BYN18 v Minister for Home Affairs

The jurisdiction conferred by the Migration Act & the requirement of a decision 12 Section 501 of the Migration Act provides for the refusal or cancellation of a visa on character grounds and provides, in part, as follows: Decision of Minister or delegate - natural justice applies (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. … (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or …; and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. … Character Test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or … Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: … (c) the person has been sentenced to a term of imprisonment of 12 months or more; or … Section 501(1) is the provision which confers on the Minister the discretion to refuse to grant a visa. The power relied upon by the delegate of the Minister in the present case to cancel the Applicant's visa was that conferred by s 501(3A). 13 Where a decision has been taken under s 501(3A), the provision of a written notice setting out (inter alia) that decision is required by s 501CA. Section 501CA provides, in relevant part, as follows: Cancellation of visa - revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. … 14 The provisions of the Migration Act relevant to the jurisdiction exercised by the Federal Circuit Court are ss 5, 474, 476 and 477. 15 It is s 476 which sets forth the parameters of the jurisdiction entrusted to that Court; it is s 477 which confers a statutory power to extend time within which a proceeding with respect to which that Court has jurisdiction may be commenced. 16 Section 476 provides as follows: Jurisdiction of the Federal Circuit Court (1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. (2) The Federal Circuit Court has no jurisdiction in relation to the following decisions: (a) a primary decision; (b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; (c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; (d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7). (3) Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975. (4) In this section: primary decision means a privative clause decision or purported privative clause decision: (a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or (b) that would have been so reviewable if an application for such review had been made within a specified period; or (c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed). 17 Section 477 provides, in relevant part, as follows: Time limits on applications to the Federal Circuit Court (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. (3) … (4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3). (5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision. 18 The reference in ss 476 and 477 to a "migration decision" is a reference back to the following definition of that phrase set forth in s 5, namely: migration decision means: (a) a privative clause decision; or (b) a purported privative clause decision; or (c) a non‑privative clause decision; or (d) an AAT Act migration decision. The phrase "privative clause decision" is picked up in s 474. That section provides, in part, as follows: Decisions under Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must 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. (2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; (d) imposing, or refusing to remove, a condition or restriction; (e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing; (h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation; (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision. (4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision: … 19 If attention is confined for present purposes to the jurisdiction conferred by these provisions, common to many of them is the requirement that there be a "decision". 20 The notification given to the Applicant on 4 April 2017 of the decision to cancel his visa, as opposed to the decision to cancel the visa, is not a "decision" for the purposes of these provisions and not a "decision" susceptible of review: cf. Chung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 442 ("Chung"). In concluding that the notification of a decision to refuse to grant a visa did not constitute a "decision" which enlivened the jurisdiction of this Court, Conti J there concluded as follows: Jurisdiction of the Federal court to review the present application [17] The Federal Court of Australia has original jurisdiction, subject to certain statutory limitations, "with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth" (s 39B of the Judiciary Act). As Counsel for the Minister correctly postulated, the combined purpose of s475A and s 476 of the [Migration] Act, is to limit the jurisdiction of the Federal Court effectively to that conferred by s 39B of the Judiciary Act. [18] The applicants' principal submission was that the notification contained in the Department's letter of 14 May 2002 to the applicants, constituted a separate and distinct "decision", for the purposes of Pt 8 of the Act. In contrast, the Minister contended that a notification did not represent a "decision", for the reason that the giving of the notification did not involve a "final or operative determination and [consequently] does not amount to a decision for the purposes of s 474(2)". The description "final or operative determination" was borrowed from the well known passage in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338. Bond initially involved a consideration of the criteria for administrative review set out in subs 3(1) and subs 3(2) of the Administrative Decision (Judicial Review) Act 1977 (Cth). Those statutory provisions are almost identical to the terms of s 474(3) of the Act… [19] The Minister's submission is I think clearly correct. For a decision-maker merely to communicate his or her decision to a person to be affected thereby, pursuant to his or her duty so to do, does not involve the making of a decision so to do within s 474(3), particularly where the decision-maker is subject to a statutory obligation so to do, whether explicit or