FEDERAL COURT OF AUSTRALIA

SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26

THE COURT ORDERS THAT:

1.    The questions referred to the Full Court pursuant to the orders of Rares J dated 14 November 2011 be answered as follows:

1.    Does s 477 of the Migration Act 1958 (the Act) apply to recommendations by an Independent Merits Reviewer?

Answer:    No.

2.    If the answer to question 1 is yes, what is the relevant “date of the migration decision” for the purpose of s 477(1) of the Act, as defined by s 477(3) of the Act?

Answer:    Not necessary to answer.

3.    Does s 476A(3) of the Act operate to prevent an appeal to the Federal Court of Australia from a judgment that makes an order or refuses to make an order under s 477(2) in circumstances where:

(a)    s 477 did not apply to the application in respect of which the judgment was made?

Answer:    No.

(b)    s 477 did apply to the application in respect of which the judgment was made but the refusal to make an order under s 477(2) was infected by jurisdictional error?

Answer:    Not necessary to answer.

4.    Is the application commenced in the Court competent or should it be dismissed for want of jurisdiction?

Answer:    The application is competent.

5.    By whom should the costs of the proceedings in the Full Court be borne?

Answer:    The First Respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The Court

1    The five applications for leave to appeal before the Court give rise to two short substantive questions: first, does the 35 day time limit within which proceedings in the Federal Magistrates Court must be commenced in relation to a migration decision apply to an application to restrain the making of a decision yet to be made by the Minister under s 46A(2) of the Migration Act 1958 (Cth) (the Act); and secondly, does this Court have jurisdiction to hear an appeal from a decision of the Federal Magistrates Court by which it determined that the 35 day time limit did so apply and dismissed the proceedings as a result? Unfortunately, these questions do not correspond neatly with the questions which are formally before the Court for determination. The real issues emerged only in the course of the hearing in this Court. Some explanation is required as to how that came about.

2    The five applicants are all nationals of Afghanistan who first arrived in Australia at the external territory of Christmas Island. Following adverse assessments (which were in the nature of reports) and recommendations about their requests to be considered persons to whom Australia owed protection obligations under the Convention Relating to the Status of Refugees 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees 606 UNTS 267 (entered into force 4 October 1967) (the Convention) each applicant commenced judicial review proceedings in the Federal Magistrates Court. In those proceedings each applicant sought an injunction restraining the Minister from relying upon the relevant adverse recommendation by the Independent Merits Reviewer. Each application also sought a declaration that the recommendation of the reviewer had not been made in accordance with law.

3    By force of s 476(1) of the Act, the Federal Magistrates Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. Each of the five proceedings was commenced more than 35 days after the date of the relevant assessment and recommendation by the reviewer. This delay arguably engaged s 477(1) of the Act. It provides:

477 Time limits on applications to the Federal Magistrates Court

(1)    An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

[Emphasis added.]

4    Each applicant sought an extension of time within which to commence the proceedings. Section 477(2) authorises the Federal Magistrates Court to extend the 35 day limit for commencing proceedings. It provides:

477 Time limits on applications to the Federal Magistrates Court

…

(2)    The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

5    Each applicant’s attempt to persuade the Federal Magistrates Court to extend the 35 day time limit was unsuccessful and each application for an extension of time was dismissed. Further, each proceeding was dismissed on the basis that the applications, being time-barred, could not succeed.

6    Applications for leave to appeal were then filed in the Federal Court seeking to challenge the view that s 477(1) applied to the applications.

7    At the request of the parties, Rares J then referred questions for the opinion of a Full Court. The questions referred were as follows:

1.    Does s 477 of the Migration Act 1958 (the Act) apply to recommendations by an Independent Merits Reviewer?

2.    If the answer to question 1 is yes, what is the relevant “date of the migration decision” for the purpose of s 477(1) of the Act, as defined by s 477(3) of the Act?

3.    Does s 476A(3) of the Act operate to prevent an appeal to the Federal Court of Australia from a judgment that makes an order or refuses to make an order under s 477(2) in circumstances where:

(a)    s 477 did not apply to the application in respect of which the judgment was made; or

(b)    s 477 did apply to the application in respect of which the judgment was made but the refusal to make an order under s 477(2) was infected by jurisdictional error?

