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

Federal Court of Australia (Full Court)|2002-09-26|Before: Jacobson JJ

REASONS FOR JUDGMENT 1 Each of the appellants (as we shall describe them) has filed a notice of appeal from a judgment of a Judge of the Court. His Honour in each case, dismissed an application for relief under s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") in respect of a refusal by a delegate of the respondent ("the Minister") to consider an application for a Special Eligibility (Residence) Class AO visa. Both matters have been heard together. 2 As will be seen, there is a question as to whether each appellant is entitled to appeal as of right from the judgment. It is convenient to deal first with the purported appeal in NACO of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs.

the facts 3 The appellant is a citizen of Tonga, born on 12 March 1968 (although some documents suggest 26 March 1968). He arrived in Australia on a visitor's visa on 12 February 1997. He was then aged 28. 4 On 11 February 1998, the appellant applied for a Family (Residence) Class AO visa, on the ground that he was a "special need relative" of his mother, the nominator. The Minister's delegate refused the application on 14 August 1998. On 6 November 1998, the primary decision was affirmed by the Migration Internal Review Office. 5 On 19 November 2001, the appellant lodged a fresh application for a Special Eligibility (Residence) Class AO visa. As the primary Judge observed, there are two subclasses for a Class AO visa, namely Subclass 831 (Prospective Marriage Spouse) and Subclass 832 (Close Ties). The application sought a Subclass 831 visa. The application stated that the appellant was seeking a divorce in Tonga from his wife, with whom he had six children. It appears that the appellant and his prospective spouse have two children, both of whom have been born in Australia. 6 On 22 November 2001, the appellant was informed by letter that he had not made a valid application for a visa and thus the application could not be considered. The letter said that there was no right of review. 7 As the primary Judge observed, the reason assigned in the letter for concluding that the application was invalid made no sense. The letter also incorrectly described the application as being for a "Special Eligibility (Prospective Marriage Spouse) class 832" visa. 8 On 28 November 2001, the appellant sought review of the decision of the Minister's delegate said to have been made on 22 November 2001. By an amended application filed at the hearing at the first instance the appellant sought relief under s 39B(1) of the Judiciary Act. The grounds were identified as follows: "1) The delegate was not acting in good faith in making the decision. 2) The decision does not relate to the subject matter of the legislation. 3) Section 39B of the Judiciary Act 1903 is a source of original jurisdiction of Federal Court of Australia to review the decision sought to be challenged. 4) The application for a substantive visa by the applicant was not barred by section 48 of the Act. 5) The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made." 9 In the meantime, the Minister had lodged a Notice of Objection to Competency of the original application. The notice was based on the ground that the delegate's decision was not "a decision of an administrative character made [under the Migration Act 1958 (Cth) ("Migration Act")] and thus was neither a "privative clause decision" for the purposes of s 474(2) of the Migration Act nor a "decision to which this Act applies" for the purposes of s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). The consequence was said to be that the Court lacked jurisdiction to review the delegate's determination. 10 The primary Judge held that the Minister's delegate had correctly determined that the Minister was precluded by s 47(3) of the Migration Act from considering the application for a visa, although the advice to the appellant had wrongly identified the applicable subclass and had not stated the true reason for the invalidity of the application. It followed that none of the grounds relied on by the appellant could be made out and that, assuming the Court had jurisdiction to entertain the application, it ought to be dismissed pursuant to Federal Court Rules ("FCR"), O 20 r 2. His Honour also held that the Court had jurisdiction to entertain the application. We shall return to his Honour's reasons after outlining the relevant legislation.

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:

The notice of appeal be treated as an application for leave to appeal.
The application for leave to appeal be dismissed.
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

Migration Act 1968(Cth)

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