Ozmanian, Tosn v Minister for Immigration, Local Government and Ethnic Affairs & Anor [1996] FCA 354

Catchwords CATCHWORDS

Immigration - Decision of the Minister not to consider the exercise of power to grant a protection visa on humanitarian grounds - whether a decision under the Migration Act 1958 - consideration of the "Carltona principle" - whether implied authority under the Act for such decisions to be made by authorized ministerial officers on behalf of the Minister - the decision must be made by the Minister personally or by his delegate.

Courts and Judges - jurisdiction of Federal Court to review decisions made under Migration Act 1958 - consideration of rules of construction applicable to a statutory limitation on jurisdiction of a superior court - limitation of jurisdiction is in respect of decisions but not of conduct for the purpose of making a decision.

Administrative Law - Judicial review of a decision of the Minister under an enactment - whether decision made under the authority of or in purported reliance upon the enactment is made under the enactment - whether a decision made by an authorized officer on behalf of the Minister is a decision of the Minister - consideration of the "Carltona principle" - whether the "Carltona principle" applies where a power of delegation exists - no implied power in Minister to authorise others to act on his behalf - decision of ministerial officer on behalf of the Minister invalid.

Administrative Law - Immigration - Natural justice - Consideration of applicability and content of rules of natural justice to a decision not to consider whether to exercise a power - conclusions, views and opinions of departmental officers in respect of applicant's case not disclosed - no breach of the rules of natural justice - substance or gravamen of information adverse to applicants case not disclosed - breach of the rules of natural justice.

Administrative Law - Judicial Review - no jurisdiction to review the decision - jurisdiction to review conduct for the purpose of making a decision - whether review may be made of conduct of persons other than the decision maker - whether review may be made of conduct for the purpose of making a decision after the decision is made.

Courts - Practice and Procedure - declaration - consideration of discretionary principles applicable to grant of declaratory relief - relief may have consequences for the parties - declaration appropriate even if no other substantive relief can be granted.

Statute - Consideration of rules of construction of statute modifying fundamental rights or principles - clear and unambiguous words necessary to deprive superior court of jurisdiction to review unlawful exercise of statutory power.

Words and Phrases - "decision of the Minister" - "decision made under an enactment" - "decision" - "conduct for the purpose of making a decision" - "in respect of".

Legislation

Administrative Decisions (Judicial Review) Act 1977 (C'th) s.3(5), s.5, s.6, s.16(2).

Judiciary Act 1904 (C'th) s.39B.

Migration Act 1958 (C'th) s.417, s.475, s.476, s. 485, s.496.

Cases

Re McJannet (1995) 132 ALR 198.

Woollett v. Minister of Agriculture and Fisheries (1955) 1 QB 103.

Morato v. Minister of Immigration Local Government and Ethnic Affairs (1992) 39 FCR 401.

Carltona Ltd. v. Commissioner of Works (1943) 2 All ER 560.

Minister for Aboriginal Affairs v. Peko Wallsend Ltd. (1986) 162 CLR 24.

O'Reilly v. The Commissioner of the State Bank of Victoria (1982) 153 CLR 1.

Re Reference under Section 11 of Ombudsman Act 1976 Ex parte Director-General of Social Services (1979) 2 ALD 86.

R v. Chiswick Police Station Superintendent Ex parte Sacksteder (1918) 1 KB 578.

Reg v. Home Secretary Ex parte Abdi (1996) 1 WLR 298.

Kioa v. West (1985) 159 CLR 550.

Telstra Corporation Ltd. v. Kendall (1995) 55 FCR 221.

McVeigh v. Wallara Pty. Ltd. (1984) 6 FCR 587.

Kanda v. Government of Malaya [1962] AC 322.

Blurton v. Minister for Aboriginal Affairs (1991) 29 FCR 442.

Century Metals and Mining NL v. Yeomans (1988) 85 ALR 29.

Trustees Executors & Agency Co. Ltd. v. Reilly (1941) VLR 110.

Workers Compensation Board of Queensland v. Technical Products Pty. Ltd. (1988) 165 CLR 642.

Technical Products Pty. Ltd. v. State Government Insurance Office (1989) 167 CLR 45.

Australian Broadcasting Tribunal v. Bond (1990) 170 CLR at 321.

Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

Somaghi v. Minister for Immigration and Ethnic Affairs (1991) 31 FCR 100.

Tasmanian Conservation Trust Inc. v. Minister for Resources (1995) 55 FCR 516.

NSW Land Council v ATSIC (1995) 131 ALR 559.

Heshmati v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 123.

Merman Pty. Ltd. v. Comptroller-General of Customs (1988) ALD 88.

Whim Creek v. Colgan (1991) 31 FCR 469.

Bropho v. State of Western Australia and Another (1990) 171 CLR 1.

Coco v. The Queen (1994) 179 CLR 427.

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564.

Johns v. Australian Securities Commission (1993) 178 CLR 408.

Thomas A. Edison Ltd v Bullock (1912) 15 CLR 679.

John v. Rees (1970) 1 Ch. 345.

TOSN OZMANIAN v MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT

AND ETHNIC AFFAIRS and ANOTHER

MERKEL J.

MELBOURNE

13 MAY 1996

Orders

FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION No VG 195 of 1995

TOSN OZMANIAN

Applicant

and

MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT

AND ETHNIC AFFAIRS and ANOTHER

Respondents

Coram: Merkel J.

Place: Melbourne

Date: 13 May 1996

MINUTES OF ORDERS IN EACH PROCEEDING

ORDERS:

1. The time within which the Application for relief by the Applicant under the Administrative Decisions (Judicial Review) Act 1977 (C'th) may be brought be extended to 13 April 1995.

2. Declare that a breach of the rules of natural justice has occurred in connection with the conduct engaged in for the purpose of the making of a decision, by the First Respondent or by the Second Respondent on behalf of the First Respondent, under s.417 of the Migration Act 1958 in relation to the Applicant.

3. The claims for relief in the Application otherwise be dismissed.

4. The Respondents pay 75% of the Applicant's taxed costs of and incidental to the Application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ReasonsFEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION No VG 195 of 1995

TOSN OZMANIAN

Applicant

and

MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT

AND ETHNIC AFFAIRS and ANOTHER

Respondents

Coram: Merkel J.

Place: Melbourne

Date: 13 May 1996

REASONS FOR JUDGMENT

INDEX

Page

1. 0 INTRODUCTION 2

2. 0 THE FACTS 4

2. 1 The Applicant 4

2. 2 The application for refugee status 5

2. 3 The application under s.417 8

2. 4 The decision on the s.417 application 11

3. 0 THE LEGISLATION 15

4. 0 SECTION 417 23

4. 1 The decision made in relation to the Applicant 23

4. 2 The three decisions provided for under S.417 27

4. 3 Are s.417 decisions required to be made by the

Minister personally? 29

5. 0 WAS THERE A BREACH OF THE RULES OF NATURAL

JUSTICE? 36

6. 0 JURISDICTION OF THE FEDERAL COURT 43

6. 1 Is the decision made reviewable under the

Migration Act 1958 or the ADJR Act? 45

6. 2 The width of the words "in respect of" in s.48548

6. 3 Is conduct for the purpose of making a decision

reviewable under the ADJR Act? 53

7. 0 SHOULD RELIEF BE GRANTED? 63

8. 0 CONCLUSION 68

1.0 INTRODUCTION

This matter was selected a test case. It relates to the powers conferred upon the Minister for Immigration and Ethnic Affairs ("the Minister") under s.417 of the Migration Act 1958 (C'th) ("the MA") to grant a visa on humanitarian grounds to enable people who have been refused refugee status to remain lawfully in Australia.

There are more than 40 applications to the Court that are said to be dependent on the outcome of this case.

Each of those cases, including the present one, arose after a determination by the Refugee Review Tribunal ("the RRT") that the applicant for refugee status was not a refugee. An application under s.417 was then made by each applicant to the Minister. It was in turn referred by the Minister's office to be considered within the Department of Immigration and Ethnic Affairs ("the Department").

After the conclusion of certain departmental procedures each applicant was informed that the matter was not being referred to the Minister for his consideration. The information was contained in a standard form letter signed, with some variation, by the Minister's Senior Adviser.

In the present case that letter was dated 29 November 1994.

In his Application in this Court dated 13 April 1995, and amended during the course of the hearing, the applicant sought relief, primarily under s.16(2) of the Administrative Decisions (Judicial Review) Act 1977 (C'th) ("ADJR Act") and s.39B of the Judiciary Act 1904 (C'th), in respect of the s.417 application made on his behalf to the Minister on 4 October 1994.

