Shuster v Minister for Immigration & Citizenship

INTRODUCTION 1 The applicant has filed a notice of appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act') in respect of the decision of the Administrative Appeals Tribunal ('the Tribunal') to affirm the Minister's decision to cancel the applicant's business visa under s 134 of the Migration Act 1958 (Cth) ('the Migration Act'). 2 The respondent has filed a notice of motion seeking dismissal of the proceedings pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') on the basis that the applicant has no reasonable prospect of successfully prosecuting the proceedings. The respondent challenges the Court's jurisdiction to hear this application because of s 483 of the Migration Act. It is appropriate to address the question of jurisdiction before considering the substance of the application under s 44 of the AAT Act.

JURISDICTION 3 By s 44(3) of the AAT Act, this Court has jurisdiction to hear and determine appeals instituted in the Court in accordance with ss 44(1) and 44(2). Section 44(1) provides that a party to a proceeding before the Tribunal may appeal to the Court on a question of law from any decision of the Tribunal in that proceeding. Section 44(2) is not presently relevant. 4 Section 483 of the Migration Act provides: Section 44 of the Administrative Appeals Tribunal Act 1975 does not apply to privative clause decisions or purported privative clause decisions. 5 The effect of s 483 of the Migration Act is to limit appeals in respect of migration decisions under s 44 of the AAT Act to "non-privative clause decisions". The applicant contends that this decision is not a privative clause decision or a purported privative clause decision. I reject this submission. A privative clause decision is defined in s 474(2) of the Migration Act as 'a decision of an administrative character made…under this Act…other than a decision referred to in subsection (4) or (5)'. Subsections (4) and (5) outline provisions in the Migration Act under which decisions are not privative clause decisions. A decision to cancel a business visa under s 134 is not listed and it is not suggested that the decision of the Tribunal is otherwise excluded by definition in the Migration Act or in the Migration Regulations 1994 (Cth) from being a privative clause decision or a purported privative clause decision. It follows that this decision of the Tribunal is a privative clause decision or a purported privative clause decision and not a "non-privative clause decision" as defined in s 474(6) of the Migration Act. 6 Sections 476 and 476A of the Migration Act provide for the jurisdiction of the Federal Magistrates Court and the Federal Court on judicial review of, relevantly, decisions of the Tribunal. Section 476(2)(b) provides that the Federal Magistrates Court has no jurisdiction in relation to: a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500. 7 In relation to the Federal Court, s 476A relevantly provides: (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: … (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or (c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. 8 It is not in dispute that a decision under s 134 concerning a business visa is not encompassed by s 500 of the Migration Act. It is not suggested that s 476A(1)(c), which concerns decisions made by the Minister personally, applies. 9 The present scheme of the Migration Act (since amendments in the Migration Litigation Reform Act 2005 (Cth) ('the 2005 Act')) is that judicial review of all migration decisions is to be commenced in the Federal Magistrates Court save for the two categories of decisions within ss 476A(1)(b) and (c), which do not apply in the present case. 10 The note to s 476A(1)(d) of the Migration Act ('the note') is: Only non-privative clause decisions can be taken to the Federal Court under subsection 44(3) of the Administrative Appeals Tribunal Act 1975 (see section 483). 11 While the note does not form part of the Act (s 13(3) of the Acts Interpretation Act 1901 (Cth) ('the Interpretation Act')), it may be considered in the interpretation of a provision of the Act for the purposes of s 15AB(1) of the Interpretation Act (s 15AB(2)(a)). Section 15AB(1) provides that the note may be considered to confirm the ordinary meaning of the provision in the context of the Act and taking into account the purpose or object underlying the Act or to determine the meaning if the provision is ambiguous or obscure or if the ordinary meaning leads to a result that is manifestly absurd or unreasonable. The note cannot govern the text of the Act but it cannot be disregarded (Pearce DC & Geddes RS, Statutory Interpretation in Australia, 6th ed at [4.49]). 12 The note supports the interpretation that s 483 bears on its face, that the section excludes an appeal under s 44 of the AAT Act for privative clause decisions and purported privative clause decisions (Sneddon v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 88 ALD 84 at [3]). The applicant does not contend to the contrary. 13 Thus, s 476A(1)(d) confers jurisdiction on the Federal Court in relation to such appeals from the Tribunal as can continue to arise under the Migration Act, given the limitation imposed by s 483. The Federal Court has jurisdiction to undertake judicial review of Tribunal decisions under the Migration Act where the decision on review is a privative clause decision or a purported privative clause decision under s 500 of the Migration Act, or a non-privative clause decision the subject of an appeal under s 44(3) of the AAT Act, or a referral by the Tribunal under s 45(2) of the AAT Act. 14 The Federal Magistrates Court has jurisdiction to undertake judicial review of any other decision of the Tribunal in relation to a migration decision, including the decision of the Tribunal in this case (s 476 of the Migration Act). Symmetrically, s 476(2) provides that the Federal Magistrates Court does not have jurisdiction in relation to decisions described as in s 476A(1). The applicant is, however, out of time to make an application to the Federal Magistrates Court. 15 To overcome this result, the applicant makes a number of submissions. 16 First, he submits that as s 483 of the Migration Act does not specifically refer to business visas, they are excluded from the ambit of that section. I reject that submission. Section 483 does not refer to any particular category of privative clause decision or purported privative clause decision. There is no reason to put business visas into a special category. 