McGowan v Migration Agents Registration Authority

Federal Court of Australia|2003-07-01|Before: Allsop J, Branson J

introduction 1 By an amended application for an order of review filed on 17 March 2003 ('the amended application') the applicant sought review of a decision of the respondent made on 25 October 2002 whereby the respondent suspended the applicant's registration as a migration agent until satisfied by her of certain conditions. The grounds on which review of the decision is sought are: '1. A failure to provide Procedural Fairness pursuant to s.5(1)(a) of the Administrative Decisions Judicial Review Act, 1997 [sic] ("ADJR Act"); 2. A failure to observe the procedures required by law in connection with the making of the decision pursuant to s.5(1)(b) of the ADJR Act; and 3. On the ground that the decision was an improper exercise of the power conferred under the Migration Act, pursuant to s.5(1)(e) of the ADJR Act, and in particular s.5(2)(b) of the ADJR Act. 4. In the alternative, the Applicant seeks judicial review under s.39B(1A)(c) of the Judiciary Act 1993 (Cth), in that the decision of the Respondent is a matter arising under a law made by the Parliament, and such decision is contrary to law in failing to provide procedural fairness and natural justice. 2 The relief sought by the amended application is: '(i) Pursuant to s.16(1) of the ADJR Act an order setting aside or quashing the decision; (ii) In the alternative, pursuant to the powers arising under the Judiciary Act orders of Prohibition and Injunction pursuant to s.39B; (iii) An order prohibiting the Respondent or the Officers or Agents of the Respondent taking any steps or action in reliance upon, or enforcing, or seeking to enforce, or in giving effect to the said decision and in particular taking any steps in respect of the Application's [sic] registration as a Migration Agent and any further publication of any notification that she is no longer a Registered Agent. (iv) Costs of these proceedings; (v) Such further or other orders as the Court should deem fit.' 3 The respondent, in reliance on an amended notice of motion, has moved the Court for orders as follows: '1. The amended application filed on 17 March 2003 be dismissed pursuant to Order 20 rule 2(1)(a) on the basis that no reasonable cause of action is disclosed. 2. In the alternative to order 1 above, the amended application be dismissed pursuant to section 10(2)(b)(ii) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). 3. In the alternative to orders 1 and 2 above, the amended application be dismissed pursuant to Order 20 rule 2(1)(c) on the basis that the proceeding is an abuse of process of the Court. 4. The applicant pay the respondent's costs of the proceeding.' 4 For the reasons set out below I have concluded that an order should be made dismissing the amended application.

background facts 5 By a letter dated 28 October 2002 the respondent advised the applicant that on 25 October 2002 the respondent had decided to suspend her registration until certain conditions, which were set out in the letter but which it is not necessary to set out here, were satisfied. A copy of the respondent's 'Notice of Decision' setting out the reasons for the suspension of the applicant's registration was provided to the applicant together with the letter dated 28 October 2002. 6 The applicant, by her then solicitors, by a letter dated 22 November 2002 addressed to the Deputy Registrar of the Administrative Appeals Tribunal ('the Tribunal'), sought review of the decision of the respondent. The letter indicated that the applicant complained of, amongst other things, a denial of natural justice by the respondent. A formal notice of the application to the Tribunal for review of the respondent's decision was served on the respondent. The notice was dated 25 November 2002. 7 On 25 November 2002 this proceeding was commenced. The original application, which curiously appears to bear the date 27 November 2002, has been completed in handwriting, it would seem by the applicant herself. The applicant is a solicitor. The application identifies the applicant as the person who filed the application and her address for serviced is given as 'C/- Bellissimo & Associates'. Bellissimo & Associates is a firm of solicitors. On 10 March 2003 Francesco Bellissimo, solicitor of Bellissimo & Associates, filed a notice of ceasing to act for the applicant. An amended application dated 14 March 2003 bears an endorsement which indicates that it was filed by 'McGowan Lawyers'. No notice of acting has been filed by McGowan Lawyers or by any solicitor associated with McGowan Lawyers. It seems likely that McGowan Lawyers is a business name owned by the applicant personally. This inference is strengthened by an endorsement which appears on the amended application which indicates that it was filed by the applicant personally. 8 The applicant accepts that her application to the Tribunal relates to the same decision as is identified in her application to this Court. During the course of argument before the Court on the hearing of the respondent's motion, the applicant, by her senior counsel, undertook to discontinue her application to the Tribunal within twenty‑four hours of any decision by the Court to dismiss the respondent's motion.