4.    Is the application commenced in the Court competent or should it be dismissed for want of jurisdiction?

5.    By whom should the costs of the proceedings in the Full Court be borne?

Independent Merits Review

8    A provision of crucial importance to the resolution of these questions, but not mentioned in them, is s 46A of the Act. Subsections 46A(1)-(3) and (7) of the Act provide:

46A Visa applications by offshore entry persons

(1)    An application for a visa is not a valid application if it is made by an offshore entry person who:

(a)    is in Australia; and

(b)    is an unlawful non citizen.

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

(3)    The power under subsection (2) 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 (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.

The Minister has similar powers in respect of detainees under s 195A of the Act.

9    The reviews conducted by the Independent Merits Reviewers were part of a process conducted under administrative arrangements established by the Minister’s Department. In Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (Plaintiff M61) at 342-345 [38]-[52] and 351-352 [73] the High Court described the process. The inquiries undertaken in that process were made under the Act in consequence of the Minister’s decision to consider exercising his powers under ss 46A and 195A. The purpose of the process was to inform the Minister of matters that were relevant to the decision whether to exercise his statutory powers in favour of an offshore entry person or detainee.

10    Under that process an officer of the Department interviewed each applicant. If the officer considered that the applicant was a person owed protection obligations under the Convention, a submission to that effect was made to the Minister for his consideration as to whether to exercise the power reposed in him by s 46A(2) of the Act by lifting the s 46A(1) bar to allow an application for a visa to be made. If the officer was of the opinion that an applicant was not a person to whom protection obligations were owed under the Convention, the applicant might then seek a review by an Independent Merits Reviewer. These reviewers were appointed by the Minister. Their function was to report their assessment and recommendation to the Minister. Under the administrative arrangements which were in place, the reviewer’s assessment and recommendation were made available to the Minister for his consideration. This occurred as a matter of administrative practice. By virtue of s 46A(7) of the Act, the Minister was not obliged to take the reviewer’s assessment or recommendation into account in deciding whether or not to lift the s 46A(1) bar.

11    In accordance with its practice, the Department informed each applicant, in the letter sending to him each reviewer’s assessment and recommendation, that:

(1)    the applicant had 35 days from the date of the letter in which to seek judicial review of the reviewer’s assessment;

(2)    if he decided not to seek judicial review then the Department would:

    make arrangements to return the applicant to his country; and

    give him “35 days from the date of this letter to provide any new or additional information which you would like to have taken into consideration. Such information may relate to humanitarian concerns or to circumstances raising international human rights obligations that may affect your return to [your country]”.

12    This letter suggested to each applicant that he had 35 days to seek judicial review of the assessment and, inferentially, the reviewer’s recommendations. This practice evidently reflected a view within the Department (no doubt, in part, as a result of the decision in Plaintiff M61) that the assessment and recommendation of a reviewer was itself amenable to judicial review under the Act. Somewhat inconsistently, the letter also told him that arrangements would be made to remove him to his country if he did not apply within 35 days for judicial review but he could provide further information within the same 35 day period to justify him not being removed. The invitation to provide additional information suggested that the Minister might still consider the exercise of his powers under ss 46A or 195A regardless of the reviewer’s assessment and recommendation.

13    Following the Departmental suggestion, the applicants sought judicial review in the Federal Magistrates Court. At the forefront of their claims in those proceedings was the assertion that the reviewers’ assessment and recommendations were not made in accordance with law.

14    As has been noted, each applicant’s proceedings were brought more than 35 days after the date of the reviewer’s report and recommendation. Before the Federal Magistrates Court the arguments of all parties proceeded on the assumption that the time for challenging the report and recommendation of the reviewer had expired so that an extension of time under s 477(2) of the Act was required. The applicants also raised an argument that an extension of time under s 477(2) was not required because the time limit imposed by s 477(1) did not apply to their application; but this argument seems not to have been explored in any detail in the submissions made to each Federal Magistrate and remained unresolved. That was unfortunate.

