Minister for Immigration & Ethnic Affairs v. Conyngham, P. & Ors [1986] FCA 289

Federal Court of Australia|1986-07-25|Before: Burchett JJ, Wilcox J, Sheppard J

Tmmigration - proposed wisit bv group of antertainers -

pplication on their behalf for temporary entry permits - policy

ster net to qrant permits unless sponsorship of visit

veferred to Nationai Disputes Committes in the event of objection

by certain unions - application for sponsorship refused on basis of recommendation of Committee - miscarriage of Committee's proceedings - common ground that decision ta refuse spansorship

he set aside - appropriate relief to be granted - Court's power to order Minister to decide application in particular wav - whether auidelines bound Minister to approve sponsorship if objection thereto overruled ~- whether quidelines capable o2f canfercing a ""vright" on applicant for sponsorship - whether velief should be granted with reference to auidelines or to statutory provision tinder which application made - whether

Administrative Decisions (Judicial Review) Act 1977, ss. 5. 16.

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS v, PETER

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

TUDGES MAKING ORDER: Sheppard, Beaumont and Burchett JJ.

_ The declaration made bv Wilcox J. he set aside.

The orders made by Wilcox J. be varied by setting aside orders 2 and 3 and substituting the following: Order that - (a) The appellant forthwith consider the applications for

eleventh respondents and determzune such applications in

eosts of the proceedings before Wilcox J. and of the

Settlement and entry of orders is dealt with in Order 36

ON APPEAL FROM A SINGLE JUDGE OF THE FEDEPAL COURT OF AUSTRALIA

SHEPPARD J.: On 18 duly tast the Court allowed an appeal from

Fhe judqment of a single Judge of this Court (Wilcox J.) dated 14

Wilcox J. made a declaration and FEhree orders, The

The application lodged by the First Applicant in respect of the entry into Australia of the Third ta Eleventh Applicants inclusive was within the policy guidelines issued by the respondent for the avant of temporary entry permits.

The decision of the Respondent to refuse rhe Application made by the First Applicant for approval of a sponsorship by rhe Second Applicant of the wisit to Australia of the Third to Eleventh Applicants beind an approval ror the purposes of the subsequent issue to the Third to Eleventh Applicants of 2 temporary entry permit under Section 46 of the Migration Act, 1958 be set aside.

The Respondent issue or cause to be issued within 24 hours to the First Applicant an approval of the Application made bv him on 29 May 1986 in respect of sponsorship by the Second Applicant of the visit to Australia of the Third to Eleventh Applicants being Approval for the purposes of the subsequent issue of temporary antry permits under Section 6 of the Miqration Act 1958: such

approval being tpan such Farms and eonditioens as will permit the Third to Eleventh Applicants to fulfil the

engagements itemised in the itinerary which is axhibit ""C" in these proceedings.

The Respondent pay to the Applicants (their) eosts of this application".

fay The appellant forthwith consider the applications for temporary entry permits made bv the third toa the eleventh respondents and determine such applications in accordance with law:

tm) Liberty to apply for further relief be reserved,

The costs of -Ehe proceedings before Wilcox 7. and of the avpeal be reserved".

The Court prefaced the orders which it made with two rulings.

fa) There are subsishing applications for temporary entry permits on foot made by or an behalf of the third to eleventh respondents inclusive.

bh) The vreport and recommendation of th National Disputes Committee dated 4 Jul 1985 is void and of no effect and is not matter properly to be considered by the Minister in determining the applications for temporary entry permits referred to in para. far".

The Court announced «that the reasons for the orders made would be published at a later time. What follows are the reasons

The respondents were the applicants inan application for judicial review seeking the review of two decisions of Fhe respondent, the Minister for Immigration and Ethnic Affairs,

"Cay To review the decision of the Respondent or his delegate of or about 7th July 1986 refusing the grant of temporary entry to Australia of the Third ta Eleventh Applicants inclusive as overseas

entertainers and relaked cersons seeking to perform in Australia:

'hy To review the decision of the Disputes Committee in not recommendiny rhe qrant of Femporary entry permits to Fhe Third ta

Eleventh Applicants inclusive to perform in Australia:"

T shall identifv the Disputes Committee a little later.