The applicant's case raises five main issues:

(a) whether any reviewable decision has been made under s.417 of the MA;

(b) whether any decision communicated to the applicant in the letter of 29 November 1994 was one that may only be made under s.417 by the Minister personally;

(c) whether there was a breach of the rules of natural justice in the conduct engaged in for the purpose of making any decision communicated to the applicant in the letter of 29 November 1994;

(d) whether s.485 of the MA operates to deprive the Federal Court of jurisdiction and power to grant the relief sought by the applicant in relation to any decision made under s417?

(e) should the Court grant any relief in the circumstances of the present case?

Although other issues were raised in the application they were not pursued in the final submissions put on behalf of the applicant.

2.0 THE FACTS

2.1 The Applicant

Between 1976 and 1990 the applicant was employed in academic positions at the University of Yerevan in Armenia.

He was of Kurdish descent and had achieved considerable prominence as a journalist working for a Kurdish newspaper, as a speaker on Kurdish radio programs and as a founding member of the Kurdish Intellectuals Association. Over the years he has written a number of books and published many articles on matters and issues involving the Kurdish people.

The applicant claims that in 1993 he fled from Yerevan to Australia with his wife and one of his daughters to escape discrimination, mistreatment and human rights violations against him, his family and other prominent Kurds in Armenia.

He arrived in Australia on 27 June 1993 and applied for refugee status on 29 June 1993.

2.2 The application for refugee status

On 5 August 1993 the applicant was interviewed by the Minister's delegate in the Determination of Refugee Status (DORS) branch of the Department.

On the same day the delegate sent a cable to the Principal Migration Officer at the Australian embassy in Moscow requesting him to find out if -

"any international or local human rights organisations have any information of the plight of Kurds in Armenia or if they have reported any human rights abuse of other ethnic groups".

The delegate explained that the purpose of the cable was to assist him in dealing with an application for refugee status by an unidentified Kurdish applicant whose claims were described, inter alia, as follows:

"He also claims that he and other members of the Kurdish Intellectuals Association have been subjected to physical attacks and intimidation by armed militants. That organisation was refused registration as a legal organisation by the authorities. One of their major activities was to approach the Russian Embassy in Yerevan in order to secure asylum for 50,000 Kurds in Armenia......".

The delegate received a reply cable from the Australian embassy on 18 August 1993. The opening paragraph was as follows:

"PMO visited Armenia on 11-13 August in a delegation from the Australian embassy. PMO met at senior level with representatives of the Armenian Government's Agency for Refugees, the Armenian Red Cross and International Committee of the Red Cross, UNHCR, the Parliamentary Committee for Human Rights and Problems of Nationalities and representatives of Kurdish organisations. Separate meetings were held by the Ambassador and other embassy staff with Armenian MFA and heads of diplomatic missions in Erevan at which issues in your reftel were also raised".

The cable then set out the result of the enquiries and concluded that they did not reveal discrimination against or mistreatment of minorities, including Kurds, in Armenia.

On 10 September 1993, after considering the material before him, including the cable from the Australian embassy, the delegate determined that the applicant's complaints were not supported by objective evidence from other sources. He decided that the applicant was not a refugee and therefore was not entitled to a domestic protection (temporary) entry permit.

The applicant applied to the RRT for the decision of the delegate to be reviewed.

The hearing before the RRT took place on 28 February 1994. The applicant gave evidence with the assistance of an interpreter. He was advised by a friend, who attended the hearing, but did not appear to play a significant role in it.

At the outset of the hearing the applicant, through his interpreter, complained that his identity had been improperly revealed by the enquiries made by embassy officers in Armenia. He said that those enquiries had led local people in Armenia, who had been involved in them, to conclude that they related to the applicant. That, in turn, was said by him to have led to further threats, including death threats, being made in relation to him and his family.

The RRT, constituted by Mr. M. Gerkens, explained that the tribunal had had no involvement whatsoever in causing the enquiries to be made and proceeded with the hearing.

The embassy cable was shown to the applicant to enable him to respond to the conflict between the information contained in it and his version of events.

When asked at the conclusion of the hearing if he had anything further to add the applicant returned to his complaint about the ramifications, to him, of the embassy visit to Yerevan and, through his interpreter, said:

"if prior to the visit of representative of Australian embassy it was just a fear he would be killed if he returns. Now, it is a certainty".

The impression I received from reading the transcript of the hearing was that the RRT did not regard the complaints made in relation to the embassy visit as having any bearing upon the issues which it had to decide. Rather, it saw the complaints as relating to the failure to protect the applicant's identity from disclosure to overseas authorities. That was a failure which the RRT indicated it had not caused, and for which, it was not responsible.

My impression was confirmed by the RRT's decision which was handed down on 8 July 1994. The decision made no reference whatsoever to the issues and fears raised by the applicant in
relation to and resulting from, the embassy visit to his home town, Yerevan.

The RRT affirmed the decision of the delegate that the applicant was not a refugee under the Convention relating to the Status of Refugees (Geneva - 28 July 1951) as modified by the Protocol relating to the Status of Refugees (New York - 31 January 1967). Accordingly, his application for a domestic protection (temporary) entry permit was again refused.

In its reasons for decision the RRT referred to various reports including the embassy cable and found that, on the basis of that material, there was not a real chance that the applicant would be persecuted on the grounds set out in the Convention (i.e. race, religion, nationality, membership of a particular social group or political opinion) were he to return to Armenia at that time or within the reasonably foreseeable future.

2.3 The application under s.417

The Migration Reform Act 1992 amended the MA. Pursuant to s.166BE (now s.417) it conferred power on the Minister to grant a protection visa to a person who is physically present in Australia and has been determined by the RRT not to be a refugee if the Minister considers that is in "the public interest" to do so.

In guidelines issued by the Minister on 24 May 1994 the purpose of the provision was explained in the following terms:

"The Government wishes to provide a safety net for people who do not meet the technical definition of refugee under the United Nations Refugee Convention and Protocol but who face a significant threat to personal security, human rights or human dignity if returned to their country of origin".

The guidelines also indicated that after receipt of a decision regarding a rejected refugee case, Departmental officers may refer the case for the Minister's consideration under the section.

In the case of the applicant a departmental case officer, Ms Carlson, acting on her own initiative, reviewed the RRT's decision concerning the applicant. On 19 July 1994 Ms Carlson concluded that the case did not satisfy the Ministerial guidelines. She recorded her conclusion in a file note.

At a later date, the applicant instructed his present solicitor, Erskine H. Rodan, to make a formal application on his behalf under the section. That application was lodged on 4 October 1994. It requested that the Minister exercise his discretion in the applicant's favour and grant a visa on humanitarian grounds.

After setting out relevant information in relation to the applicant and the history of his application for refugee status, the letter dealt with the consequences of the embassy visit to Yerevan in August 1993. It stated as follows:

"This official visit by Australian Embassy officials was also referred to by the Refugee Tribunal in its Decision (enclosed, at page 10).

The fact that Tosn is very well-known in the international Kurdish community was accepted by the Tribunal (at page 4 of its Decision) and is reflected in the many letters submitted to the Tribunal in support of his appeal (enclosed).

To my knowledge, Tosn is the only Kurdish Armenian intellectual in Australia. By travelling to Yerevan (where Tosn resided prior to departing for Australia) to discuss human rights and freedom for Kurdish intellectuals, the Australian Embassy delegation (including the Principal Migration Officer) inadvertently alerted the Armenian officials as to where Tosn was and probably to the fact that he had applied for refugee status (by inquiring into human rights issues relating to the Kurdish minority in Armenia).

Tosn has informed me that, after this official visit in August 1993, the Armenian Writer's Association commenced an official campaign against him, and a particular linguistic expert went on television and criticised Tosn personally. After the delegation's visit, Tosn's brother and sister-in-law were threatened, having to flee from Armenia. On 12 August 1993, Tosn was telephoned by Mr. Timure Halil, the Kurdish editor of the newspaper Riyat Teze, who advised him that Australian Embassy officials had been to see him. He apologised for what he had to tell them, saying he felt unable to speak candidly about the human rights situation of Kurds in Armenia as there had been a number of Armenian official and interpreters present, and he was unsure as to whether they could be trusted.

I note that the United Nations High Commissioner for Refugees ("UNHCR") recommends against a State contacting a refugee applicant's country of origin because such contact can endanger the applicant's life; moreover, it could of itself give rise to a refugee "sur place". I also refer you to paragraph 200 of the UNHCR Handbook, where it is stressed that it is of the utmost importance that the applicant's claims be treated in confidence.