Migration Act 1958 (Cth) 9 Part 3 of the Migration Act 1958 (Cth) ('the Migration Act') is concerned with migration agents and immigration assistance. Subject to certain exceptions, Part 3 of the Act prohibits any person who is not a registered migration agent from giving 'immigration assistance'. The giving of 'immigration assistance' is widely defined to include the use, or purported use, of knowledge and experience in migration procedure to assist a visa applicant to prepare a visa application or to prepare for proceedings before a court or review authority in relation to a visa application. 10 The functions of the respondent are prescribed by s 316 of the Migration Act. They include the functions of monitoring the conduct of registered agents in their provision of immigration assistance, investigating complaints in relation to the provision of immigration assistance by registered agents and taking appropriate disciplinary action against registered agents. 11 Division 3 of Part 3 of the Migration Act (ss 286-306) is concerned with the registration of migration agents. The respondent is required by s 287 to keep a register which lists the individuals who are registered as migration agents. Section 303 authorises the respondent to cancel the registration of a registered agent, suspend the registration of a registered agent or caution him or her if it becomes satisfied, amongst other things, that the person is not a fit and proper person to give immigration assistance. A decision of the respondent under s 303 of the Migration Act is not a 'privative clause decision' within the meaning of s 474 of that Act. 12 Section 306 of the Migration Act provides: 'Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Migration Agents Registration Authority made under this Division.' 13 Sections 309-311 of the Migration Act relevantly provide: '309 (1) … (2) If the Migration Agents Registration Authority is considering the cancellation or suspension of a registered agent's registration, or the cautioning of the agent, it must inform the agent of that fact and the reasons for it and invite the agent to make a submission on the matter. (3) In this section: submission means: (a) a statutory declaration; or (b) a written argument. 310 (1) This section applies where the Migration Agents Registration Authority has invited a submission on a matter under section 309. (2) If the Migration Agents Registration Authority does not receive a submission, it may decide the matter on the information before it. (3) If the Migration Agents Registration Authority receives a submission, it may: (a) decide the matter; or (b) give the person who made the submission the opportunity to appear before it and then decide the matter. 311 The Migration Agents Registration Authority, in considering a registration application or a possible disciplinary action under section 303: (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.'

Administrative Appeals Tribunal Act 1975 (Cth) 14 Section 40 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act') specifies the powers which the Tribunal has for the purpose of reviewing a decision. They include the power to take evidence on oath or affirmation and to summon a person to give evidence or to produce books, documents or things. Section 41 of the AAT Act gives the Tribunal the power to stay a decision to which a proceeding before it relates. Relevantly s 41 provides: '(1) Subject to this section, the making of an application to the Tribunal for a review of a decision does not affect the operation of the decision or prevent the taking of action to implement the decision. (2) The Tribunal or a presidential member may, on request being made, as prescribed, by a party to a proceeding before the Tribunal (in this section referred to as the relevant proceeding), if the Tribunal or presidential member is of the opinion that it is desirable to do so after taking into account the interests of any persons who may be affected by the review, make such order or orders staying or otherwise affecting the operation or implementation of the decision to which the relevant proceeding relates or a part of that decision as the Tribunal or presidential member considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the application for review.' 15 The powers of the Tribunal when reviewing a decision are set out in s 43(1) which provides: 'For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (c) affirming the decision under review; (d) varying the decision under review; or (e) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.'

Administrative Decisions (Judicial Review) Act 1977 (Cth) 16 Section 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act') relevantly provides: 'A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds: (a) that a breach of the rules of natural justice occurred in connection with the making of the decision; (b) that procedures that were required by law to be observed in connection with the making of the decision were not observed; … .' 17 It is not in dispute that the decision of the respondent to which this proceeding relates is a decision to which the ADJR Act applies within the meaning of s 5(1) of that Act. 18 Section 10 of the ADJR Act is of central importance on the present application. It relevantly provides: '(1) The rights conferred by sections 5 … on a person to make an application to the Federal Court or the Federal Magistrates Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision: (a) are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and (b) … (2) Notwithstanding subsection (1): (a) the Federal Court or the Federal Magistrates Court, or any other court, may, in a proceeding instituted otherwise than under this Act, in its discretion, refuse to grant an application for a review of a decision, conduct engaged in for the purpose of making a decision, or a failure to make a decision, for the reason that an application has been made to the Federal Court or the Federal Magistrates Court under section 5 … in respect of that decision, conduct or failure; and (b) the Federal Court or the Federal Magistrates Court may, in its discretion, refuse to grant an application under section 5 … that was made to the court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason: (i) that the applicant has sought a review by the court, or by another court, of that decision, conduct or failure otherwise than under this Act; or (ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure. (3) In this section, review includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.' 19 Section 16(1) of the ADJR Act provides: 'On an application for an order of review in respect of a decision, the Federal Court or the Federal Magistrates Court may, in its discretion, make all or any of the following orders: (a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies; (b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit; (c) an order declaring the rights of the parties in respect of any matter to which the decision relates; (d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.'

Judiciary Act 1903 (Cth) 20 Section 39B of the Judiciary Act 1903 (Cth) ('the Judiciary Act') relevantly provides: '(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) … (b) … (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.'