The application for review also sought the review of certain

conduct leading to the two decisions which were made.

The respondents (the applicants in the original application) claimed an order that the decisions be set aside, a declaration that the third to eleventh respondents were within certain policy guidelines for the grant of temporary entry permits wunder the sponsorship of the first and second respondents, an order directing the Minister to grant temporary entry permits ta the third to eleventh respondents for the period 15 July to 2 August 1985 with a right to work in Australia for the period under the sponsorship and, in the alternative, an order that the Minister determine the matter afresh according to law and in accordance

The second respondent is a company engaged in the promotion and tours of various performers in and around Australia, being both Australian and overseas artists. In the past it has been

the sponsor for various performing artists seeking temporary

entcv permits to enable them to tour Australia and perform here. The first respondent. Mr. Convnaham, is the Manaaqing Director of

Tn March 1986. Me. Conyngham finalized neqotiations for the tour of Australia ot the third toa eleventh respondents under the name, "The Platters". Mr. Convngham was at all times aware that the Platters would need temporary entry permits under s. 6 of the Miaration Act 1958 to enable them to enter Australia and that these permits would need to be endorsed with a condition enkitling them to work whilst in Australia. He was also aware of certain guidelines laid down by the Minister or his Department for the guidance of entrepreneurs wishing toa organize

performances by overseas artists or actors in Australia.

The quidelines are headed, "TEMPORARY ENTRY TO AUSTRALIA OF ENTERTAINERS AND ASSOCIATED PERSONNEL - STATEMENT OF AUSTRALIAN GOVERNMENT POLICY AND PROCEDURES". The quidelines state that it is the policy of the Gavernment in relation to the temporary entry of entertainers. musicians, actors and other professional workers 1n the entertainment industry to take into account the need reasonably to safequard the employment opportunities of Australians in the industry whilst facilitating the injection of a diversity of talent, new ideas and variety from overseas. The

"The temporary entry into Australia of personnel for the entertainment industry may be approved

: the entertainers/professionals cancerned possess a level of talent of such merit as ip) lead ta the continuing multurcal enrichment of the Australian community or "where the sponsor requires a particular artist/professional for example for reasons of racial ar national authenticity oar because of a particular talent or ability;

. entry is supported by sponsorship from an enterprise or person in Australia of good reputation and standing, with adequate financial resources and properly licensed if required by any Commonweaith er State legislation;

. the sponsor provides in advance full details on conditions of emplovment and engagements, ensures that the nominee(s) brought to Australia adhere to the specific purpose of the wisit and will not undertake other engagements unless given specific approval by the Department of Immigration and Ethnic Affairs to do so, and undertakes to ensure departure from Australia on completion or Fermination of the nominee's approved itinerary;

. there is no reason for objection to the application an employment, industrial relations, or other grounds including the ability of nominse(s) to meet the normal health and character requirements of the Australian Government for entrv;

"PROCEDURES FOR ENTRY TO AUSTRALIA OF APTISTS AND ASSOCIATED

"The entrepreneur or agency wishing to bring to Australia overseas artists or associated personnel for emplovment in the entertainment

parties concerned and rhe eurriculum vitae to the nearest

the sponsor should complete a sponsorship form, which may be obtained from any office of Department of Immigration and

completed sponsorship farm plus one copy of the contract which has been sianed by

from overseas. The Department in accordance with an established consultative procedure will send a copy of rhe

Sponsorship form to the union(s) however to avoid processing

suggestion is made that the sponsor send a copy of the form to the union(s)

consideration at the same fFime lodaed with the Department".

reached between the sponsor and the appropriate union oar unions

prior to the application being Lodged. That was not

"Note: Approval of a sponsorship necessarily lead automatically to the visa to the nominee(s) - see paragraph

"(14) Where a sponsorship is approved the Department will notifv the overseas visa issue office. Approval of an application

overseas is subject not aniv to sponsorship requirements having heen met but Also the nominees meeting entry requirements".

