Case: Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Palme, Re [2003] HCA 56 ; (2003) 216 CLR 212
Outcome: applied
issue was further considered by the High Court in Re Minister for Immigration, Multicultural and Indigenous Affairs; ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212. In Palme the Court held that a failure to discharge the statutory obligation imposed by s 501G of the Migration Act 1958 (Cth) , to give reasons for a decision to cancel a visa, did not mean that the decision could be set aside because it was tainted with jurisdictional error. Four aspects of the reasoning in Palme are of present relevance. First, it is necessary to recognise that a distinction is to be drawn between the decision and the reasons for that decision: see Palme at 225. An attack on the reasons which seeks to have the decision set aside fails to appreciate this distinction. This is a different attack from one which focuses on a jurisdictional error arising from the failure of the reasons to refer to, for example, a relevant consideration: cf Yusuf at 351-2. Secondly, it is important to identify precisely what act is being impugned: Palme at 225. In Palme there was an attack by Constitutional writ on the exercise of the power to cancel a visa. In this case, there is an appeal from the Panel's decision to set aside AFMA's decision and substitute one more favourable to Mr Kennedy because it was not sufficiently favourable to his interests. The word "decision" in this context means the final and operative decision of the Panel as provided for in s 150(3) of the Act: Director-General of Social Services v Chaney [1980] FCA 87 ; (1980) 47 FLR 80. Section 161 fixes on the decision as the subject matter of the appeal, not on the reasons. Thirdly, the question of whether a failure to comply with a statutory requirement to provide adequate reasons can affect the exercise of power is one of statutory construction: Palme at 225. There is nothing in the scheme of the legislation which suggests that the provision of inadequate reasons could vitiate a decision of the Panel. On the contrary, given the nature of the Panel's task, the requirement that all operators be parties to the appeal to the Panel (s 144(3) of the Act) and the fact that the allocation of SFRs cannot be implemented until after any application to the Panel is dealt with (s 23(3) of the Act), it could not readily be inferred that the Act intended that a failure to give reasons should invalidate the decision. Finally, it was held in Palme that the appropriate remedy, in the event that a tribunal fails to satisfy a statutory obligation to provide adequate reasons for a decision, is an order in the nature of mandamus: at 224. That remedy can, and should, be sought independently of any rights of appeal such as those provided for in s 161 of the Act. The right of appeal, given by s 161, is confined by the requirement that the appeal be on a question of law from the decision of the Panel. The question must, therefore, be one which arises from the decision and not from any failure, on the part of the Panel, to satisfy its statutory obligations under s 160(1) of the Act. Such a failure, in my view, does not give rise to a question of law relating to the decision itself. Question of law 2(c) asked whether the Panel had complied with the obligations imposed on it by s 160(1)(b) of the Act. A negative answer to that question would not, however, have revealed any error affecting the Panel's decision: cf Birdseye at 326 (per Branson and Stone JJ). It could not, therefore, have assisted Mr Kennedy. Mr Kennedy submitted that Palme may be distinguished on the basis that there is no equivalent of s 501G(4) of the Migration Act in the Act. Where a decision has been made to refuse to grant a visa to a person or to cancel a visa, s 501G of the Migration Act requires the Minister to give the person a written notice which sets out the decision and the reasons for the decision. Section 501G(4) provides: "A failure to comply with this section in relation to a decision does not affect the validity of the decision". The relevant parts of the reasoning in Palme do not, however, depend on s 501G(4). As already noted, the Court emphasised the need to distinguish between a decision which is sought to be challenged and the reasons for that decision when determining whether the decision can be impeached for jurisdictional error. In their joint judgment (at 221) Gleeson CJ, Gummow and Heydon JJ said: "The visa cancellation decision may be reviewed in this court for jurisdictional error. Such error may be found from what is disclosed by reasons provided under s 501G(1)(e). Failure to provide reasons may also be reviewed in this Court and compliance by the Minister with the statutory duty may be ordered. The reasons then provided may furnish grounds for prohibition under s 75(v) [of the Constitution ] in respect of the visa cancellation decision. But what is not provided for is for a prosecutor, as in this case, to bypass that earlier step utilising mandamus, and to impeach the visa cancellation decision itself for want of discharge of the duty to provide reasons. There is, as was pointed out in argument, a critical distinction between failure to comply with s 501G(1)(e) and using that failure to conclude that the visa cancellation decision is flawed by jurisdictional error". See also at 227-228 (per McHugh J). It was open to Mr Kennedy to seek an order of mandamus to compel the Panel to comply with its obligations under s 160(1) of the Act. He did not do so. Instead, he has proceeded to prosecute his appeal to this Court on the basis of the reasons which he, rightly, submits are inadequate. His failure to seek a mandatory order may have been the result of a forensic decision (cf Palme at 224) or for some other reason. Whatever the reason, the inadequacy of the Panel's reasons cannot, consistently with the decision in Palme , be relied on to impeach the Panel's decision. There is no reference, in the Full Court's reasons, to either of the High Court's decisions in Yusuf and Palme . Given that it was common ground that, in giving inadequate reasons, the Tribunal had committed a jurisdictional error of law, I assume that the Court's attention was not drawn to these decisions although I note that, in the primary judge's reasons, His Honour observed, referring to Yusuf , that "it is unlikely that the error of law constituted by inadequate reasons could be jurisdictional": see Civil Aviation Safety Authority v Central Aviation Pty Ltd [2009] FCA 49 ; (2009) 108 ALD 329 at 345. Whilst it may be accepted that the failure, on the part of a decision maker, to comply with a statutory obligation to provide reasons might constitute an error of law it does not follow that such an error is jurisdictional in nature such as to justify the setting aside of the impugned decision. That position does not change simply because the decision-maker is no longer available to provide further and better reasons. That circumstance does not, in my respectful opinion, render it inevitable that the decision under review should be set aside. In my opinion, I am bound by Palme to hold that the Panel's failure to comply with its obligations under s 160(1)(b) of the Act does not constitute a jurisdictional error which would warrant the setting aside of the Panel's decision.