15    The parties failed to focus in the proceedings before the Federal Magistrates upon the remedy sought by the applicants which, as it was explained and clarified in argument in this Court, was for an injunction to restrain the Minister from making a decision which takes account of each reviewer’s report and recommendation. That failure led, in turn, to a failure to appreciate that each applicant’s claim for a declaration that the reviewer’s recommendation was not in accordance with law, was not essential to the remedy sought by him. On that view of things, no question of the application of the time limit imposed by s 477(1) of the Act would arise in respect of their applications.

16    Initially, in argument in this Court, the focus of the parties’ contentions was also upon whether the assessment and recommendation of the reviewer was a “decision under the Act”. We will address that argument directly; but the present focus is upon the argument that the only decision in respect of which each applicant requests a remedy is the decision yet to be made by the Minister under s 46A(2). While the ground on which the relief is sought is the apprehension that the Minister will take the reviewer’s allegedly flawed assessment and recommendation into account in making his decision, it is not necessary to each applicant’s claim for the injunction that the reviewer’s assessment and recommendation be quashed or set aside. Of course, it is possible that the Minister will agree or choose not to take the reviewer’s assessment and recommendation into account, and that might arguably leave the applicants without a basis for their claim to relief; but that is not presently a matter of concern. The short point here is that the only decision in respect of which the applicants seek a remedy is one which has not yet occurred. On that footing, as it emerged in argument, the applicants submit that s 477 does not stand in the way of their applications for an injunction.

17    Before we consider that submission further, it is convenient first to consider the question of this Court’s jurisdiction to entertain the applications for leave to appeal and any consequent appeals by the applicants from the Federal Magistrates Court.

This Court’s Jurisdiction

18    The Minister submits that this Court lacks jurisdiction to entertain an appeal and, hence, an application for leave to appeal from the Federal Magistrates Court about the applicability of s 477(1) because this Court’s appellate jurisdiction has been curtailed by s 476A(3)(a). Section 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) confers appellate jurisdiction on this Court from judgments of the Federal Magistrates Court where the appeal arises under a law of the Commonwealth. The breadth of that grant is delimited, however, by s 476A(3)(a) of the Migration Act which provides:

476A Limited jurisdiction of the Federal Court

…

(3)    Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from:

(a)    a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2); or

19    As has been mentioned, each applicant did, in fact, make an application to extend the 35 day time limit under s 477(2) but each of those applications was unsuccessful. Indeed, it was because those applications had failed that the Federal Magistrates Court decided that the 35 day time limit specified in s 477(1) barred all the applicants’ claims to relief. The important point here is that the subsequent and consequential orders dismissing each proceeding were not made under s 477(2) for they were not orders either making or refusing to make an order extending time. Consequently, s 476A(3)(a) does not bar an appeal from those orders: this follows from the intractability of the proposition that an order dismissing a proceeding is not, on any view, an order making or refusing to make an order extending time.

20    The Minister sought to avoid the impact of that conclusion by submitting that the order dismissing the proceeding should be seen as ‘bound up’ with the refusal to make orders under s 477(2). We cannot accept this submission. Both the form of the orders and the sources of power underpinning them were distinct. Although the learned Federal Magistrates did not need to advert expressly to the source of their power to dismiss each proceeding, it is apparent that the power was that conferred by r 13.10 of the Federal Magistrates Court Rules 2001 (Cth), that is, the power to dismiss proceedings having no prospects of success. Section 477(2) confers no such power.

21    The applicants advanced an alternate argument that each refusal by the Federal Magistrates to extend time under s 477(2) was affected by jurisdictional error so that the bar on this Court’s appellate jurisdiction in s 476A(3)(c) was not engaged. This argument was that the bar on appeals applied only to valid decisions. On this view the Court could directly review the orders refusing to extend time under s 477(2) because, in truth, they were not orders under s 477(2) at all, and so the limitation in s 476A(3) did not apply. Because of the conclusions to which we have come, it is not necessary to deal with this argument.

Does s 477(1) apply?

