(g) doing or refusing to do any other act or thing;"
32 Parliament did not intend that the ADJR Act be a vehicle for judicial review of every decision of a decision maker under a Commonwealth enactment. Some decisions will have real impact upon a person's rights, privileges or obligations. Some will have no such impact, while others are mere stepping stones, which may lead ultimately to the making of a decision which does affect a person's position - Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 68, Australian Broadcasting Tribunal v Bond ("Bond's case") (1990) 170 CLR 321 at 337.
33 Further, for a decision to be properly characterised as one made under a relevant enactment, the decision must be one that the enactment requires or authorises. The question of characterisation must be determined as one of substance. There must be sufficient proximity between the decision and the enactment to permit the decision to be characterised as one made under the enactment - Chapmans Ltd v Australian Stock Exchange Ltd (1996) 67 FCR 402 at 409.
34 It is a criterion for the grant of the visa contemplated by Ms Silveira that an assessment of the suitability of her skills for the occupation of Supply and Distribution Manager be made by the Institute. The source of the Institute's power to make an assessment by reason of its memorandum and articles of association. Neither the Act nor the Regulations, confers any power on the Institute. There is no other act of the Parliament or regulation that requires or authorises an assessment of skills by the Institute.
35 If the Institute makes an assessment, it does so because of a request made by an applicant. Even if the Institute had not been specified in the Gazette Notice pursuant to r 2.26B, it would have been possible for the Institute to make an assessment as to whether the skills of Ms Silveira are suitable for the occupation of Supply and Distribution Manager, as that occupation is described in the ASCO Code.
36 There would have been no consequences under the Act if such an assessment were made. There is no duty on the Institute to conduct an assessment, unless it agrees to do so on terms agreed with a particular applicant. If the Institute failed to do so, there does not appear to be any duty that could be the subject of an order in the nature of mandamus.
37 The completion by Ms Silveira of the form enclosed with the letter of 12 July 2000 may well be properly construed as an implied request to the Institute to make an assessment such as is contemplated by item 136.222 of Schedule 2 and item 1128C(3)(c) of Part 1 of Schedule 1 to the Regulations. The acceptance of the fee by the Institute may have given rise to a contractual obligation to make such an assessment. However, the request and the acceptance of the fee are what give rise to any obligation on the part of the Institute.
38 The position might be contrasted with the position that was considered by the High Court in Minister for Immigration & Ethnic Affairs v Mayer (1985) 157 CLR 290. Previously, s 6A of the Act provided that an entry permit could not be granted to a non-citizen after his entry into Australia unless stipulated conditions were fulfilled. One of the conditions was that the non-citizen held a current temporary entry permit and that the Minister had determined, by instrument in writing, that the non citizen had the status of refugee within the meaning of the Refugee Convention. The High Court concluded that it was the intention of the Parliament that the provisions of s 6A, which attach statutory consequences to a determination by the Minister that the holder of a temporary entry permit had the status of refugee within the meaning of the Convention, be construed as impliedly conferring upon the Minister statutory authority to make that determination (at pages 301-2). In the absence of such implied authority, there would have been no authority for the Minister to make such a determination.
39 In the circumstances of the present case, the making of the assessment by the Institute may have certain consequences for Ms Silveira, if she chooses to lodge an application for a visa. One likely consequence is that the criterion referred to in item 136.222 will not be satisfied by the assessment. Even if a valid application were lodged by Ms Silveira, such that the Minister was bound to consider it, any such application was doomed to rejection if the only assessment relied on by Ms Silveira for the purposes of item 136.222 was that made by the Institute as evidenced by its letter of 18 August 2000 and confirmed by its letter of 8 November 2000.
40 Counsel for Ms Silveira contends that the making of an assessment is a report or recommendation within the meaning of s 3(3) of the ADJR Act. Section 3(3) of the ADJR Act provides:
"(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself deemed, for the purposes of this Act, to be the making of a decision."
Section 3(3) applies where there is a provision in an enactment that a particular report or recommendation be made as a condition precedent to the making of a decision under the enactment or under another law. Section 3(3) contemplates a case where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that enactment or some other - Edelsten v Health Insurance Commissioner (1990) 27 FCR 56 at 70.
41 However, in my opinion s 3(3) contemplates a report or recommendation precedent to a reviewable decision - see New England Biolabs Inc v Commissioner of Patents & Anor [2001] FCA 787. As I outlined in paragraphs [32] and [33] above, a reviewable decision is one for which provision is made by or under statute. It is not a conclusion reached as a step along the way in a course of reasoning. No valid application for a class BN visa can be made unless it is accompanied by satisfactory evidence that the Institute has assessed the skills of the applicant for his or her nominated skilled occupation. However, a positive assessment from the Institute is merely one step in the process of obtaining a class BN visa. An applicant must satisfy the other requirements of sub-clause 136, such as the vocational English requirement - s.cl.136.224, or the public interest criteria - s.cl.136.226. Pursuant to s 65(1), the Minister must only grant a visa if all of these requirements have been met. As a result, the Institute's decision cannot be considered to be an "ultimate" decision as envisaged by Bond's case.
42 It follows, in my opinion, that the making of an assessment by the Institute, pursuant to a request by a prospective applicant for a visa, is not a decision under an enactment for the purposes of the ADJR Act. Accordingly, the Court has no jurisdiction to grant relief under the ADJR Act. It is therefore not necessary to consider the other two questions that arise in the proceeding. However, since the questions were argued at some length, I shall make some brief observations on those questions.