Savouts v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 There is before the Court an application for an order of review. The application was lodged by the applicant, Mr Dmitri Savouts, on 20 July 2000, while he was in immigration detention. The application was made on a copy of form 56 of the First Schedule to the Federal Court Rules ("FCR"). That form is intended to be used for applications made under: s 476 of the Migration Act 1958 (Cth) ("the Act") (see O 54B, subr 2(1), FCR); the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the JRA") (see O 54, subr 2(1), FCR); and the JRA together with s 39B of the Judiciary Act 1903 (Cth) (see O 54A, subr 3(2), FCR). Mr Savouts, whose first language is not English (he is Belarusian), appears to have completed the form himself, without the benefit of legal assistance. 2 Mr Savouts' application first identified a decision of which review was being sought. That decision was identified as follows: "the decision made by Ministerial Interventions Unit Mr Mark Fontana date 10 July 2000". 3 Mr Savouts' application was next supposed to allege why it was that he was aggrieved by the decision which he had at first identified as the one of which he was seeking review. However, on that portion of the form on which he was to allege the basis of his standing to seek review of that decision, Mr Savouts instead wrote: "Aplicant to review the desision of the Immigration officer to offirm that the Aplicant is not entitled to the grant of a Bridging Visa E (Class WE) Subclass 050". 4 So far as the grounds of his application were concerned, Mr Savouts stated those as follows: "The applicant ontrasted his application for Protection Visa made by Migration Agent mr Artur Valonski who represented his case. The applicant have new evedense wich applicant belive will alowed him to stay in Australia. Applicant fiars to be playsed in phsihiatric hospital if he go back to his country." 5 Finally, Mr Savouts identified the relief which he sought as being "[a]n order that he be granted a Bridging Visa E (Class WE) Subclass 050". 6 It is not easy to know how to construe Mr Savouts' application. Presumably, it was intended to be made under s 476 of the Act. However, should it be construed as if Mr Savouts were seeking under that section review only of the decision said to have been made by Mr Fontana or should it be construed as if Mr Savouts were seeking review, not only of that decision, but also of a bridging visa refusal decision? 7 The Minister for Immigration and Multicultural Affairs ("the Minister"), the sole respondent to the proceeding, has submitted that I should construe the application as having sought review only of the decision said to have been made by Mr Fontana. However, I consider that, on a fair reading of the application, especially in light of Mr Savouts' personal circumstances, I should construe the application as having been intended to seek review, not only of the decision said to have been made by Mr Fontana, but also of a bridging visa refusal decision. 8 The making by Mr Savouts of his application provoked an objection to competency by the Minister. That objection extended to the bridging visa refusal decision as well as to the decision said to have been made by Mr Fontana, provided that, contrary to the Minister's submission, I construed Mr Savouts' application (as I have done) as having been intended to extend to the former decision. 9 It will be convenient to begin my discussion of the Minister's objection to competency by giving the factual background to the proceeding. 10 On 8 April 1996, Mr Savouts arrived in Australia. On 17 April 1996, he applied under the Act for a protection visa. On 17 September 1996, his application for a protection visa was refused by a delegate of the Minister. On 8 October 1996, Mr Savouts sought review of that decision by the Refugee Review Tribunal ("the Tribunal"). However, on 27 February 1998, the Tribunal affirmed the decision. 11 The next relevant event which it is necessary to mention is that, on 26 April 2000, at a time when he was already in immigration detention and had been so for a relatively brief time, Mr Savouts both applied for a bridging visa E, subclass 050, and requested that the Minister exercise the power conferred on him by subs 417(1) of the Act to substitute for the Tribunal's decision a decision which was more favourable to the applicant. 12 (It is convenient now to set out the relevant provisions of s 417 of the Act. They are as follows: "(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 section 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. …. (3) The power under subsection (1) may only be exercised by the Minister personally. … (7) 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.") 