Medru v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The Minister for Immigration and Multicultural Affairs ("the Minister"), who is the respondent to an application brought by the applicants under Part 8 of the Migration Act 1958 (Cth) ("the Act"), has by notice of objection to competency objected to the jurisdiction of this Court to try the application on the ground that the matter complained of does not constitute a "judicially-reviewable decision" within the meaning of s 475(1) of the Act. 2 The Minister has also applied by motion, notice of which was given on 2 December 1999, for an order that the proceeding be dismissed pursuant to O 20 r 2 of the Federal Court Rules as disclosing no reasonable basis for the application and as being frivolous or vexatious, or an abuse of process. 3 The background to the application is somewhat unusual. The first applicant, Ms Akenata Medru, arrived in Australia from Fiji on 23 February 1987 and was granted what was then described as a temporary entry permit. The second applicant, Mr Etuwate Seru, arrived in Australia from Fiji on 18 July 1987 and was also granted a temporary entry permit. At that stage Ms Medru and Mr Seru were not acquainted. 4 On 20 August 1987 Ms Medru applied for an extension of her temporary entry permit. That application was refused. On 29 September 1987 she sought review of that decision. At about that time she met Mr Seru, and they married some years later. 5 On 14 February 1988, Ms Medru applied for resident status. By letter dated 5 May 1988 she was informed that her application had been refused. The terms of that letter were as follows: "CERTIFIED MAIL Miss Akeneta Nakauta 3 Cowper Street HARRIS PARK NSW 2150 Dear Miss Nakauta I refer to your application for the grant of resident status. I am writing to inform you that after giving your case careful consideration, Mr R Collins, an authorised officer under Section 6A of the Migration Act, has decided to reject your application. Under present law and policy a change of status to resident may be granted in exceptional cases but generally only to people who can demonstrate a marked change in their circumstances since their arrival in Australia. The Migration Act prescribes restricted categories of people who may be considered for the grant of resident status. It is not possible in law to grant resident status to a person after their arrival in Australia unless one or more of the following conditions is fulfilled; i.e. that person: (a) has been granted, by instrument under the hand of a Minister, territorial asylum in Australia; (b) is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit; (c) is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that that person has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was determined at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was determined at New York on 31 January 1967; (d) is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non‑citizen (prescribed non citizens include those persons who acknowledged in writing that they understood and accepted that they would leave Australia on the completion of their studies or training in Australia and the spouse or child of such a person who was permitted to enter Australia only by reason that they were the spouse or child of that person); or (e) is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to that person. There was no evidence before the authorised officer to suggest that you fulfilled Section 6A(1)(a), (b), (c) or (d) of the Migration Act as outlined above. Your case was considered under the law and policy relating to the grant of resident status under Section 6A(1)(e). In support of your application for resident status you advanced grounds for consideration that you do not wish to return to Fiji because of the difficult situation existing in the country following the military coup. Furthermore, you would be unable to continue with your education in Fiji because of the shortage of teachers. From the information you have provided in your application there was no evidence presented that you or your family members were harassed or persecuted in Fiji. The authorised officer considered the compassionate and humanitarian factors you presented were not sufficiently strong to satisfy the requirements of Section 6A(1)(e) of the Migration Act. In the absence of evidence before the authorised officer of strong compassionate or humanitarian factors your application has been rejected. Consideration was also given to whether the application of normal policy was appropriate in your particular case and the authorised officer decided that there were no features of your case which indicated that the application of normal policy was unfair or unjust. There is no right of review of this decision by the Immigration Review Panel. Your case has now been referred to the Sydney Office of the Department. You must contact the Compliance Section, which is located on the 5th Floor, Commonwealth Government Centre, Chifley Square, Sydney (phone 239 4258 or if engaged, 239 3660) to advise your departure details. Yours sincerely A AKAYAN Resident Status" 6 On 24 May 1988 a Mr R D Faulkner, a registered immigration agent with a firm known as International Lobbyists Pty Ltd, wrote to the Minister on behalf of the first applicant asking for a stay of the decision rejecting Ms Medru's application. He stated in his letter that there were matters which had not been drawn to the Minister's attention which would support her claim for the grant of an entry permit. 