The publicity given by Australian embassy officials to Tosn's application for refugee status, coupled with his past mistreatment and high profile as a Kurdish intellectual, places Tosn and his family in considerable risk of persecution if forced to return to Armenia. I note that the last Kurdish Armenian intellectual to come to Australia was Professor Ibo in late 1990, and he was assassinated within 20 days of leaving Australia and returning to Yerevan.

On behalf of Tosn, I request that you exercise your discretion and grant him a visa on humanitarian grounds. I would be pleased if you would let me have your early response to the matters raised in this letter."

As at October 1994 the Minister's office and the Department, had established careful and detailed procedures for dealing with the influx of requests for ministerial intervention in relation to refugee cases.

The figures produced in evidence amply demonstrate the desirability of such procedures. Between September 1994 and September 1995 there were 696 such requests. Not all requests related to s.417 applications.

I am satisfied from the totality of the evidence before me that the procedures established and followed by the Minister's office and the Department, for dealing with s.417 applications were authorised by the Minister as general procedures to be carried out to better enable him to discharge his functions under s.417.

2.4 The decision on the s.417 application

The general procedures were applied in the applicant's case in the manner set out hereunder.

The application under s.417 was immediately referred by the Minister's office to the Department. Ms. Donna Fraser, as case officer, was given the task of assessing the application.

Ms. Fraser considered the written application, the annexures to it, Ms Carlson's file note concerning the failure of the applicant's case before the RRT to fall within the guidelines and the applicant's DORS file.

Ms. Fraser also made certain enquiries of Mr. Laidlaw of the Country Information Service, within the Department, concerning the applicant's complaints about the embassy visit. She recorded the outcome of those enquiries in a Minute which she drafted for signing by her supervisor, Noel Barmsley. The Minute read as follows:

"In his request for humanitarian consideration on behalf of Mr Ozmanian, Mr Erskine Rodan (the applicant's representative) has suggested that an official visit by Australian Embassy officials to Yerevan has alerted Armenian officials to the fact that Mr Ozmanian is in Australia and has probably applied for refugee status.

The nature of the enquiries made during the visit referred to by Mr Rodan were non-specific in relation to the treatment of Kurds in Armenia generally, and in no way identified the applicant or could be linked to him."

After considering all of the foregoing matters Ms Fraser concluded that the matter did not warrant referral to the Minister personally. In her affidavit she stated:

"I did not consider that the material enclosed with the letter of 4 October 1994 affected this conclusion as the matters raised therein were all considered by the RRT. Further, because of the information I received in response to the queries noted above I was satisfied that any fears Mr. Ozmanian had as a result of the action of the Australian Embassy officials were not justified".

The information she was referring to was that received by her from Mr. Laidlaw.

Ms. Fraser proceeded to draft a response to the applicant's s.417 application for signature by the Minister's Senior Adviser. The draft Minute and draft response were then sent by her to her departmental supervisor, Mr. Noel Barmsley, who in turn signed the Minute and approved the draft response. I infer from the evidence that the relevant departmental officers expected that, in the usual course, the ministerial officers would act on the departmental recommendation without making their own independent enquiries.

The relevant material was then sent to the Minister's office for consideration by Mr. John Richardson, a ministerial adviser. After considering the matter he had no disagreement with the conclusion reached within the Department that the matter did not fall within the Minister's guidelines. His evidence was that, had he considered the matter a borderline one or otherwise had a different view to that of the Department, he would have either required further information or raised the matter with the Minister personally.

Mr. Richardson then passed the material on to Ms Bronwyn McNaughton, the second respondent, who was then the Minister's Senior Adviser. In accordance with the established general procedures, she signed the letter which had been drafted for her by Ms Fraser. She appeared to do so on the basis that its contents had been considered to be appropriate by the Department and Mr. John Richardson.

The letter dated 29 November 1994 was signed by Ms McNaughton as "Senior Adviser" and was sent to the solicitor for the applicant on that date.

The document's letterhead stated it was from the "Office of the Minister". It read as follows:

"Thank you for your letter of 4 October 1994 to the Minister for Immigration and Ethnic Affairs, Senator the Hon Nick Bolkus, on behalf of Mr Tosn Ozmanian. Senator Bolkus has asked me to reply on his behalf.

You have asked that the Minister exercise his discretion under section 417 of the Migration Act 1958 and grant Mr. Ozmanian a visa on humanitarian grounds.

Under section 417 of the Act, the Minister may substitute for a decision of the Refugee Review Tribunal (RRT) a decision more favourable to the applicant where he considers it is in the public interest to do so. However, this power is discretionary and the Minister is under no obligation to consider a case.

When documents relating to a decided review are returned to the Department from the RRT, the applicant's claims are examined against the Ministerial Guidelines for Stay in Australia on Humanitarian Grounds as to whether the case is one which the Minister may wish to consider under subsection 417(1) of the Act.

As Mr Ozmanian's case does not fall within the scope of these guidelines, it has not been referred to the Minister for his consideration.

You have also raised concerns about the enquiries made by Australian Embassy officials during their visit to Yerevan. I am advised that these enquiries were in relation to the treatment of Kurds in Armenia generally. They did not relate to Mr Ozmanian specifically and would not in any way have identified or have been linked to him.

Thank you for raising the matter with us."

Although the letter was stated to have been sent at the request of the Minister, it was an agreed fact before me that the Minister had at no stage seen the letter. The letter was in the "standard form" used at the time.

The most that can be said as to the Minister's involvement in the letter and its subject matter, was that it was signed and sent by his Senior Adviser pursuant to the general procedures that had been established, with his authorisation, by his office and the Department. It is only in that context that it may be said that the letter was sent at the request of the Minister.

3.0 THE LEGISLATION

Under s.29 of the MA the Minister may decide to grant visas and permits, inter alia, to persons who are determined to be refugees. Those decisions may be made by a delegate under s.496.

Under Part 7 of the MA a non-citizen who has been determined to be a refugee may be granted a protection visa.

Division 2 of Part 7 provides for review by the RRT of refugee decisions made by the Minister or his delegate.

Section 412 provides that an application for review of the decision that a non-citizen is not a refugee, as defined in the Convention as amended by the Protocol, may be made to the RRT by the non-citizen ("an applicant") who is the subject of the primary decision.

Section 414 requires the RRT to review the decision.

Section 415 sets out the RRT's powers of review (e.g. to affirm, vary or set aside the decision) and provides that if the RRT varies or substitutes a new decision, that decision, except for the purpose of appeals, is taken to be a decision of the Minister.

Section 417 provides as follows:

Minister may substitute more favourable decision

417 (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.

(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 Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

(3) The power under subsection (1) may only be exercised by the Minister personally.

(4) If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that:

(a) sets out the decision of the Tribunal; and

(b) sets out the decision substituted by the Minister; and

(c) sets out the reasons for the Minister's decision, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.

(5) A statement made under subsection (4) is not to include:

(a) the name of the applicant; or

(b) any information that may identify the applicant; or

(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned - the name of that other person or any information that may identify that other person.

(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

(a) if the decision is made between 1 January and 30 June (inclusive) in a year - 1 July in that year; or

(b) if a decision is made between 1 July and 31 December (inclusive) in a year - 1 January in the following year.

(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."

The power conferred on the Minister by s.417(1) is to substitute a more favourable decision to an applicant than that of the RRT. Under s.417(3) that power may only be exercised by the Minister. If the power is exercised it will
amount to a decision to grant a protection visa to an applicant.

Section 417(7), provides that there is no duty cast on the Minister to consider whether to exercise the power under s.417(1) whether requested to do so by an applicant or any other person. That ensures that mandamus may not be sought against the Minister to require that he act upon a request by a dissatisfied or unsuccessful applicant before the RRT by making, or refusing to make, a more favourable decision under s.417(1).