22    All that having been said, we now return to a consideration of the question whether s 477(1) did apply to the applicants’ proceedings in the Federal Magistrates Court. This involves two principal questions. First, was each applicant’s claim for a quia timet injunction restraining the Minister or his officers from relying on each reviewer’s recommendation a claim “in relation to a migration decision”, being the recommendation that attracted the 35 day time limit in s 477(1)? Secondly, was either of the reviewer’s assessment or recommendation “a decision of an administrative character made” under the Act, and so a migration decision?

23    Each of the applicants is an ‘offshore entry person’; that is, each is an unlawful non-citizen who arrived in an ‘excised offshore place’: s 5(1). The external territory of Christmas Island is an excised offshore place: s 5(1). Consequently, if any application were made by the applicants to the Minister for a protection visa it would have been deemed by s 46A(1) to be invalid. Nevertheless, as a matter of administrative practice, each applicant was permitted to request, and did request, ‘a refugee status assessment’. As has been noted, this was conducted by an officer of the Department. The assessments concluded that the applicants were not persons to whom Australia owed protection obligations under the Convention. Following the independent merits review procedure, the reviewer came to the same view and reported his or her recommendation accordingly.

24    In this Court, the Minister submitted that each review recommendation was a ‘privative clause decision’ within the meaning of s 474(2) which defines that expression thus:

474 Decisions under Act are final

…

(2)    In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

[Emphasis added.]

None of the exceptions referred to is apposite.

25    The Minister submitted that each applicant’s claim for “an injunction restraining the Minister, by himself or by his Department, officer, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Review” is accurately characterised as being a claim for relief in relation to a “decision … proposed to be made”. The Minister also argued that the reviewer’s assessment and recommendation fell within the extended meanings of a privative clause decision in s 474(3), which includes within that expression:

(h)    conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation.

26    Accordingly, so it is said, the reviewer’s assessment and recommendation falls, not only within the definition of a ‘privative clause decision’ set out above in s 474(2) but also, in consequence and for the same reason, within the definition of “migration decision” in s 5(1). The time limit erected by s 477(1) for the commencement of review proceedings is one which runs from ‘the date of the migration decision’. That expression is defined in s 477(3) in these terms:

477 Time limits on applications to the Federal Magistrates Court

…

(3)    In this section:

date of the migration decision means:

(a)    in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or

(b)    in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or

(c)    in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or

(d)    in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

27    Despite the breadth of s 477(3)(d) the migration decisions to which s 477(1) and (3) are directed are those which have already occurred. This is necessarily implicit in the concept of the 35 day period in s 477(1) and the assumption in s 477(3) that there exists, at the time to which s 477(1) and (3) are speaking, something which can be meaningfully described as a decision. Consequently, the ordinary language of s 477(1) leads to the conclusion that the time limit imposed by that provision does not apply to an application in which quia timet injunctive relief is sought against administrative action lying, as yet, in the future.

Was the claim for an injunction made in relation to a migration decision?

28    The Minister submitted that this conclusion was not correct in the present cases because the application for the injunction was a claim “in relation to” a “decision” of the reviewer within the meaning of s 477(1). The relief sought might well take the form of an injunction against future action by the Minister, so the argument went, but in substance what was involved was an attack on the assessment and recommendation of the reviewer. The Minister argued that, in substance, each applicant’s case was an attack on the review recommendation; the injunction was but a procedural aspect of the same attack. In support of this submission the Minister relied upon a passage from Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 at 663 [26] where Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ said:

It is convenient here to deal, on the other hand, with a submission by the plaintiff which should be rejected. The plaintiff submits that s 486A applies to his present application to this Court only to the extent that he seeks certiorari and that s 486A does not reach the s 75(v) remedies he seeks, namely mandamus and prohibition. However, the application for prohibition to the Minister requiring the Minister not to take action upon the delegate's decision of 5 January 2006 and for mandamus to consider according to law the plaintiff's visa application refused by that decision are applications "for a remedy ... in relation to a migration decision". This is nonetheless so where the plaintiff seeks to achieve by mandamus a future, and favourable, migration decision to displace the previously unfavourable decision.