13 On 1 May 2000, a delegate of the Minister decided to refuse Mr Savout's bridging visa application. According to Mr Savouts, he was notified of that decision on 3 May 2000. 14 On 8 June 2000, a letter on the official stationery of the Minister was sent to Mr Savouts. That letter said relevantly, "Your request for the exercise of my power under section 417 was referred to me. However, I have decided not to consider exercising my power in [your] case". The letter was signed by the Minister personally. 15 Then, on 14 June 2000, Mr Savouts made a further request of the Minister, requesting on that occasion that the Minister exercise the power conferred on him by subs 48B(1) of the Act to determine that s 48A of the Act should not apply to prevent Mr Savouts from making a second application for a protection visa. 16 (It is convenient now to set out the relevant provisions of s 48B of the Act. They are as follows: "(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. (2) The power under subsection (1) may only be exercised by the Minister personally. … (6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances." It will be noticed that ss 48B and 417 of the Act are very similar in their outlines, subs 48B(1) being comparable to subs 417(1), subs 48B(2) being comparable to subs 417(3) and subs 48B(6) being comparable to subs 417(7).) 17 Mr Savouts' request of 14 June 2000 led to the sending to Mr Savouts of a letter dated 10 July 2000. However, unlike the letter dated 8 June 2000, which had been a personal response by the Minister on his official Ministerial stationery to Mr Savouts' request of 26 April 2000, the letter dated 10 July 2000 was a response by Mr Mark Fontana on the official stationery of the Minister's Department. Mr Fontana was described in the letter as being of the "Ministerial Interventions Unit Onshore Protection". Mr Fontana said relevantly in his letter, "Your request for the exercise of the Minister's power under section 48B of the Migration Act was assessed against the Minister's Guidelines for Purported Further Applications for a Protection Visa subject to S48B and Requests for Ministerial Intervention under S48B. However, your case did not meet these Guidelines, and will not be referred to the Minister for consideration under section 48B." 18 It was Mr Fontana's letter of 10 July 2000 which was obviously considered by Mr Savouts to evidence the making of the decision identified at first in his application for review as the one of which review was being sought. 19 I will deal first with the Minister's objection to competency in so far as it relates to Mr Savouts' attempt to obtain review of the decision to refuse his application for a bridging visa. 20 Section 486 of the Act confers on this Court jurisdiction with respect to "judicially-reviewable decisions". Judicially-reviewable decisions are defined in subs 475(1) of the Act. That definition is, however, made subject to subs 475(2) of the Act, which defines decisions which are not judicially-reviewable decisions. The combined effect of subss 475(1) and (2) of the Act is that this Court has no jurisdiction under s 486 of the Act with respect to any decision which falls within subs 475(2) of the Act, even if that decision also falls within subs 475(1) of the Act. Further, subs 485(1) of the Act ensures that (subject to an exception which is not applicable in the present case) this Court has no other jurisdiction in respect of a decision which falls within subs 475(2) of the Act. 21 Included among the decisions which fall within subs 475(2) of the Act are decisions reviewable by the Migration Review Tribunal (see par 475(2)(c) of the Act). Paragraph 338(4)(a) of the Act provides that a decision to refuse to grant a bridging visa to a non-citizen who is in immigration detention because of that refusal is a decision reviewable by the Migration Review Tribunal. 22 Because the bridging visa refusal decision of which Mr Savouts has sought review in his application falls within par 338(4)(a) of the Act, it therefore follows that this Court has no jurisdiction with respect to that decision. 23 I add that, even if the conclusion which I have just expressed were wrong, there would be another reason why this Court had no jurisdiction, at least under the Act, with respect to the bridging visa refusal decision. 