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[2000] FCA 286
Federal Court of Australia
1989-12-12
Hill J, Hely J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 Section 6(2) of the Migration Act 1958 (Cth) in the form in which it stood at the relevant time, ("the Act") gave officers a general discretion to grant an entry permit to a non-citizen. However, s 6A(1) provided that an entry permit was not to be granted to a non-citizen after entry unless one of the conditions in paras (a) to (e) was satisfied. Paragraph (e) applied if the non-citizen was the holder of a temporary entry permit which was in force, and there were strong compassionate or humanitarian grounds for the grant of an entry permit to him. This process was referred to as Grant of Residence Status ("GORS"). 2 On 12 December 1989 Hill J delivered his decision in the matter of Dahlan v Minister for Immigration, Local Government & Ethnic Affairs (unreported) which held that it was an error of law to require that an applicant be singled out or suffer hardship over and above the rest of the population in the country of origin before strong compassionate or humanitarian grounds could be said to exist. 3 Apparently, Departmental policy prior to that decision required an applicant to be singled out in the country of origin before it could be said that humanitarian grounds existed. A change to that policy was notified by a policy control instruction issued by the Department on 23 May 1991 (Exhibit A). 4 Sections 6 and 6A of the Act were repealed by s 6(1) of the Migration Legislation Amendment Act 1989 (Cth) which came into effect on 19 December 1989. Section 6(4) of the 1989 Act provided that the repealed provisions continued in force for the purpose of applications for visas or entry permits made before the commencement of that section of the 1989 Act. 5 Part 5 of the Migration Reform (Transitional Provisions) Regulations relate to applications for the grant of an entry permit which remained unresolved on 1 September 1994. Regulation 21 of Part 5 applies to (inter alia): - an application for the grant of an entry permit made before 19 December 1989, on which the Minister had not made a decision before 1 September 1994; - an application for reconsideration of a refusal to grant an entry permit, if the original application was made before 19 December 1989, and application for reconsideration of a refusal of the application had been made before 1 September 1994 and not dealt with by the Minister at that date. Regulation 21(2) specifies the class or type of visa which would be deemed to be granted to an applicant if, on or after 1 September 1994 the Minister decides that a non-citizen is entitled to be granted a visa or entry permit under the provisions continued in effect by s 6(4) of the 1989 Act. 6 The applicant, his wife and son arrived in Australia on 9 August 1987 on a six months visitor's visa. He applied for residence in Australia on 11 January 1988 on the basis that there were strong compassionate or humanitarian grounds for the grant of an entry permit to him. The applicant was notified by letter dated 1 March 1988 that the application had been rejected. A consideration of the assessment report indicates that the decision-maker, in reaching that decision, may have taken into account considerations which were later exposed as irrelevant in Dahlan, as the report includes: "The applicant has not shown ... that the hardship suffered has been greater than that experienced by other persons in similar circumstances in Fiji." 7 On 25 March 1988 the applicant lodged with the Department a form styled "Request for Reconsideration of a Migration Act Decision". This was referred to the Immigration Review Panel which recommended on 15 June 1988 that the Departmental decision be maintained. On 20 June 1988 a decision was made to accept the Panel's recommendation and the minute of the Panel's recommendation is endorsed under the heading of "Ministerial Decision" with a notation that the Departmental decision is maintained. Notice of that decision was given to the applicant by letter dated 24 June 1988, which included the following: "As you have had the full benefit of the merit review system, the case will not be re-examined. If you wish to pursue the legal aspects of the decision, you should seek avenues available to you outside the Department." 8 The applicant claims that in 1996 he lodged an application for reconsideration of his grant of residence status application, but it was common ground that the Departmental file contains no record of any such application. The applicant claims that he waited for a response to this application, but did not receive one. He simply forgot about the request which he claims to have made. 9 Whilst there is little evidence on the matter, the Department appears to have adopted a policy, which is said to have expired on 2 March 1998, of entertaining requests for reconsideration of GORS applications made prior to 19 December 1989 which were infected by error of the type described in Dahlan. I will assume in favour of the applicant that there was some such policy. The Minister submitted that there was no specific statutory foundation for this policy, and the applicant could point to none. Both parties contended that the justification for the Department's approach was that it is always open to the Minister to accept that a decision which he has made is infected by legal error, and that it should be treated as void, without the need to obtain a court order to that effect: Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219, 230. 