal to consider whether to exercise the power) which can be discerned from sections 417 and 475(2)(e) read together.
(ii) The second respondent, acting on the Minister’s behalf made a decision that the Minister would not consider whether to exercise his power under section 417 (1). The Minister’s officers embarked upon a consideration of the matter under the section.
(b) Has any decision been communicated to the applicant in the letter (which enclosed the decision) was one that may only be made under section 417 by the Minister personally?
(i) Decisions of the Minister to exercise or refuse to exercise the power under section 417(1) must be exercised by the Minister personally and cannot be delegated.
(ii) The third category of decision, namely, the decision of the second respondent made on behalf of the Minister that the Minister would not consider whether to exercise his power under section 417 was capable of being delegated under section 496 of the Act. As there was no express delegation of that power in the present case, the decision was not made in accordance with section 417. In particular;
(A) the second respondent did not have the jurisdiction or power to make the decision;
(B) the decision was not authorised by the Migration Act 1958; and
(C) the decision was an invalid exercise of the power conferred by the Migration Act 1958.
The Court referred to this decision as “the invalid decision” although no order or declaration to this effect was made.
(c) Was there a breach of the rules of natural justice in the conduct engaged in for the purpose of making any decision communicated to the applicant in the decision letter?
There was a breach of the rules of natural justice here in the failure to disclose to the applicant some critical information before the decision was made.
(d) Does section 485 of the Migration Act 1958 operate to deprive the Federal Court of jurisdiction and power to grant the relief sought by the applicant in relation to any decision made under section 417?
(i) The decision of the second respondent was made in purported reliance on section 417. Therefore the decision was made “under an enactment” (within the meaning of the ADJR Act) or “under the Migration Act”.
(ii) The decision was one not judicially reviewable under section 475(2)(e). Accordingly, section 485 operated so as to exclude the jurisdiction of the Federal Court.
(iii) The Federal Court has no jurisdiction to grant the relief sought in relation to the “invalid” non judicially reviewable decision under the Migration Act, the ADJR Act or section 39B of the Judiciary Act.
(iv) Sections 6 & 8 of the ADJR Act confers jurisdiction on the Federal Court in relation to “conduct”. That section is not overridden, as it were, by section 485 of the Migration Act 1958. Preparatory procedural conduct of departmental officers in conducting inquiries, making recommendations and preparing a proposed draft of the decision for presentation of officers of the Minister is reviewable conduct under the ADJR Act. The Federal Court therefore has jurisdiction to grant relief under 16(2) of the ADJR Act.
(v) There was a denial of natural justice in relation to the conduct of the departmental officers here.
(e) Should the Court granted any relief in the circumstances of the present case?
(i) Upon the assurance given by the senior counsel for the Minister that the Minister would act consistently with any declaration made without any coercive order, the Court took the view, as a matter of discretion, to make a declaration only that natural justice had been denied in the conduct engaged in for the purpose of making a decision under section 417 of the Migration Act 1958.
On appeal to the Full Federal Court by the Minister, The Full Court allowed the appeal and set aside the declaration of Merkel J. The appeal principally involved the “conduct” issue from the alleged ADJR Act jurisdiction. Importantly, the aspects of Merkel J’s decision concerning the nature of the discretionary power in section 417 was not appealed by either party and accordingly, the issue was not before the Full Court. The Minister lost an opportunity to then have the matter decided upon authoritively.
The finding of the Full Court in Ozmanian that the Federal Court has no jurisdiction in relation to a decision under section 417 has already been applied by the Court (See, for example: Houei v Minister for Immigration and Multicultural Affairs, unreported, 20 August 1997, Tamberlin J. – on an application by the Minister objecting to the competency of the application).
The next significant case where the Minister’s personal power was tested was decided very recently by Justice Beaumont in Re:Bedlington & Anor; Ex Parte Chong, unreported, 9 September 1997. The case concerned s 48B of the Act which permits the Minister to allow applicants to make a second or further visa application, the principal category being a visa based on refugee status.