Paragraph (5) provides that, if at fhe time the sponsorship has heen received by the Department, agreement has not already been reached between the sponsor and the appropriate union. the Department will allow a period of 10 working davs from the date of receipt of the sponsorship by the union far the union ta indicate its view, except in cases where in the opinion of the Department there is not adequate time to allow this period. If rhe union does not state its view immediately after the period of 19 days, the Department will assume that the union has. no objection to the sponsorship and the sponsorship will be approved subject to the Department being satisfied that the sponsor is of qood reputation and standing, with adequate financial resources and properly licensed if required by any Commonwealth or State

Succeeding paragraphs deal with what is to happen if there is an objection by a union. In that event one of the options open to the Minister is to refer the matter to a "National Committee" based in Sydney consisting of a senior officer of the Department who is to be the chairman, and two persons of standing in the community, one to be nominated by representatives of the sponsor and the other to be nominated bv representatives of the three

unions most directly involved, namely, Actors Equity, the

Music1rans Wnion and the Australian Theatrical Amusement and Emplovees'' Association. Procedures are laid down for the hearing by the Committee and the quidelines then vrovide that, where agreement between the two parties to the dispute 15 not reached, the Committee will make a recommendation to the Minister who will

On 29 May 1986 Mr. Conyngham sent to an officer of the Department the sponsorship form provided for in paragraph (2) of the quidelines earlier quoted, On 19 June 1986, a date later than 10 working days after the sending of the sponsorship form bv Me. Conyngham, Actors Equity ledged an objection to the tour of the Platters. Three arounds were relied upon in support of the objection. The first was that Actors Equity did not believe that the artists would contribute to the continued cultural enrichment of Australian society as "is required by Departmental policy". The second was based on there allegedly being two groups of performers each of which included the word "Platters" in their name. The thrust of the objection was based on there having previously been a tour by a group known as "Paul Robi's Platters" and their having satisfied the Union that they were the "original

Platters". This ground concluded with the following paragraph: -

"Now this same sponsor who maintained that Paul Robi's Platters were the only group who could claim international renown as 'The Platters' wishes to import the 'other' Platters. We find this totally unacceptable".

The third ground of obiection was that the Union did not view the first respondent as suitable or of qood standing as required by Departmental policy. Some particulars of this qround were

given. In the circumstances if 19 unnecessary to refer to them.

Mr. Convngham replied toa the objections by letter dated 4 Tily 1986, Tn the meantime, on? July 1986, che Wational Disputes Committee had heen convened to consider the question of what recommendation should be made to the Minister about the sponsorship of the aroup. Apparently onlv two grounds were relied upon by Actors Equity in opposition to the sponsorship. These were that the gqroun. "with the same name as another group called 'The Platters' and who toured here recently, were not of sufficient merit to lead to the continuing cultural enrichment of Australian society"; and that the sponser was not suitable or of qood reputation and standing as required by Departmental policy. The second of these grounds was rejected but the first was

upheld. The Committee said that the Platters did not possess a level of talent of such merit as to lead to the continuing cultural enrichment of the Australian community. It was said that the qroup was certainly no better than local talent "who very often are denied scarce opportunities that exist locallv".

The Committee unanimously recommended the refusal of an entry

On 4 July 1986 a recommendation was made to the Minister that

he refuse "the entry of 'The Platters'". The Minute merely

referred to the oridinal, objection by Actors Equity, some of what had been put on behalf of the first and second respandents and the fact that the National Disputes Committee had unanimously recommended that entry of the Platters be refused. The report. of the National Disputes Committee was attached should the Minister wish to refer to it. Nothing was said in the recommendation about the fact that the Committee had rejected the around based an lack of good repute on the part of the first and second respondents nor about the fact that the Committee did not apparently regard the previous visit by another group bearing a name which included the word "Platters" as of sianificance. The Minister accepted the recommendation on +4 duly 1986, The

The application for review succeeded before Wilcox 7. on three grounds, namely, that the Committee and the Minister had failed to observe the rules of natural justice, that the Committee and the Minister had omitted from account relevant considerations, and that the Minister's decision was so unreasonable that no reasonable person in the position of the

During the course of the hearing before his Honour senior

counsel for the Minister announced that she had recentiv received insfructions that the Minister had aqreed to reconsider his decision in the light of new facts that had come to Light of

which the Minister was unaware when he made his decision on 4

Julv. Senior counsel said that the Minister would consent to an arder setting aside his decision in the proceedings and to an order that the matter be remitted fo him for further consideration. Counsel said that she would not seek to put any submissions in respect of the decisions either of the Disputes Committee or of the Minister. She said that she would seek to put submissions in respect of his Honour''s power ta substitute his Honour's own decision for that af the Minister. Counsel for the respondents was mot prepared to accept the offer made on behalf of the Minister as a solution to the problem. He wished fo obtain from the Court an order that the Minister approve the

sponsorship. Consequently the matter proceeded and led to his

Honour making the orders earlier set out in these reasons.

