SAAK v Minister for Immigration & Multicultural & Indigenous Affairs

the motion before the court 6 The application was instituted on 26 August 2003. I then made an interim order restraining the respondent from removing the applicant from Australia until the following day to provide an opportunity to hear a claim for interlocutory relief. Following that hearing I dismissed the application for interlocutory relief: SAAK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 921. The applicant sought, and was granted, leave to appeal from that decision. An injunction was granted restraining the respondent from removing the applicant from Australia pending the hearing and determination of that appeal. That appeal was heard and determined in conjunction with three other appeals in which the same, or similar, issues arose. The appeal was dismissed: NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292 (Wilcox, Lindgren and Bennett JJ) (NATB). 7 It is in the light of the decision of the Full Court in NATB, and of the decision of the Full Court of this Court in M38/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 131 (Goldberg, Weinberg and Kenny JJ) (M38/2002) that the respondent has now applied to summarily dismiss the application. The decision in M38/2002 was the subject of an application for special leave to appeal to the High Court. On 12 December 2003 that application for special leave to appeal was refused. The Court at the time (Gleeson CJ and McHugh J) said that there were 'insufficient reasons to doubt the correctness of the decision to warrant a grant of special leave'. 8 The motion to summarily dismiss the application is upon the ground that there is no reasonable prospect of the application succeeding: Order 20 r 2 of the Federal Court Rules. It is plain that such an order should be made only in the clearest of cases, although sometimes the clarity with which it emerges that there is no arguable case may require some detailed consideration of the law and the facts: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The apparent delay in bringing the notice of motion is explained by the acquiescence of the respondent in awaiting the outcome of the Full Court decision in the appeal in SAAK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 921before taking further steps to remove the applicant from Australia. 9 It was contended for the respondent (the applicant on the motion) that the matters alleged in the statement of claim, assuming them to be correct (as I do for the purposes of the present motion), cannot entitle the applicant to the relief which is sought. 10 The decision of the Full Court in M38/2002 is that it is not open to an officer of the respondent when acting under s 198(6) of the Act to consider whether an unlawful non-citizen is a 'refugee' within the meaning of Art 1A(2) of the Convention nor to consider whether the removal of a particular unlawful non-citizen and that person's return to a particular country is conformable with the obligation against non-refoulement in Art 33(1) of the Convention. See at [72], ALR 309. 11 The decision in NATB was to the effect that s 198(6) of the Act did not allow an officer of the respondent to consider whether the removal and return of an unlawful non-citizen to a particular country is conformable with the obligation against non-refoulement in Art 33(1) of the Convention or is conformable with Art 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention), entered into by Australia on 7 September 1989. 12 Counsel for the applicant did not gainsay that understanding of the decisions in NATB and in M38/2002. They would therefore indicate that the applicant has no real prospect of success in the application. Counsel sought, nevertheless, to distinguish those two decisions and to address a further argument which, he contended, had not been addressed in either of the Full Court decisions. Upon the basis of that further argument, he contended, this was a case where summary judgment ought not to be ordered because there was some reasonably available argument in favour of the applicant securing the relief which is sought. In the course of that argument, it emerged that the foundation for it had not been pleaded. Consequently he sought leave to file and serve an amended version of the statement of claim. It was to remove the allegation that the applicant had exhausted all his available legal remedies in the Australian Courts, and to substitute the following: 'PARTICULARS An application for the Minister for Immigration Multiculturalism and Indigenous Affairs to exercise her discretion under s 417 of the Migration Act 1958 was sent in or around August 2003. The Applicant has not been informed of the outcome of this application.' 13 The respondent opposed the application due to its belatedness, but I indicated that I would consider the motion for summary judgment in light of the proposed amendment. If I considered that the proposed amendment, if allowed, would provide the applicant with an arguable case so that the motion for summary dismissal of the action would fail, I would be disposed to allow the amendment. If, on the other hand, I did not consider that the proposed amendment would give rise to any arguable case on the part of the applicant, I would not allow the amendment. It would be pointless to do so as it would then be struck out as disclosing no reasonable cause of action under O 11 r 16 of the Federal Court Rules.