The applicant was a female from Peru. Her first application for refugee status was refused. She sought to make a further application based upon fresh evidence and new circumstances. Her application was assessed by the Minister’s officers under guidelines dated November 1995. The applicant was considered not to come within the guidelines and her application was not put before the Minister at all. The applicant commenced procedings in the High Court and the question of error of law based upon a statutory construction issue of section 48B was remitted to the Federal Court by Gummow J on 4 April 1996. The case based upon other grounds of judicial review such as denial of procedural fairness and unreasonablness was retained by the High Court for the present. These issues are yet to be determined.
The Federal Court in the Bedlington decision held that section 48B(6) ought to be read down so as to make sense and to give effect to the Minister’s wide discretion in section 48B(1). If an application appears to satisfy the “public interest” criterion in section 48B(1), section 48B(6) has no application and mandamus may issue from the Federal Court. The Court involked the proposition put by Lord Brown-Wilkinson in the House of Lords (in R v Lord President of the Privy Council; Ex parte Page  AC 682 at 701) where he said that there is an underlying assumption by legislators that powers would only be reasonably exercised in accordance with fair procedures, in a context in which it can be taken that Parliament has left it to the judiciary to assess that fairness and reasonableness. The Court also involked the concept of the “equity of the statute” and a fiduciary duty of government to act fairly.
The Court presumed that the relevant gudelines were valid and stood the matter over for further argument. Questions yet to be determined include: Who is to make the decision about the “public interest? By reference to what principle or document is that decision to be made? Did the applicant in that case satisfy the test? If she did, the Minister may be compelled to consider her visa application. If not, the Minister cannot be compelled.
The Points Cases
Interesting developments are under way in the Federal Court in the points cases. The cases concern ordinary applicants for permanent residency in Australia who must navigate their was through a tortous system of earning points set out in the Migration Act and the Regulations. In short, an applicant needs to obtain a certain number of points before he or she may be eligible to migrate to Australia under a number of available classes of visa. Once ontaining that score, the applicant then goes into a “pool” of applicants and then must pass the current pool mark. The word “pool” is apt here, as the marks required float up and down from time to time at the Minister’s direction.
Those applicants who apply from overseas do not have the benefit of internal or merits review as an option. They must go to the Federal Court if there is an error of law. There is an emerging number of recent cases which highlight the difficulty of making too much law here in the form of regulations which are of almost impenetrable complexity and with little meaningful and lawful guidance given to administrative decision-makers.
In this area, a decision-maker must award points for age, education and work experience and English language abilty. The points system is clearly designed to permit into Australia as permanent residents young people with good English skills and who have good educational qualifications and work experience. The Federal Court cases concern the difficult question of determining compatibility in Australia of overseas tertiary qualifications and relevant work experience as assessed according to the “usual occupation” of an applicant. Most applications are determined by the Minister’s officers by simply applying the Procedures Advice Manual (“PAM”). The Act and the Regulations no longer appear to be the critical reference point and increasingly this conduct is being challenged in the Court. Typically, it is alleged that the decision-maker fails to refer an application to the appropriate authority for assessment – Cheung v Minister for Immigration and Ethnic Affairs.(71) To fail to do so is an error of law within the meaning of section 467(1)(a) of the Migration Act 1958 (ibid). The correct person or entity to consider the applicant’s educational qualifications or relevant work experience or both together is, under the Regulations, the National Office of Overseas Skills Recognition, a branch of the Department of Employment, Education, Training and Youth Affairs (“NOOSR”), or, if that body cannot perform the task, the Department of Industrial Relations, of if that Department cannot perform the task, the respondent – Regulation 2.26(5) – The respondent is “third in the list” – Rahman v Minister for Immigration & Multicultural Affairs, unreported, 6 February 1997, Davies J.(at page 9 point 4) .
In any event, the PAMs should not be accorded supremacy over the Act and the Regulations – Cheung’s case, page 14. To do so is an error of law.
Errors in the points cases have also been held to constitute an error of law within the meaning of section 476(1)(e) of the Migration Act 1958 involving an incorrect interpretation of the applicable law –Minister for Immigration v Ye Hu, unreported, 7 November 1997, Full Federal Court, at pages 15 and 21 on the issue of determining the usual occupation of an applicant.