7 On 28 July 1988 the Department sent the following lettergram to Mr Faulkner: "The Minister for Immigration Local Government and Ethnic Affairs has asked me to thank you for your letter of 24 May 1988 concerning the decision to refuse grant of resident status to Miss Akenata Nakauta (Reference N87-304804). The matter will be re-examined in the light of your representations and you will be advised of the outcome. Due to the involved procedures it may be some months before a decision is made. C Whale Review Branch" 8 On 8 February 1989 the Department wrote again to Mr Faulkner. However, the Department did not "advise of the outcome" of the re-examination which had been foreshadowed, but instead informed Mr Faulkner that Ms Medru should submit a new application for resident status which included any information not previously supplied relevant to her case. The terms of that letter were as follows: "N87/304804 Mr R D Faulkner International Lobbyist Pty Ltd PO Box N262 Grosvenor Street SYDNEY NSW 2000 Dear Sir, On 28 July 1988 it was promised that you would receive a reply to your letter of 24 May 1988 concerning the decision to refuse grant of resident status to Ms Akenata Nakauta. Applications for the grant of resident status are advised on the application form that it is in their best interests that their case is as complete and well supported by documentation as possible as they may not be interviewed or asked for further information prior to a decision being made. The decision to refuse Ms Nakauta's application for resident status was made on the basis of all information provided at that time. This decision remains unchanged. However, as you have indicated in your letter that there is information not previously supplied by Ms Nakauta, but relevant to her case, she may if she wishes submit a new application for resident status including full details of all the circumstances relating to her case. I note that as Ms Nakauta's temporary entry permit has now expired, any application should be lodged without delay or else arrangements should be made for her immediate departure from Australia. Should she decide not to submit a new application evidence of a confirmed booking must be presented to the Compliance Section, 3rd Floor, 23-35 George Street, Parramatta, within 14 days from the date of this letter. Failure to comply with this request may lead to the question of continued stay or deportation from Australia being placed before myself or my delegate. Yours sincerely, LYN STADTMILLER A/g Regional Director" 9 On 27 February 1989 Mr Faulkner advised the Department that Ms Medru was on a tour of country New South Wales. He indicated that he had arranged for her to contact him as soon as she returned to Sydney. She would at that stage forward the further information relevant to her application for resident status. 10 However, no further information was ever thereafter supplied. Ms Medru's claim for resident status became subsumed in an application for the grant of a protection visa made by Mr Seru, to which both she and their daughter, the third applicant, were party. Mr Seru's claim was ultimately rejected after many years of consideration and various review processes. 11 On 6 November 1997 the applicants engaged their present solicitors to act for them. On 1 May 1998 the solicitors wrote to the Department requesting reconsideration of the decision of 5 May 1988 rejecting the first applicant's application for the grant of resident status. The solicitors' letter contended that Ms Medru was seeking reconsideration of that decision on the grounds of what the solicitors described as "the Dahlan precedent". 12 In Dahlan v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, 12 December 1989) Hill J had held that the original consideration by the authorised officer in that case, on the basis of "strong compassionate or humanitarian grounds" under s 6A(1)(e) of the Act (as that section then stood) should be set aside, the officer having had regard to various irrelevant considerations. 13 The solicitors' letter also complained of a second error said to have been made when this matter was first considered in 1988 and 1989. Although the Minister for Immigration, Local Government and Ethnic Affairs had undertaken on 28 July 1988 to re-examine Ms Medru's claim for the grant of resident status, neither he, nor any of his officers, had done so. The Department had merely "brushed it aside", suggesting that a fresh application be made as a "convenient way out". 14 On 29 April 1999 a delegate of the Minister responded to the solicitors' letter of 1 May 1998. The delegate's letter read as follows: "File No: V951649 Fernandez Canda & Co Barristers & Solicitors GPO Box 13 A Melbourne 3001 Att. Dominic Yau Re: Reconsideration of Ms Akeneta Nakauta MEDRU's GORS decision Dear Mr Yau I refer to your letter of 1 May 1998 regarding reconsideration of a decision in Ms Akaneta Medru's refused GORS case. I infer from your submission that you wish to invoke the Dahlan's case as a basis for the reconsideration. As you are most probably aware, the decision in Dahlan is principally about irrelevant matters being taken into consideration by the decision maker such as, for example, "queue jumping" policy and requiring the applicant to be "singled out" or suffer hardship over and above the rest of the population in the country of origin before it could be said that compassionate or humanitarian grounds exist. The Federal Court held that both of these considerations constituted an error of law. However, having carefully perused the primary decision record and your submission, 1 am unable to identify a Dahlan error of law in the decision not to grant Ms Medru's resident status in Australia. The claims advanced by your client in her GORS application lodged on 4 February 1988 revolve around the applicant's fear of persecution and harassment should she be required to return to her native Fiji. Ms Medru also felt she could enhance the prospects of her further education by seeking to remain permanently in Australia. From my reading of the primary decision record, it would appear that the claims made by Ms Medru in her GORS application have all received due consideration by the decision maker and were subsequently found not to be strong enough to warrant the grant of resident status on compassionate or humanitarian grounds in accordance with the then applicable policy requirements. Similarly, the advice given to Ms Medru regarding her review rights does not appear to be legally flawed, and as such does not merit further consideration. I therefore regret to advise you that in the absence of an identifiable error of law in the original GORS decision, I am unable to proceed with its reconsideration. Please note that refusal to revisit a GORS decision is not internally reviewable. Chris Samplawski Residence Section PN11306 29 April 1999" 15 On 26 May 1999 the applicants filed the present application seeking review under Pt 8 of the Act. They also sought an order of review under the Administrative Decisions (Judicial Review) Act 1977 (the "ADJR Act") and relief under s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). The decision challenged was that made by the delegate on 29 April 1999 refusing the applicants' request that the Minister reconsider the decision taken on 5 May 1988 to refuse the first applicant resident status. The grounds of review set out in the application included what were said to be various errors on the part of the delegate including his failure to consider the implications of Dahlan's case, his failure to consider the material supplied in the application, and his failure to observe procedures required by the Act in connection with the making of the decision. 