Division 2 of Part 8 provides for review of decisions under the MA by the Federal Court. Although the scheme for review is similar in many respects to the ADJR Act, its provisions are more restrictive than review under the ADJR Act. The relevant provisions are as follows:

Decisions reviewable by Federal Court

475 (1) subject to subsection (2), the following decisions are judicially-reviewable decisions:

(a) decisions of the Immigration Review Tribunal;

(b) decisions of the Refugee Review Tribunal;

(2) The following decisions are not judicially-reviewable decisions:

(a) a decision in relation to a criminal justice visa or a criminal justice certificate within the meaning of Division 4 of Part 2;

(b) an internally-reviewable decision;

(d) an RRT-reviewable decision;

(e) a decision of the Minister not to exercise, or not to consider the exercise of, his or her power under section 48B, paragraph 72(1)(c), section 91F, 345, 351, 391, 417 or 454;

(f) a decision of the Principal Member of the Immigration Review Tribunal or of the Principal Member of the Refugee Review Tribunal to refer a matter to the Administrative Appeals Tribunal;

(g) a decision of the President of the Administrative Appeals Tribunal to accept, or not to accept, the referral of a decision under section 382 or 444.

Application for review

476 (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f) that the decision was induced or affected by fraud or by actual bias;

(g) that there was no evidence or other material to justify the making of the decision.

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power;

(e) failing to take a relevant consideration into account in the exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

(4) The ground specified in paragraph 1(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

Applications in respect of failures to make decisions

477 (1) If:

(a) a person, other than a tribunal, has a duty to make a judicially-reviewable decision; and

(b) there is no provision that specifies a period within which the person is required to make the decision; and

application may be made to the Federal Court for an order of review in respect of the failure to make the decision on the ground that there has been an unreasonable delay in making the decision.

(2) If:

(a) a person, other than a tribunal, has a duty to make a judicially-reviewable decision; and

(b) there is a provision that specifies a period within which the person is required to make the decision; and

application may be made to the Federal Court for an order of review in respect of the failure to make the decision within that period on the ground that the person has a duty to make the decision in spite of the expiration of that period.

Application for review by Federal Court

478 (1) An application under section 476 or 477 must:

(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and

(b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

(2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).

Powers of the Federal Court

481 (1) On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders:

(a) an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specified;

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.

(2) On an application for a review in respect of a failure to make a judicially-reviewable decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court may make any or all of the following orders:

(a) an order directing the making of the decision;

(b) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.

(3) The Federal Court may, at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section.

Federal Court does not have any other jurisdiction in relation to judicially-reviewable decisions

485 (1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

(2) Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975.

(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.

Jurisdiction of Federal Court

486 The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution."

The Division confers jurisdiction on the Federal Court (s.486) but otherwise limits rights of review in respect of decisions under the Act. Those limitations apply primarily to review by the Federal Court which, apart from the High Court, has exclusive jurisdiction with respect to judicially-reviewable decisions. Review by the High Court is available on any lawful grounds, notwithstanding the exclusion of such grounds in Division 2.

Division 2 does not restrict or limit substantive rights and obligations as such, in relation to decisions under the MA. It merely excludes or limits the jurisdiction and power of courts, other than the High Court, to review and grant relief in respect of those decisions.

That limitation is consistent with the Constitution. Although the Federal Court is declared to be a superior court of record, under the Constitution, it is a court of limited jurisdiction. (Re McJannet (1996) 132 ALR 198, 207, 214-5).

Division 2 of Part 8 is a law which defines, by limitation, the jurisdiction of a Federal Court with respect to the "matters" mentioned in s.76(i) and s.77(i) of the
Constitution. (See Phillip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457, 506-7).

For present purposes, the importance of these observations is that any rights and obligations which arise under s.417 are to be determined by reference to the terms of and the subject matter dealt with by the section, without regard to the limitations on the jurisdiction and power of the Federal Court to review decisions made under the MA.

Accordingly, the fact that under s.476(2)(a) a decision is not reviewable by the Federal Court on the grounds of a breach of the rules of natural justice, is not a factor which is relevant to determining whether there is a duty to comply with those rules in connection with the making of that decision.

Finally, under Part 9 headed "Miscellaneous" the following provisions are set out:

"Delegation

496 (1) The Minister may, by writing signed by him or her, delegate a person any of the Minister's powers under this Act.

(2) The Secretary may, by writing signed by him or her, delegate to a person any of the Secretary's powers under this Act.

(3) ......

(4) ......

Delegate not required to perform certain administrative tasks

497 (1) If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted.

(2) ......

......

Minister may give general policy directions

499 (1) A person or body having functions or powers under this Act shall perform those functions, and exercise those powers, in accordance with such general directions (if any) as are given to the person or body by the Minister in writing.

(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

4.0 SECTION 417

4.1 The decision made in relation to the applicant

The applicant made application to the Minister that he exercise his power under s.417 to grant a visa "on humanitarian grounds". The application was processed in accordance with the policies stated in the ministerial guidelines. Those guidelines provided a "framework for recommending the grant of stay in Australia to persons of humanitarian concern" under s.417 (previously s.166BE).

The guidelines appear to have two basic functions. They set out the matters that may warrant the exercise of the Minister's discretion in favour of an applicant under s.417. Each of those matters is consistent with the subject matter scope and purpose of s.417: See Minister for Aboriginal Affairs v. Peko Wallsend Ltd. (1986) 162 CLR 24, 39-40 per Mason J. They also state that a Departmental officer may refer a rejected refugee determination for consideration by the Minister under s.417 after receipt of the Tribunal's decision.

The guidelines do not provide for and give no indication of the course that will be taken, in respect of an application made by an applicant to the Minister under the section. However, they do state that the Minister has no duty to consider whether to exercise his power under the section.

On the other hand, the Media Release published with the guidelines states that the guidelines will assist the Minister in exercising his discretionary power under the section.

It is in that context that I turn to consider the decision made in the present case.

Although at times, in the course of their submissions, senior counsel for both parties suggested that no decision had been made under the MA, that is not a correct analysis of the facts.

In my view the Minister's senior adviser, the second respondent, acting on behalf of the Minister, made a decision that the Minister would not consider whether to exercise his power under s.417(1).

In arriving at that conclusion the following matters are of significance:

(a) the application made by the applicant on 4 October 1994 was that the Minister exercise his power under s.417(1) in the applicant's favour;

(b) the letter of 29 November 1994 communicated a decision that the Minister would not consider whether to exercise his power under s.417(1);

(c) the letter stated that it was a reply to the applicant's application being sent by the Minister's adviser on the basis that the Minister had asked her to do so "on his behalf".

Even if that last statement had not been made in the letter the same result would still have followed. Although the Minister did not make a specific request, and knew nothing of the particular application, the format of the letter, its execution by the Minister's Senior Adviser and the sending of it in response to the s.417 application was in accordance with the general procedures that had been established with the Minister's authority and approval. I am satisfied, as a matter of fact, that the Minister's Senior Adviser was authorised by the Minister to make and communicate such decisions on his behalf. I should add that, in that situation, it is appropriate and desirable that a letter communicating a decision made with the authority of the Minister state that fact: see Woollett v. Minister of Agriculture and Fisheries (1955) 1 QB 103, 120 per Denning LJ.

Senior counsel for the respondents submitted that the only decision made was that of departmental and ministerial officers not to refer the matter to the Minister for any consideration of it by him.

The argument was based on a technical and literal construction of passages in the guidelines and in the letter that state that the matter may not be referred to the Minister. The submission had an air of unreality about it for a number of reasons.

First, it construes the guidelines and the letter as if it was a statute.

Second, it does not accord with the facts as I have found them namely that the decision, that he will not consider whether to exercise his power under the section, was authorised and approved by the Minister as a decision that would be made on his behalf by his officers.

Third, it was intended by the officers involved in the matter in the Minister's office that the decision was one which was made, and would appear to be made, under s.417 as a determination in respect of the applicant's application under the section. In my view, as I later explain, the section provides for a decision by the Minister, rather than by the Minister's officers, not to consider the exercise of power.

Fourth, the reference in the guidelines to a decision to refer the matter to the Minister was related to the circumstance where a rejected refugee determination of the RRT was referred by the Department, after receipt of the RRT decision. In that situation a case officer may decide not to refer the matter to the Minister. That was precisely what Ms Carlson decided to do on 18 July 1994. But a quite different situation arose, and was responded to by departmental and ministerial officers, in respect of the applicant's application under s.417 on 4 October 1994. In that latter situation a decision was made that the Minister would not embark upon a consideration of the matter under s.417.

My analysis of the events which occurred is consistent with that of Lockhart J in Morato v. Minister of Immigration Local Government and Ethnic Affairs (1992) 39 FCR 401, 417-418. His Honour, in considering another provision of the MA, similar to s.417(7), distinguished between a decision by the Minister not to consider whether to exercise his power and the case where he embarks upon the task of undertaking that consideration. In that case the Minister, apparently acting on the basis of a brief examination of departmental recommendations and minutes, decided, as he was entitled to do, not to embark upon the task of considering the exercise of the relevant power.