The claim for 'Judicial Review' 21 I turn first to the applicant's claim for 'judicial review' under s 39B(1A)(c) of the Judiciary Act. It is not entirely clear what is intended to be encompassed by the claim for 'judicial review'. In the context of an administrative decision, judicial review ordinarily implies consideration by a judge of whether it was within the power of the decision‑maker to make the particular decision, whether the decision‑maker correctly understood and applied the relevant law and whether the decision‑maker followed the correct procedures. Judicial review also ordinarily implies the availability of particular kinds of relief. 22 Until the enactment by the Commonwealth Parliament of the ADJR Act, judicial review in Australia of administrative action was largely based on common law principles. The Supreme Courts of the States and self-governing Territories had vested in them the inherent judicial review jurisdiction of the superior courts at Westminster (see J Crawford, Australian Courts of Law, 3rd Ed, 1992 at pp 129-132). This jurisdiction was usually exercised in proceedings seeking the issue of one or more of the prerogative writs, most commonly certiorari, prohibition and mandamus. 23 The Federal Court's principal judicial review jurisdiction comes from the ADJR Act. Unlike the jurisdiction vested in the Court by s 39B(1) of the Judiciary Act, which is discussed below, and possibly judicial review at common law, the Court's jurisdiction under the ADJR is not defined by reference to claims for particular forms of relief. The orders which the Federal Court may make on an application for an order of review under the ADJR Act are specified by s 16(1) of that Act (see [19] above). In the minds of many practitioners, a claim made in this Court for judicial review has come to mean a claim for relief under the ADJR Act. 24 However, the Federal Court has a judicial review jurisdiction which is independent of the ADJR Act. The extent and nature of that jurisdiction, and the remedies available thereunder in the context of a particular proceeding, may involve issues of complexity. 25 Section 75 of the Constitution vests original jurisdiction on the High Court in five classes of matters. One class is all matters 'in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth' (s 75(v)). The jurisdiction vested in the High Court by s 75(v) of the Constitution is a judicial review jurisdiction. Section 77 of the Constitution authorises the Parliament, with respect to a matter mentioned in s 75 or s 76 of the Constitution, to define the jurisdiction of any federal court other than the High Court. In 1983, in reliance on s 77, the Parliament amended the Judiciary Act by the insertion into it of s 39B. Section 39B(1) as originally enacted conferred on the Federal Court the same jurisdiction as s 75(v) of the Constitution vests in the High Court. Although the breadth of s 39B(1) has subsequently been limited (see [20] above), the limitations have no relevance in the context of the amended application. 26 Gleeson CJ in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 at [5] characterised s 75(v) of the Constitution as a provision which 'secures a basic element of the rule of law.' Nonetheless, the High Court's constitutional judicial review jurisdiction under s 75(v), and thus the Federal Court's jurisdiction under s 39B(1) of the Judiciary Act, is dependent upon at least one of the respondents being 'an officer of the Commonwealth'. The authorities favour the view that a body corporate cannot be 'an officer of the Commonwealth' within the meaning of s 75(v) of the Constitution (Broken Hill Proprietary Co Ltd v National Companies and Securities Commission (1986) 61 ALJR 124 at 127 per Dawson J; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 500 per Gummow J; Vietnam Veterans' Affairs Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419 at 432 per Tamberlin J). The respondent in this proceeding is a body corporate, namely the Migration Institute of Australia Limited (ACN 003 409 390) (see s 275 of the Migration Act). It is presumably for this reason that the amended application does not expressly invoke the jurisdiction vested in the Court by s 39B(1) of the Judiciary Act. 27 However, the applicant apparently places some reliance on s 39B(1) of the Judiciary Act. Her supplementary written submissions include the following paragraph: 'It is submitted that there was no need to specifically plead s39B(1) as a separate Ground under "C" in the Amended Application, as relief pursuant to s39B(1) follows after an adverse finding under s 39B(1A)(c) of Ground 4, in respect of Ground 4 in the Application of this matter.' 28 The intended import of the above paragraph is not easily identified. Subsection 39B(1) and paragraph 39B(1A)(c) of the Judiciary Act are provisions which vest jurisdiction in the Court; neither of them specifies a ground of judicial review. Moreover, the two provisions, although they undoubtedly overlap, operate independently to vest jurisdiction in the Court. It is not necessary here to give consideration to the question of whether s 39B(1) now adds anything to the jurisdiction more recently vested in the Court by s 39B(1A)(c) (see the discussion of whether s 75(v) of the Constitution adds anything to s 75(iii) in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Mason CJ at 179, Deane and Gaudron JJ at 204, Dawson J at 221 and Toohey J at 231). It is sufficient to note that s 39B(1) vests jurisdiction in the Court to decide a matter in which a particular kind of relief (i.e. a write of mandamus or prohibition or an injunction) is sought against a particular kind of person (i.e. an officer of the Commonwealth). Section 39B(1A)(c) vests jurisdiction in the Court to decide a matter, other than a criminal matter, arising under a particular kind of law (i.e. a law made by the Parliament). 29 It may be that the above paragraph reflects confusion between the related concepts of 'jurisdiction' and 'power'. In Harris v Caladine (1991) 172 CLR 84 at 136 Toohey J explained the distinction between the two concepts in the following way: '… Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and "such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred.' (citations omitted)

See also Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1; 204 CLR 559 per Gleeson CJ, Gaudron and Gummow JJ at [2] and [64]-[65] and Allsop J 'Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002' (2002) 23 Australian Bar Review 29.