There was no challenge before us to the order made hy his Honour that the Minister's decision be set aside. Nor was there any attempt on the part of senior counsel for the Minister to dispute that the Minister's decision and the proceedings before the sponsorship Committee had involved breaches of the rules of natural justice, the omission from account ef relevant considerations and the making of a decision so unreasonable as to be a decision to which no reasonable person could come. The onlv issue raised by the appeal was the nature of the relief to which the respondents were entitled, it being contended that the only appropriate relief was the setting aside of the decision and the

remission of the matter to the Minister with a direction that he

On- 15 July 1986 the matter came before a differentiv constituted Full Court on an application by the Minister seeking expedition of the appeal and a stay of the order made by Wilcox J. which obliged the Minister to cause to be issued. within 24 hours of 4,00 p.m. on 15 July 1986, an avproval of the application in respect of sponsorship of the visit to Australia of the third to eleventh respondents, being approval for the purposes of the subsequent issue of temporary entry permits under

s. 6 of the Miaration Act. A stay was granted up to and

including 18 July 1986 and the hearing of the appeal fixed for that day. In the eourse of the discussion which ensued before the other Full Court on 15 July, senior counsel for the Minister

said that onlv one point would be raised on the appeal. This was

a dry question of the construction of s. 16 of the Administrative

Oecisions (Judicial Review) Act 1977 ("the Act"), namely, whether

the Court was in any circumstances ever empowered to substitute for the decision under an enactment of a Minister or other public official its own decision or to compel the Minister or official to decide a matter in a particular wav. In senior counsel's submission, s. 16, upon its proper construction, authorized the Court to do no more than remit the matter to the decision-maker

with a direction that he decide the matter according to law.

When the hearing of the appeal commenced on 18 July, counsel announced that she intended to rely on the ground of appeal

earlier foreshadowed and upon a further ground which she was

given leave to add. The substance of this ground was that his

Honour had erred in concluding that the Minister, by issuing the guidelines, had bound himself by his own policy to approve sponsorship when a case fell within them. and further, that his Honour had erred in exercising the power conferred by para. 14(1)(d) of the Act in circumstances where there was a residual

I ao first to a consideration of the question of construction of s. 16 of the Act which the first ground of appeal raises.

in respect of a decision, the Court may, in its discretion, make all or any of the following orders: .

(a) an order quashing or setting aside the decision, ora part of the decision. with effect from the date of the order or from such earlier or later date as the Court specifies;

(bh) an order referring the matter to which the decision relates to the person who made the decision for further consideration. subjeck to such directions as the Court thinks f1t;

(ce) 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 rhe doing, or the refraining from the doing, of which the Court considers necessarv to do justice between the parties."

tin my opinion para. 16(1)(d) plainly confers power upon the

Court, 1n an aporopriate case, to arder a decision-maker, whether a Minister of the Crown or other public official. to decide a matter in a particular wav. The same considerations may apply where the decision-maker is a board, a committee or a tribunal. The words, "an order directing any of the parties todo... any act or thing... the doing ... of which the (Court considers necessary todo justice between the parties", should be given their plain and ordinarv meaning. The opening words of s. 16, "... the Court may, in its discretion, make all or any of the following orders ...", show that none of the paragraphs is dependent on any other. Orders in terms of any one of them may be the only relief granted ina particular case. Usually relief will not be granted unless a decision is set aside, so there will almost invariably be an order made pursuant to para. (1)(a). More often than not the accompanying order will be an order pursuant to para. (1L)(b) remitting the matter for further consideration. But in an appropriate case there is no reason why the accompanying order may not be made pursuant to para. (1)(d) compelling a decision of a particular kind or the acknowledgment of a right or entitlement, for instance, by directing the issue of a licence or the making of a payment.

