Federal Court of Australia|1996-09-18|Before: Black CJ, Sundberg J

Dai Xing Yao v the Minister of Immigration and Ethnic Affairs and the Refugee Review Tribunal [1996] FCA 1792 (18 September 1996)

DAI XING YAO v. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and

Migration - Application for refugee status - Refusal - Application for review by Tribunal - Legislative reduction in grounds upon which curial review of Tribunal's decision available - Tribunal affirms refusal - Application to court for review of Tribunal's decision - Question set aside for separate determination - Whether reduction applies on curial review - Whether claim for recognition as a refugee has characteristics of a right - Function of review tribunal.

Statutes - Repeal - Effect of - Accrued rights - Legislative reduction in grounds upon which court may review decision of tribunal - Reduction effected before tribunal's decision - Whether reduction applies to application for review - Presumption against retrospectivity - Need for clarity in abrogation or curtailment of rights.

Administrative Appeals Tribunal Act 1975

Administrative Decisions (Judicial Review) Act 1977, s 5

Migration Act 1958, Part 8

Migration Reform Act 1992, ss 33, 39

Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1

Director of Public Works v Ho Po Sang (1961) AC 901

Abbott v Minister for Lands (1895) AC 425

New South Wales Aboriginal Land Council v The Minister (1988) 14

Azevedo v Department of Primary Industry [1992] FCA 84; (1992) 106 ALR 683

Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430

Australian Coal and Shale Employees Federation v Aberfield Coal

Colonial Sugar Refinery Co v Irving (1905) AC 369

Continental Liqueurs Pty Ltd v G F Heublein and Bro Inc (1960) 103

Counsel for the Applicant: R.A. Lewitan QC and G.J. Moloney

Counsel for the Respondent: R.R.S. Tracey QC and K.H. Bell

Solicitor for the Respondent: Australian Government Solicitor

The Court declares that on the facts set out in the order of 21 May 1996 (amended by the insertion after the word "Tribunal" in paragraph (iv) of the words "affirming the Minister's determination"), the decision of the Refugee Review Tribunal is reviewable only under the provisions of Part 8 of the Migration Act 1958.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BLACK CJ and SUNDBERG J The Migration Reform Act 1992 ("the 1992 Act") received the Royal Assent on 7 December 1992. Section 33 of the 1992 Act inserted Part 4B into the Migration Act 1958 ("the Act"). The new Part consisted of ss 166L to 166LK and dealt with the review by the Federal Court of certain decisions made under the Act. Part 4B was to have come into operation on 1 November 1993, but by the Migration Laws Amendment Act 1993 the commencement date was deferred to 1 September 1994. As a result of the renumbering of sections of the Act effected by later legislation, Part 4B became Part 8, and ss 166L to 166LK became ss 475 to 486. Section 476 deals with the grounds upon which "judicially-reviewable decisions", which include decisions of the second respondent, the Refugee Review Tribunal, may be reviewed by the Federal Court. Sub-section (1) provides:

Subject to subsection (2), application may be made for review by

the Federal Court of a judicially-reviewable decision on any one

or more of the following grounds:

(a) that procedures that were required by this Act or the

regulations to be observed in connection with the making of the

decision were not observed;

(b) that the person who purported to make the decision did not

have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the

regulations;

(d) that the decision was an improper exercise of the power

conferred by this Act or the regulations;

(e) that the decision involved an error of law, being an error

involving an incorrect interpretation of the applicable law or

an incorrect application of the law to the facts as found by the

person who made the decision, whether or not the error appears

on the record of the decision;

(f) that the decision was induced or affected by fraud or by

actual bias;

(g) that there was no evidence or other material to justify the

making of the decision.

The following are not grounds upon which an application may be

made under subsection (1):

(a) that a breach of the rules of natural justice occurred in

connection with the making of the decision;

(b) that the decision involved an exercise of a power that is

so unreasonable that no reasonable person could have so

exercised the power.

The reference in paragraph (1)(d) to an improper exercise of a

power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose

for which the power is conferred; and

(b) an exercise of a personal discretionary power at the

direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a

rule or policy without regard to the merits of the particular

case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the

exercise of a power; or

(e) failing to take a relevant consideration into account in the

exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that

represents an abuse of the power that is not covered by

paragraphs (a) to (c).

The ground specified in paragraph (1)(g) is not to be taken to

have been made out unless:

(a) the person who made the decision was required by law to

reach that decision only if a particular matter was established,

and there was no evidence or other material (including facts of

which the person was entitled to take notice) from which the

person could reasonably be satisfied that the matter was

established; or

(b) the person who made the decision based the decision on the

existence of a particular fact, and that fact did not exist.

In spite of any other law, including section 39B of the

Judiciary Act 1903, the Federal Court does not have any

jurisdiction in respect of judicially-reviewable decisions

... other than the jurisdiction provided by this Part ....

6. Putting aside cases of a transitional nature such as the present, before Part 8 came into operation many decisions made under the Act, including those of the Refugee Review Tribunal, were reviewable by the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). Section 5 of the ADJR Act sets out the grounds of review. It is not necessary to engage in a detailed comparison of the grounds upon which relevant decisions are reviewable under s 5 of the ADJR Act and under s 476 of the Act. It is sufficient to note that:

(a) except for the case of actual bias, a breach of the rules of

natural justice is no longer a ground

(b) "unreasonableness" in the Wednesbury sense is no longer a

ground

(c) the improper exercise of a power no longer covers taking an

irrelevant consideration into account, failing to take a

relevant consideration into account, or an exercise of

discretionary power in bad faith

(d) the error of law ground is restricted to cases where the

error involves an incorrect interpretation of the applicable

law or an incorrect application of the law to the facts.

