NAAV v Minister for Immigration & Multicultural & Indigenous Affairs

(2002) 193 ALR 449; [2002] FCAFC 228

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Interrogate

Catchwords

1. Administrative Law
2. › Privative clauses
3. › Operation of privative clause
4. › Hickman principle of statutory construction
5. › Expansion of decision-maker's authority and powers
6. › Whether privative clause validates decisions otherwise affected by jurisdictional error
7. › Migration Act 1958 (Cth), s 474
1. Administrative Law
2. › Judicial review
3. › Jurisdictional error
4. › Distinction between jurisdictional facts enlivening power and procedural requirements for exercise of power
5. › Whether breach of statutory procedural requirements constitutes jurisdictional error protected by privative clause
1. Constitutional Law (Cth)
2. › Judicial power of Commonwealth
3. › Privative clauses
4. › Whether privative clause inconsistent with Chapter III of Constitution
5. › Whether s 474 removes jurisdiction of High Court under s 75(v)
6. › Constitution, ss 71, 75(iii), 75(v)
1. Migration
2. › Cancellation of visas
3. › Cancellation while holder outside Australia
4. › Whether delegate misconstrued ground for cancellation under s 116(1)(f)
5. › Whether privative clause protects cancellation decision
6. › Migration Act 1958 (Cth), ss 65, 116, 128

Quick Take

The distinction between jurisdictional facts that enliven decision-making power (which the privative clause cannot validate if absent) and procedural requirements for the exercise of that power (which the privative clause may render directory) is critical to migration law. The case was subsequently overtaken by the High Court's decision in Plaintiff S157/2002.