This construction of the section is implicit in the decision of the majority of the Full Court of this Court in Sordini v.

Wilcox (1983) 70 F.L.R. 326; see the judgments of Blackburn J. at

Further pointers to this construction of the section being rhe correct one are provided by a consideration :or the relief which may be obtained by way of the prerogative writ of mandamus. a writ which it is within this Court's jurisdiction to issue: s. 39BR of the Judiciary Act 1903. Usuaily the order is made because there has been an actual or constructive failure to exercise a power or to perform a duty or function. Often the order will direct the affected person or body to exercise its powers or perform its duty according to law. But this is not invariably the case. Sometimes the Court will direct that the power or duty be exercised or performed ina particular wav. An example of this is to be found in the decision of the Hicdh Court in The

Queen v. Anderson: Ex parte Ipec-Aic Ptv Limited (1964) 113

C.L.R. 177 where, in relation to one application which was before the Court, the Court ordered that there be made absolute an order for a writ of mandamus commanding the respondent to issue to the prosecutor a charter licence pursuant to an application made by it; see p. 206. I refer generally to the judgment of Kitto J. at pp. 187-8. The judgment of Kitta Jd. was in part a dissenting

one, but not in respect of the matter now under consideration.

The Judicial Review Act was intended to provide a comprehensive code of grounds and remedies for those seeking to challenge Commonwealth executive action. In the lanquage of the then Attornev-General, Mr. Ellicott, Q.C.., who introduced the Bill for the Act into the House of Representatives (Hansard, H.

"What the present Bill seeks to doa is to establish a single simple form of proceeding in the Federal Court of Australia for 'judicial review of Commonwealth administrative actions as an alternative fo the present cumbersome and technical procedures for review bv way of prerogative writ, or the present actions fora declaration or injunction".

Although the Act did not take away existing remedies (see 5. 19), it was plainly designed to provide amore streamlined procedure for the obtaining of relief which was formerly available only by way of prerogative writ or declaration of right. It would therefore seem unlikely to have been the intention of Parliament not to clothe this Court with powers at least as extensive as Courts of common law could exercise. That 1s a further reason why the language of s. 16, including that of para. (1)(d), should not be the subject of a narrow or

restrictive construction. On the contrarv, it should receive the

Liberal construction normally given to remedial Leqislation.

Substantial reliance was placed by senior counsel for the appellant upon a number of statements made by Mr. Ellicott in his second reading speech (supra). These included his emphasis that qudicial review by this Court would not be concerned at all with the merits of the decision or action under review and that the only question for the Court would be whether the action was lawful, "in the sense that it is within the power conferred on the relevant Minister or official or body that prescribed

procedures have been followed and that general rules of law, such

as conformity to the vorinciples of natural justice, have been observed". Counsel alsa relied upon the following further

"The court will not be able to substitute its own decision for that of the person or badv whose action is challenged in the court. It w211l1 be empowered to enjoin action or to quash a decision it finds unlawful and to direct action to be taken in accordance with the law. It will also be able to compel action by a person or body who has not acted. but who ought to have done so". (Hansard, ibid, pp. 1394-5)

Undoubtedly that is how the Court has approached its function under the Act in the six years or sao that it has been in force. But that does not mean that it may not be appropriate in some eircumstances to make an order which will dictate the course which a decision-maker must take. In the course of his reasons, the learned primary Judge suggested that this form of order may

only be appropriate in cases where the matter complained of has

involved the exercise of a power in such an unreasonable way that no reasonable person could have so0 exercised the power; paras. 5(1)(e) and 5(2)(g). In my respectful opinion the power which the Court has, although it may be rarely exercised, ought not to be subject to any such limitation. Indeed, I would think that the power is more likely to be exercised where it is shown that the decision complained of involved an error of law: para. 5(1)(f£). If the only 1ssue between the parties be one of law, it is not unlikely that there will be cases where the only course

open to a decision-maker, who has made a decision which involves

an error of law. is to decide the matter the other wav. That will usually be the case if the decision is based upon uncontested facts. In that event it may well be thought that, to se the lanquage of para. 16(1)(d) of the Act, the doing of justice between the parties would require the Court to direct a decision of a particular kind. Such a case was the Ipec-Air case