7. Again putting transitional cases aside, before Part 8 came into operation relevant decisions were also reviewable by the Federal Court under s 39B of the Judiciary Act which confers jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

8. On 24 July 1991 the applicant applied for refugee status. On or about 22 October 1993 his application was refused by the delegate of the first respondent, the Minister. The delegate found there was not a real chance of persecution for Convention-related reasons were the applicant to return to the People's Republic of China. On 17 November 1993 the applicant applied to the Refugee Review Tribunal to review the Minister's decision. On 4 October 1994 the Tribunal affirmed the decision. The Tribunal noted that the effect of s 39 of the 1992 Act was that refugee-related applications not finally determined before 1 September 1994 were to be dealt with as if they were applications for protection visas. A criterion for a protection visa is that the applicant is a non-citizen of Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act.

9. It will be observed that Part 8 of the Act came into operation in the interval between the application for review by the Tribunal and the Tribunal's decision. On 2 November 1994 the applicant applied for an order to review the Tribunal's decision under the ADJR Act and s 39B of the Judiciary Act. The grounds upon which he relied included failure to take into account relevant considerations, and that the decision was so unreasonable that no reasonable person could have made it.

10. On 14 December 1994 the applicant filed an amended application seeking to review the Tribunal's decision under Part 8 of the Act as well as under the ADJR Act and s 39B. The amended application expanded the grounds relied upon under the ADJR Act and s 39B to include, inter alia, breach of the rules of natural justice.

11. On 21 May 1996 a judge of the Court ordered pursuant to O 29 r 2 that there be a separate determination of the issue whether a decision of the Refugee Review Tribunal is reviewable under the provisions of:

(a) the Administrative Decisions (Judicial Review) Act 1977; and

or

(b) Section 39B of the Judiciary Act 1903; and or

(c) Part VIII of the Migration Act 1958

where

(i) the Applicant made his primary application to the Minister

for determination of his status as a refugee on 24 July 1991;

(ii) the Minister made his determination, refusing the

Applicant's application for refugee status on 22 October 1993;

(iii) the Applicant applied to the Refugee Review Tribunal to

review a decision of a delegate of the First Respondent refusing

the Applicant's application for refugee status and for a

domestic protection (temporary) entry permit on 17 November

1993;

(iv) the decision of the Refugee Review Tribunal was made on

4 October 1994.

12. The issue for separate determination is whether the application to review the Tribunal's decision is to be dealt with under Part 8 of the Act or under the ADJR Act and s 39B. Pursuant to s 20(1A) of the Federal Court of Australia Act 1976 the Chief Justice directed that it be heard by a Full Court.

13. Section 8 of the Acts Interpretation Act 1901 provides in part that

Where an Act repeals in the whole or in part a former Act, then

unless the contrary intention appears the repeal shall not:

...

(c) affect any right privilege obligation or liability acquired

accrued or incurred under any Act so repealed; or

...

(e) affect any investigation legal proceeding or remedy in

respect of any such right privilege obligation (or) liability

as aforesaid ....

14. Section 8A provides that a reference in s 8 to the "repeal" of an Act or of a part of an Act includes a reference to

(a) a repeal effected by implication;

(b) the abrogation or limitation of the effect of the Act or

part; and

(c) the exclusion of the application of the Act or part to any

person, subject-matter or circumstance.

15. The effect of s 485(1) of the Act is to remove from this Court the jurisdiction it has under "any other law, including section 39B" in respect of "judicially-reviewable decisions". It therefore "excludes" the application of the ADJR Act and s 39B to a "subject matter or circumstance", namely reviews by this Court of decisions of the Tribunal. Accordingly, the exclusion effected by s 485(1) does not affect any "right ... accrued" under the excluded Acts.

16. The word "right" in s 8 is not used in a strict sense. As Windeyer J said in Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 12, the court is not, in determining the meaning of "right" in the section, "engaged in an exercise in analytical jurisprudence, or with the classification, expressed in terms of correlatives and opposites, that delights and attracts both disciples and critics of Hohfeld". Thus his Honour considered that an immunity, or exemption from legal consequences, can be called a "right" once it has taken effect and is not merely inchoate. That which in jurisprudential language might best be classified as a power, might nevertheless lie within the family of rights: at 13.

17. The word "right" does not stand alone. It must have "accrued". The individual claiming the right must be in a distinctive position - a position different from that of other members of the community. In Abbott v Minister for Lands (1895) AC 425 it was held that a person's ability, existing at the date of a repealing statute, to take advantage of the statute, was not a "right accrued". In order for the right to take advantage of an enactment to be a "right accrued", the individual must have done something towards availing himself of that right. A mere hope or expectation that a right will be created is not preserved: Director of Public Works v Ho Po Sang (1961) AC 901. In that case the Director had notified a Crown lessee (Kwong) of his intention to grant Kwong a rebuilding certificate. If granted this would have entitled Kwong to eject the occupants of the land. The occupants appealed to the Governor in Council against the Director's proposal, and Kwong cross-appealed. The legislation required the Governor in Council to take the appeal and cross-appeal into consideration and conferred on him an absolute discretion to grant or refuse a rebuilding certificate. While the Governor in Council was considering the matter the relevant provisions were repealed. The Privy Council held that Kwong had no more than a hope or expectation that in the exercise of the Governor's discretion he would be given a certificate, even though he may have had grounds for optimism as to his prospects: at 922.

18. But where an applicant is entitled to some benefit or advantage if he can satisfy certain statutory criteria, no discretion being involved, the making of an application has been held to give him an accrued right within s 8(c). Thus in New South Wales Aboriginal Land Council v The Minister (1988) 14 NSWLR 685 at 696 Hope JA, with whom the other members of the Court agreed, said:

a statutory right will be preserved notwithstanding the repeal

or amendment of the statute even though the right can only be

implemented by a non-discretionary decision of an official or a

court, provided that the statutory machinery for obtaining that

decision has been set in train before the repeal or amendment.