30 The Federal Court's jurisdiction to determine the present controversy is not expanded by s 39B(1) of the Judiciary Act for the reason identified in [26] above. Nor does any power that the Court may exercise within its jurisdiction to determine the present controversy derive from s 39B(1) (see [36] below). 31 Section 39B of the Judiciary Act was further amended in 1997 by the insertion of subsection (1A) which again expanded the original jurisdiction of the Federal Court. Section 39B(1A), as initially enacted, by paragraph (c) conferred jurisdiction on the Court in any matter 'arising under any laws made by the Parliament' (see s 76(ii) of the Constitution). The breadth of s39B(1A)(c) was reduced in 1999. Section 39B as relevantly in operation now is set out in [20] above. 32 Although s 39B(1A)(c) of the Judiciary Act confers a broad jurisdiction on the Court (see, for example, Hooper v Kirella Pty Ltd [1999] FCA 1584; 96 FCR 1), it is necessary for the party who seeks to invoke the jurisdiction to be able to identify a right, duty or defence which owes its existence to the law made by the Parliament upon which he or she relies or which relies on that law for its enforcement (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154 per Latham CJ; Felton v Mulligan (1971) 124 CLR 367 at 388 per Windeyer J; Australian Solar Mesh Sales Pty Ltd v Anderson [2000] FCA 864; 101 FCR 1). The law made by the Parliament upon which the applicant relies has been identified as the Migration Act. The present proceeding raises no relevant issue concerning a defence. Consideration need not be given here to the indicia of a defence which would attract the Court's jurisdiction under s 39B(1A)(c). What is involved in identifying a right or duty of the necessary kind remains, as it seems to me, somewhat unclear. 33 In the area of judicial review, the most generous construction to date of s 39B(1A)(c) is probably that adopted by Weinberg J in Saitta Pty Ltd v Commonwealth of Australia [2000] FCA 1546, 106 FCR 554. In that case one of the applicants sought injunctive relief against the respondents restraining them from using, disclosing or publishing certain reports, audit notes and notices purportedly issued under the Aged Care Act 1997 (Cth). The applicants relied upon s 39B(1A)(c) of the Judiciary Act. It appears that an earlier proceeding between the same parties concerning the same subject matter brought under the ADJR Act had been stayed by an order of the Court. Weinberg J at [89] observed: '… Section 39B(1A)(c) was intended to provide ample scope for judicial review. That section should not be given an unduly narrow interpretation by treating as separate and disconnected a series of steps preceding the making of final and operative decisions when those steps are in truth part and parcel of those decisions. There is a single ongoing controversy between the applicants and the respondents arising out of the applicants' challenge to the validity of the entire legislative scheme under which the various steps carried out by the respondents were performed. That fact should not be obscured.' 34 With respect to his Honour, I am not entirely sure what his Honour's observation that s 39B(1A)(c) was intended to provide ample scope for judicial review was intended to convey. I do not think it likely that his Honour intended to convey that the ADJR Act does not confer any jurisdiction on the Court that it would now not otherwise have by reason of s 39B(1A)(c) of the Judiciary Act. At least some of the relief that a party may obtain under the ADJR Act, for example, may not, it seems to me, be available where the Court is exercising only the jurisdiction vested in it by s 39B(1A)(c) of the Judiciary Act. Although s 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') confers wide powers on the Court in relation to matters in which it has jurisdiction, the powers are not unfettered (Jackson v Sterling Industries Limited (1987) 162 CLR 612 at 622). In a proceeding in which reliance could not be placed on s 16 of the ADJR Act, it would, I think, be open to question whether, in the proper exercise of the Court's general powers, the Court would be free to make the full range of orders described in s 16(1)(b) of the ADJR Act. 35 It is not necessary in this proceeding for me to reach a concluded view on whether the applicant has properly invoked the jurisdiction conferred on the Court by s 39B(1A)(c) of the Judiciary Act. The respondent has acknowledged that it is at least arguable that s 39B(1A)(c) of the Judiciary Act does confer jurisdiction on the Court to entertain the applicant's complaint that she was denied natural justice by the respondent and to grant the remedies sought by paragraph (ii) of her claim for relief. I will consider the present application on the assumption that the applicant has invoked the jurisdiction conferred on the Court by s 39B(1A)(c) of the Judiciary Act.