24 Paragraph 478(1)(b) of the Act requires that an application under s 476 of the Act for review of a judicially-reviewable decision be lodged within twenty-eight days of the applicant's being notified of the decision sought to be reviewed. That provision has been construed as denying to this Court jurisdiction to entertain an application for review of a judicially-reviewable decision if that application is lodged out of time: see, for example, Oguzhan v Minister for Immigration & Multicultural Affairs [2000] FCA 781 (Carr J, 9 June 2000, unreported) at [34]. In the present case, the bridging visa refusal decision was, according to Mr Savouts, notified to him on 3 May 2000, while his application for review of that decision was not lodged until 20 July 2000. It therefore follows that, because Mr Savouts did not lodge in time his application for review of the bridging visa refusal decision, this Court would have had no jurisdiction under the Act to review that decision, even if it had fallen within the definition of a judicially-reviewable one. 25 I turn now to the Minister's objection to competency in so far as it relates to Mr Savouts' attempt to obtain review of the decision said to have been made by Mr Fontana. 26 I have already referred above to the effect of subs 475(2) of the Act and, in particular, to the effect of par (c) thereof. I should now refer to par (e) thereof, which provides relevantly that "a decision of the Minister not to exercise, or not to consider the exercise of, his or her power under section 48B … [or] section … 417" of the Act is not a judicially-reviewable decision for the purposes of Pt 8 of the Act. 27 In light of the terms of par 475(2)(e) of the Act, there can be no doubt that, if the letter to Mr Savouts of 10 July 2000 regarding his request under s 48B of the Act had been one from the Minister personally, like the letter to Mr Savouts of 8 June 2000 regarding his request under s 417 of the Act, and had conveyed a decision like that in the letter to Mr Savouts of 8 June 2000, then the decision conveyed by such letter would not have been a judicially-reviewable one. 28 The question which is raised by the Minister's objection to competency in the present case is whether the situation is different when a decision of the type communicated by Mr Fontana regarding a request under s 48B of the Act is made, not by the Minister personally, but rather by an officer of his Department on his behalf. (I note that, although there has been at least one occasion in the past when the Minister might have raised such question by an objection to competency, he chose not to do so: see Ordonez v Minister for Immigration & Multicultural Affairs [2000] FCA 736 (Kiefel J, 2 June 2000, unreported) at [8]. However, as the question goes to the Court's jurisdiction, the fact that the Minister has chosen not to raise it on some occasion in the past cannot excuse me from dealing with it now, when he has raised it.) 29 A similar, but not identical, issue arose in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 (FCA, Merkel J). (The issue was not identical, because the decision made in that case by an officer of the Minister's Department that the Minister would not consider a request had not been one in respect of a request made under s 48B of the Act, but rather one in respect of a request made under s 417 of the Act. However, I am unable to see any material difference between the two provisions for present purposes.) Merkel J's conclusion on the issue was that, although s 417 of the Act, on its proper construction, required the Minister personally to decide not to consider exercising his power under the section, still, if an officer of the Minister's Department purported to make such a decision on the Minister's behalf, then the combined effect of par 475(2)(e) of the Act and subs 485(1) of the Act was that such purported decision by the officer was not reviewable by this Court: see, in particular, at 125-27. Having so held, however, his Honour then went on to hold that subs 485(1) of the Act did not deprive this Court of jurisdiction to entertain an application for review, under s 6 of the JRA, of conduct engaged in for the purpose of the making of that purported decision. 30 Merkel J's decision in Ozmanian was afterwards reversed on appeal: see Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 (Jenkinson, Sackville and Kiefel JJ). However, that reversal was based on a conclusion of error by Merkel J in his holding that subs 485(1) of the Act did not deprive this Court of jurisdiction to entertain an application for review, under s 6 of the JRA, of conduct engaged in for the purpose of the making of the Departmental officer's purported decision. It was not based on a conclusion of error by Merkel J in his holding that the combined effect of par 475(2)(e) of the Act and subs 485(1) of the Act was that that purported decision was not reviewable by this Court. Indeed, so far as that latter holding was concerned, Mr Ozmanian had, on the appeal, expressly conceded its correctness: see at 24. 