implicit. The applicants' submission involves a tautology of the Minister's decision-making function which is involved in the statutory process of making a privative clause determination. In that decision it was s 66 of the Migration Act which imposed the requirement to notify an applicant of a decision to refuse to grant a visa. These conclusions of Conti J in Chung were subsequently endorsed by Gordon J, when sitting as a Judge of this Court, in MZXMI v Minister for Immigration and Citizenship [2007] FCA 1162 at [12] ("MZXMI"). In reliance upon the statements in Chung and MZXMI, Besanko J has also observed that "there are difficulties in treating a notice as a decision": Kumar v Minister for Immigration and Citizenship [2009] FCAFC 55 at [76], (2009) 176 FCR 401 at 415. Stone and Greenwood JJ agreed with Besanko J. 21 There is no reason why the same conclusion should not be reached in respect to the notification pursuant to s 501CA of a decision made pursuant to s 501(3A) of the Migration Act. Nor is there any reason to conclude that the primary judge erred in finding that the notification provided to the Applicant on 4 April 2017 did not constitute a "migration decision" susceptible of review by the Federal Circuit Court: cf. [2018] FCCA 3838 at [7]. 22 The definition of a "privative clause decision" in s 474(2), it may further be noted, has many of the hallmarks of the manner in which the requirement of a "decision" has been interpreted under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "Judicial Review Act"). When considering that legislation, the following observations of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335 to 336 are oft repeated: The fact that the AD(JR) Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word "decision". … Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s 3(1) to "a decision of an administrative character made … under an enactment" indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s. 3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Dean J, "a determination effectively resolving an actual substantive issue". Thirdly, s. 3(3), in extending the concept of "decision" to include "the making of a report or recommendation before a decision is made in the exercise of a power", to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that "decision" comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s. 3(5) suggests that acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision". Although it is the particular statutory context under consideration in any given case which dictates whether a "notice" may constitute a "decision", it may be noted that in McLachlan v Australian Securities Commission (1998) 52 ALD 298 at 304 Finn J concluded that a decision to issue a notice of hearing under s 57(2) of the Australian Securities and Investments Commissions Act 1989 (Cth) was not one which could "of itself result in any determination of rights or liabilities or of any substantive issue" - it merely put in train a process which could lead to a decision which had consequences of that kind. This decision was affirmed on appeal: McLachlan v Australian Securities and Investments Commission [1999] FCA 244, (1999) 85 FCR 286. Similarly, it was the making of the decision under s 501(3A) which was the substantive decision impacting upon the Applicant and the giving of the notice under s 501CA(3) was not itself a "decision" but merely a step which put in train the process of inviting a further representation from the Applicant so that the Minister could thereafter make a separate substantive decision under s 501CA(4) as to whether to revoke the visa cancellation. For present purposes the analogy is sufficient. 23 The Applicant's submission that the definition, in s 474, of a privative clause decision (as including "doing or refusing to do any other act or thing": s 474(3)(g)) captured the notification provided on 4 April 2017 such that it was a migration decision reviewable by the primary Judge is therefore rejected. 24 No submission was advanced, and accordingly no concluded view is expressed, as to whether the specific statutory context now under consideration could lead to a conclusion that the giving of notice under s 501CA(3) was "conduct engaged in for the purpose of making a decision…" for the purposes of the Judicial Review Act. That question, not surprisingly, did not arise in the present case. 25 Section 39B of the Judiciary Act 1903 (Cth), it may be noted in passing, would not have availed the Applicant in the present proceeding in his attempt to invoke the jurisdiction of the Federal Circuit Court as s 39B is drafted in terms of conferring jurisdiction on this Court alone. 26 The Federal Circuit Court Judge was thus correct in concluding that jurisdiction was not vested in that Court to review the notification given to the Applicant on 4 April 2017.

CONCLUSIONS 27 It is to be recalled that the decision the Federal Circuit Court was called upon to make was an application to grant an extension of time within which an application could be made to that Court. It was within that context that the primary Judge concluded as a preliminary matter that that Court did not have jurisdiction vested in it pursuant to the Migration Act. Although unnecessary to do so, the primary Judge nevertheless also went on to consider the separate question as to whether the argument sought to be advanced had sufficient merit to warrant an extension of time being granted. 28 It has been concluded that the primary Judge was correct in concluding that the notification was not a "decision" susceptible of review in accordance with the jurisdiction conferred on the Federal Circuit Court by the Migration Act. 29 That is a sufficient basis upon which the present proceeding can be resolved. 30 The proceeding is to be dismissed. 31 The parties were in agreement that costs should follow the event.

THE ORDERS OF THE COURT ARE:

1. The proceeding is dismissed.
2. The Applicant is to pay the costs of the First Respondent, either as agreed or assessed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.