Relief pursuant to 'Judicial Review' 36 I turn to consider the claim for relief that is made by the applicant in reliance on the Court's jurisdiction under s 39B of the Judiciary Act (see [2] and [27] above). It is necessarily implicit in s 39B(1) that, in exercising the jurisdiction conferred by that subsection, the Court has the power to grant the relief the claim for which is the foundation of the Court's jurisdiction. However, generally speaking, the powers of the Court in relation to matters within its jurisdiction are to be found either in the legislation which regulates the subject matter of a particular proceeding or in the Federal Court Act (see ss 21, 22 and 23 of the Federal Court Act). Where, as in this case, an applicant invokes the jurisdiction conferred on the Court by s 39B(1A)(c), but not s 39B(1) of the Judiciary Act, the power of the Court to make any particular order derives from the Federal Court Act, and possibly from implications to be drawn from s 39B(1A)(c) itself. Contrary to the submission of the applicant, no power of the Court derives in such circumstances from s 39B(1). 37 The respondent contends that the relief claimed by the applicant in reliance on the jurisdiction conferred on the Court by s 39B of the Judiciary Act is relief which may be refused by the Court on discretionary grounds. The applicant's position on this issue is not entirely clear. The applicant's supplementary written submissions contain the following paragraphs: 'DISCRETION 11. The Applicant joins with the Respondent in stating that the grant of relief under s39B(1) of the Judiciary Act is discretionary. THE JUDICIARY ACT & THE ADJR ACT 12. It is submitted that the Court may not decline to make a finding under s39B(1A)(c) should it first make an adverse (to the Applicant) finding under s10(2)(b)(ii), as determinations under s39B form part of this Court's original jurisdiction as distinct from the vested jurisdiction of the ADJR Act.' 38 As with the paragraph from the applicant's supplementary written submissions set out in [27] above, the intended import of the above paragraphs is unclear. It might be that the two paragraphs are inconsistent but, as it is difficult to attribute a sensible meaning to the paragraph numbered 12, it is impossible to know for certain. 39 The dis tinction sought to be drawn in the paragraph between 'original jurisdiction' and 'vested jurisdiction' is a false distinction. The High Court is the only federal court which owes its existence directly to the Constitution. Section 71 of the Constitution vests the judicial power of the Commonwealth in the High Court, such other Federal Courts as the Parliament creates and in such other courts as the Parliament invests with federal jurisdiction. This Court has been created by the Parliament (see s 5 of the Federal Court Act). As is mentioned above, s 77 of the Constitution authorises the Parliament to make laws which define the jurisdiction of any federal court other than the High Court. This Court is a federal court other than the High Court. The Federal Court Act provides for the Court to exercise original jurisdiction (see Part III Division 1, ss 19-23) and appellate and related jurisdiction (see Part III Division 2, ss 24-30). The Federal Court Act does not itself vest any original jurisdiction in this Court. The Court's original jurisdiction is vested in it by other laws made by the Parliament of which the ADJR Act and s 39B of the Judiciary Act are examples. That is, all of the Court's original jurisdiction is necessarily vested jurisdiction. 40 It may be that the paragraphs quoted in [27] above were intended to draw a distinction between jurisdiction which the Court necessarily has and jurisdiction which may be vested in it, or withdrawn from it, by laws made by the Parliament. However, for the reasons given above, that distinction is also false. Unlike the High Court, the Federal Court has no jurisdiction conferred on it by the Constitution but only jurisdiction conferred on it by laws made by Parliament. As a result, unlike the High Court, the Federal Court has no irreducible minimum jurisdiction. Nor, for the same reason, does the Federal Court have any inherent jurisdiction (Jackson v Sterling Industries Ltd at 630; Harris v Caladine at 136). 41 In short, the characterisation of any jurisdiction of the Court as 'original jurisdiction' says nothing presently relevant as to the nature of the remedies that may be granted by the Court in the exercise of that jurisdiction. 42 Section 23 of the Federal Court Act gives the Court very wide powers to make orders in the exercise of its original jurisdiction. The section provides: 'The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.' 43 The power granted by s 23 to make orders 'as the Court thinks appropriate', suggests that the power so granted is a discretionary power although, of course, a discretionary power which must be exercised judicially. There are types of matters in which the obligation on the Court to exercise its powers judicially will mean that a party who has established a cause of action will ordinarily have an entitlement to an order granting appropriate relief (eg a claim for damages at common law or a statutory claim under, for example, s 82 of the Trade Practices Act 1975 (Cth)). 44 The relief sought by the applicant in this proceeding, in the exercise by the Court of its jurisdiction under s 39B of the Judiciary Act, is an order of prohibition and an injunction. The authorities demonstrate that the grant of prerogative relief generally, including an order of prohibition, is discretionary (Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 ('Aala'); Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ('Dranichnikov') per Gummow and Callinan JJ with whom Hayne J agreed, at [33]). The claim for an injunction as a public law remedy is also a claim for a discretionary remedy (Aala per Gaudron and Gummow JJ at [54]; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 per Gaudron J at [58]). In any event, the claim for an injunction in this case would seem to be dependent upon the applicant's claim for an order of prohibition. 45 I conclude that the relief claimed by the applicant in reliance on the jurisdiction conferred on the Court by s 39B of the Judiciary Act is relief which may be refused by the Court on discretionary grounds.

Proper basis for the exercise of the discretion - ADJR Act and s39B of the Judiciary Act?

46 The respondent did not argue that the amended application fails to disclose a reasonable cause of action or that the proceeding is an abuse of process on any basis other than the availability of relief before the Tribunal. For this reason I also limit myself to that consideration.

47 Order 54 rule 7 of the Federal Court Rules requires a party who seeks to have an application for an order for review dismissed on a ground set out in s 10 of the ADJR Act or in the exercise of the Court's discretion to apply promptly for such dismissal. As Northrop J explained in Edelsten v Minister of Health (1994) 58 FCR 419 ('Edelsten') at 422 the power to dismiss summarily an application for an order of review is designed to avoid the necessity for the Court to consider the whole of the applicant's case where, even if otherwise an applicant would succeed, no order would be made in favour of the applicant. In a case like the present, where a claim for judicial review is made in the alternative under s 39B of the Judiciary Act, I consider that the power of the Court to dismiss the application summarily where it is clear that no order would be made in favour of the applicant if a hearing were conducted, extends to the alternative claim formulated by reference to s 39B of the Judiciary Act.

48 It is thus appropriate to proceed, as the respondent acknowledged, on the basis that, discretionary considerations aside, the applicant would succeed in her claims (Edelsten at 421-422). For this reason the respondent's objection to the reading of the applicant's affidavit on this application is upheld to the extent that the affidavit and its annexures are concerned only with the merits of the applicant's claims for an order of review. Those parts of the applicant's affidavit and annexures which provide proof of the date and terms of the respondent's decision are received in evidence. So far as the applicant sought by her affidavit to prove the filing of documents in the Court in this proceeding, evidence to prove the acknowledged content of the Court's own file is unnecessary.

49 In the circumstances of this case, the discretion vested in the Court by s 10(2)(b)(ii) of the ADJR Act is conditional on the Court finding that adequate provision is made by a law, other than the ADJR Act, under which the applicant is entitled to seek review by a court, tribunal, authority or person of the decision of the respondent. The respondent contends that the Migration Act, together with the AAT Act, provides the applicant with an entitlement, which entitlement the applicant has in fact exercised, to seek review by the Tribunal of the decision of the respondent. The respondent further contends that the provision made for review of the decision of the respondent by the Tribunal is 'adequate provision' within the meaning of s 10(2)(b)(ii) of the ADJR Act.