CONSIDERATION OF CONTENTIONS 14 The principal argument of counsel for the applicant is based upon the proposed amendment. It asserts (and I am unsure for the purposes of addressing the respondent's motion, correctly) that the applicant made an application to the respondent under s 417 of the Act in about August 2003 which has not been resolved. It is then contended on behalf of the applicant that the existence of that application means that the condition to the availability of the power to remove the applicant from Australia under s 198(6) as specified in s 198(6)(c)(i) does not exist. Hence, the argument runs, the obligation which s 198(6) imposes does not arise and, in addition, it could not be said that an officer of the respondent would have the power to cause the removal of the applicant from Australia under s 198(6) of the Act. 15 The argument is based upon the proposition that, by reason of the 'application' under s 417 of the Act, the grant of the visa has not been refused, and the application for the visa has not been finally determined. 16 In support of the contention, counsel for the applicant relied upon the decision of Ryan J in VFAY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 14 (VFAY). I do not think that decision directly applies to the present circumstances. It concerned a decision of a delegate of the respondent made on 25 September 2003 to refuse the grant of a bridging visa. The respondent was directed to re-consider the application for a bridging visa. The applicant had unsuccessfully applied for a protection visa in Australia. The decision was affirmed by the Tribunal on 13 August 2003. The Full Court of this Court had set aside an earlier decision of the Federal Magistrates Court, and restored the decision of the Tribunal. The applicant had filed an application for special leave to appeal from that decision in the High Court on 3 September 2003. It had not been determined. In the meantime he had applied from time to time for a bridging visa under the Act whilst judicial review of the decision concerning the protection visa application was ongoing. The relevant application was one made on 17 December 2002 which had been rejected from 25 September 2003. 17 One criterion for eligibility for a bridging visa was that described in sub-regulation 2.20(7)(b)(ii)(B) of the Migration Regulations 1994 (Cth), namely: 'A non-citizen applied for judicial review of a decision to refuse a Protection (Class XA) visa.' The delegate had taken the view that, upon the decision of the Full Court of 13 August 2003, there was no outstanding application for judicial review of the decision, notwithstanding the application for special leave to appeal to the High Court. Once, and if, the High Court granted special leave to appeal to the applicant, then the delegate's view was that the sub-regulation would again be activated. Ryan J concluded that, by virtue of having lodged an application for special leave to appeal to the High Court from a decision of the Full Court of this Court, the applicant had 'applied for judicial review' for the purposes of sub-regulation 2.20(7)(b)(ii)(B). 18 As can be seen, the decision in VFAY turned upon the particular regulation specifying a criterion for the eligibility for the bridging visa sought. His Honour said at [34], in the light of authorities: '… that the determination of an application for special leave involves a judicial proceeding, during which a judicial discretion is exercised. Further, the application for special leave is an accepted curial procedure in the Australian court system and if the application is dismissed, the litigation between the parties is at an end. These features, in my view, support the conclusion that a non-citizen who has applied for judicial review within the meaning of sub-regulation 2.20(7) includes an application for special leave to appeal to the High Court from an earlier refusal to grant judicial review of a visa provided that the application for special leave has not been refused when sub-regulation s.2.20(7) comes to be applied.' 19 The difficulty with applying the decision in VFAY to the present matter is that the expression in s 198(6)(c)(i) 'the application has been finally determined' has been defined in s 5(9) of the Act. It provides: 'For the purposes of this Act, an application under this Act is finally determined when either: (a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Pt 5 or 7; or (b) a decision that has been made in respect of the application was subject to some form of review under Pt 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.' 20 Hence, determining whether the applicant's protection visa application had been finally determined involves a different legislative expression from the regulation which Ryan J had to address in relation to eligibility for a bridging visa in VFAY. 21 The issue, as counsel for the parties agreed, is whether it is arguable that the application made to the respondent under s 417 of the Act is a matter which, being unresolved, means that the condition prescribed in s 198(6)(c)(i) does not exist. To use the words in s 5(9), the applicant contends his application for a protection visa has not been finally determined because the decision to refuse his application is still subject to a form of review under Pt 7 of the Act. Section 417 is in Pt 7 of the Act.