19. See also Azevedo v Department of Primary Industry [1992] FCA 84; (1992) 106 ALR 683 at 700.

20. In Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 the appellant received weekly payments as compensation for injury suffered while a member of the defence force. He applied under a provision of the compensation legislation to redeem his weekly payments in exchange for a lump sum. The application was rejected, and he applied to the Administrative Appeals Tribunal for a review of that decision. After the application was made, but before the hearing, the compensation legislation was repealed. A majority of the High Court held that the applicant had an accrued right within s 8(c), and that the repealing legislation did not affect that right since it expressed no intention to do so. Mason CJ, Deane, Toohey and Gaudron JJ said, at 440-441:

Once the appellant lodged an application to the Tribunal to

review the delegate's decision, he had a right to have the

decision of the delegate reconsidered and determined by the

Tribunal. It was not merely "a power to take advantage of an

enactment" (Mathieson v Burton [1971] HCA 4; (1971) 124 CLR 1 at 23....). Nor

was it a mere matter of procedure (Newell v The King (1936) 55

CLR 707 at 711-712); it was a substantive right .... Section 8

... protects anything that may truly be described as a right,

"although that right might fairly be called inchoate or

contingent" (Free Lanka Insurance Co Ltd v Ranasinghe (1964)

AC 541, at 552 ...). This was such a right. It was a right in

existence at the time the 1971 Act was repealed. That being so,

and in the absence of a contrary intention, the right was

protected by s 8 ... and was not affected by the repeal ....

21. Brennan J dissented. His Honour thought the appellant had no more than a hope or expectation that he would become entitled to a redemption payment, and that the case was covered by Ho Po Song.

22. Neither the majority justices nor Brennan J referred to the distinction drawn in Aboriginal Land Council between discretionary and non-discretionary decisions, though that case was referred to by the majority on another point. In any event, the application for review in Esber was made before the repeal. The majority justices appear to have based their conclusion that the appellant had a right to have the delegate's decision reconsidered and determined by the Tribunal on the fact that he had lodged his application to review the Tribunal's decision before the repeal. In the present case the application for review was made after the deemed repeal. At the date of the deemed repeal, the Tribunal had not made a decision, and thus all the applicant could envisage was that if the decision of the Tribunal went against him, he would be able to review it under the ADJR Act and s 39B. His ability to seek a review depended upon an adverse decision that had not been made and might never be made. Any sort of right to review a decision presupposes the existence of the decision. It might therefore have been thought that the applicant did not have even an inchoate or contingent right to review the decision of the Tribunal.

23. However, Esber has been seen by some members of this Court as establishing that s 8(c) preserves to an applicant the benefit of the whole range of pre-repeal avenues of review so long as the applicant has set the review process in train by making an initial application. Thus the fact that the relevant statute is repealed immediately after the making of an initial application for review will not prevent an applicant availing himself of the whole gamut of review and appeal procedures even though nothing has yet been decided against him.

24. Thus in Patti-Mae Lee v Secretary Department of Social Security (Unreported, 7 August 1996) Moore J, as a member of the Full Court, said:

In the present case the appellant had made application under

s 1240 prior to the amendment to s 1237. But until that

application had been determined and determined unfavourably to

the appellant, no application could have been made by the

appellant under s 1247 to the SSAT and thereafter to the Tribunal

under s 1283.

In my opinion, both the right to have the decision further

reviewed by the SSAT and reviewed again by the Tribunal are

conditional rights of the same character as the right to apply

for a review considered in Esber.

25. See also ACT PET Operations Pty Ltd v Comptroller-General of Customs [1993] FCA 500; (1993) 118 ALR 114 at 126-127. Applied to the present case, that approach would mean that immediately before 1 September 1994 the applicant had an accrued right to have his application dealt with in accordance with the law then in force, including the principles of administrative law enforceable by review proceedings under the ADJR Act. Cf Mahboob at 698.

26. This approach does not appear to be consistent with Ho Po Sang and the cases that have applied it, and the High Court in Esber relied on that case, amongst others, for the proposition that inchoate and contingent rights can be protected by s 8. For reasons which will become apparent, no concluded view on the point need be expressed in this case. It can be assumed that, unless a contrary intention appears, the applicant's right to review under the ADJR and s 39B is preserved by s 8(c).

27. Section 39 of the 1992 Act, in the form it assumed as a result of s 84 of the Migration Legislation Amendment Act 1994, provides in part that:

If

(a) an application for:

(i) a determination by the Minister that a person is a refugee

within the meaning of the Principal Act as in force immediately

before 1 September 1994 ...

...

was made before that date; and

(b) before that date, the application has not been finally

determined (within the meaning of the Principal Act);

then, on and after that date, the provisions of the Principal

Act (including provisions relating to review of decisions) apply

as if the application was an application for a protection visa

(within the meaning of the Principal Act as in force on that

date).

28. The Principal Act is the Act. Section 39 came into operation immediately after the 1992 Act received the Royal Assent, ie on 7 December 1992. The applicant's application for refugee status was made before 1 September 1994. It had not been finally determined before that date: see s 5(9) of the Act. The provisions of the Act therefore apply to his application as if it was an application for a protection visa. Those provisions include provisions relating to review of decisions. Sections 475 to 486 of the Act are provisions relating to review of decisions. Prima facie, therefore, s 39 is inconsistent with the application proceeding unaffected by the deemed repeal of the ADJR Act and s 39B effected by s 485(1), and thus expresses a contrary intention for the purposes of s 8 of the Acts Interpretation Act. That was the conclusion to which Lehane J came in Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693. At 699 his Honour said:

I am unable to escape the conclusion that (the words "including

provisions relating to review of decisions") necessarily

subjected the application to the provisions relating to review

in their entirety, including those relating to judicial review

under what was introduced as Pt 4B. The procedure before the

court is described by the provisions as "review", just as the

procedure before the tribunal is. Part 4B is the last in a series

of three Parts in the Migration Act, all of which deal with the

subject of the review of decisions. It seems to me inescapable

that the words in parenthesis refer to the new review procedure

in whole. If, of course, they were intended (and I can see no

basis for thinking that they were) to apply only to review by the

tribunal they were, for reasons already apparent, unnecessary.