[Emphasis added.]

29    As is apparent from the reasons of the plurality in Bodruddaza at 659-660 [4]-[9], the point was that the plaintiff’s application for mandamus sought to replace a decision to refuse a visa with a decision to grant it. Notwithstanding that the application was in form an application for mandamus, it was in substance an application for a remedy in relation to the earlier, allegedly invalid, decision because it was sought to replace the latter with the former. In the present case, the Minister has not yet made a decision of any kind. Each reviewer’s recommendation was not a decision upon an application for a visa. Indeed, it is not even a step required by the Act in the Minister’s decision making process under s 46A. If the Minister makes that decision, that will be the only decision which has any legal effect under the Act. Importantly, so far as the Minister’s reliance on Bodruddaza is concerned, each reviewer’s recommendation is not a decision apt to be replaced by the Minister’s decision. No relief is sought in any of the applications to the Federal Magistrates Court for the Minister to make a decision in lieu of the recommendation. Rather, the applicants seek an order that the Minister refrain from making a decision which takes the recommendation into account.

30    Bodruddaza was a case in which a series of co-ordinated and interrelated remedies were sought, arising from a single jurisdictional error and directed to achieving a future decision to displace a past decision. The present cases lack that feature. The only relief sought by the application in the Federal Magistrates Court in relation to any decision relates to a future possible decision of the Minister. Even if the reviewer’s assessment or recommendation can be regarded as a “decision” in some extended sense of the term by virtue of the extended meaning of that term under s 474(3)(h) of the Act, the application for injunctive relief is not for a remedy in relation to a decision because the Minister is not obliged to take it into account at all. Unlike Bodruddaza, the present applications do not seek to quash or correct the assessment or recommendation of the reviewer much less replace them by the decision of the Minister.

Is a reviewer’s recommendation “a decision of an administrative character”?

31    We consider that there is a further reason to reject the Minister’s submission that s 477(1) applies to the applications to the Federal Magistrates Court. The reviewer’s assessment and recommendation was not a “migration decision” to which the 35 day time bar applied because it was not a “decision” for the purposes of the Act at all.

32    The Minister, in arguing that a reviewer’s assessment and recommendation was a “decision of an administrative character made or proposed to be made…under the Act” within the meaning of s 474(2), relied upon the reasons of Gummow, Callinan and Heydon JJ in Griffith University v Tang (2005) 221 CLR 99 at 130-131 [89]. Their Honours said:

The determination of whether a decision is “made…under an enactment” involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be “made…under an enactment” if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require that the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.

[Emphasis in original.]

33    In Plaintiff M61 at 351-352 [73] the High Court explained that the inquiries undertaken in the review process were made under the Act in consequence of the decision of the Minister to consider exercising his powers under ss 46A or 195A and for the purpose of informing the Minister of matters that were relevant to the decision whether to exercise those powers in favour of a claimant. Importantly, the High Court said at 350 [70]:

Exercise of the powers given by ss 46A and 195A is constituted by two distinct steps: first, the decision to consider exercising the power to lift the bar or grant a visa and secondly, the decision whether to lift the bar or grant a visa. The Minister is not obliged to take either step. Sections 46A(7) and 195A(4) expressly provide that the Minister does not have a duty to consider whether to exercise the relevant power. And ss 46A(2) and (3) and 195A(2) and (5) make plain that it is for the Minister personally to decide whether to exercise the relevant power.

[Emphasis in original.]

34     The Minister, as the only person with power to make a decision under ss 46A and 195A, is not bound by anything in the reviewer’s assessment or recommendation. The Minister has no obligation to exercise the powers under ss 46A or 195A. Nor does he have any obligation to take the reviewer’s assessment or recommendation into account in deciding whether, and if so how, to exercise those powers. In other words, the Minister is entitled to make, or not make, a decision regardless of the reviewer’s assessment or recommendation.