16 The Minister initially responded to the present application by filing a notice of objection to competency to so much of the applicants' claim as was brought under the ADJR Act, and under the Judiciary Act. The applicants responded by conceding, almost from the outset, that those claims were untenable. They subsequently confined their case to one brought under Pt 8 of the Act. That in turn led the Minister to file a notice of objection to competency in relation to the Pt 8 claim. 17 The question whether the decision of the delegate which is challenged in these proceedings is "judicially-reviewable" raises a number of difficult issues. 18 The delegate's decision can only be "judicially-reviewable" if it falls within the ambit of s 475(1)(c) of the Act. Neither s 475(1)(a) nor s 475(1)(b) is applicable. 19 Section 475(1)(c) defines a "judicially-reviewable" decision as one "made under this Act, or the regulations, relating to visas". 20 The term "visa" is, by s 5 of the Act, given the meaning which it has in s 29 of the Act. Section 29 provides that the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: "(a) travel to and enter Australia; (b) remain in Australia." 21 The nomenclature which is adopted in the Act as it stands today is entirely different from that which was in use in 1988. Prior to 1994 a distinction was drawn between a "visa", which was an instrument which permitted the holder to travel to Australia, and an "entry permit", which permitted the recipient to enter and remain in this country, either temporarily, or permanently. Section 6 of the Act, as it then stood, permitted an officer to grant an "entry permit" to a non-citizen at the point of arrival. What were formerly known as "visas" and "entry permits" have, since 1994, been subsumed within the single term "visa". 22 Whether or not the extended definition of "visa" which is presently contained in s 5 brings the delegate's "decision" of 29 April 1999 within the parameters of s 475(1)(c) is at least problematic. There is some force in the respondent's contention that s 475(1)(c) was never intended by Parliament to render "judicially-reviewable" decisions of the type now challenged. 23 There is also a question in my mind as to whether the expression "decisions under this Act, or the regulations, relating to visas" in s 475(1)(c) includes what was, in truth, no more than a response to a request for reconsideration by the Minister of an earlier decision made under a different legislative regime, albeit an Act bearing the same title as the present Act - Minister for Immigration and Ethnics Affairs v Mayer (1985) 157 CLR 290 at 295-6 per Gibbs CJ. 24 It is unnecessary, in my view, to resolve these issues. This application can be determined on a much simpler basis. 25 There is nothing in Dahlan's case which is of any assistance to the applicants' contention that the delegate erred in law in failing to reconsider the 1988 decision. The delegate said in his letter of 29 April 1999 that he had considered Dahlan's case and concluded that it was of no relevance to the 1988 decision. That, in my view, was an entirely justifiable conclusion. The reference to Dahlan in the solicitors' letter of 1 May 1998 was misconceived. 26 The applicants' alternative submission, which was referred to in their solicitors' letter, albeit in somewhat sketchy terms, was that Ms Medru had a "legitimate expectation", deriving from the letter sent by Mr Whale to Mr Faulkner on 23 July 1988, that her application for resident status would be re-examined by the Minister without her having to file a further application. That "legitimate expectation" had been thwarted, and the applicant had been denied procedural fairness by the change of position adopted by the Department regarding that matter. 27 I am unable to accept that submission. All that seems to me to have occurred was that, in February 1989, a different officer within the Department came to a different conclusion regarding the need for the first applicant to file a fresh application. One is tempted to ask, "so what?" The Department's change of position, as reflected in Ms Stadtmiller's letter of 8 February 1989, was, in my view, of little real consequence. It caused no prejudice to the first applicant, beyond requiring her to pay a modest additional application fee which, incidentally, would have been refunded if her application for resident status had been successful. 28 In my view, the present application to review the "decision" taken by the delegate in 1999 to refuse to re-open a decision taken eleven years earlier is little more than a device designed to circumvent the difficulties which the applicants would inevitably face in seeking now to review that earlier decision. It is important to note that during those eleven years no steps were taken by the first applicant to challenge the earlier decision. To permit the applicants now, by this circuitous route, to obtain what is in effect review of the earlier decision after the lapse of such a period would be to invite widespread and wholesale abuse of the mandatory time limits contained in the Act. 29 Counsel for the applicants submitted that if I were of the view that this matter should be disposed of summarily in favour of the Minister, the applicants should nevertheless not be required to pay costs. He contended that the applicants had been misled by a 1995 policy document produced by the Department which suggested that judicial review under the Act would be available in this Court where there had been a refusal to reconsider a decision which had been made prior to Dahlan which could be seen to have been affected by Dahlan error. 30 In my view there is no substance in that submission. As indicated earlier, the decision in Dahlan in no way assists the applicants' case. The policy document cannot be used as justification for the applicants' decision to bring these proceedings. 31 The respondent is entitled to succeed upon the motion. The application must be dismissed. The applicants should pay the respondent's costs of and incidental to the motion and the application. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.