22 Section 417 relevantly provides: '(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under s 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. (2) In exercising the power under subsection (1) on or after 1 September 1994, the Minister is not bound by subdivision AA or AC of Div 3 of Pt 2 or by the Regulations, but is bound by all other provisions of this Act.' 23 The starting point must be the specific wording of the relevant provision. The application for the visa will not have been finally determined if the decision made in respect of it is still subject to a form of review (relevantly) under Part 7 of the Act. Hence it is necessary to consider if the request by the applicant to the respondent to exercise his power under s 417 is a form of review under Part 7 of the decision to refuse the visa application. 24 The power to substitute a decision for a decision of the Tribunal is qualified only by the limitations preserved in s 417(2) and by the respondent having the opinion that the grant of the visa is in the public interest. The power to substitute a more favourable decision is not one which readily fits into the concept of a review. The power may be exercised independently of the Tribunal's decision, and irrespective of the reasons for the Tribunal's decision. The respondent may exercise the power even where the Tribunal had no power to have made the more favourable decision, for example where the application to the Tribunal for review was made outside the period specified in s 412(1) of the Act. Burchett J explained in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 62-63 why the legal meaning of 'review' involves some judicial or administrative rehearing. I shall not repeat the references his Honour there made. However, as his Honour said at 63: 'It may be conceded that, in an appropriate context, the word 'review' could have a quite amorphous meaning; but the word is here used in an Act to describe a challenge, to be brought by "application", to administrative action …' 25 The context of s 417 tends also to confirm that it is not a form of review of a visa application. Clearly, the application referred to in s 5(9) is to the application for a visa. Section 417 creates a power in the respondent to make a decision in relation to the application. But there is a substantial legislative structure for review of decisions concerning such applications under Part 7 of the Act. (There is a corresponding structure concerning the Migration Review Tribunal under Part 5 of the Act.) 26 Part 7 provides in substance for review of decisions of delegates of the respondent relating to protection visas by the Tribunal. It defines such decisions as 'RRT-reviewable' decisions. It provides for the means of applying to the Tribunal for review of RRT-reviewable decisions (s 412). It obliges the Tribunal to review valid applications made to it (s 414). The powers of the Tribunal upon review are then described. Section 418 provides a means by which material before the delegate of the respondent, when making the decision which is subject to review, is provided to the Tribunal. Division 3 of Pt 7 (ss 420-422A) prescribes how the Tribunal's powers are to be exercised. Division 4 (ss 423-429A) prescribes how the Tribunal is to go about its review. It describes what documents are to be given to the Tribunal, and empowers it to seek additional information. It contains provisions which in substance appear to provide for a form of procedural fairness being accorded to the applicant for review. They include that the applicant for review be notified of information which is specifically about that applicant or the class of persons to which the applicant belongs so that a response may be made to that material. The applicant is to be given the opportunity to give evidence and to present arguments relating to the issues under review. The Tribunal is empowered to call witnesses and the applicant is entitled to request the Tribunal to call witnesses on the review. Division 5 (ss 430-431) deals with how the Tribunal is to give its decision. It is required to give reasons for its decision, and to notify the applicant of the decision. Division 6 (ss 432-434) prescribes offences for those who decline to co-operate with the Tribunal. Division 7 (ss 441A-441G) also relates to the way in which the Tribunal conducts its reviews. Division 7A contains detailed provisions about the way in which documents may be given to the Tribunal and the way in which the Tribunal may give documents to other persons. Division 8 (ss 442-456) empowers the Tribunal to refer decisions to the Administrative Appeals Tribunal. Division 9 (ss 457-470) deals with the establishment and membership of the Tribunal. 27 As can be seen, there is a detailed and extensive set of provisions relating to the way in which a review under Pt 7 of the Act is to be instituted before, and is to be conducted by the, Tribunal.