35    The Department asserted in the letter notifying the applicant of the reviewer’s assessment and recommendation that he had 35 days in which to seek judicial review. The Department appears to have assumed that each of a reviewer’s assessment and recommendation was amenable to judicial review under s 476 of the Act as a decision which “confer[red], alter[ed] or otherwise affect[ed] legal rights or obligations”: Tang at 130 [89]. That assumption was misconceived.

36    In Plaintff M61 at 353 [77] and 358-359 [100] the Court concluded that it was unnecessary to consider whether certiorari could be granted to quash a recommendation made by a reviewer. That was because, it held, in considering the exercise of power under either s 46A or s 195A “the Minister might, but need not, take account of the recommendations” made by a reviewer: at 359 [100].

37    In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580-581 Mason CJ, Dawson, Toohey and Gaudron JJ discussed the status of a report made by a commission. A statute required the commission’s report to be furnished to the chairman of a parliamentary committee, the Speaker of the Legislative Assembly and a minister. The report could be tabled in the Legislative Assembly. Their Honours said that the report had “the practical effect of blackening the appellants’ reputations” (at 581). This led their Honours to grant declaratory relief as a remedy for the commission’s failure to observe the requirements of procedural fairness in arriving at those adverse conclusions. But, significantly, their Honours explained why findings in such a report could not be quashed by certiorari as follows (at 580-581):

The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari. But the Commission's report is not in that category. The report may bear upon the appellants' prospects of obtaining licences under the Gaming Machine Act 1991 (Q) for that Act, in s. 3.3(1)(b)(ii) and (iii), makes reputation a matter to be taken into account in determining whether a licence should be granted. However, like the report considered in Reg. v Collins; Ex parte A.C.T.U.-Solo Enterprises Pty Ltd ((1976) 50 ALJR 471; 8 ALR 691), the report does not "legally affect ... rights", for it may be that the appellants will be granted such licence or licences under the Gaming Machine Act 1991 as they request "even ... in direct opposition to any recommendations [made] in it" (ibid at p 475; p 699) by the Commission. There being no legal effect or consequence attaching to the report, certiorari does not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellants.

[Emphasis added, some references omitted.]

38    In Hot Holdings Pty Limited v Creasy (1996) 185 CLR 149 at 165 Brennan CJ, Gaudron and Gummow JJ said that if a final decision-maker was obliged to have regard to a preliminary decision or recommendation then this would establish the requisite legal effect on a person’s rights to support the grant of certiorari; see too per Dawson and Toohey JJ (dissenting but not on the principle) at 180; see too The King v MacFarlane; Ex parte O’Flanagan and O’Kelly (1923) 32 CLR 518 at 527 per Knox CJ, 536-537 per Isaacs J, 569-570 per Higgins J, 577 per Rich J, 583-584 per Starke J. The latter case concerned a board established by s 8A of the Immigration Act 1901 (Cth) with the function of making a recommendation to the Minister as to whether a person should be deported. If the board made a positive recommendation for the person to be deported, then the Minister had a statutory discretion to order his or her deportation. As Knox CJ said of the board (at 527) in a passage referred to with approval by Dawson and Toohey JJ in Ainsworth (at 180):

It has no power by its determination to impose any obligation on any person or to affect any person's rights. Its sole function is to recommend—i.e., to advise the Minister—whether the prosecutor should or should not be deported. Its recommendation has no binding force, imposes no obligations, and affects no rights. If it recommends deportation, the Minister is at liberty to act, or to refrain from acting, on the advice given.

[Emphasis added.]

39    What Knox CJ said is apposite in respect of a reviewer’s assessments and recommendations. A reviewer’s assessment and recommendation have no statutory or other legal force. They came into existence because the Minister sought that information to inform his consideration of the exercise of his powers. The Minister was not bound to act on the assessment or recommendation; he did not even have to take them into account at any stage of his consideration, and he did not have to make a decision even if the recommendations had been favourable to the applicants. A reviewer’s assessment and recommendation cannot be characterised as “a decision of an administrative character made or proposed to be made…under [the] Act” within the meaning of s 474(2) of the Act.

