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[1999] FCA 1598
Federal Court of Australia
1999-11-18
Branson J
Original judgment source is linked above.
INTRODUCTION 1 By an application dated 9 April 1999 made under s 476 of the Migration Act 1958 (Cth) ("the Act"), the applicant has sought review by the Court of two decisions. First, a decision made on 12 March 1999 by the Department of Immigration and Multicultural Affairs ("the Department") to cancel the applicant's student visa pursuant to s 116 of the Act. Secondly, a decision made on 24 March 1999 by the Immigration Review Tribunal ("the Tribunal") to refuse to review the decision of the Department to cancel the applicant's student visa. 2 On 23 June 1999 the respondent filed a notice of objection to competency by which he contended that neither of the decisions referred to in the application is a "judicially reviewable decision" within the meaning of the Act. 3 If the application is otherwise competent, a question may arise as to whether the application for review of the second "decision" was made within a mandatory time limit. However, the parties have invited me to give consideration to the competency of the application without determining any issue as to timeliness. I consider it appropriate to accede to that request. FACTS 4 The applicant is a twenty year old citizen of the Socialist Republic of Vietnam. He arrived in Australia on 23 April 1998 on a student visa. On 12 March 1999 the applicant's visa was cancelled on the ground that he had not complied with certain conditions of the visa (s 116(1)(b) of the Act). It appears that the applicant had ceased to study and had undertaken paid work contrary to conditions of his student visa. It is accepted that at the time of the cancellation of the applicant's student visa, the applicant was a "non citizen" who was in the "migration zone" within the meaning of the Act (s 5 of the Act). 5 On 22 March 1999 the applicant sought review by the Tribunal of the decision to cancel his student visa. By letter dated 24 March 1999, on the letterhead of the Tribunal, the applicant received advice as follows: "Dear Mr Tran I regret to inform you that the Tribunal is unable to accept your application for a review of a decision to cancel your student visa. Your application to the Tribunal should have been lodged within a 2 day time limit, or if you needed more time, to contact (sic) the Tribunal for an extension of another 5 days within the 2 days. The decision on your application was made by the Department of Immigration and Multicultural Affairs (DIMA) on 12 March 1999, and it appears that you received notification of the decision on the same day. Your application to the Tribunal was not lodged until 22 March 1999. Therefore, the Tribunal has deemed your application to be ineligible (sic) for review. … Yours sincerely (signed) Franca Di Natale for Assistant Registrar" (Emphasis added).
LEGISLATION 6 Section 476 of the Act provides that an application may be made for review by the Federal Court of a judicially-reviewable decision on one or more of the grounds enumerated in the section. 7 Section 475 of the Act relevantly provides: "(1) Subject to subsection (2), the following decisions are judicially-reviewable decisions: (a) decisions of the Immigration Review Tribunal; (b) decisions of the Refugee Review Tribunal; (c) other decisions made under this Act, or the regulations, relating to visas. (2) The following decisions are not judicially-reviewable decisions: (a) … (b) … (c) an IRT-reviewable decision; …." 8 The applicant's student visa was cancelled under s 116 of the Act by an officer of the Department apparently exercising powers delegated to him by the Minister (s 496(1)) of the Act). Subject to certain exceptions not here relevant, "a decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation" was until 1 June 1999 a "Part 5 reviewable decision" within the meaning of the Act (s 337 of the Act). 9 Section 346 of the Act provides, with certain exceptions that are not here relevant, that "decisions prescribed to be IRT-reviewable decisions" are IRT reviewable decisions. Regulation 4.09 of the Migration Regulations 1994, until its repeal on 1 June 1999, provided as follows: "For the purposes of paragraphs 338(2)(d) and 346(1)(d) of the Act (which deal with decisions that are not internally reviewable), the following Part 5 reviewable decisions are prescribed to be IRT-reviewable decisions: (a) …; (b) …; (c) …; (d) a decision to cancel a visa." 10 Section 485(1) of the Act relevantly provides: "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 subsection 475(2), other than the jurisdiction provided by this Part …."
CONSIDERATION 11 The decision made by the delegate of the Minister pursuant to s 116 of the Act to cancel the applicant's student visa was a Part 5 reviewable decision which was a decision to cancel a visa (see Regulations 4.09 of the Migration Regulations 1994). It was thus an IRT-reviewable decision within the meaning of s 475(2) of the Act and not a judicially-reviewable decision. The jurisdiction given to the Court by s 476 of the Act is a jurisdiction in respect of judicially reviewable decisions. 12 Since the only jurisdiction in the Court sought to be invoked by the application in respect of the decision to cancel the applicant's student visa is that created by s 476 of the Act, the objection to competency must to that extent succeed. 13 The true character of the second "decision", which was conveyed to the applicant by the letter dated 24 March 1999 is problematic. Section 348 of the Act places an obligation on the Tribunal to review an IRT-reviewable decision if the application is properly made under s 347. Section 347 provides that an IRT-reviewable decision "must", amongst other things, be given to the Tribunal within the prescribed period. Nothing on the face of the letter suggests that the applicant's application for review ever came to the attention of the Tribunal itself. It seems likely that an administrative decision was made by or on behalf of the Assistant Registrar that the application had not been properly made under s 347 and that the Tribunal was not therefore entitled to review it. That "decision" cannot properly, in my view, be characterised as a decision made under the Act relating to visas within the meaning of s 475(1)(c) of the Act. It was a decision which, assuming it to be made under the Act in the relevant sense, related to compliance with s 347 of the Act, and which only incidentally and fortuitously related to a visa. 14 It is not necessary for a conclusion to be reached on the present objection to competency as to whether the applicant has any avenue of redress in the Court other than under s 476 of the Act in respect of the second "decision". The answer to that question may depend on the ambit of s 485(1) of the Act, the extent of the original jurisdiction vested in the Court by s 39B of the Judiciary Act 1903 (Cth) and on whether the second "decision" is a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies. 15 For present purposes, it is sufficient to observe that the jurisdiction of the Court under s 476(1) of the Act to review a decision made by the Tribunal is not a jurisdiction to review a decision apparently made by an administrative officer attached to the Tribunal (see Singh v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 295 at 298). The second "decision" is thus not a judicially reviewable decision for the purposes of s 476 of the Act. 16 For the above reasons, the objection to competency must be upheld. I will hear counsel as to the appropriate orders to be made in the light of these reasons. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.
Associate: Dated: 18 November 1999 Counsel for the Applicant: Mr R.B. Wilson
Solicitor for the Applicant: Janice Vu and Associates
Solicitor for the Respondent: Australian Government Solicitor
Le Tran Thuy
Minister for Immigration and Multicultural Affairs