Case: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162
Outcome: applied
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 183-184 [80] , 211-212 [210]-[211] McHugh and Hayne JJ respectively considered whether and to what extent the court could withhold relief in cases where the jurisdictional error had been established. The decision to issue to constitutional writs or a writ of certiorari is, of course, discretionary. McHugh J pointed out, as the Minister put in her submissions, that discretionary relief may be refused if an applicant has in fact suffered no injustice because, for example, the statutory regime compelled a particular outcome (215 ALR at 184 [80]). I am of opinion that there was some relationship between the Tribunal's findings about the appellant's degree of involvement in the business and his language skills. In particular the Tribunal referred to the difficulties he had in the interview with the Department, which was conducted without an interpreter, in considering both the issues under cl 845.216 and the language component of the points test. The Tribunal found that the appellant did not demonstrate to it that he understood and spoke English at a level which would have allowed him to understand questions in English, and therefore accepted that he had difficulties in understanding questions asked of him at the Departmental interview . As the trial judge observed '... the issue was not dealt with as clearly as one might like' in the reasons of the Tribunal even though there was no jurisdictional error established on this point. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 212 [211] Hayne J, with whom Kirby J agreed, referred with approval to what Gaudron J had said in Enfield City Corporation v Development Assessment Commission [2000] HCA 5 ; (2000) 199 CLR 135 at 157 [56] that: '... the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.' The Minister does not rely on any delay, waiver or acquiescence or other conduct disentitling the appellant to relief. The sole question is whether the finding by the Tribunal that the appellant had not satisfied it as to the points test is such as mandates that any reconsideration by the Tribunal must result in the same ultimate decision to affirm the decision not to grant the visa. I am of opinion that the Tribunal's findings on the points test issues are part of the merits which it can revisit or not as it sees appropriate, if it is ordered to conduct the review according to law. It would be for the Tribunal to make its own decision as to whether or not it was satisfied as to any such matters on a review, albeit that it may well feel that it does not wish to revisit the matter. Alternatively, it may feel that, having regard to the jurisdictional error that has been found, it ought to do so. The Court cannot compel the Tribunal to adhere in the future to any particular state of satisfaction which it expressed previously in its reasons. I am not satisfied that the appellant has suffered no injustice ( SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR at 184 [80], 203 [170], 212 [211]) having regard to the jurisdictional error I have found and to the fact that on reconsideration he may be able to satisfy the Tribunal conducting the review in accordance with law of the matters which it had previously not been satisfied about under the points test. I am not confident that the jurisdictional error I have found could have had no bearing on the outcome and thus I should not refuse relief: Stead v State Government Insurance Commission [1986] HCA 54 ; (1986) 161 CLR 141 at 145, 147.