40    The conduct to which the inclusive definition in s 474(3)(h) refers must still have the character required in s 474(2) of “a decision of an administrative character made [or] proposed to be made … under this Act”. Ordinarily, merely procedural steps in the course of arriving at a substantive determination lack the quality of a decision. As Mason CJ said in his celebrated judgment in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 342:

[T]here is a clear distinction between a “decision” and “conduct” engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision.

41    And in Tang at 128 [79]-[80], Gummow, Callinan and Heydon JJ said:

79    The decision so required or authorised must be “of an administrative character”. This element of the definition casts some light on the force to be given by the phrase “under an enactment”. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?

80    The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement …?

[Emphasis in original.]

42    To avoid doubt, s 474(7) of the Act provides that a decision by the Minister under s 195A is a privative clause decision. Curiously, the Act is silent as to whether the same applies to a decision under s 46A; but it is unlikely that the Parliament intended a decision under s 46A to fall outside its apparent nature of a decision of an administrative character made under the Act; and no party contended for such a result.

43    The important point for present purposes is that it would be an odd result if serial challenges were available in respect of every step in the processes leading to a decision under s 46A, where those processes had no legal force. To conclude that each such step is deemed to be a privative clause decision by an expansive construction of s 474(3)(h) would be to ignore its absence of legal effect and would not serve any useful purpose. The Minister’s reliance on s 474(3)(h) as supporting his argument that the reviewer’s assessment and recommendation amounted to a privative clause decision must be rejected.

44    The Minister can ignore entirely a reviewer’s assessment and recommendation. However, as in Plaintiff M61 at 358-360 [99]-[104], declaratory relief and, perhaps, an injunction would be an appropriate remedy to ensure that the Minister understands that a assessment or recommendation is affected by demonstrable error if he or she were otherwise minded to act upon them. In this regard, to say that the assessment and recommendation of the review was not an administrative decision is not to say that the review process was not required to be fairly and lawfully conducted. As the High Court explained in Plaintiff M61 at 353-356 [76]-[78]:

76    Contrary to the submissions of the Commonwealth and the Minister, the Minister's decision to consider whether power should be exercised under either s 46A or s 195A directly affected the rights and interests of those who were the subject of assessment or review. It affected their rights and interests directly because the decision to consider the exercise of those powers, with the consequential need to make inquiries, prolonged their detention for so long as the assessment and any necessary review took to complete. That price of prolongation of detention is a price which some claimants may have paid without protest. After all, they sought entry to Australia and this was the only way of achieving that end. And they claimed that return to their country of nationality entailed a real risk of persecution. But even if it were the fact that individuals were content to have detention prolonged, that must not obscure that what was being done, for the purposes of considering the exercise of a statutory power, had the consequence of depriving them of their liberty for longer than would otherwise have been the case.

77    Because the Minister was not bound to exercise power under either s 46A or s 195A, no matter what conclusion was reached in the assessment or review, it cannot be said that a decision to consider exercising the power affected some right of the offshore entry person to a particular outcome. The offshore entry person had no right to have the Minister decide to exercise the power or, if the assessment or review were favourable, to have the Minister exercise one of the relevant powers in his or her favour. Nonetheless, once it is decided that the assessment and review processes were undertaken for the purpose of the Minister considering whether to exercise power under either s 46A or s 195A, it follows from the consequence upon the claimant's liberty that the assessment and review must be procedurally fair and must address the relevant legal question or questions. The right of a claimant to liberty from restraint at the behest of the Australian Executive is directly affected. The claimant is detained for the purposes of permitting the Minister to be informed of matters that the Minister has required to be examined as bearing upon whether the power will be exercised.

78    The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant's liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as "conditioned on the observance of the principles of natural justice". Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.

[Footnotes omitted, bold emphasis added.]

45    In the cases of present concern, the applicants have sought an injunction to prevent the Minister or his officers taking into account the reviewer’s assessments and recommendations in any future consideration of the exercise of the powers under s 46A. Their applications for that relief enlivened the jurisdiction of the Federal Magistrates Court conferred by s 476(1) of the Act . That jurisdiction, it must be understood, is relevantly, the same as that of the High Court under s 75(v) of the Constitution. It is a jurisdiction the exercise of which the Courts are not astute to confine.