In these cases, the Courts have expressed some sympathy for the decision-makers in that there is little guidance in the actual regulations to permit them to make decisions. However, there is a procedure clearly set out which makes other bodies or entities the relevant decision makers for certain parts of an applicant’s application. What has been happening is that these provisions have been simply ignored and the Minister’s delegated have been determining the whole of the application themselves, contray to the Regulations.
The cases highlight the need to ensure that the PAMS are in touch with the Regulations and are founded on appropriate authority. If this does not occur, the main benefit of having detailed regulations in this area falls away and we might as well be back in the pre 1989 days in the migration area and see the making of decisions by reference to broard and general powers. As long as there are detailed provisions in the Act and the Regulations, and in circumstances where the grounds of judicial review have been severely curtailed in the Federal Court here, the Courts will continue to scrutinise the Act and the Regulations and to hold decision-makers to them quite strictly.
4 A FINAL WORD ON THE NEED TO KEEP JUDGES IN THE SYSTEM
In his play “A Man for All Seasons”, Robert Bolt(72) has Sir Thomas More make an eloquent defence of the English legal system and of the Rule of Law. More’s son-in-law, Will Roper, reprimands him for allowing an unsavoury character to go free because he had not broken the law. To Roper’s suggestion that the end should justify the means: that he would “cut down every law in England” (to get after the Devil), More replies:
Oh? And when the last law was down, and the Devil turned around on you – where would you hide, Roper, the laws being flat? This country’s planted thick with laws from coast to coast – Man’s Laws, not God’s – and if you cut them flat…. d’you really think you could stand upright in the winds that would blow then?
Australia’s system of law and government is predicated on a Constitution; the Common Law and the distribution of power between three authorities: the Parliament, the executive or administration and the courts. The judiciary has none of the primary powers of the Parliament, but it stands as a vital check on the powers being exercised by both the Legislative and the Executive arms of government. For their part the Courts operate subject to the Constitution and subject to the laws made by Parliament. Bill No 5 does nothing to recognise the significance of this tripartite arrangement. In seeing the Courts as an annoyance and a superfluity, the Bill seems to view the Legislative and Executive arms of government as a single unit or at very least as the only two legitimate branches of government. For the government this arrangement might appear convenient – provided of course it has confidence in its administration. In the final analysis Bill No 5 is all about power and the removal of obstacles to its exercise. It is very much about cutting down the structures of administrative law. In considering their vote on this measure, Members of Parliament should consider the ramifications of the measure and where it leads this country. At risk is the notion of accountable government and the notion that decision makers should be answerable for their actions. At risk is the Rule of Law as we know it. The real question for all of us is whether we – and most certainly the migrants we represent – will be able to stand upright in the winds that may then blow.
10. 10 See the Senate Legal and Constitutional Legislation Committee Report, pp52-3. The jurisprudence on the continuing relevance of the Common Law rules of procedural fairness in migration decision making is discussed below, Part 2.*
13. 13 Note that while the legislation does not specify that the reforms are restricted to decisions made after 1 September 1994, the Minister has taken the view that Part 8 should not be used to restrict judicial review of decisions made before this date. On this point, see Amaydayin v Minister for Immigration and Ethnic Affairs, Unreported, Jenkinson J, December 1995.
16. 16 Waterside Workers’ Federation of Australia v Gilchrist, Watt and Sanderson Ltd (1924) 34 CLR 482; Australian Coal and Shale Employees’ Federation v Aberfield Coal Mining Co Ltd (1942) 66 CLR 161. See also Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Mason CJ.
17. 17 Creyke, R “The Structure of Administrative Review” in 1997 National Administrative Law Forum: Administrative Law Under the Coalition Government. Canberra, National Convention Centre, 1-2 May 1997, 5.
18. 18 See R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. In this case Dixon CJ held that a privative clause will be effective to oust the jurisdiction of a courts so long as a decision maker has made a “bona fide attempt to exercise its power, that it relates to the subject matter of the legislation and that it is reasonably capable of reference to the power given to the body.” (At 615)
22. 22 Specifically, the Minister has relied upon the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168; and Darling Casino Ltd v New South Wales Casino Control Authority (1997) 143 ALR 55.