31 I add, incidentally, that Merkel J's conclusion that s 417 of the Act, on its proper construction, required the Minister personally to decide not to consider exercising his power under the section was, like his conclusion about the availability of review under s 6 of the JRA of conduct engaged in for the purpose of the making of the Departmental officer's decision, afterwards rejected by a Full Court of this Court. That occurred (by implication) in Bedlington v Chong (1998) 87 FCR 75 (Black CJ and Kiefel and Emmett JJ). In that case, Ms Chong, having received a letter in terms materially identical to those of the letter from Mr Fontana to Mr Savouts, sought in the High Court of Australia, in substance, a writ of mandamus against the Minister. One ground of the application was that the effect of s 48B of the Act was that the Minister was under a duty personally to determine whether or not to consider Ms Chong's request for a decision under that section. Ms Chong's application, so far as it raised the ground which I have just mentioned, was remitted under s 44 of the Judiciary Act to this Court, a Full Court of which then held that s 48B of the Act imposed no such duty on the Minister: see, in particular, at 80-81. However, the rejection of Merkel J's conclusion on that matter appears, if anything, to make his conclusion about the unreviewability of the Departmental officer's decision by reason of the combined effect of par 475(2)(e) of the Act and subs 485(1) of the Act easier to accept. 32 (I note that there was no discussion in the reasons for judgment in Bedlington of the question of the source of this Court's jurisdiction to deal with the matter which had been remitted to it by the High Court. In those circumstances, it appears to me that the decision could have no precedent value, at least in another Full Court of this Court, on the question of this Court's jurisdiction in such matters. Support for that conclusion is to be found in, for instance, Archer v Howell (1992) 7 WAR 33 (FCSC, Malcolm CJ and Rowland and Franklyn JJ). In that case, an objection had been taken to the competency of an appeal to the Full Court of the Supreme Court of Western Australia. In support of his argument of the competency of his appeal, the appellant had relied on an earlier occasion on which an appeal had been heard by the Full Court in materially identical circumstances. As to that reliance, Malcolm CJ said (at 46) (Rowland J (at 48) and Franklyn J (at 49) agreeing), "Hoffman v Musk contained no pronouncement on the scope of the right of appeal under s 29(4) but clearly assumed the competency of the appeal. The decision in that case rested on an unstated assumption or, as the text books describe it, an assumption sub silent[i]o. Such a case cannot constitute a binding precedent." A similar approach has been taken by the American Supreme Court since 1805 to cases in which the question of jurisdiction has been passed on sub silentio. The foundation case in that respect was US v More 3 Cr (7 US) 159 at 172 (1805) (Marshall CJ for the court). 33 Whether a single Judge of this Court, as opposed to a Full Court of this Court, is entitled to treat Bedlington as being incapable of having precedent value on the question of this Court's jurisdiction must, to say the least of it, be more doubtful. However, proceeding on the basis that, for me, Bedlington is capable of having precedent value on the question of this Court's jurisdiction, the difficulty with it is that it is impossible for me to tell in the circumstances of that case whether (assuming, as I do, that it silently adverted to the question of its jurisdiction) the Full Court considered that it was (to adapt the language of subs 485(1) of the Act) exercising the jurisdiction provided by Pt 8 of the Act or was instead exercising the jurisdiction provided by s 44 of the Judiciary Act. As it is open to me to proceed on the basis that the Full Court considered that it was exercising the latter jurisdiction, I have decided, for present purposes, to proceed on that basis.) 34 In the result, I find nothing in the reasons for judgment of the Full Courts in either Ozmanian or Bedlington which causes me to doubt the correctness of the reasoning of Merkel J in Ozmanian on the particular question of the combined effect of par 475(2)(e) of the Act and subs 485(1) of the Act. I myself accept the correctness of that reasoning and will therefore apply it to the decision said to have been made in the present matter by Mr Fontana. 35 In those circumstances, it follows that I will dismiss Mr Savout's application as incompetent in its entirety. I will also order Mr Savouts to pay the Minister's costs of the proceeding. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.