Kishore v Minister for Immigration & Multicultural Affairs

(b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and

(c) the Minister has not waived that condition under subsection 41(2A); and

(d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted." However, s 41(2) provides that the Regulations may provide that a visa is subject to a condition that the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, or a temporary visa of a specified kind while he or she remains in Australia. Section 41(2A) then provides that the Minister may, in prescribed circumstances, waive a condition of that kind. 4 The contention is that, on the proper construction of s 41(2A) and s 46(1A)(b), their effect is that the condition only operates where an applicant has entered Australia after the imposition of the condition, and that s 46(1A)(b) operates only where an applicant has held a visa subject to a condition at all times since last entering Australia. The applicant entered Australia on 31 August 1999 and the visa in respect to which the condition was imposed was granted on 30 June 2000. Thus, the applicant was in Australia for some period of time pursuant to a visa that was not subject to the condition. 5 The Minister opposes the application for leave to amend on three bases: (i) that, quite apart from the question of construction to which I have just adverted, the application would be incompetent having regard to the terms of s 474 of the Act; (ii) that there is no satisfactory explanation of the delay in bringing the application for review of the decision of 14 August 2000; and (iii) that further evidence may be required, notwithstanding that counsel for the applicant had indicated to me that he did not intend to adduce any further evidence.

6 Section 474(1) of the Migration Act, provides that a privative clause decision as defined:

(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."

Section 474(2) relevantly defines a privative clause decision as a decision of an administrative character made under the Act. 7 Section 477(1) of the Act provides that an application to the Court under s 39B of the Judiciary Act 1903 (Cth)for a writ of mandamus, prohibition or certiorari or an injunction of declaration in respect of a privative clause decision must be made to the Federal Court within 28 days of the notification of the decision. Section 477(2) provides that the Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in s 477(1) outside the period specified in that section. 8 The application, as it presently stands and as amended, is based on s 39B of the Judiciary Act. Accordingly, the question is whether the application would call in question a privative clause decision. The definition of a "privative clause decision" contained in s 474(2) applies for the purposes of the whole of the Act by the operation of s 5(1). 9 Counsel for the applicant contends that the decision sought to be reviewed is not a decision under the Act because it is expressly not authorised by that Act. The contention is that the Minister wrongly rejected the application by the applicant on 14 August 2000 by reason of an incorrect interpretation of s 46(1A). The applicant contended that the Minister was bound by s 47(1) to consider the application because, since it was not invalid by reason of s 46(1A), it was a valid application. 10 The amendment of s 474 into its present form was to give effect to the Government's asserted commitment to introduce legislation that would restrict access to judicial review in migration matters in all but exceptional circumstances. In his speech on the second reading of the bill for the proposed amendments, the Minister said that such a commitment was made: "in the light of the extensive merits review rights in the migration legislation and concerns about the growing costs and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia." 11 The Minister made reference to the principles espoused by the High Court in The King v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 ("Hickman's Case"). The Minister summarised those principles in the following way: "In practice the decision is lawful provided the decision maker is acting in good faith. The decision is reasonably capable of reference to the power given to the decision maker - that is the decision maker had been given the authority to make the decision concerned, for example, had the authority delegated to him or her by the Minister for Immigration and Multicultural Affairs or had been properly appointed as a Tribunal member. The decision relates to the subject matter the legislation - it is highly unlikely that this ground would be transgressed when making decisions about visas since the major purpose of the Migration Act is dealing with visa decisions. Constitutional limits are not exceeded - given the clear constitutional basis for visa decision making in the Migration Act this is highly unlikely to arise." Those principles would not allow review pursuant to s 39B of the Judiciary Act if the purported exercise of power was reasonably capable of reference to a power given to the Minister. 12 The question that arises in relation to the application of the principle in Hickman's Case is one of construction as to whether the legislature intended that the decision maker should have the final say as to whether or not what the decision maker proposed to do was within power. The decision maker who appears to have rejected the application for permanent residency, or declined to entertain the application for permanent residency, on 14 August 2000, was, it may be inferred, purporting to act pursuant to s 47(3) in the light of the provisions of s 46(1A). If the decision maker was wrong in that approach, the decision maker was acting in contravention of s 47(1) by failing to consider a valid application. 13 I consider that, in not entertaining the application, the Minister's delegate was making a decision under the Act. Under s 474(3)(g), a reference to a decision includes a reference to refusing to do any act or thing. In rejecting the application on 14 August 2000, the Minister's delegate was refusing to consider it. I consider, therefore, that the decision sought to be reviewed was a privative clause decision within the meaning of s 477. 14 The effect of clause 8 of Schedule 1 to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), is that s 474 applies to any application made after 1 October 2001. I consider, therefore, that s 477 precludes the Court from giving leave to amend in the manner sought. 15 Even if there were power to permit the amendment, I would refuse leave in the absence of any evidence explaining the circumstance that the decision in question came to the attention of the applicant in August, yet no steps were taken prior to today to seek to review that decision. It may be that some inference might be drawn as to lack of legal advice. However, the material already before the Court indicates that the applicant had considerable assistance from her son, who corresponded lucidly on a number of occasions with the Department of Immigration and Multicultural Affairs concerning the matters that affected his mother. 16 In any event, the matter turns upon the construction of s 41(2)(a) and s 46(1A). I have formed the view that the construction contended for by the applicant should be rejected. Condition 8503 was imposed as a condition upon a visa granted on 30 June 2000. Accordingly, there would be no utility in granting leave to amend, since it the application would be doomed to failure in respect of the decision of 14 August 2000. Accordingly, I refuse the application for leave to amend.

AFFIDAVIT OF RInA RAJ KISHORE 17 The applicant has tendered, without objection, a copy of an email communication of 29 August 2000 referred to in the decision maker's memorandum of 11 October 2001. It has become exhibit 6A. The applicant now also seeks to read the affidavit of Rina Raj Kishore sworn today. The Minister objects to that affidavit on the ground of relevance. The applicant submits that the affidavit establishes that the decision maker proceeded on a wrong basis. 18 The memorandum of 11 October 2001 records that condition 8503 was lawfully imposed with the knowledge and consent of the applicant. That is borne out by exhibit 6A. On the other hand, in the affidavit, the applicant's daughter-in-law says that, having regard to a conversation that she had with the apparent author of the email, she told her mother-in-law to sign a form consenting to the imposition of condition 8503. 19 The daughter-in-law says that the author of the email said: "Your mother-in-law will have to sign this document to get the extension until the end of August like her husband." 20 The daughter-in-law responded: "Will this change her visa at all?" The departmental officer said: "No, she will still be able to come and go as before." 21 That was, of course, perfectly correct. The imposition of the condition does not interfere with the freedom of departure and entry into Australia that was conferred by the visa. In the circumstances I do not consider that the contents of the affidavit are relevant to the issue that is before me. Accordingly, I reject it. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.