50 The submissions made on behalf of the applicant did not make it clear whether the applicant contends that the legislative provision made for review of the decision of the respondent by the Tribunal is or is not 'adequate provision' within the meaning of s 10(2)(b)(ii) of the ADJR Act. I therefore give consideration to that issue.

'… The word "adequate" is a word in everyday use. It has well defined meanings and essentially means sufficient or suitable. That is given in the Shorter Oxford English Dictionary. Fully sufficient or suitable are the meanings given in the Macquarie Dictionary. In this context, the adequate provision is to be read as adequate in the sense of suitable or sufficient provision for review. In my opinion, the provisions of the Health Insurance Act do make adequate provision, in that sense, for the review of the decision made by the Minister and of the Committee of Inquiry by the Review Tribunal. If the Review Tribunal makes any error of law, the decision can be reviewed by this Court on an appeal under s 124A of the Health Insurance Act. A very detailed set of provisions are applicable to the procedures of the Review Tribunal, a very detailed procedure is provided for the setting up of the Review Tribunal, and its powers and functions.' 52 With the benefit of his Honour's guidance, I turn to give consideration to the nature of the Tribunal and the extent of its powers. 53 The Tribunal was established as an independent administrative tribunal for the purposes of dealing with appeals against administrative decisions on as wide a basis as possible (Administrative Appeals Tribunal Bill 1975, Second Reading Speech of the Hon K E Enderby AC, House of Representatives, 6 March 1975). I consider that I am entitled to take judicial notice of the fact that the Tribunal is a tribunal of high standing and repute. 54 Parties to a proceeding before the Tribunal may be represented at a hearing before the Tribunal by a legal practitioner. The Tribunal may decide questions of law (s 42 of the AAT Act) and an appeal lies to this Court on a question of law from any decision of the Tribunal (s 44 of the AAT Act). The Tribunal has extensive powers for the purpose of reviewing a decision (s 40 of the AAT Act, see [14] above) and may exercise all the powers and discretions conferred on the person who made the decision under review (s 43(1) of the AAT Act, see [15] above). The question for the determination of the Tribunal when conducting a review is whether the decision under review was the correct or preferable one on the material before the Tribunal (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 per Bowen CJ, Smithers and Deane JJ at 68). The Tribunal has the power to stay a decision for the purpose of securing the effectiveness of the hearing and determination of the application to it for review (s 41 of the AAT Act, see [14] above). 55 I am satisfied that the provision for review of the decision of the respondent made by the Migration Act, together with the AAT Act, is 'adequate provision' within the meaning of s 10(2)(b)(ii) of the ADJR Act. A review of the decision by the Tribunal would be both suitable and sufficient in the sense that those terms were employed by Northrop J in Edelsten. 56 I conclude that the Court has a discretion to refuse to grant the amended application so far as it invokes the jurisdiction of the Court under the ADJR Act and so far as it invokes the jurisdiction of the Court under s39B of the Judiciary Act.