Putting aside the question of the statutory authority of officers to act on the Minister's behalf, in the present case there is little or no reason to conclude that those involved did not intend to make a decision under s.417, on the Minister's behalf, that he not embark upon a consideration of the matter under the section.

4.2 The three decisions provided for under s.417

The section obviously provides for two decisions - a decision to exercise or to refuse to exercise the power under s.417(1). s.417(7) anticipates the possibility of a third category of decision - a summary refusal to consider whether to exercise the power under s.417(1).

It may have been arguable that the third category was a decision to refuse to exercise the power, and therefore, not a separate category. However, s.475(2)(e) makes it clear that a decision not to consider the exercise of the power is a third category of decision that may be made under s.417.

Section 475(2)(e) provides that -

"a decision of the Minister not to exercise, or not to consider the exercise of his or her power under section..........417"

is not a judicially-reviewable decision. The sub-section also clarifies two other matters which may have been left uncertain by an examination of s.417 alone.

The first is that under the MA a decision not to consider the exercise of the power under s.417 is to be that "of the Minister". The second, which follows from the first, is that the section makes no provision for a decision by a departmental or ministerial officer not to refer a matter to the Minister for his decision.

Those matters add further support to my conclusion that as from 4 October 1994 the relevant departmental and ministerial officers were engaging in the conduct I have outlined above for the ultimate purpose of the making, by or on behalf of the Minister, of one of the three categories of decision provided for under the section.

That conduct may be contrasted with the "decision" by Ms Carlson made on 18 July 1994 not to refer the matter to the Minister. That decision, which she was entitled to make, was not under the MA or any other enactment. It was no more than a determination by her, at that time, in accordance with the guidelines, not to initiate a referral of the applicant's matter to the Minister.

4.3 Are s.417 decisions required to be made by the Minister personally?

A major ground for the applicant's challenge to the procedures followed in his case was that only the Minister was empowered to make a decision under s.417, including a decision not to consider the exercise of power. It was then submitted that as that had not occurred, as yet, no decision had been made.

The respondents' response was that no statutory decision had been made, but if one had been made, that ground of challenge, if available at all, was only applicable to the exercise of the discretionary power to make a decision in the applicant's favour under s.417(1). It was said that the mandatory requirement in s.417(3), that the power under s.417(1) may only be exercised by the Minister personally, entitled the Minister to act through the agency of others in respect of a decision not to exercise or not to consider the exercise of the power under s.417(1).

The respondents relied upon the "Carltona principle" of ministerial delegation or agency established in Carltona Ltd. v. Commissioner of Works (1943) 2 All ER 560 and the Australian cases applying the principle.

Under the Carltona principle, where a statutory power is vested in a Minister or a departmental head, in general, the Minister or departmental head is not obliged to exercise the power or direct his mind to the matter personally but, may do so through his or her duly authorised officers. The principle is founded upon the recognition that:

"the duties imposed on Ministers and the powers given to Ministers are normally exercised under the authority of the Ministers by responsible officers of the Department. Public business could not be carried on if that were not the case". (Carltona Ltd. v. Commissioners of Works at 563 per Lord Greene M.R.).

The principle has also been said to depend on the special position of constitutional responsibility of Ministers: See Minister for Aboriginal Affairs v. Peko Wallsend Ltd. (1986) 162 CLR 24, 37-38 per Mason J.

The authority of the officers need not be conferred by the Minister personally but may be conveyed generally and informally by authorised procedures and departmental practice: See generally - Judicial Review of Administrative Action de Smith Woolf and Jewell (1995) Fifth Edition para. 6-113.

In O'Reilly v. The Commissioner of the State Bank of Victoria (1982-3) 153 CLR 1 the Carltona principle was accepted as one of general application by Gibbs CJ (11-12) and Wilson J (30).

However, the principle is no more than a rule of construction that, "in general", there is to be implied a power, on the part of the Minister, of delegation or to authorise others to exercise the power in question on his or her behalf.

The implication, being based on a presumed intention of the legislature, gives way to any intention to the contrary.

Although -

"the presence of an express power of delegation does not necessarily exclude the existence of an implied power to delegate or, to express it more accurately, to act through the agency of others" (Minister for Aboriginal Affairs v. Peko Wallsend Ltd. (1985-1986) 162 CLR 24 at 37-38 per Mason J).

Mason J also said:

"The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officer responsible to him" (at 38).

In Re Reference under Section 11 of Ombudsman Act 1976 Ex parte Director-General of Social Services (1979) 2 ALD 86 at 94 Brennan J put the matter more restrictively-

"The practical administrative necessity which warrants an authority's exercising his power by the acts of another disappears when the authority is empowered to delegate all of his powers and functions to that other".

The present case is concerned with an implied authorisation to act on the Minister's behalf short of delegation rather than with delegation: See O'Reilly at 30 per Wilson J.

Brennan J in Re Reference under Section 11 of the Ombudsman Act at 93-94 discussed the power in the following terms:

The extent to which an authority may commit to other officials the performance of duties is primarily dependent upon the nature of the power to be exercised. In Ex parte Forster: Re University of Sydney [1963] SR (NSW) 723, the court (Sugerman, Else-Mitchell and Moffitt JJ) at 733 said in reference to the maxim Delegatus non potest delegare: "As a matter of the construction of the statute conferring the power, the application of the maxim, and its extent, must be considered with due regard to the purpose and objects of the statute, the character of the power which is conferred, the exigencies of the occasions which may arise with respect to its exercise, and other relevant considerations."

Where acts are clothed with the character of acts done by the authority, they have the legal effect of acts done personally by that authority. In R v. Skinner [1968] 2 QB 700, Widgery LJ (as he then was) said at 707: "It is not strictly a matter of delegation; it is that the official acts as the Minister himself and the official's decision is the Minister's decision."

It is often difficult to ascertain whether a given act is one which the authority may authorise another to perform on his behalf see de Smith Judicial Review of Administrative Action, 3rd ed, pp 268-72), and if an act is not one which may be so authorised, it cannot be effective to exercise the statutory power: Jeffs v. New Zealand Dairy Production and Marketing Board [1967] 1 AC 551.

Where the relevant power is not delegable, the only acts by which the power can be exercised are the acts of the authority and acts which, having regard to the nature of the power, the authority may authorise another to perform on his behalf and which have been so authorised.

But where the relevant power is delegable and has been delegated, the delegate may - without further authorisation - act in effective exercise of the power. His acts are not treated as acts vicariously done by the authority. He is not an agent to exercise the authority's power; he may validly exercise the power vested in him.

......

There is a confusing similarity between the exercise of an authority's power by the authorised acts of another, and the exercise by an authority's delegate of the power delegated to him. In either case the act - whether the act of the authorised person or the act of the delegate - is a valid exercise of power. Nonetheless, the sources of validity are different, though it must be said that the term "delegation" has frequently been used to describe either case without distinguishing between them. For some purposes, a distinction must be made.

Where an authority has not delegated his power but he has authorised another to act in exercise of his power, the act is to be done in the name of the authority: London County Council v. Agricultural Food
Products Ltd. [1955] 2 QB 218 per Romer LJ at 224. But where a delegate is exercising the power delegated to him, he may validly exercise that power in his own name: Owendale Pty. Ltd. v. Anthony (1967) 117 CLR 539 at 562, 611".

Under the MA there is an express power to delegate the Minister's powers (s.496) including the power to grant or refuse to grant visas (s.497). It is relevant that a favourable decision under s.417 will involve the grant of a protection visa to an applicant under Part 7 of the MA. A delegate may in turn authorise others to assist him or her in performing all tasks in relation to visa decisions other than making the decision itself (s.497(1)).

Further, the Minister may give "general directions" to persons having functions or powers under the MA (s.499).

The existence and detail of the specific powers I have referred to in relation to delegation and the power to give directions, suggest that, in general, under the MA the legislature intended that the exercise of the relevant powers be by the repository personally or by his or her delegate pursuant to s.496.

Section 417 itself is not inconsistent with that approach. Although s.417(3) requires that the exercise of power under s.417(1) is to be by the Minister personally that means no more than that that power may not be delegated. However, s.417(3) does not apply to a decision not to consider the
exercise of the power which may be delegated under ss.496 and 497 and may be the subject of general directions under s.499.

Further, in addition to the above matters, given the ability of ministerial or departmental officers to assist the Minister in determining whether to "embark on" (see Morato at 417-8) a consideration of the exercise of the power in question, there is little in the nature or scope of the function vested in the Minister under s.417 that brings it within the rationale for the Carltona principle of administrative necessity in modern government.