Tt follows that. if the only ground of appeal had been based

on the dry question of construction of s. 164 of the Act with which I have dealt. I would have concluded that the appeal should have been dismissed. But the second ground of appeal raised more substantial considerations. A starting point is the form of the order in question, that is, Order 2 of the orders set out on p. 2 hereof. There 1s a question in mv mind as to whether the Order required the Minister only to approve the second respondent's sponsorship of the Platters' tour. or whether it was intended to qo further and compel the Minister, not only to approve the sponsorshiyv, but also to issue temporary entry permits to them. [I would not have had this problem, if the Order had stopped with the words "... approval for the purposes of the subsequent issue of temporary entry permits under Section 6 of the Migration Act, 1958". But there follow the words, "such approval being upon such terms and conditions as will permit the Third to Eleventh Applicants to fulfil the engagements itemised in the itinerary ee The words "will permit" suggest that the lanquage of

command is being used and the fact that the approval must permit

Fhe Platters toa fulfil the engagements itemised in their itinerary carries by implication the consequence that the approval of the sponsorship must be such as to authorise their entry into Australia. Such entry would only be lawful if

fhen the question of the true effect of the Order was raised with counsel, there was at first a disagreement between them. Counsel for the Minister contended that it operated only to oblige him to approve the sponsorship; counsel for the respondents submitted that the Order did require the aqrant of temporary entry permits. Eventually, however, counsel for the respondents agreed with counsel for the Minister that the Order dia mo more than oblige the Minister to approve the spansorship. That, I think, must have been his Honour's intention. for in his reasons it appears that he did not intend to do more than compel

Although my misgivings about the meaning and effect of the Order remain, I am content to treat the matter as counsel for all parties have agreed it should be treated. In other words I propose to read the Order as requiring the Minister to do no more Fhan approve the sponsorship. It did not require him to grant either visas or temporary entry permits to the appropriate respondents. In passing I wish to say that I would have been greatly troubled if the Order had required such a course. The

subject matter of this dispute is the proposed entry into

Australia of persons who are not Australian citizens. The discretion both to grant and ta cancel entry permits, whether temporary or otherwise, and to grant and to cancel visas is unfettered: see sub-sec. 6(2) and ss. 7, 111A and 11B of the Miaration Act. As Barwick C.d. said in Salemi v. McKellar (No. 2) €1977) 137 C,.L.R. 396 at p. 402, "The Parliament in this legislation Cthe Migration Act] is dealing with a national interest of paramount importance. namely, the composition of the nation, determining who shall enter and who shall stay". His Honour was dealing, not with a case concerning a temporary entry permit, but with a case involving the deportation of a prohibited immigrant under s. 18. But that makes no difference to the siqnificance of what he said. It emphasizes the nature of the power which is here involved and the fact that the legislature has entrusted decisions as to who should be allowed to enter and to remain in this country to the Minister and officers of his Department, not to the Court. Some of what Barwick C.J. said in

Salemi has been departed from; see Kioa v. West (1985) 60

A.L.3.R. 113. But nothing there said nor which appears in any subsequent leqislation affects the general purport of what his Honour said about the nature of the leaqislation and the powers

I can now come more directly to the substance of the matter in issue. The critical passage of his Honour's reasons is as

"In the present case the Minister. being free to do otherwise, elected to adopt a policy in which he provided that, in the absence of any objection by an affected union within ten working days of notification of an application for sponsorship, his Department would approve the application, as a precursor to the subsequent issue -~ other visitor requirements being satisfied -- ofr relevant temporary entry permits.- -

Two of the three arounds of obiection were dismissed by the Committee: and. ut is not disputed, rightly dismissed. The third ground was upheld but the decision to uphold that ground of objection was unreasonable. That qround should also have been dismissed. The Minister has, by his policy, adopted a position that, absent a proper objection, approval will follow. Tt would be inconsistent with the policy for the Minister ta now re-open the applicaticn to objection by affected unions or, there being no extant valid objection, to fail to grant to the applicant his approval. The true position, as it seems to me, is that the Minister has bound himself by his own policy, in the circumstances ~ which have happened, to grant his approval".