29. Before pronouncing any orders his Honour gave the parties the opportunity to make further submissions on the point. This they did, and after considering them his Honour adhered to his earlier view (unreported 15 April 1996).

30. Mahboob has been followed by other judges of the Court: Chen v The Minister (Tamberlin J, unreported 19 April 1996), Parmakovski v The Minister (Davies J, unreported 22 April 1996), Mai v The Minister (Tamberlin J, unreported 9 May 1996) and Velmurugu v The Minister (Olney J, unreported 23 May 1996).

31. Counsel for the applicant submitted that Mahboob was wrong and should be overruled. Reliance was placed on pars 180 and 181 of the explanatory memorandum to the Migration Legislation Amendment Bill 1994:

180. This clause omits and substitutes section 39. The

substituted section provides for outstanding applications for

refugee status to become applications for protection visas on

1 September 1994. Similarly, unfinalised applications for

Domestic Protection (temporary) entry permits and Permanent

Protection entry permits will convert into protection visa

applications as of 1 September 1994. The protection visa

applications will be determined in accordance with the amended

legislation, ie the criteria for grant are those applying to the

protection visa, and not those applying to the precursor

application.

181. A further purpose of the substituted section is to ensure

that an application is translated at whatever stage has been

reached in processing the application, eg so that applications

which have been refused by a primary decision-maker and are at

the review stage are translated to an application at the review

stage.

32. It was said that these paragraphs indicate that s 39 was intended to apply only to the "merits" stages of the refugee determination process.

33. Even if, consistently with the requirements of s 15AB(1)(b) of the Acts Interpretation Act, reference can properly be made to the explanatory memorandum (see Re Australian Federation of Construction Contractors; Ex parte Billing [1986] HCA 74; (1986) 68 ALR 416 at 420), the paragraphs referred to offer no real assistance as to the meaning of s 39. The partial exposition of the effect of the section does not reduce its generality. At the end of the day it is the section that must be construed and not the commentary on it.

34. It was next submitted that because s 39 is a general provision dealing with "provisions relating to review of decisions" it is subject to s 485 of the Act which is a specific provision dealing with review of decisions by the Federal Court. Insofar as the general provision is inconsistent with the specific provision, the former is deemed not to apply to review of decisions of this Court: generalia specialibus non derogant. Making the rather large assumption that s 39 is "general" and s 485 is "specific", it is well established that the maxim can be called in aid only where two provisions are plainly inconsistent and cannot be reconciled as a matter of ordinary interpretation: Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 60 ALR 652 at 657; Reseck v Federal Commissioner of Taxation [1975] HCA 38; (1975) 133 CLR 45 at 53. There is no difficulty in reading s 39 and s 485 together so that, with the exception of unfinalised applications for refugee status (which are to be dealt with under the Act as in force on 1 September 1994), this Court's jurisdiction to review judicially reviewable decisions is, on the assumption that s 8 applies, at large (ie not confined by s 476).

35. Finally, it was submitted that the history of the legislation shows that the phrase "provisions relating to review of decisions" can only refer to review of decisions of the Minister by the Tribunal. This was said to be because at the time the 1994 Act was passed (ie when s 39 assumed its present form), the provisions in the 1992 Act relating to review of decisions by the Tribunal had come into operation whereas those relating to review of the Tribunal's decisions by the Court had not. (The review by Tribunal provisions commenced on 1 December 1992, the 1994 Act was assented to on 9 April 1994, and Part 8 commenced on 1 September 1994). Section 39 could not have been intended to apply to the review of decisions of the Tribunal because those provisions were not in force when s 39 assumed its present form.

36. When the present s 39 was enacted, it took its place immediately after provisions inserted into the Act dealing successively with internal review of decisions, review by the Immigration Review Tribunal, review by the Refugee Review Tribunal, and review by the Court. The first three sets of provisions were in operation. The fourth was not. But they were all in the Act, and all dealt with the "review" of decisions. When s 39 spoke of the "provisions relating to review of decisions", the generality of the language and its context and location disclose an intention that the review provisions in general are to apply, not only those relating to review by the Tribunal. The fact that the curial review provisions were not in operation does not mean that the draftsman did not intend the phrase "provisions relating to review of decision" to apply to them. As at 9 April 1994 the legislature knew that Part 4B (Part 8) was to come into operation on 1 September 1994. That had been known since 28 October 1993, when the 1993 Act deferred the Part's commencement date from 1 November 1993.

37. For these reasons, the attack on Mahboob fails.

38. The applicant also relied on the presumption against retrospectivity and the presumption against ousting the jurisdiction of the court. But assuming the present case is within either presumption, the language of s 39 manifests in unmistakable and unambiguous language an intention to rebut both. Cf Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 438.

39. The issue directed to be separately determined should be resolved by declaring that the Tribunal's decision is reviewable only under Part 8 of the Act.

40. This is a test case, and in all the circumstances there should be no order as to costs.

DAVIES J The following question in these proceedings has been set aside for separate determination by order of North J made 21 May 1996:

Whether a decision of the Refugee Review Tribunal is reviewable

under the provisions of:

(a) the Administrative Decisions (Judicial Review) Act 1977; and

or

(b) Section 39B of the Judiciary Act 1903; and or

(c) Part VIII of the Migration Act 1958

where

(i) the Applicant made his primary application to the Minister

for determination of his status as a refugee on 24 July 1991;

(ii) the Minister made his determination, refusing the

Applicant's application for refugee status on 22 October 1993;

(iii) the Applicant applied to the Refugee Review Tribunal to

review a decision of a delegate of the First Respondent refusing

the Applicant's application for refugee status and for a

domestic protection (temporary) entry permit on 17 November

1993; and

(iv) the decision of the Refugee Review Tribunal was made on

4 October 1994.

2. The Chief Justice has directed, under s. 20(1A) of the Federal Court of Australia Act 1976 (Cth), that the jurisdiction of the Court be exercised by a Full Court.