An examination of the purpose of the function vested in the Minister further undermines any support for the application of the Carltona principle to s.417.

Traditionally the courts have been reluctant to imply a statutory authorisation to act by others where the exercise of the power may have serious or drastic consequences on an individual: see R v. Chiswick Police Station Superintendent Ex parte Sacksteder (1918) 1 KB 578.

The nature of the function of the Executive arm of government in relation to asylum seekers has been considered recently by the House of Lords:

The gravity of their inquiry was recognised by Lord Bridge of Harwich in Reg. v. Secretary of State for the Home Department, Ex parte Budgaycay [1987] A.C. 514, 531, when he considered the role of the court in dealing with decisions relating to claims for asylum:

"The most fundamental of all human rights is the individual's right to life and when an administrative decision under
challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."

In similar vein Bingham L.J. in Secretary of State for the Home Department v. Thirukumar [1989] Imm.A.R. 402, 414 said: "asylum decisions are of such moment that only the highest standards of fairness will suffice." (Reg v. Home Secretary Ex parte Abdi (1996) 1 WLR 298, 305 per Lord Slynn).

The purpose of the function of the Minister under s.417 is no less. His own guidelines stated that the section was a "safety net" for people who "face a significant threat to personal security, human rights or human dignity if returned to their country of origin".

The scope, nature and purpose of the exercise of power by the Minister under s.417(1) was such that the legislature itself required in s.417(3) that it be exercised only by the Minister personally. In my view there is nothing in the scope, nature and purpose of the remaining, but delegable power under s.417, that requires or warrants a presumed intent that, if not delegated, it need not be exercised by the Minister personally.

For those reasons it is my view that the Carltona principle is not applicable to any of the decisions under s.417.

Accordingly, I conclude that the decision made on behalf of the Minister and communicated to the applicant in the letter of 29 November 1994 was not made in accordance with s.417. In particular:

(a) the second respondent, who purported to make the decision did not have the jurisdiction or power to make it;

(b) the decision was not authorised by the MA;

5.0 WAS THERE A BREACH OF THE RULES OF NATURAL JUSTICE?

Since Kioa v. West (1985) 159 CLR 550 it has been accepted that, in general, the rules of natural justice or procedural fairness apply in relation to the making of decisions under the MA subject to any legislative provision or intention to exclude those rules.

Indeed, the ambit of the duty to comply with the rules has expanded significantly since Kioa: see Annetts v. McCann (1990) 170 CLR 596) and Johns v Australian Securities Commission (1993) 178 CLR 408. In Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564 at 576 Mason CJ, Dawson, Toohey and Gaudron JJ described the duty as follows:

"It is now clear that a duty of procedural fairness arises, if at all because the power involved is one which may "destroy, defeat or prejudice a person's rights, interests or legitimate expectations" [Annetts v McCann (1990), 170 CLR 596, at p598, per Mason CJ, Deane and McHugh JJ]. Thus, what is decisive is the nature of the power, not the character of the proceedings which attends its exercise. That is not to deny that provision may be made permitting or requiring procedures which are wholly inconsistent with a requirement of procedural fairness."

There is no provision or intention which excludes the rules in relation to decisions under s.417. The Minister did not make a submission to the contrary.

Accordingly, the rules of natural justice apply to such decisions and the duty to comply with the rules is to be observed in relation to them.

Two breaches of the rules are put forward by senior counsel for the applicant.

The first is the non-communication to the applicant of Ms Carlson's decision on 19 July 1994 that the applicant's case does not fall within the guidelines. In my view there is no substance in this particular ground of complaint.

That decision was made prior to, and was not made for the purposes of, the later application by the applicant under s.417.

I am satisfied that the relevant departmental and ministerial officers (who did not include Ms Carlson) assigned to consider the applicant's application of 4 October 1994, considered it on its merits and formed their own views on it. Accordingly, the role of Ms Carlson's decision was at best minimal.

Further, as the Full Court said in Telstra Corporation Ltd. v. Kendall (1995) 55 FCR 221 at 230 per Black CJ and Ryan and Hill JJ.

"It is clear that procedural fairness does not necessarily require a decision-maker to bring to the attention of a person affected the precise detail of all matters upon which he or she proposed to rely: McVeigh v. Wallara Pty. Ltd.(1984) 6 FCR 587, 600-601."

There is no basis for contending that conclusions, views or opinions of departmental officers on the question of whether, on the basis of the RRT decision, an applicant's case falls within the guidelines, is a matter which, in fairness, is required to be brought to the applicant's attention prior to the decision being made. The applicant's application addressed that very issue. There is no reason why the departmental response to it or, to put it more accurately, response to the RRT decision that preceded it, should be brought to the applicant's attention.

The second breach relied upon by the applicant was the non-disclosure to the applicant of the information received by Ms Fraser from Mr. Laidlaw in relation to the enquiries made in Armenia by Embassy officials.

Ms Fraser was cross-examined on the precise detail of what she was told and proffered slightly different versions of her conversation with Mr. Laidlaw at different times. However, it is my view, and I find, that the most likely version of what was said by Mr. Laidlaw, and therefore of the information received by her, was the contemporaneous record of it made by her. That record was set out in the Minute she prepared for signature by her supervisor. It stated -

"The nature of the enquiries made during the visit referred to by Mr. Rodan were non-specific in relation to the treatment of Kurds in Armenia generally, and in no way identified the applicant or could be linked to him". (Emphasis added).

In my view, as the letter of 29 November 1994 discloses, that information was critical to the decision made. The letter offered two bases for the decision. The first was that the RRT decision in respect of the applicant did not fall within the guidelines. The second was that the serious risk to the applicant, allegedly caused by the Embassy's enquiries in Armenia, was not substantiated. The sole basis for the rejection of that ground appeared to be the information provided by Mr. Laidlaw, particularly the aspects which I have emphasised above.

Was the failure to bring that information to the applicant's attention a breach of the rules of natural justice?

The rules do -

"not call into play a body of rigid procedural rules which must be observed regardless of circumstances". (Haoucher v. Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648, 652 per Deane J).

In Kioa v. West (1985) 159 CLR 550 at 584 Mason J said:

"What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting".

An applicant is entitled to know the case against him or her and be given an opportunity of replying to it.

But procedural fairness does not necessarily require disclosure of all of the details of the case against the applicant; it is sufficient if the substance or gravamen of the information intended to be relied upon is brought to his or her attention: see (Telstra Corp. Ltd. v. Kendall (1994-95) 55 FCR 221, 230 and McVeigh v. Willara Pty. Ltd. (1984) 6 FCR 587, 600-601.

In asylum cases it has been said that:

"Fairness requires that the Secretary of State should disclose all material facts tending to prove or disprove the safety of the third country in question". (R v. Home Secretary Ex parte Abdi(1996) 1 WLR 298, 312 per Lord Lloyd).

But, as the decision in Kioa itself demonstrates, the disclosure is not limited to the matters intended by the decision maker to be relied upon. Quite often the decision maker will only determine those matters in the course of preparing or making the decision.

Rather, at least in a case as the present, the issue is whether the applicant has had brought to his attention "the critical issue or factor on which the administrative decision is likely to turn" (Kioa, 587 per Mason J) or "relevant matters adverse to" the interests of the applicant which are "credible, relevant and significant to the decision to be made" (Kioa, 629 per Brennan J) or "the matters raised against them (Kioa, 634 per Deane J).

Where the information in question is prejudicial to the applicant or to the case he or she is putting it is not necessary to show that it did work to the prejudice of the applicant; it is sufficient to show that it was open for it to do so: see Kanda v. Government of Malaya [1962] AC 322, 337-8.

I have no doubt whatsoever that the information provided by Mr. Laidlaw satisfies the criteria for disclosure set out above.

The information was highly adverse to the application of the applicant under s.417 and formed one of the two critical bases for the adverse decision made against him. In her evidence Mrs Fraser said that if, as a result of the Embassy visit, she had concluded that the applicant's fears were justified, it probably would have affected her "decision" in the matter.

But it was submitted by senior counsel for the respondents that the gravamen or substance of that information had been placed before the applicant and his legal advisers and they were afforded the opportunity to respond to it. The submission was akin to that made in Chu Sing Wun v. Minister (1993) 45 FCR 540, 548). In his response to it Beaumont J stated at 353 that there was no breach of the rules as:

"although the applicant was not given the details of the confidential information, he was on notice of its essential features".