10 On 5 March 1998 solicitors acting for the applicant wrote a letter addressed to an officer in the "GORS Reactivation Section" of the Department. Only the first page of that letter is in evidence. I was informed that it is only the first page which is to be found on the Department's file. It was common ground that this letter sought to reactivate the GORS application originally made on 11 January 1988. This request was made only days after the change of policy to which I earlier referred. 11 By an undated letter [RD 41] the Department declined to reconsider the original GORS decision on the basis that it is a principle of efficacy in decision making that decisions should not be challenged long after they have been made, when evidence is often not available. 12 On 19 February 1999 the applicants' solicitors wrote to the Department enclosing statutory declarations to the effect that a request for reconsideration of the decision on the GORS application had been made back in 1996. The applicants requested that their request for a reconsideration of the GORS application should be made on its merits. 13 On 7 April 1999 the Department requested further information in relation to the request for reconsideration of a decision to refuse a grant of resident status application. The applicants' solicitors responded to that request on 9 April 1999 and it was pointed out in that letter that one of the applicants' children now qualified for Australian citizenship as he was born in Australia in 1988 and that the family have successfully integrated into the Australian community over a period of some twelve years. 14 On 6 September 1999 the Department declined the applicants' request that the refused Grant of Residence Status application should be reconsidered. The reason for that refusal was expressed as follows: "Your request has been thoroughly reconsidered, however, I must advise that the circumstances surrounding your request do not fall within normal policy guidelines for proceeding to a reconsideration of the refused decision." I am not sure what that means, nor how it fits with the proposition that the Minister had decided that no further requests of this nature were to be accepted, effective as of 2 March 1998. 15 The applicant seeks review of this decision on the basis that it is a judicially reviewable decision under s 475(1)(c) viz: "(c) Other decisions made under this Act, or the regulations, relating to visas." 16 The grounds on which review is sought are: - Section 476(1)(e): error of law in failing to take into account the primary interests of the children in remaining in Australia in light of the United Nations Convention on the Rights of the Child. - Section 476(1)(d): improper exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case.
Section 475 17 The applicants' counsel was unable to point to any statutory or regulatory provision which authorised or empowered the Minister and/or the Department to reconsider the decisions made on or prior to 20 June 1988 to refuse the GORS application. The reconsideration process was thus without specific statutory authority, although it may have been a matter falling within the general administration of the Act. The Minister never accepted that the 1988 decisions were erroneously reached, let alone that they were void. Consequently, the operation of s 6(4) of the 1989 Act and Regulation 21 was never enlivened. 18 The 1999 decision is not one for which provision is made by or under the Act: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337. The decision was, to borrow the language of Weinberg J in Medru v Minister for Immigration & Multicultural Affairs [2000] FCA 153, 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. The decision was at least one step removed from a "decision relating to visas", as the decision was a refusal to reopen an earlier decision which related to visas. Accordingly, the decision is not one which is within s 475(1)(c), and thus is not a decision which is reviewable by the Federal Court.
Section 476 19 Assuming the decision was a reviewable decision, the grounds of review assume that the decision which the Minister and/or the Department was undertaking was a decision whether or not visas should be granted in pursuance of the original 1988 application. The assumption was, according to the submissions of the applicants' counsel, that the 1988 decision was void as the principles subsequently laid down in Dahlan were not complied with, and the Minister was proceeding under s 6(4) of the 1989 Act. Even if that assumption were correct (which it is not), there is a line of authority culminating in Fakatava v Minister for Immigration & Multicultural Affairs [2000] FCA 118 which decides that the Convention on the Rights of the Child does not modify what would otherwise be the operation of the Migration Act 1958 and the Regulations. Accordingly, this ground on which review is sought is misconceived. 20 The ground based upon s 476(1)(d) is also misconceived inasmuch as the decision did not involve the exercise of a discretionary power to grant a visa. There was no question of a visa being refused in accordance with a rule or policy without regard to the merits of the particular case. The Department simply declined, as it was perfectly entitled to do, to reopen a decision made more than ten years earlier.
Conclusion 21 The application for review should be dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.
Solicitor for the Applicant: Harish Prasad & Associates
Solicitor for the Respondent: Australian Government Solicitor
Prasad
Minister for Immigration & Multicultural Affairs