3. When, on 24 July 1991, the applicant, Dai Xing Yao, lodged his application to be recognised as a refugee in accordance with the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") and the Protocol thereto done at New York on 31 January 1967 ("the Protocol"), the Migration Act 1958 (Cth) had been amended by the Migration Legislation Amendment Act 1989 (Cth). By that Act, s. 6A(1)(c), the provision referred to in Chan Lee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379, had been repealed. However, s.47 had like effect and provided:-

"47. (1) A permanent entry permit shall not be granted to a

non-citizen after entry into Australia unless at least one of

the following paragraphs applies to the non-citizen:

...

(d) he or she is the holder of a valid temporary entry permit

and the Minister has determined, in writing, that the

non-citizen has the status of refugee within the meaning of:

(i) the Convention relating to the Status of Refugees that was

done at Geneva on 28 July 1951; or

(ii) the Protocol relating to the Status of Refugees that was

done at New York on 31 January 1967;

..."

4. At the time the Minister for Immigration and Ethnic Affairs ("the Minister") made the determination refusing the applicant recognition as a refugee, 22 October 1993, the Migration Act relevantly provided:-

"22AA. If the Minister is satisfied that a person is a refugee,

the Minister may determine, in writing, that the person is a

refugee.

...

166B. (1) Subject to subsection (2), the following decisions are

RRT-reviewable decisions:

(a) a decision, made before 1 November 1993 (later extended to

1 September 1994), that a non-citizen is not a refugee under the

Refugees Convention as amended by the Refugees Protocol (other

than such a decision made after a review by the Minister of an

earlier decision that the person was not such a refugee);

...

(c) a decision not to approve an application for a protection

visa;

..."

5. Section 22AA was introduced by the Migration Amendment Act (No. 2) 1992 (Cth) and came into effect on 30 June 1992. Section 166B was introduced by the Migration Reform Act 1992 (Cth) and came into operation on 1 July 1993. The Migration Act did not, at the time the Minister made the determination, provide for protection visas.

6. The Minister also refused, on 22 October 1993, the applicant's application for a Domestic Protection (Temporary) entry permit. As the grant of that application depended upon the favourable determination of the application for refugee status, we need not be further concerned with it.

7. The applicant, on 17 November 1993, lodged an application with the Refugee Review Tribunal ("the Tribunal") for an order of review with respect to the determination of the Minister. Before the Tribunal had determined the application, the Migration Act was further amended by the Migration Reform Act, certain provisions of which, by reason of s.5 of the Migration Laws Amendment Act 1993 (Cth), had come into effect on 1 September 1994. The Migration Act as so amended provided inter alia:-

"36. (1) There is a class of visas to be known as protection

visas.

(2) A criterion for a protection visa is that the applicant for

the visa is a non-citizen in Australia to whom Australia has

protection obligations under the Refugees Convention as amended

by the Refugees Protocol."

8. The Migration Regulations which came into effect on 1 September 1994 provided, inter alia, for a Class 866 Protection (Residence) visa, the criteria for which included:-

"866.21 Criteria to be satisfied at time of application

866.211 The applicant claims to be a person to whom Australia

has protection obligations under the Refugees Convention and:

(a) makes specific claims under the Refugees Convention; or

(b) claims to be a member of the same family unit as a person

who:

(i) has made specific claims under the Refugees Convention; and

(ii) is an applicant for a Protection (Class AZ) visa.

866.22 Criteria to be satisfied at time of decision

866.221 The Minister is satisfied that the applicant is a person

to whom Australia has protection obligations under the Refugees

Convention.

...

866.226 The Minister is satisfied that the grant of the visa is

in the national interest."

9. Having regard to these provisions, and also to s.39 of the Migration Reform Act, with which I shall deal in more detail later, the Tribunal, in arriving at its decision, treated the matter before it as if it were an application for an order of review with respect to a deemed refusal to grant a protection visa. When giving its decision on 4 October 1994, which was adverse to the applicant, the Tribunal decided that:-

"... the decision of the primary decision-maker, which has the

effect of refusing the deemed application for a protection visa,

is affirmed."

10. It is convenient to consider first whether the Tribunal was correct in approaching the matter on this basis. Section 8 of the Acts Interpretation Act 1901 (Cth) provides, inter alia:-

"8. Where an Act repeals in the whole or in part a former Act,

then unless the contrary intention appears the repeal shall not:

...

(c) affect any right privilege obligation or liability acquired

accrued or incurred under any Act so repealed; or

...

(e) affect any investigation legal proceeding or remedy in

respect of any such right privilege obligation liability penalty

forfeiture or punishment as aforesaid;

and any such investigation legal proceeding or remedy may be

instituted continued or enforced, and any such penalty

forfeiture or punishment may be imposed, as if the repealing

Act had not been passed." (emphasis added)

11. In determining whether there was a relevant "accrued right", there are several matters to which attention should be given. One is the nature of the claim that was made, whether it had characteristics appropriate to those of an accrued right. In Esber v The Commonwealth [1992] HCA 20; (1992) 174 CLR 430 at 440, Mason CJ, Deane, Toohey and Gaudron JJ distinguished between a "right", albeit a "conditional one", and a "power to take advantage of an enactment". Their Honours said at 440-441:-

"To borrow a sentence from the judgment of Hope JA in N.S.W.

Aboriginal Land Council v. The Minister (The Winbar Claim)

((1988) 14 NSWLR 685, at p 694):

'The right might be said to be a conditional one, namely,

conditional upon the relevant facts being established, but the

right was nonetheless a right because it was conditional.'