Tn the submission of counsel for the Minister his Honour fell into error in concluding that the Minister had bound himself bv his own policy. in the circumstances which had happened, to qrant his approval. in counsel's submission the policy, as set out in the guidelines. did not, upon its proper construction, bind the Minister to grant approval of a sponsorship application if the applicant brought himself within its terms. Particular reliance was placed upon the words, "The temporary entry into Australia of

personnel for the entertainment industry may be approved ...

Tn my opinion it would be drawing a long bow to read

guidelines such as those which applied here so as to compel a minister to approve a course of action which fell within them unless very clear words were.used. There is no warrant, in my

opinion, for construing the words, "may be approved", as if they

Buk there are wider considerations. The purpose of Mr. Conyngham and his company was to obtain permission for the Platters to enter Australia so that thev could perform here. For this purpose they needed temporary entry permits. That is what in substance he applied for. The fact that he made a sponsorship application and also requested visas was only because he knew these were steps which the Minister or his Department would require taken before his ultimate object could be attained. Procedurally the Department will not issue a temporary entry permit until the applicant arrives in Australia. In the case of entertainers the steps are approval of sponsorship, the grant of visas by the appropriate Australian consulate and the grant of temporary entry permits on arrival. But the fact that the permits will not be granted until arrival does not preclude an application for them before that time. The sponsorship form prescribed by the Department is headed, "Nomination for Temporary Entry of Overseas Entertainers to Perform in Australia". The recommendation of the Committee tq the Minister was "the refusal of an entry permit". The quidelines themselves. as has been mentioned, speak of the "temporary entry into Australia of

Counsel for the Minister disputed that Mr. Convngham had ever made anything more than a sponsorship application. In her submission there had been no application for temporary entrv permits. In my opinion the documents to which I have referred plainly indicate that an application for such permits had been Made and was pending. But counsel's submission made it necessarv

for the Court ta preface its orders by a ruling that applications

for temporary entry permits had been made and were on foot.

It follows that the Minister was required to deal with the applications for temporary entry permits. Because of the miscarriage of the proceedings before the Committee, he had, at Least constructively, refused to deal with them down to the time the appeal was brought. Whether he dealt with them by seeking first of alla recommendation from the Committee as to the approval or not of the sponsorship of the second respondent or whether he dealt with them in some other way was a mattec for

him. But his statutory obligation was to deal with them.

The danger of looking at policies or quidelines as a source of the rights of a person who claims to have heen aggrieved by

administrative action is pointed up by Fox J. in his judgment in

Minister for Industry and Commerce v. East West Trading Co Ptv Limited (1986) 64 A.L.R. 466. That was aocase involving the

eonstruction of s. 273 of the Customs Act 1901. In particular it concerned the respondent's quota allocation. There was in force

a scheme formulated for the allocation of base tariff quotas. In
f se At

"The law is to be ascertained by reference to the enactment under which the decision is made: see Sean Investments Ptv Limited v. MacKellar (1981) -"- - 38 A.L.R. 363; (1982) 42 A.L.R. 676: Gurleven v. Minister for Immigration & Ethnic Affairs unreported, Full Federal Court, 24 February 1984. Tn the present case, this is s. 273. It does not mention quota, it deals with tariff rates and does so totally without reference to individuals or companies. The quota scheme has been created under the section, but is a long way from its lanquage. Understandably, the validity of the scheme has not been challenged before us.

Tt does not seem to me that because of the lack ef more specific legislation. one should try to elevate the scheme to the status of law. Private vights of action may conceivably arise out of its operation, but that is a different matter. The quota scheme mav be controlled and limited in

some respects, having in mind the sections of the Act under which it operates, but it is not, in reality or in effect, a statute, and its various provisions are not to be construed as if they were of leqislative effect.

and in this area, the Minister has a wide discretion".

Similarly, there is no ground for elevating the guidelines here to the status of law. That is why I think that his Honour fell into error in makina a declaration that the application for sponsorship was within the policy guidelines issued by the respondent for the grant of temporary entry permits. Wide though the provisions of s. 16 of the Act are. they do not in my opinion authorise the making of a declaration unless what is being declared is a right in the true sense of the word. The

quidelines themselves conferred no rights. They operated only to

indicate to those administering the Act and to those who might be concerned to apply for the temporary entry of entertainers the

manner in which the application for a temporary entry permit

To the same etfect as the judqment of Fox J. in the East West

case is the decision of Beaumont J. in Mina v. Minister foc

Immiqration and Ethnic Affairs (16 July 1986, unreported).