The respondents relied upon the disclosure to the applicant of the request made to the Australian embassy in Moscow, the text of the embassy cable in response and the transcript of the hearing before the RRT.

I have carefully perused each of these documents and I am satisfied that they do not disclose either the substance, or the gravamen, of the information provided by Mr. Laidlaw.

The responding cable sets out details of the enquiries made by embassy officials and the responses received to them. However, neither the transcript or the cable discloses that all of the enquiries made were non-specific or that they in no way identified the applicant or could be linked to him.

One cannot even make the assumption that non-specificity and non-linkage was requested in respect of the enquiries. The cable from Australia requesting the enquiry, whilst not identifying the applicant, specifically identified the applicant's claims of physical attacks and intimidation by armed militants on the applicant for refugee status and "other members of the Kurdish Intellectuals Association". It takes little imagination to conclude that even general enquiries by an Australian embassy delegation on that specific topic could lead local authorities or individuals to identify the applicant, as one of the more prominent members of that Association, as the subject of the Embassy visit to Yerevan. Whilst of marginal importance in itself, it is relevant that the immigration statistics in evidence before me demonstrated that there were very few arrivals in Australia of Kurds from Armenia.

In those circumstances the requirements of "fair play in action" required that the applicant be afforded the opportunity to deal with those matters.

The failure on the part of departmental and ministerial officers to afford him that opportunity resulted in the rules of natural justice being breached.

6.0 JURISDICTION OF THE FEDERAL COURT

Division 2 of Part 8 of the MA provides for judicial review by the Federal Court of decisions of the Immigration Review Tribunal, the RRT and other decisions made under the MA or the regulations relating to visas.

Section 475(2) excludes from judicial review by courts, other than the High Court, decisions which are defined as not being judicially-reviewable decisions. Those decisions include:

"(e) a decision of the Minister not to exercise or not to consider the exercise of, his or her power under section ...417...".

Save for certain limitations on the grounds available for review, such as the exclusion from review of a breach of the rules of natural justice in respect of a decision and certain other modifications, the scheme for judicial review under the MA essentially follows that provided for by the ADJR Act. There is one important exception. Division 2 of Part 8 is silent on the subject of review of "conduct for the purpose of making a decision" dealt with by s.6 of the ADJR. Senior counsel for the applicant submitted that, as a consequence, review under s.6, if not s.5, of the ADJR Act is available for decisions under the MA.

Section 485 is critical. It provides that in spite of any other law the Federal Court does not -

"have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by sub-section 475(2), other than the jurisdiction provided by this Part or by Section 44 of the Judiciary Act 1903".

The exception provided for, of s.44 of the Judiciary Act, may be circular in respect of non judicially-reviewable decisions, as s.44 only enables a remittal to a Federal Court that has "jurisdiction with respect to the subject matter and the parties." It is unnecessary for me to determine that question. But it will be a matter for the High Court to consider in due course as I have been informed by the parties that, on 22 March 1995, a proceeding was commenced by the applicant in the High Court but, as yet, no step has been taken in it.

The legislative intent is clear. It is that the Federal Court is not to have jurisdiction or power"in respect of" decisions that are defined as not being judicially-reviewable decisions and is to have certain limitations imposed on its jurisdiction and powers "in respect of" judicially reviewable decisions.

The applicant's submission raises two jurisdictional issues. The first is whether the decision I have found to have been made falls within the definitions given to reviewable and non-reviewable decisions. The second issue arises if the decision is a non-reviewable decision. It is whether the exclusion of jurisdiction under s.485 "in respect of" that decision
operates to exclude review, under s.6 of the ADJR Act, of conduct for the purposes of the making of the decision.

6.1 Is the decision reviewable under the MA or the ADJR Act?

In one sense, the decision, not having been made by the Minister personally, is not a decision "of the Minister" under s.475(2)(e). If that is correct it is not excluded from review by s.485.

Similarly, the decision, being one which was only purportedly made, rather than made, "under the Act" is not a reviewable decision under s.475(1)(c).

If those arguments are correct then the limitation on the jurisdiction and power of the Federal Court arising under s.485 may not operate in respect of the decision in the present case. That would leave that decision reviewable under ss.5 and 6 of the ADJR Act as MA decisions have not been excluded from review under the ADJR Act: see Schedule 1 to that Act.

However, I am satisfied that those arguments, which are based on a literal construction of the legislation, are without substance.

Similar arguments have been put and rejected in ADJR Act cases in relation to purported or otherwise invalid "statutory" decisions: see Australian Broadcasting Commission Staff Association v. Bonner (1984) 2 FCR 561, Blurton v. Minister for Aboriginal Affairs (1991) 29 FCR 442, 448 per French J. Century Metals and Mining NL v. Yeomans (1988) 85 ALR 29, 45-46 per French J and on appeal on other issues (1989) 100 ALR 383).

It seems to me that the comments of French J at 45 in Century Metals & Mining NL are apposite:

A decision is made "under" an enactment if it is made "in pursuance of" or "under the authority of" the Act or Ordinance or Instrument concerned: Evans v. Friemann at 436 (Fox ACJ); Australian National University v. Burns (1982) 43 ALR 25 at 31(Bowen CJ and Lockhart J).

French J also considered this question again in Blurton at 447-8:

"As appears from s.5 of the Administrative Decisions (Judicial Review) Act, a person aggrieved by "a decision to which this Act applies" may seek an order of review in respect of the decision on any one of a number of grounds including:

"(c) That the person who purported to make the decision did not have jurisdiction to make the decision.

(d) That the decision was not authorised by the enactment in pursuance of which it was purported to be made."

These grounds raise explicitly the question whether the decision under review was in excess of a statutory power. Yet the class of reviewable decisions, those "to which this Act applies" is defined in s.3 of the Act in terms of decision s"of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment".

Implicit in the respondent's submissions is the contention that a decision which is beyond the power conferred upon the decision-maker by the relevant enactment is not made "under" that enactment and is therefore not amenable to review. The contention is plainly untenable. If it were correct, reliance upon grounds of review going to power would be denied. A decision "under the authority of" the Act or Ordinance or instrument concerned: see Evans v. Friemann (1981) 53 FLR 229 at 238, per Fox ACJ; Australian National University v. Burns (1982) 64 FLR 166 at 173, per Bowen CJ and Lockhart J. In Emanuele v. Cahill (1987) 18 FCR 304 Neaves J said the question was whether as a matter of substance the decision has a sufficiently close connection with the legislative provision to make it appropriate to speak of it as having been made "under" that provision in the sense in which that word was understood in Australian National University v. Burns (supra). These tests are not exhaustive of the categories of reviewable decision. It is clear, by reference to the grounds of review in s.5, that a decision made in purported reliance upon a
power conferred by statute is a decision which is to be treated for the purposes of judicial review as a decision made under that statute".

A broad view has also been taken of reviewable conduct by persons other than the decision maker by virtue of authorisation or delegation. In Century Metals at 47 French J said:

"Thus inquiries carried out by a Minister's departmental officers with a view to some decision being taken by him, would be his conduct for the purpose of making a decision within the meaning of the section. This approach is, I think, broadly consistent with that adopted by Lee J in Merman Pty. Ltd. v. Comptroller-General of Customs (Federal Court of Australia, Lee J, 16 September 1988, unreported) and reflected in the following passage in the judgment at p.66:

"Having regard to the provisions of s.3(5), it is appropriate to read s.6 as extending to such acts or things done under the authority of or adopted by a decision-maker to be used by him for the purposes of exercising his power to make a decision under an enactment."

See also Gunaleela v. Minister for Immigration and Ethnic Affairs (1987) 15 FCR 543 at 556-7; 74 ALR 263 (Full Court); Gourgaud v. Lawton (1982) 42 ALR 117 (Davies J)".

In Curragh Coal Co. Pty. Ltd. v. Wilcox (1984) 1 FCR 461, 464 Davies J decided that a decision made under guidelines established to make clear how a discretion, pursuant to a regulation, was to be exercised is a decision under the enactment. His Honour held that, in those circumstances, the decisions were made "under the authority" of the regulations.

It seems to follow from the above authorities that, for the purposes of the ADJR Act, a decision of a decision maker or by officers with his or her authority or delegation, is a decision "under" an enactment and is a decision "of" the Minister in question. That is so, notwithstanding that the
person making the decision had no jurisdiction to make it or, that the procedures followed in the making of it, were not authorised under the statute. In either case, the cases suggest that it is sufficient that the decision is made under the authority of or in purported reliance upon the statutory power.