Once the appellant lodged an application to the Tribunal (the

Administrative Appeals Tribunal) to review the delegate's

decision, he had a right to have the decision of the delegate

reconsidered and determined by the Tribunal. It was not merely

'a power to take advantage of an enactment' (Mathieson v. Burton

[1971] HCA 4; (1971), 124 CLR 1, at p 23, per Gibbs J; and see Robertson

v. City of Nunawading[1973] VicRp 81; , (1973) VR 819). Nor was it a mere

matter of procedure (See Newell v. The King (1936), 55 CLR

707, at pp 711-712); it was a substantive right. (See, by way

of analogy, Australian Coal and Shale Employees Federation v.

Aberfield Coal Mining Co. Ltd. [1942] HCA 23; (1942), 66 CLR 161, at

pp 175, 178, 185, 194; Colonial Sugar Refinery Co v. Irving,

(1905) AC 369, at pp 372-373.) Section 8 of the Acts

Interpretation Act protects anything that may truly be described

as a right, 'although that right might fairly be called inchoate

or contingent' (Free Lanka Insurance Co. Ltd. v. Ranasinghe,

(1964) AC 541, at p 552; see also Continental Liqueurs Pty.

Ltd. v. G.F. Heublein and Bro. Inc. [1960] HCA 37; (1960), 103 CLR 422, at

pp 426-427; Director of Public Works v. Ho Po Sang, (1961) AC

901)." (emphasis added)

12. In the present case, the applicant had an entitlement to be recognised as a refugee if his position satisfied the definition of refugee contained in Article 1A(1) of the Convention as amended by the Protocol. Although, in 1991, when the application was lodged, the Migration Act and the Migration Regulations did not in terms express such an entitlement, the decisions of the High Court of Australia in Chan and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 show that the recognition of a person as a refugee was not a matter to be determined by discretion but in accordance with the terms of the Convention and the Protocol. Accordingly, that which the applicant claimed was sufficiently a matter of right, although subject to the establishment of the conditions required to be satisfied.

13. Another matter to which attention should be given in determining whether there was an accrued right is the function of the review tribunal: see R v Lukin; Ex parte Sunshine Pty Ltd (1967) Qd R 49 at 53. The function of the Refugee Review Tribunal is to consider the matter for itself, to deal with an application on its merits having regard to the material which is before it. It should be noted, however, that, in Esber, the fact that the Administrative Appeals Tribunal decided matters on the merits was thought not to be, of itself, a sufficient reason to distinguish the subject matter there under review from an accrued right.

14. Other matters which are relevant in cases such as the present one are whether there were review rights in existence prior to the commencement of the amending legislation and whether the review proceedings were commenced prior thereto. See New South Wales Aboriginal Land Council v The Minister (1988) 14 NSWLR 685 at 696; Continental Liqueurs Pty Ltd v G.F. Heublein and Bro Inc [1960] HCA 37; (1960) 103 CLR 422; The Australian Coal and Shale Employees' Federation v Aberfield Coal Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161. A right of appeal in a pending action or trial is considered to be a relevant right: Colonial Sugar Refining Co Ltd v Irving (1905) AC 369. In Esber, an application for review by the Administrative Appeals Tribunal had been lodged prior to the coming into operation of new legislation. At 440, their Honours said:-

"Once the appellant lodged an application to the Tribunal to

review the delegate's decision, he had a right to have the

decision of the delegate reconsidered and determined by the

Tribunal. It was not merely 'a power to take advantage of an

enactment' (Mathieson v. Burton [1971] HCA 4; (1971), 124 CLR 1, at p 23,

per Gibbs J; and see Robertson v. City of Nunawading, (1973)

VR 819)."

15. In the present case, if the above factors alone were considered, I would have no doubt that the conclusion would be, as it was in Esber, that the applicant had an accrued right to have the decision rejecting his application for recognition as a refugee reviewed by the Tribunal.

16. A final matter to be considered, however, is the legislative intent.

17. The Migration Reform Act, on 1 September 1994, repealed Division 1AA of Part 2 of the Migration Act, the provisions which had been relevant to refugee status. Instead, as from 1 September 1994, the Migration Act as amended has made provision, in s.36, for a class of visas to be known as protection visas, a criterion for which is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention and the Protocol. Section 39 of the Migration Reform Act, which also commenced on 1 September 1994, as amended by the Migration Legislation Amendment Act 1994 (Cth) provides:-

"39. If:

(a) an application for:

(i) a determination by the Minister that a person is a refugee

within the meaning of the Principal Act as in force immediately

before 1 September 1994; or

(ii) an entry permit (within the meaning of the Principal Act as

in force immediately before that date), a criterion of which is

that the Minister has made such a determination in relation to

the person, or in relation to a member of the family unit of the

person (within the meaning of the regulations);

was made before that date; and

(b) before that date, the application has not been finally

determined (within the meaning of the Principal Act);

then, on or after that date, the provisions of the Principal Act

(including provisions relating to review of decisions) apply as

if the application was an application for a protection visa

(within the meaning of the Principal Act as in force on that

date)." (emphasis added)

18. It is clear that s. 39 of the Migration Reform Act required that, when the Tribunal came to consider the matter, it would consider the matter under and in accordance with the new provisions introduced by the Migration Reform Act on 1 September 1994. Because s.39 is a deeming provision, the matter before the Tribunal was deemed to be properly before it, notwithstanding that not all of the steps by way of procedure, which were required by Div. 3, Subdiv. AB of Part 2 of the new provisions, had been complied with. The words "finally determined" are defined in s. 5(9) of the Migration Act which provides:-

"(9) For the purposes of this Act, an application under this Act

is finally determined when either:

(a) a decision that has been made in respect of the application

is not, or is no longer, subject to any form of review under

part 5 or 7; or

(b) a decision that has been made in respect of the application

was subject to some form of review under Part 5 or 7, but the

period within which such a review could be instituted has ended

without a review having been instituted as prescribed."