Should the Discretion be Exercised? 57 The crucial question so far as the amended application is made pursuant to the ADJR Act is whether it is appropriate in the circumstances of this particular case for the Court to exercise the discretion vested in it by s10(2)(b)(ii) of that Act. So far as the amended application is made in reliance on s 39B(1A)(c) of the Judiciary Act, I take the view that the appropriate course is similarly for the Court to give consideration to whether it is appropriate in the circumstances of this case for the discretionary relief sought by the applicant to be refused because the respondent's decision can be reviewed by the Tribunal. 58 It was not suggested by counsel for the applicant that the respondent's notice of motion was too narrowly drawn to allow the determination of the present motion of the issue of whether the claims made by paragraph (ii) of the applicant's claims for relief should be dismissed on discretionary grounds. I have received detailed submissions from the parties on this issue. 59 In Dranichnikov Gummow and Callinan JJ, with whom Hayne J agreed, at [33] observed that an 'often compelling discretionary bar' to a claim for prerogative relief is the availability of other relief. The availability of other relief might be thought, all else being equal, to be a stronger discretionary bar before the High Court than before the Federal Court; control of the workload of the nation's highest court of appeal is a matter of considerable public importance. Nonetheless, even before the Federal Court the availability of another proper and adequate forum for relief is a factor that the authorities indicate is to be given considerable weight (see [71] and [72] below). 60 The applicant placed reliance on certain High Court authorities in which statements have been made to the effect that a writ of prohibition will issue 'almost as a right' where want or excess of jurisdiction has been established (see, Aala per Gaudron and Gummow JJ, with whom in this regard Gleeson CJ agreed, at [50]-[51] and Kirby J at [148]; The Queen v Ross-Jones; Ex parte Green (1984) 156 CLR 185; The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Proprietary Limited (1953) 88 CLR 100). It is important, in my view, to note the context in which such statements have been made. Only when the context is understood can any apparent inconsistency between the authorities be resolved. 61 In Aala an application had been made to the High Court in its original jurisdiction for writs of mandamus, prohibition and certiorari and for declarations. The applicant had exhausted all other avenues of relief; his appeal to the Full Federal Court from a decision of a judge of the Court refusing an application for judicial review had been dismissed and he had not sought special leave to appeal to the High Court. In concluding that a writ of prohibition should issue 'almost as a right' the High Court was addressing a situation in which a denial of relief would have had the effect that a decision made in want or excess of jurisdiction would remain in force. 62 In The Queen v Ross-Jones; Ex parte Green the High Court issued a writ of prohibition in respect of an order made by a judge of the Family Court notwithstanding that an appeal lay against the making of the order to the Full Court of the Family Court. The order made by the judge of the Family Court restrained a litigant before the Supreme Court of Victoria from taking any steps to enforce a judgment of the Supreme Court of Victoria. The dispute before the High Court concerned the extent, if any, of the jurisdiction of the Family Court, whether in its original or its appellate jurisdiction, to make an order of the kind made by the judge of the Family Court. In the present case the power of the respondent, and thus of the AAT on review of the decision of the respondent, to suspend the applicant's registration as a migration agent is not in dispute. What is in issue is the lawfulness of the procedure adopted by the respondent when it purported to exercise that power. Any unlawfulness of this character is capable of being avoided by the Tribunal. 63 The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Proprietary Limited is a case in which a writ of prohibition issued to the respondents prohibiting them from cancelling or suspending the registration of the prosecutor as an employer under the Stevedoring Industry Act 1949 (Cth). It was not contended in that case that a convenient alternative remedy was available to the prosecutor. Indeed, the relevant legislation included a privative clause of apparently wide application which purported to protect orders or directions of the Board from challenge. 64 Properly understood, the above authorities do not, in my view, detract from the observation made by Gummow and Callinan JJ in Dranichnikov. 65 I note that this is not a case in which the legislation regulating the specific subject matter (in this case the Migration Act which regulates migration agents) discloses a clear intention as to the court or body that should review decisions of the Authority. The circumstances of the instant case is thus distinguishable from those considered by, for example, Moore J in Darling Downs Bacon Co-operative Association Ltd v Comptroller‑General of Customs (1994) 50 FCR 435. In that case his Honour concluded that the processes provided by the Customs Act 1901 (Cth) for review of a decision of the Comptroller‑General of Customs meant that ordinarily the discretion under s 10(2)(b)(ii) of the ADJR Act should be exercised in relation to an application to the Court under that Act in respect of a decision of the Comptroller‑General of Customs. See also Swan Portland Cement Ltd v Comptroller‑General of Customs (1989) 25 FCR 523 at 530 (FC). 66 I proceed in this case on the basis that the relevant legislation does not disclose an intention that decisions of the respondent should, all else being equal, be reviewed by the Tribunal in preference to the Court. The issue to be determined, in my view, is whether, in the circumstances of this particular case, the Tribunal is a more appropriate forum than the Court. 67 In this case, assuming the decision of the Authority to be tainted by error, the Tribunal has the capacity to reach a decision concerning the applicant's registration as a migration agent which is untainted by error. Of course, if the Tribunal should repeat any legal error made by the Authority, or should its decision be affected by other legal error, an appeal will lie to this Court under s 44 of the AAT Act. However, a decision of the Tribunal may attract no criticism either on the merits or with respect to questions of law. 68 On the other hand, should this Court, on review of the decision of the Authority, set aside the decision of the Authority and refer the matter to which the decision relates to the Authority for further consideration, any decision thereafter made by the Authority would remain open to review by the Tribunal, and indeed, subject to s 10(2)(b)(ii) of the ADJR Act, by the Court. It is not suggested that any relief sought before the Court would have the legal or the practical effect of making it impossible for the applicant's registration as a migration agent to be suspended or cancelled in reliance on the material apparently in the possession of the respondent. 69 In the circumstances, considerations of expedition and efficiency would seem to favour the prosecution by the applicant of her application to the Tribunal. To use the language employed by Latham CJ, Rich, Dixon, McTiernan and Webb JJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 in a passage at 400 on which the applicant relied, it would seem that 'a more convenient and satisfactory remedy' exists before the Tribunal. 70 It seems to me that the authorities provide support for this approach. In Edelsten at 424 Northrop J observed: 'Dr Edelsten did argue that there were special features applicable which should be taken into account to deny that conclusion [i.e. that the Court should exercise its discretion under s 10(b)(2)(ii) of the ADJR Act]. For instance, the serious nature of the consequences of a determination by the Review Committee, the effect on the medical practitioner concerned, the fact that the Review Committee is not able to consider questions of law, such as whether there was a denial of natural justice in the earlier proceeding before the Minister or the Committee of Inquiry, and the limited nature of the review. But it is difficult to see how that can have any real meaning when the Review Tribunal is in essence and in fact exercising the powers of the Minister on material that was properly before the Minister.'

This case is, in one respect, stronger than Edelsten in that the Tribunal can receive further evidence while the Review Tribunal under the Health Insurance Act 1973 (Cth) could not.