28 Section 417(1) stands in sharp contrast. It does not provide for any right to apply to the Minister for the exercise of the Minister's discretion. Presumably Parliament had in mind that the Minister's discretion would be activated by some communication to him, particularly as the power of the Minister may only be exercised by the Minister personally and may not be delegated. The Minister is required by s 417(4)(c) to provide reasons for his decision if she substitutes a more favourable decision, in particular for thinking that the decision is in the public interest, which must be laid before each house of Parliament. However, she is not otherwise obliged to follow any particular procedural provisions under Pt 7 of the Act. 29 Section 417(7) is significant. It provides: 'The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.' It can be seen that there is no formal process to enliven the respondent's consideration of the possible exercise of power under s 417, and no obligation upon the respondent to consider whether to exercise the power. A request to the Minister to do so does not give rise to any obligation on the part of the Minister to do so. Hence, the power under s 417 may be contrasted with the substantial edifice surrounding review by the Tribunal under Part 7 of the Act, and with the obligation of the Tribunal to determine a review application made to it. Moreover, the respondent has no obligation to provide reasons for any decision not to exercise the power under s 417, and the obligation to do so in the case of a favourable decision is clearly to provide accountability to the Parliament, rather than reflective of some obligation to the beneficiary of the favourable decision: see s 417(4). 30 Those features, in my judgment, point strongly to s 417 not providing a 'form of review' of the application for a protection visa, as that expression is used in s 5(9) and s 198(6) of the Act. 31 In NATB, the Full Court at [58] - [59]described the power in s 417 in the following terms: 'This is a general humanitarian power. The power would be available to the Minister where, for example, a person had a well-founded fear of loss of life or liberty or of torture or other mistreatment, but for a reason which is not a Convention reason. Section 351 [and s 417] of the Act gives the Minister the same power in relation to decisions of the Migration Review Tribunal under Pt 5 of the Act [and of the Tribunal under Pt 7 of the Act]. The relevance of …s 351 and s 417, for present purposes, is that they demonstrate that Parliament appreciated the possibility of a non-citizen being removed to a country where he or she might face the prospect of death, torture or persecution. Parliament sought to avert that possibility to including specific provisions, each with its own pre-conditions. There may be room for debate about the adequacy of the provisions. However, doubts about adequacy cannot gainsay the apparent legislative intention. It is not to be supposed, in the context of such detailed provisions, that Parliament intended also to confer an overriding discretion on anybody who fell within the Act's wide definition of "officer". That definition includes persons outside the Department who would have little or no capacity to form a reliable judgment about the prospective fate of a non-citizen upon return to his or her country of nationality.' [58-59] 32 In M38/2002, the Full Court at [80], ALR 311 described ss 48B and 417 of the Act in the following terms: 'The Act accommodates the possibility that there may have been some relevant change in the circumstances of the detainee, vis a vis his country of original in the time elapsing between the refusal of a visa, including a protection visa, and the time for his removal … In permitting the Minister to substitute a decision more favourable to a refugee claimant than the decision of the Tribunal, s 417 also allows the Minister to grant a visa upon humanitarian grounds, or to cure error on the Tribunal's part.' 33 I do not consider the obligations imposed upon the respondent by s 417(2), when exercising the power under s 417(1), indicate a different legislative intention. 34 Division 3 of Part 2 of the Act deals generally with visas for non-citizens. It provides for classes of visas, how visas must be applied for, how visas are granted, how visas may be used, and how visas may be cancelled. It is not necessary to refer to all the topics which, in various subdivisions, Div 3 of Part 2 of the Act addresses. Relevantly for present purposes subdiv AA (ss 44-51) deals with how visas are to be applied for, subdiv AB (ss 52-64) prescribes a code for dealing fairly, efficiently and quickly with visa applications, and subdiv AC (ss 65-69) deals with the grant of visas. As noted, s 417(2) provides that in exercising her power under s 417(1) the respondent is not bound by subdiv AA or subdiv AC. 35 Within subdiv AA, the significant obligation upon the respondent is to consider a valid visa application. That does not apply to the respondent when considering whether to exercise her power under s 417(1). Section 417(7) also removes any doubt on that score. Within subdiv AC, the respondent is obliged to grant a visa if satisfied the criteria applicable are satisfied, and to refuse it if not so satisfied: s 65. She is required to notify the applicant of her decision in a specified way: s 66. Again, by reason of s 417(2), those obligations are not imposed upon the respondent when considering whether to exercise her power under s 417(2). The exclusions in s 417(2) indicate the edifice for the respondent making decisions with respect to visa applications at first instance does not apply. In my view, it therefore also supports the view that the exercise of the discretionary power in s 417(1) is not a review of the application for a protection visa. That is so whether the procedural obligations imposed upon the respondent under subdiv AB, in particular by ss 54, 56 and 57, apply to the respondent when, having decided in her discretion to consider exercising the power under s 417(1), she undertakes that consideration. 