19. Parts 5 and 7 (originally Parts 3 and 4A) of the Migration Act deal with review by the Immigration Review Tribunal and the Refugee Review Tribunal. It follows that what the Tribunal was required to review in the present case was a deemed decision refusing a deemed application for a protection visa, the provisions respecting which and the substantive conditions relating to which came into effect on 1 September 1994.

20. The Tribunal was therefore correct in turning its attention to and deciding whether or not the applicant was entitled to the grant of a protection visa. The Tribunal decided that the applicant was not a person to whom Australia had protection obligations in accordance with s.36(2) of the Migration Act and it affirmed the deemed decision of the primary decision-maker refusing the deemed application for a protection visa.

21. The Migration Reform Act also introduced, as from 1 September 1994, new provisions with respect to the jurisdiction of this Court. The new provisions are now contained in Part 8 of the Migration Act and relevantly provide:-

"475. (1) Subject to subsection (2), the following decisions are

judicially-reviewable decisions:

...

(b) decisions of the Refugee Review Tribunal;

...

476. (1) Subject to subsection (2), application may be made for

review by the Federal Court of a judicially-reviewable decision

on any one or more of the following grounds:

...

(e) that the decision involved an error of law, being an error

involving an incorrect interpretation of the applicable law or

an incorrect application of the law to the facts as found by the

person who made the decision, whether or not the error appears

on the record of the decision;

...

(2) The following are not grounds upon which an application may

be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in

connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so

unreasonable that no reasonable person could have so exercised

the power.

...

478. (1) An application under section 476 or 477 must:

...

(b) be lodged with a Registry of the Federal Court within

28 days of the applicant being notified of the decision.

(2) The Federal Court must not make an order allowing, or which

has the effect of allowing, an applicant to lodge an application

outside the period specified in paragraph (1)(b).

...

485. (1) In spite of any other law, including section 39B of

the Judiciary Act 1903, the Federal Court does not have any

jurisdiction in respect of judicially-reviewable decisions or

decisions covered by sub-section 475 (2), other than the

jurisdiction provided by this Part or by section 44 of the

Judiciary Act 1903.

...".

22. The question before the Full Court is whether the application for review made to this Court is to be dealt with under the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s.39B of the Judiciary Act 1903 (Cth), which are now excluded by s.485(1) of the Migration Act, or whether the application must be dealt with under the more restrictive provisions of the current Part 8 of the Migration Act.

23. In her submissions to the Court, Ms Rachel Lewitan QC, with whom Mr G Moloney of counsel appeared for the applicant, referred to the fact that the Refugee Review Tribunal was established by provisions of the Migration Reform Act which came into effect on 7 December 1992. Its jurisdiction commenced on 1 July 1993. Under s. 411 of the Migration Act (originally s. 166B), the applicant had a right to have the decision of the Minister, made 22 October 1993, refusing the applicant recognition as a refugee, reviewed by the Refugee Review Tribunal. That right was exercised by the applicant when an application was lodged with the Refugee Review Tribunal on 17 November 1994. That right was, of course, subsequently affected by s.39 of the Migration Reform Act which came into effect on 1 September 1994.

24. The principal argument of Ms Lewitan was that the proceeding before the Tribunal impliedly had attached to it the right of a party to seek judicial review for the proceedings and decision thereof should the party be dissatisfied. Ms Lewitan submitted that the right to judicial review was analogous to the right of appeal, which was held in cases such as Colonial Sugar Refining Co Ltd v Irving and Australian Coal and Shale Employees' Federation v Haberfield Coal Mining Co Ltd to attach to pending proceedings. Ms Lewitan cited ACI PET Operations Pty Ltd v Comptroller-General of Customs [1993] FCA 500; (1993) 118 ALR 114 (which was considered on appeal on another point at (1994) 49 FCR 56), as a case where the principle of accrued right was held to be applicable to a right of judicial review. Ms Lewitan submitted that judicial review is a substantive right: Worrall v The Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28 at 31.

25. However, the Refugee Review Tribunal was brought into existence by the Migration Reform Act on 7 December 1992, its jurisdiction commencing 1 July 1993. The same Act enacted other relevant provisions, including the provisions which now appear in Part 8 of the Migration Act, which commenced on 1 September 1994. It is difficult to characterise a potential opportunity for judicial review of a decision of the Refugee Review Tribunal as an "accrued right" when the legislation which established the Refugee Review Tribunal also enacted provisions altering the right of judicial review of its decisions and when, in the events which happened, the decision sought to be reviewed was taken at a time when the new provisions were in operation.

26. In addition to referring to authorities on "accrued right", Ms Lewitan referred to the presumption against retrospectivity, considered in cases such as Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261; Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; (1995) 131 ALR 465, and the presumption against ousting the jurisdiction of the Court, considered in cases such as Hockey v Yelland [1984] HCA 72; (1984) 157 CLR 124; Johnson v Director-General of Social Welfare [1976] HCA 19; (1976) 135 CLR 92; Magrath v Goldsborough, Mort and Co Ltd [1932] HCA 10; (1932) 47 CLR 121.

27. The principle which lies behind all these propositions, the concept of accrued right, the presumption against retrospectivity and the presumption against the ousting of the jurisdiction of a court, is undoubtedly an important one and should not be negated unless Parliament has clearly expressed an intention to do so. In Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 437, Mason CJ, Brennan, Gaudron and McHugh JJ said:-

"The insistence on express authorization of an abrogation or

curtailment of a fundamental right, freedom or immunity must be

understood as a requirement for some manifestation or indication

that the legislature has not only directed its attention to the

question of the abrogation or curtailment of such basic rights,

freedoms or immunities but has also determined upon abrogation

or curtailment of them. The courts should not impute to the

legislature an intention to interfere with fundamental rights.