17 Second, he submits that s 483 is directed towards judicial review, not statutory appeals under the AAT Act. I reject that submission. Section 483 is clearly directed to statutory appeals under the AAT Act and exclusion from the right of appeal provided for in s 44 of that Act. 18 Third, he points to the scheme of the Migration Act and the legislation which introduced the provisions in question. He submits that, as there is no specific reference to business visa decisions, they are not encompassed by s 483. The applicant submits that, if the intention of Parliament was to remove an existing right of appeal to the Federal Court on a question of law in relation to business visa decisions, this would have been clearly stated (Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [32] per Gleeson CJ and at [72] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ). The correct interpretation is, he submits, that s 476A in combination with s 483 limits judicial review of migration decisions but not the right of appeal on a question of law, particularly in relation to business visa decisions by the Tribunal. He submits that, read together, s 483 only applies to the class of decisions referred to in s 476A. 19 There are a number of responses to this submission. Again, there is no differentiation between the subject matter of privative clause decisions or purported privative clause decisions in s 483 and there is no reason to isolate business visa decisions. Parliament chose not to refer to business visa decisions in s 476A and chose to deal globally with privative and purported privative clause decisions in s 483. Further, s 483 makes no reference to s 476A. It does not, for example, commence with the words "on review under s 500". There is no reason to read s 483 as if those words were included so that only decisions the subject of s 476A(1) were excluded from an appeal to the Federal Court under s 44 of the AAT Act. To do so would be to ignore the clear words of s 483 and the note. 20 Section 483 is clear in its terminology and meaning. The amendments to the Migration Act in the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and the 2005 Act do not remove a right of judicial review of Tribunal decisions. They confer jurisdiction on the Federal Magistrates Court to review those migration decisions for which jurisdiction is not conferred on the Federal Court by s 476A and to place statutory limits on a statutory right of appeal. Justice Besanko observed in Epenisa v Minister for Immigration & Multicultural Affairs (2007) 44 AAR 456 at [11], on the subject of the limitation imposed by s 483 of the Migration Act, that s 44 of the AAT Act is a statutory right of appeal and 'there is nothing to prevent Parliament from excluding from its purview a certain class of decision'. 21 Clause 51 of the Revised Explanatory Memorandum to the Migration Legislation Amendment (Judicial Review) Bill 2001 concerns the proposed s 483. It says: Section 483 Section 44 of the Administrative Appeals Tribunal Act 1975 51 Section 44 of the Administrative Appeals Tribunal Act 1975 allows for appeals from the Administrative Appeals Tribunal to the Federal Court on a point of law. New section 483 prevents section 44 from applying to a privative clause decision. Therefore, an application to the Federal Court in respect of such a decision needs to be made under section 39B of the Judiciary Act. 22 It is apparent that the intention was that s 483 apply to all appeals from privative clause decisions. Section 483 was then amended in the 2005 Act ('the 2005 amendments'), presumably because of decisions such as S157 (Bodruddaza v Minister for Immigration & Multicultural Affairs (2007) 228 CLR 651 at [19]). Clause 39 of the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 says: Item 27 Section 483 This item repeals section 483 and substitutes a new section. This provides that section 44 of the AAT Act does not apply to privative clause decisions or purported privative clause decisions (inserted by item 14, Schedule 1). Section 44 of the AAT Act provides that a person may appeal a decision of the AAT on a point of law to the Federal Court. An appeal to the Federal Court under section 44 is available in relation to a non-privative clause decision. 23 The 2005 amendments conferred exclusive jurisdiction for judicial review of Tribunal migration decisions as between the Federal Court and the Federal Magistrates Court. 24 The explanatory memoranda do not assist the applicant. They confirm the construction that s 483 bears on its face. 25 The applicant also relies on two decisions of the Court which considered appeals on a question of law under s 44 of the AAT Act from business visa decisions of the Tribunal, Koosasi v Minister for Immigration & Multicultural Affairs (2006) 43 AAR 462 and Yang v Minister for Immigration & Multicultural Affairs [2006] FCA 1159. The applicant accepts that neither decision canvassed the effect of s 483, although other aspects of the Court's jurisdiction were discussed. It is likely that the effect of that section on jurisdiction was simply not raised for consideration. In any event, there was no determination that the Court did have jurisdiction despite s 483 of the Migration Act. 26 There have, however, been other decisions of the Court where the effect of s 483 has been considered on appeal from the Tribunal and in the context of business visa decisions. In Li-Shien Chen v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1496at [2]-[3] Drummond J noted that it was common ground that that the Tribunal's decision was a privative clause decision and that an appeal against the Tribunal's decision to the Court under s 44 of the AAT Act was not available because of s 483 of the Migration Act (as it was, prior to the 2005 Act). In Jong Hak Kim v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 38 AAR 304, also concerning a business visa decision, Kiefel J noted at [26] that it had been submitted by the Minister that the Court's jurisdiction was under s 39B of the Judiciary Act 1903 (Cth) and not s 44 of the AAT Act because of s 483 of the Migration Act. Her Honour did not reject that submission but did not consider it further. In SHCB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 561, not a business visa case, the Full Court held at [5] that, if the Tribunal decision was a privative clause decision, there was no right of appeal under s 44 of the AAT Act by reason of the operation of s 483. In Epenisa, Besanko J considered the Court's jurisdiction in an appeal from the Tribunal decision. Noting that the Court had jurisdiction under s 39B of the Judiciary Act and under ss 476A(1)(b) or (c) of the Migration Act, his Honour observed at [8] that there was no right of appeal under s 44 of the AAT Act because of s 483 of the Migration Act. 27 I accept that, in these cases, there was available an alternative remedy and that the question of the effect of s 483 of the Migration Act was not the subject of detailed consideration. However, I see no reason why the conclusions in those decisions should not be followed.