Case: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2001) 209 CLR 597
Outcome: cited
The applicant argued that the cancellation was void 'ab initio'. She argued that an administrative decision involving jurisdictional error lacks legal foundation and can be regarded as no decision at all. In that regard, the applicant's counsel relied on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2001) 209 CLR 597 (' Bhardwaj '). The effect of the High Court decision in Bhardwaj was explained by the Full Court of this Court in Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288 ; (2003) 204 ALR 55. In that case, Gray and Downes JJ addressed the reasoning of the members of the High Court and said at [40]: 'This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not. Gaundron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the court has declined to grant relief in relation to the decision by reason of discretionary considerations. The facts of Bhardwaj did not call for pronouncement upon these issues. The IRT had itself chosen to ignore its previous decision. The validity of that decision was in issue in the very proceeding with which the High Court was dealing.' 104 Kenny J said at [64]: 'For the reasons stated by Gray and Downes JJ, the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597; 187 ALR 117 ( Bhardwaj ) is authority for the limited proposition that the consequences of a decision, which is affected by jurisdictional error, depend primarily on the statute pursuant to which the decision-maker purported to make the decision. I reject the appellant's submissions in so far as they are to the contrary effect.' 105 The applicant did not identify those provisions of the Act which would make the decision void ab initio. However, in view of the respondents' concession, which was rightly made, I need not further explore that matter. Whether the decision was ineffective or void ab initio, the Return Endorsement was not cancelled on 31 July 1989. So much is agreed by the parties. 106 The applicant argued that the issue of the Return Resident visa on 31 July 1989 was also invalid. I am not sure that necessarily follows but I think, in the end, nothing turns on that because the Return Resident visa would have expired, in relation to the first one issued, in 1994 and, in relation to the second, on 21 May 1998.