Such an intention must be clearly manifested by unmistakable and

unambiguous language. General words will rarely be sufficient

for that purpose if they do not specifically deal with the

question because, in the context in which they appear, they will

often be ambiguous on the aspect of interference with

fundamental rights. (See Chu Kheung Lim v Minister for

Immigration, Local Government and Ethnic Affairs (1992),

176 CLR 1, at p. 12, per Mason CJ) "

28. The application to the Court is not an application which seeks orders of review with respect to the primary decision taken refusing the applicant's 1991 application to be recognised as a refugee. It is an application which seeks orders of review with respect to the decision of the Tribunal. That decision was a decision taken under, and in accordance with, provisions which were introduced by the Migration Reform Act and commenced on 1 September 1994. The decision which was affirmed was a deemed primary decision that the applicant was not entitled to a protection visa. The jurisdiction of the Court is therefore limited by the provisions of Part 8 of the Migration Act which came into effect at the same time as the provisions with respect to the grant of a protection visa. The applicant has no accrued right to institute proceedings in this Court under the Administrative Decisions (Judicial Review) Act or s.39B of the Judiciary Act, for the decision sought to be reviewed was taken under provisions which came into operation on 1 September 1994, at the same time as s. 485(1) of the Migration Act. That much appears from the terms of the Migration Act itself.

29. Moreover, s.39 of the Migration Reform Act was explicit, for it required that "the provisions of the Principal Act (including provisions relating to review of decisions) apply" to the decision of the Refugee Review Tribunal, "as if the application was an application for a protection visa". The provisions of the Principal Act which were to apply were therefore the provisions of the Migration Act on and from 1 September 1994. Those provisions were all the provisions of the Act, including the provisions relating to the review of decisions.

30. In this context, there is no basis for reading down the words "review of decisions" so as to limit them to only one or some of the review rights for which the Migration Act as amended provided. As from 1 September 1994, the Migration Act provided for internal review in Part 5, for the review of decisions by the Immigration Review Tribunal under Part 6, for the review of protection visa decisions by the Refugee Review Tribunal under Part 7 and for the review of certain decisions, including decisions of the Immigration Review Tribunal and of the Refugee Review Tribunal, by the Federal Court under Part 8. Parliament thus expressly stated its intention that the review provisions contained in Part 8 of the Migration Act would apply to protection visa decisions. And s.485(1) of the Migration Act expressly stated Parliament's intention that the Federal Court should have no jurisdiction other than that conferred by Part 8 with respect to decisions taken under the Migration Act.

31. In his submissions, Mr Richard Tracey QC, with whom Mr K H Bell of counsel appeared for the Minister, placed reliance principally upon the express provisions of s.39 of the Migration Reform Act and upon the express provisions of Part 8 of the Migration Act, including s.485(1) of the Migration Act. I agree with Mr Tracey's submission that Parliament's intention was stated with clarity.

32. What has occurred is not illustrative of the outright ousting of jurisdiction. The provisions of the Migration Act have been strengthened with a view to ensuring that an applicant will have fair treatment at the level of primary decision-making and will also have the opportunity of internal review and of further review by the Immigration Review Tribunal or the Refugee Review Tribunal. Both the Immigration Review Tribunal and the Refugee Review Tribunal are required to provide a mechanism of review that is fair, just, economical, informal and quick and both are required to act according to substantial justice in the merits of the case. Statutory rights have been provided in place of, indeed additional to, the rights that previously found their basis in the common law. The provisions with respect to judicial review have been adjusted by Parliament in the light of this framework.

33. Ms Lewitan emphasised that the new code of procedure which came into operation on 1 September 1994 includes provisions such as s.54(1), which requires the Minister to have regard to all the information in the application, and s.57, which requires the Minister to give particulars of relevant information to the applicant, such as information which would be the reason or part of the reason for refusing to grant the visa sought, and should invite the applicant to comment upon this information. Ms Lewitan emphasised that that code of procedure was not in force when the applicant's application was considered by the Minister. That submission would, of course, have force if the proceedings before this Court were concerned with the original primary decision. But they are not.

34. The decision of the Tribunal was made under provisions such as s.420 of the Migration Act which provides that:-

"420. (1) The Tribunal, in carrying out its functions under this

Act, is to pursue the objective of providing a mechanism of

review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of

evidence; and

(b) must act according to substantial justice and the merits

of the case."

35. It is plain from such provisions that, not only does the Migration Act provide for review on the merits by the Refugee Review Tribunal, but it intends that the "mechanism of review" will be fair. Although s.420(1) specifies only an objective, the Migration Act intends that the procedures adopted by the Refugee Review Tribunal will be "fair" and "just". If this has not occurred in the present case, the applicant will be entitled to seek relief under s.476(1) of the Migration Act on the ground that the procedures required by the Migration Act to be observed in connection with the making of the decision have not been observed.

36. In the present case, there is no ground for a finding of "accrued right" which prevails notwithstanding the amendment of the legislation.

37. Accordingly, the question before the Full Court should be answered:

(a) "No."

(b) "No."

(c) "Yes."

38. As this was a test case, the applicant and the respondent should abide their own costs of and incidental to the question.

Decisions (Judicial Review) Act 1977

Legislation Amendment Act 1989

Interpretation Act 1901

Appeals Tribunal Act 1975

Court of Australia Act 1976

Laws Amendment Act 1993

Legislation Amendment Act 1994

(1988) 14

NSWLR 685

Dai Xing Yao v the Minister of Immigration and Ethnic Affairs and the Refugee Review Tribunal [1996] FCA 1792

At a glance

Court

Decision date

Before

Source

Judgment (120 paragraphs)

Dai Xing Yao v the Minister of Immigration and Ethnic Affairs and the Refugee Review Tribunal [1996] FCA 1792 (18 September 1996)

Parties

Legislation Cited (8)

Cases Cited (23)