36 In my judgment, there is a further telling consideration in favour of the conclusion I have reached. A visa application is finally determined as explained by s 5(9) when no form of review is available. It encompasses by subclauses (a) and (b) both the making of a review and the potential entitlement to make one. Hence, although the proposed statement of claim alleges the making of an 'application' to the respondent under s 417(1) as leading to the view that the visa application has not been finally determined, the point would be equally valid so long as there was an entitlement to make an 'application' to the respondent to use her power under s 417(1). Unlike an application to the Tribunal, there is no time limit upon the making of a request to the respondent to exercise her power under s 417(1) of the Act. Section 412(1) provides for a prescribed period not exceeding 28 days within which a review application under Part 7 may be made to the Tribunal. Subclause (b) of s 5(9) appears to operate where there has been no timely applications to the Tribunal. If the prospect of the making of a request to the respondent to exercise her powers under s 417(1) were a form of review under Part 7, then subcl (b) of s 5(9) would have no work to do. There would be no period within which that form of review will have ended. Moreover, there is no provision restricting the making of serial requests to the respondent to exercise her power under s 417(1). A request to do so does not give rise to a duty to consider exercising the power: s 417(1). Consideration of a request may lead to a refusal to exercise the power. If the existence of the power under s 417(1) were a form of review under Part 7, there would be no circumstance in which the decision to refuse a visa would no longer be subject to any form of review and no period within which such a review could have been instituted. Consequently, testing the applicant's contention in that way, and if it is correct, the obligation under s 198(6), would never arise in respect of a protection visa application because the application would never reach the stage of being finally determined. Clearly, that is not what the legislature intended. 37 In my judgment, it is clear that the contention of the applicant based upon the proposed amendment to the statement of claim must fail. Accordingly, I do not grant leave to amend the statement of claim in the terms sought. 38 The alternative contention of counsel for the applicant was to distinguish the decisions of the Full Courts in NATB and M38/2002. I do not think it I possible to do so. The fact that the present applicant has sought special leave to appeal to the High Court from the decision of the Full Court in NATB does not mean I should not follow those decisions. The focus of that application is, I am told, upon the concept of reasonable practicability in s 198(6), rather than upon the word 'remove', which was the focus of the submission for special leave to appeal from the decision of the Full Court in M38/2002. Be that as it may, I do not think that provides a foundation for distinguishing NATB or M38/2002 for present purposes. They are each decisions of the Full Court of this Court. They are consistent with each other. They explain the limits of s 198(6). In essence, and subject to the contention to which I have referred above, I think they decide that the grounds upon which the applicant pursues the application as expressed in the statement of claim simply are not tenable. I do not consider that those decisions are distinguishable on the basis asserted. 39 Finally, the applicant sought that this matter be adjourned until his application for special leave to appeal to the High Court from the Full Court decision in NATB has been heard and determined. Counsel was unable to say with any accuracy when such an application may be heard, and was not in a position to give any undertaking on behalf of the applicant that such an application would be pursued with all due diligence, although I accept that the intention of the solicitors acting for the applicant is to do so. I decline to grant the adjournment sought. In my judgment, in the face of Full Court decisions in NATB and in M38/2002, the respondent is entitled to have applied by motion for summary judgment and it is incumbent on the Court to determine whether the motion should or should not succeed.

40 Accordingly, in my judgment, the respondent's motion should be successful and the application should be dismissed. On the respondent's motion I order accordingly. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Dated: 24 February 2004 Counsel for the Applicant: P C Charman

Solicitor for the Applicant: Refugee Advocacy Service of South Australia

Solicitor for the Respondent: Australian Government Solicitor