NACN of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs

the legislation 11 Section 46(1)(d) of the Migration Act provides, relevantly, that an application for a visa is valid if and only if it is not prevented by s 48. Section 47(3) provides that, for the avoidance of doubt, the Minister is not to consider an application that is not a valid application. Section 47(4) provides that, to avoid doubt, a decision by the Minister that a decision is not valid and cannot be considered is not a decision to refuse or grant the visa. 12 Section 48(1) provides that a non-citizen who does not hold a substantive visa and has been refused a visa after entering Australia may apply for a visa of a class prescribed for the purposes of the section, but not for a visa of any other class. 13 Regulation 2.12 of the Migration Regulations 1994 (Cth) ("Migration Regulations") prescribes the classes of visa for the purposes of s 48. As amended on 1 November 2001, reg 2.12 relevantly provides as follows: "(1) For section 48 of the Act…the following classes of visas are prescribed: (a) subject to subregulation (2) Special Eligibility (Residence) (Class AO); … (2) Paragraph (1)(a) applies to a person if he or she meets the requirements of subclause 832.211(3) of Schedule 2." 14 Subclause 832.211(3) of Schedule 2 to the Migration Regulations provides as follows: "(3) An applicant meets the requirements of this subclause if: (a) the applicant: (i) is a person who: (A) was in Australia on 1 September 1994; and (B) …; (C) …; or (ii) is a person to whom section 48 of the Act applies; and (b) the applicant has not been refused a visa or had a visa cancelled under section 501 of the Act; and (c) the applicant: (i) has turned 18; and (ii) ceased to hold an entry permit or a substantive visa before turning 18; and (iii) …; (iv) before turning 18, spent the greater part of the period that the Minister regards as the applicant's formative years in Australia." 15 Section 474 of the Migration Act provides as follows: "474(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. (2) In this section: Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not)…."

the primary judge's reasons 16 The primary Judge upheld the Minister's submission that the appellant could not, under any circumstances, satisfy the requirements of cl 832.211(3) of the Migration Regulations. His Honour reasoned as follows (at [11]): "The applicant does not fall within par (a)(i) of Clause 832.211(3) if only because the applicant was not in Australia on 1 September 1994. Nor does the applicant fall within par 3(a)(ii) if only because the applicant does not satisfy the requirements of par (c)(ii) or par (c)(iv). Hence, the Minister's delegate correctly determined that the Minister was precluded by s 47 from considering the application for a Class AO visa…. Thus there is no arguable case that the application was a valid application such that the Minister's delegate made an error of law in determining that the application could not be considered. In the circumstances of the present case, the decision (assuming it was a decision) to which the Minister's delegate came was a decision which he was required to reach by operation of law." 17 The primary Judge's reasoning on the jurisdictional question was as follows. The correct analysis was that ss 46(1)(d) and 47(3) of the Migration Act precluded the Minister from considering the application for a visa, rather than any administrative decision on the part of the Minister's delegate. Relief under the ADJR Act was unavailable in respect of the letter of 22 November 2001, since the letter merely expressed the delegate's opinion as to the operation of the legislation in the circumstances of the case, and did not constitute or record a decision of an administrative character. If the delegate's opinion was wrong, and in truth the Minister was obliged to consider the application, mandamus would lie pursuant to s 39B(1) of the Judiciary Act to compel the Minister to determine the application according to law. On this basis, the Court had jurisdiction to entertain a claim for relief under s 39B(1) of the Judiciary Act to correct the delegate's erroneous view of the law. 18 Since the delegate's notification to the applicant was not a decision of an administrative character made under the Migration Act, it was not a "privative clause decision" within s 474(2). That being the case, none of the relevant provisions in the Migration Act withdrawing jurisdiction from the Federal Court could apply, since they are framed in terms of "privative clause decisions" (see in particular s 476(1) and the definition of "primary decision" in s 476(6). Accordingly, the claim under s 39B(1) of the Judiciary Act failed not for want of jurisdiction, but because the delegate had correctly concluded that the Minister was precluded by the Migration Act from considering the application. 19 The primary Judge said that if, contrary to his view, the letter of 22 November 2001 recorded a decision of an administrative character made under the Migration Act, the Court would still have jurisdiction to deal with the applicant's claim. This was because the "decision" would be a "privative clause decision" within s 474(2). Such a decision could be reviewed by the Court notwithstanding s 474(1) of the Migration Act in accordance with the principles stated by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, at 614-615. However, none of these principles could assist the appellant since if the Minister's delegate had made a decision, it was a decision he was required by law to reach.

reasoning 20 The primary Judge dismissed the proceedings pursuant to FCR, O 20 r 2. It seems that such an order is interlocutory in character (Little v State of Victoria [1998] 4 VR 596; Wickstead v Browne (1992) 30 NSWLR 1) and thus leave to appeal is required: Federal Court of Australia Act 1976 (Cth), s 24(1A). We are prepared, however, to treat the appellant, to the extent necessary, as having made an application for leave to appeal. 21 In our view, the primary Judge was plainly correct in holding that the appellant could not, under any circumstances, satisfy the requirements of cl 832.211(3) of the Migration Regulations. It follows that his Honour was also correct in holding that the application for a visa was invalid (s 46(1)(d)) and that the Minister was not to consider that application (s 47(3)). It also follows that his Honour was correct to dismiss the proceedings, since the application was doomed to failure. 22 The Minister did not press the submission made to the primary Judge that the Court lacked jurisdiction to deal with the application for relief pursuant to s 39B(1) of the Judiciary Act. It is enough, for present purposes, to say that we are satisfied that we have jurisdiction to deal with the appeal. 23 We should record that the notice of appeal filed on behalf of the appellant sought to raise constitutional issues. Given that the primary Judge correctly held that the application for a visa was invalid and that the delegate had not misunderstood the law, no constitutional issue arises on the appeal. It is therefore not necessary to require a notice to be given under s 78B of the Judiciary Act: Armit Lal Narain v Parnell (1986) 9 FCR 479, at 489, per Burchett J; Australian Competition and Consumer Commission v G G Berbatis Holdings Pty Ltd (1999) 167 ALR 303, at 308, per French J. In any event, notice was given to the Attorneys-General as required by s 78B. 24 The appropriate orders are as follows:

1. The notice of appeal be treated as an application for leave to appeal.
2. The application for leave to appeal be dismissed.
3. The appellant pay the Minister's costs of the purported appeal and the application for leave to appeal.

the purported appeal in nacn V minister for immigration and multicultural and indigenous affairs 25 This matter gives rise to the same issues as the proceedings we have already dealt with. The same orders should be made. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE, ALLSOP & JACOBSON.

Associate: Dated: 26 September 2002 The appellants were self represented. Counsel for the Respondent: Mr R Bromwich

Solicitor for the Respondent: Australian Government Solicitor