71 In Hagedorn v Department of Social Security (1996) 44 ALD 274 at 281 Mansfield J said in respect of the discretion granted to the Court by s 10(2)(b)(ii) of the ADJR Act: 'As with any judicial discretion, it is neither possible to list all matters which will be relevant to its exercise for every case nor appropriate to attempt to do so. The category of material factors is never closed and will vary from case to case and the weight to be given to any one factor will depend upon the particular circumstances. It is relevant, generally speaking, to have regard to any unnecessary delay and any increased expense if the alternative suggested remedy is pursued: Mercantile Credits Ltd v FCT (1985) 8 FCR 510; 61 ALR 331. Indeed, any hardship involved in pursuing the alternative remedy will generally be relevant: Du Pont (Australia) Limited v Comptroller-General of Customs (1993) 30 ALD 829. Consequently, there will be cases where there is clearly involved a matter of law, and where the court will determine to resolve that matter of law despite adequate alternative review procedures: Kelly v Coats (1981) 35 ALR 93; AB Scaniainventor v Commissioner of Patents (1981) 36 ALR 101; 54 FLR 367. It will generally also be relevant to have regard to the court's need to provide properly for speedy resolution of matters before it where no other avenue of recourse is available: Bragg v Secretary, Department of Employment, Education & Training (1995) 38 ALD 251.' 72 In Saitta Pty Ltd v Commonwealth of Australia at [104] Weinberg J observed: 'The relief which is sought by Saitta in proceeding V 732 of 1999 is discretionary. The fact that it has available to it adequate alternative remedies in the AAT in proceedings which it has already commenced provides considerable support for the proposition that the proceeding in this Court should at least be stayed. Where full merits review is available to, and has already been invoked by, an applicant, Courts will often exercise their discretion to stay or dismiss applications for judicial review - see Blank v Beroya Pty Ltd (1967) 92 WN (NSW) 24 at 26 per Street J; Land v Clyne (1968) 92 WN (NSW) 134 at 136 per Myers J; Liverpool & London & Globe Insurance Co Ltd v JW Deaves Pty Ltd [1971] 2 NSWLR 131 at 135 per Else-Mitchell J; Tooth & Co Ltd v Parramatta City Council (1955) 97 CLR 492 at 498 per Dixon CJ; Moran Hospitals Pty Ltd v King (1997) 49 ALD 444 at 458-459 per Beaumont J; Wyeth Australia Pty Ltd v Minister for Health and Aged Care [2000] FCA 330 at [44]-[47] per Finn J; and Riverside Nursing Care Pty Ltd v Bishop [2000] FCA 434 at [5] per Sundberg J.' 73 Finally the applicant submitted that: '… in light of the many steps taken by the Applicant to date in this Court, and after this Court's hearing argument on 19 March 2003, the Applicant would be put to great inconvenience and additional expense were this Court minded to refuse the application on the basis that the AAT could at this advanced stage, still hear the Applicant's complaint.' 74 The respondent foreshadowed the present motion on 6 February 2003 at the first directions hearing for this matter. However, as the applicant wished to proceed in this Court but her application was deficient in form, the matter was stood over until 13 February 2003 to allow the applicant to amend her application if so advised. When the matter came before the Court on 13 February 2003 no amended application had been filed but the applicant, by her counsel, indicated that she continued to press her case for relief before the Court and proposed to file an amended application. The directions hearing was again stood over, this time until 27 February 2003. On 26 February 2003 the respondent filed a notice of motion seeking an order dismissing the application. When the matter was called on for directions on 27 February 2003, the applicant had still not filed an amended application, but again by her legal representative, indicated that she wished to do so. Leave was granted to the applicant to file an amended application by 14 March 2003 but not thereafter without leave. At the same time, the respondent's motion for dismissal was listed for hearing on 19 March 2003. 75 As the above summary indicates, the respondent moved promptly in this case to alert the applicant to its intention to move to have her application to the Court dismissed. It is regrettable that the matter has been before the Court on a number of occasions and that significant costs have no doubt been incurred by both parties as a result. However, no blame in this regard can be attributed to the respondent. The proceeding is not, as it seems to me, at an advanced stage in the sense intended to be conveyed by the above submission. It was not until the filing of the amended application on 14 March 2003, which document was later replaced with a corrected document filed on 17 March 2003, that the applicant had placed before the Court an originating process that complied with the Federal Court Rules (see O 54A r 3 of the Federal Court Rules). The applicant herself did not want the motion argued before she had filed an amended application. The present motion was heard less than one week after she had done so. It cannot, in my view, sensibly be contended that because the motion for dismissal has been argued, the applicant is in a stronger position than she might otherwise be to resist that very motion. 76 I conclude that, having regard to the above circumstances, little weight can be given to the submission recorded in [73] above. 77 I am satisfied that it is appropriate in the circumstances of this case that the discretion of the Court be exercised adversely to the applicant. She should, in my view, be required to pursue her grievances in respect of the decision of the respondent before the Tribunal, the jurisdiction of which she has already invoked. Full merits review is available to the applicant before the Tribunal. The undertaking given by the applicant to withdraw her application to the Tribunal within twenty‑four hours of any decision by the Court dismissing the respondent's motion does not affect my conclusion in this regard. The Tribunal is, in my view, in the circumstances of this case the appropriate forum for review of the decision of the respondent. 78 The amended application will be dismissed with costs. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Counsel for the Applicant: Mr J A McCarthy QC appearing with Mr J J Gillespie

Solicitor for the Respondent: Australian Government Solicitor

Judiciary Act 1903(Cth)s 39B(1A)(c), ss 39B

Administrative Decision (Judicial Review) Act 1977(Cth)

Administrative Appeals Tribunal Migration Act 1958(Cth)ss 286-306, 309-311, 316, 474

Judiciary Act 1993(Cth)

Tribunal.' Administrative Decisions (Judicial Review) Act 1977(Cth)

Trade Practices Act 1975(Cth)

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Cases Cited (29)