Conclusions on the applicability of s 477(1)

46    We conclude that, because the Minister has not yet made any decision and, as Plaintiff M61 decided at 353 [77], need not take account of the assessments and recommendations, the injunctions sought are not in relation to a migration decision in respect of which an extension of time must be granted because any such decision is yet to be made by the Minister and will be in the future. Thus, no occasion arose for the Federal Magistrates Court to exercise any power under s 477(2). No doubt due to the focus of the parties on the issue of an extension of time, that Court was led to misconceive the nature of the applications by dealing with them under s 477(2). The applications require determination on the merits.

47    We note that in Alami v Minister for Immigration [2011] FMCA 623 Smith FM reached the opposite conclusion (at [66]). It follows from what we have said that this aspect of Alami should be overruled: s 477(1) did not apply to the applicants’ proceedings insofar as they sought quia timet injunctive relief. Each of the Federal Magistrates erred in law in dismissing the applications for injunctions on the basis that s 477(2) applied.

48    We consider that in each of the five applications, leave to appeal should be granted, the appeal be treated as instituted instanter, the orders dismissing the proceedings below should be set aside and the proceedings should be remitted to the Federal Magistrates Court to make final orders consistent with these reasons. An appeal will then lie as of right to this Court from those orders. The parties should prepare short minutes of order to give effect to these conclusions so that they may be made by Rares J following the answers we will give to the separate questions.

Conclusions

49    We now turn to the answers that should be given to the questions referred. Because a reviewer’s recommendation is not a migration decision within the meaning of the Act, s 477 does not apply to it. Question 1 should therefore be answered “No”.

50    As to question 2 referred to this Court for determination, it will be apparent that it is not necessary to answer this question because the date of the written notice of the reviewer’s report is immaterial. One matter should be noted, however. There is an ambiguity in the expression ‘date of the written notice of the decision’ in s 477(3)(d). It is capable of referring both to the date that a written notice of decision bears but also, perhaps, to the date upon which it was delivered to the recipient. In our opinion, the words mean the date which the written notice bears. The words ‘written notice’ make it difficult to accept that s 477(3)(d) was intended to apply to the date of delivery.

51    In our view the Federal Magistrates Court erred in dismissing, on a summary and not final basis, the substantive applications on the footing that they were out of time and therefore could not succeed. It follows that the answer to question 3(a) is that s 476A(3) does not prevent an appeal (or application for leave to appeal) to this Court from an order of the Federal Magistrates Court that makes or refuses to make an order under s 477(2) where s 477 did not apply to the application. That is because, in those circumstances (such as in these matters) the Federal Magistrates Court will not have exercised the jurisdiction under s 476(1) that the applicants invoked. Question 3(a) should be answered “No” and question 3(b) is unnecessary to answer.

52    As to the question of costs, we consider that the applicants have been substantially successful. In that circumstance they should have their costs.

53    The questions referred to this Court should be answered as follows:

(1)    Does s 477 of the Migration Act 1958 (the Act) apply to recommendations by an Independent Merits Reviewer?

Answer:    No.

(2)    If the answer to question 1 is yes, what is the relevant “date of the migration decision” for the purpose of s 477(1) of the Act, as defined by s 477(3) of the Act?

Answer:    Not necessary to answer.

(3)    Does s 476A(3) of the Act operate to prevent an appeal to the Federal Court of Australia from a judgment that makes an order or refuses to make an order under s 477(2) in circumstances where:

(a)    s 477 did not apply to the application in respect of which the judgment was made?

Answer:    No.

(b)    s 477 did apply to the application in respect of which the judgment was made but the refusal to make an order under s 477(2) was infected by jurisdictional error?

Answer:    Not necessary to answer.

(4)    Is the application commenced in the Court competent or should it be dismissed for want of jurisdiction?

Answer:    The application is competent.

(5)    By whom should the costs of the proceedings in the Full Court be borne?

Answer:    The First Respondent.

Associate:

Dated:    13 March 2012