The conclusion to which the various considerations which I have mentioned leads, is that where the Court comes to the question of what remedy it will grant an applicant who has made out a case for relief. it should concentrate its attention on What statutory provisions are applicable to the case. If the decision-maker, although his discretion has miscarried, is left with a residual discretion under the statute to decide the ultimate question favourably or unfavourably to the successful applicant. the order which the Court makes should, notwithstanding the width of s. 15 of the Act, tsually, 1f not invariably, be one which remits the matter for further consideration according to law. Where, as here, what has teanspired has amounted to a constructive failure to deal with the real application which has been made. it will sometimes be appropriate, (for example, in cases of substantial urgency from the point of view of the aggrieved party) ton require the decision-maker to make a decision forthwith or within a limited

For the reasons [ have airven, Twas of opinion that the appeal should be allowed and his Honour's orders varied in the way earlier indicated. Costs both before Wilcox J. and before us were reserved. I would tentatively suggest that the costs of the proceedinas before Wilcox J. should be paid by the Minister who, even allowing for the variation of the orders, was substantially lnsuccessful at first instance. Because of the mixed success of the parties on the hearing of the appeal, I would suggest that there be no order as to the casts of it. But I would hear arqument on costs if any party requested it. I would propose that the orders as to costs I have suagested, be the arders made by the Court unless, within seven days of the publication of these reasons, any party notifies the Registrar that different

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fas oe ~ e fy bln To *

BETWEEE : THE MINISTER FOR IMMIGRATION AND ETHNIC ArPATRS appellant AND: SETER CONZNGHAM SUD OTHERS Respondent

BEAUMONT J.: I agree with the reasons For qudgment of

Peges crea trve cory of the recsons for jucgment herein of The | en Mr Justice Beaumon =

NEW SOUTH WALES DISTRICT PEGISTRY GENERAL DIVISION :

ON APPEAL FPOM A&A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

SOUTH PACTFIC ENTERTAINMENT CORPORATION PITY LIMITED

AND: . MAPCIA RAQUEL POBINSON Sixth Respondent AND EUGENE WILLIAMS Seventh Respondent AND JOHN CLAY DAVIS Eighth Responaent AND: ALBERT JOSEPH STATTI Ninth Respondent AND: JUAN LOUISE BENNETT Tenth Respondent AND:

MORaM: Sheppard, Beaumont and Burchett JJ. DATE: 25 July 1986

IT agree with the reasons of Sheppard J., and shali add

The document which has been referred to as setting out

guidelines contains a section dealing with procedures to be

followed by the entrepreneur or agency seeking to arrange the

visit of an overseas artist. This section sets up a quite complicated process, aimed at facilitating the performance of the Minister's task in such cases, but it does not set out guidelines to guide the exercise of his discretion. Neither such a process, nor a true guideline, can lawfully be permitted to assume the status of a provision of the statute. The right and duty of the Minister to give consideration to an application under s.6 of the Migration Act 1958 may not be supplanted, though they may lawfully be assisted, by the principies and practices laid dow

in a document of that' kind. In some circumstances, a rigid

insistence upon procedures which have no statutory basis might amount to a refusal to perform the duty to exercise the discretion which s.6 reposes in the Minister. Where those peocedures have miscarried, the remedy 1s not to require them to be duly carried out, for they are merely a means to the statutory end. The remedy is an order to perform the whole duty which

The other comment I would make is that it 1s unfortunate the Minute submitting the matter to the Minister recited serious allegations made against the agent, and that rejection of the application was recommended by the National Disputes Committee, without any indication that the Committee's recommendation was not based on the allegations, which it had not accepted. A Minute of this kind should not be so open to misconstruction. In

palliation, it was urged that an inference could be drawn that

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Burchett. Ck. Atheleu aS Associate

At a glance

Court

Decision date

Before

Source

Judgment (192 paragraphs)

Cited By (1)