26. 26 See for example: R v Commonwealth Rent Controller; Ex parte National Mutual Life Assoc of Australasia Ltd (1947) 75 CLR 361; R v Central Reference Board; Ex parte Thiess (Repairs) Pty Ltd (1948) 77 CLR 123; Bank of New South Wales v Commonwealth (1948) 76 CLR 1 at 175; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Grant (1950) 81 CLR 27; R v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (1967) 118 CLR 219; and R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415.
31. 31 R v Coldham; Ex parte Australian Workers’ Union (1983) 153 CLR 415 at 418 per Mason ACJ and Brennan J, 421 per Murphy J; O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 250 per Mason CJ; Re Australian Railways Union; Ex parte Public Transport Commission (1993) 67 ALJR 904 at 910; 117 ALR 17 at 25; Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 194 per Brennan J.
32. 32 (1997) 143 ALR 55. The case concerned the grant of the Sydney casino licence. The applicant sought to have the grant of the licence to a competitor set aside. The decision to grant the licence was protected by a privative clause which provided that a decision of the Casino Control Authority was final and conclusive.
42. 42 The following discussion borrows in part from a longer treatment of this issue by the author in Crock, M “Reviewing the Merits of Refugee Decisions: An Evaluation of the Refugee Review Tribunal” in Retreating from the Refugee Convention, Conference Proceedings, Northern Territory University, Darwin, 7-10 February 1997.
47. 47 As the RRT notes (1996, note 61), Olney J’s conclusions were adopted by North J in Zakinov v RRT (Unreported, North J, 26 July 1996) and in Kulwant Singh v Minister for Immigration and Ethnic Affairs and Anor (Unreported, North J 21 November 1996).
50. 50 The RRT (1996), note 67, also draws attention to the case of Cruz v Minister for Immigration and Ethnic Affairs, Unreported, Whitlam J, 31 October 1996. Whitlam J rejected the submissions made on the basis that the applicant was inviting him to engage in review of the merits of the decision under challenge.
52. 52 See p 18 of the transcript. Note that the Federal Court took a similar approach on a different issue in Minister for Immigration and Multicultural Affairs v Ozmanian Unreported, Full Federal Court, 21 November 1996.
54. 54 On this point, see also Sarbjit Singh v Minister for Immigration and Ethnic Affairs Unrptd, Federal Court, Lockhart J, 18 October 1996; Minister for Immigration and Ethnic Affairs v Singh (1997) 142 ALR 191; Wannakuwattewa v Minister for Immigration and Ethnic Affairs Unrptd, Federal Court, North J, 24 June 1996; Velmurugu v Minister for Immigration and Ethnic Affairs Unrptd, Federal Court, Olney J, 23 May 1996; and Zakinov v Minister for Immigration and Ethnic Affairs Unrptd, Federal Court, North J, 26 July 1996.
55. 55 The majority considered the case of Bouton v Labiche (1994) 33 NSWLR 225 and overruled the cases of Than Phat Ma v Billings (1996) 142 ALR 158; Dai Xing Yao v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 147 and; Moheedin v Minister for Immigration and Ethnic Affairs Unrptd, Federal Court, Olney J, 17 April 1997.
57. 57 See id., 680. See also the case of Nguyen Do Vinh v Minister for Immigration and Multicultural Affairs, Unreported, Goldberg J, 6 May 1997 (On Appeal, Nguyen Do Vinh v Minister for Immigration and Multicultural Affairs, Unreported, Full Federal Court, 16 October 1997).
64. 64 See Huang v Minister for Immigration and Ethnic Affairs, Unreported, Full Federal Court, 29 November 1996. Compare this ruling with the earlier case of Chen v Minister for Immigration and Ethnic Affairs (1994) 51 FCR 322.
65. 65 See the comments of Hill J in Barzideh v Minister for Immigration and Ethnic Affairs, Unreported 12 February 1997; and Chikonga v Minister for Immigration and Ethnic Affairs, Unreported, Nicholson J, 6 March 1997. In both cases the Court could not exercise its jurisdiction because the wrong parties had been named as respondent to the action.