I am satisfied that there is no reason why the same reasoning should not apply to review of decisions under Division 2 of Part 8 of the MA. In my view any distinction that may be drawn between the scheme for review under the MA and the ADJR Act, does not touch upon the basis for the reasoning set out above. In particular, s.476(1)(b) and (c) of the MA is identical in all relevant respects to s.5(1)(c) and (d) of the ADJR Act.

For the reasons set out earlier I concluded that the decision communicated by the letter of 29 November 1994 was made on behalf of and with the authority of the Minister. For those same reasons it is my view that the decision was made under the authority of and in purported reliance upon s.417. Accordingly, for the purpose of review, under Division 2 of Part 8,the decision was that of the Minister under s.417.

6.2 The width of the words "in respect of" in s.485

Section 485 deprives the Federal Court of jurisdiction "in respect of" judicially-reviewable decisions and decisions covered by s.475(2). The decision of the Minister not to
consider the exercise of power under s.417 is a decision covered by s.475(2)(e).

Accordingly, s.485 operates to exclude the jurisdiction of the Federal Court "in respect of" the decision of the Minister under s.417.

The width of the jurisdictional limitation in s.485 turns on the width of the words "in respect of" in s.485.

Those words have been commonly acknowledged to -

"have the widest possible meaning of any expression intended to convey some connection or relation between the two subject matters to which the words refer" (Trustees Executors & Agency Co. Ltd. v. Reilly (1941) VLR 110, 111 Per Mann CJ).

That statement has been approved and applied in many decisions.

However, as was emphasised more recently in the High Court in Workers Compensation Board of Queensland v. Technical Products Pty. Ltd. (1988) 165 CLR 642, the phrase must be construed in the context in which it appears.

It has been said, perhaps somewhat extravagantly, that the words "in respect of" "have the widest possible meaning of any expression intended to convey some connexion or relation between two subject-matters to which the words refer": Trustees Executors & Agency Co. Ltd. v. Reilly, cited in State Government Insurance Office (Q) v. Crittenden. The words were cited again by Gibbs J in McDowell, and by Mason J in State Government Insurance Office (Q) v. Rees, when his Honour added the comment: "But, as with other words and expressions, the meaning to be ascribed to "in respect of" depends very much on the context in which it is found" (at 646-7 per Wilson and Gaudron JJ).

Undoubtedly the words "in respect of" have a wide meaning, although it is going somewhat too far to say, as did Mann CJ in Trustees Executors & Agency co. Ltd. v. Reilly (23), that "they have the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer". The phrase gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends (at 653-4 per Deane, Dawson and Toohey JJ).

In Technical Products Pty. Ltd. v. State Government Insurance Office (1989) 167 CLR 45 the words were said to -

"have a chameleon-like quality in that they commonly reflect the context in which they appear." (47 per Brennan, Deane and Gaudron JJ)

and

"to take their colour from the context in which they were found." (51 per Dawson J).

Obviously in any particular instance where those words are used, questions of degree are involved in determining the materiality and sufficiency of the connection between the two relevant subject matters.

Applying these statements to s.485 is not without difficulty.

The section itself makes it quite clear that the jurisdiction conferred for review of judicially-reviewable decisions under the MA is exhaustive of the Federal Court's jurisdiction "in respect of" those decisions and those that are defined as not being judicially-reviewable decisions.

In the context of Division 2 of Part 8 and in particular, ss.476 and 477, it is my view that it is implicit that a matter involving review on the basis of any of the grounds of review stated in those sections, whether stated as being available or as not being available, will involve the exercise of jurisdiction in respect of the decision. The consequence of that conclusion is that no jurisdiction to review a decision on any of those grounds is conferred on the Federal Court other than that expressly conferred under ss.475-7. The same conclusion must apply to decisions that are not judicially-reviewable. That means, at the least, that there is no jurisdiction to review such decisions on any of those grounds.

Given the conclusions I have arrived at as to the operation of s.485, it must follow that the section operates to deprive the Federal Court of the jurisdiction it would otherwise have had previously under s.5 of the ADJR Act.

It also follows that, subject to s.44 of the Judiciary Act, in spite of any other law, including the ADJR Act and s39B of the Judiciary Act, the Federal Court has no jurisdiction in respect of the decision made on behalf of the Minister and no power to review it on the ground that the person making it was not authorised by, or had no jurisdiction under, the MA to make it. (S.476(1)(b) and (c)). Accordingly, I have no jurisdiction or power to grant any of the relief sought on those grounds, notwithstanding the conclusion I have arrived at, that the decision made was invalid on those grounds.

Similarly, having no jurisdiction in respect of the decision, I have no power to review it on the ground that a breach of the rules of natural justice occurred in connection with the making of the decision. In any event, under s.476(2)(a) that ground of review is not available in the Federal Court as a ground of review in respect of the decision under the MA. Thus, I have no jurisdiction or power to grant relief on that ground under the MA, the ADJR Act or s39B of the Judiciary Act, notwithstanding that I have concluded that a breach of the rules of natural justice occurred in connection with the making of the decision made on behalf of the Minister. That breach was the making of the decision by the Minister's Senior Adviser without her, or any other officer acting on the Minister's behalf, having afforded the applicant an opportunity of being heard in respect of the information provided by Mr. Laidlaw. That conclusion is not necessarily the end of the matter.

It was submitted by Senior Counsel for the applicant that the deprivation of jurisdiction under s.485 "in respect of" the decision does not extend to the conduct engaged in by departmental officers for the purpose of the making of the decision by the Minister or his officers. Put in terms of the ADJR Act the submission was that, although s.485 may operate to exclude the jurisdiction under s.5 of the ADJR Act, as it is "in respect of" decisions, it does not exclude the jurisdiction in respect of conduct under s.6 of the ADJR Act. That section, so it is said, does not confer jurisdiction in respect of a decision, but confers it in respect of a distinct and separate category of conduct for the purpose of making a decision.

6.3 Is conduct for the purpose of making a decision reviewable under the ADJR Act?

The next issue for consideration is the question of whether there is jurisdiction to grant relief in respect of a breach of the rules of natural justice under s.6(1)(a).

The sub-section provides as follows:

6. (1) Where a person has engaged, is engaging, or proposes to engage, in conduct for the purpose of making a decision to which this Act applies, a person who is aggrieved by the conduct may apply to the Court for an order of review in respect of the conduct on any one or more of the following grounds:

(a) that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;

Section 3(5) provides as follows:

A reference in this Act to conduct engaged in for the purpose of making a decision includes a reference to the doing of any act or thing preparatory to the making of the decision, including the taking of evidence or the holding of an inquiry or investigation.

Is the dichotomy in the ADJR Act between a decision under s.5 and conduct for the purpose of making a decision under s.6, a distinction without a difference for the purpose of the limitation on jurisdiction imposed by s.485? In my view, the answer to that question depends upon whether the jurisdiction conferred under s.6 is "in respect of" the relevant decision for the purposes of s.485.

In that regard the recent caution expressed by the High Court in relation to the width usually given to those words needs to be considered.

On first impression and unassisted by authority, conferral of jurisdiction to review conduct for the purpose of making a decision could be seen to be conferral of jurisdiction in respect of the decision.

However, I do not come to consider this issue unassisted by authority.

In Australian Broadcasting Tribunal v. Bond (1990) 170 CLR at 321, 337-8 and 341-343 Mason CJ considered the distinction between review in respect of decisions and review in respect of conduct under the ADJR Act. At 341-3 he concluded as follows:

"The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that "decision" connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of "conduct" in the statutory scheme of things becomes reasonably clear. In its setting in s.6 the word "conduct" points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of final determination. Thus, the conduct is essentially procedural and not substantive in character. Accordingly, s.3(5) refers to two examples of conduct which are clearly of that class, namely, "the taking of evidence or the holding of an inquiry or investigation". It would be strange indeed if "conduct" were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.

Accordingly, there 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. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. In relation to conduct, the
complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to "conduct". That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.

So, Chan v. Minister for Immigration and Ethnic Affairs, it was possible to review the decision of the delegate for error of law on the basis either that it was a reviewable decision or that the inquiry preceding the making of the decision was reviewable conduct. But it was not precise in that case to describe the decision of the delegate as reviewable conduct, because the decision was not a matter of procedure. Further, in truth it was the decision, not the conduct engaged in for the purpose of making the decision, which was the subject of challenge, and the decision of the delegate can have been reviewable as an improper exercise would not permit the review of conduct as an improper exercise of power.

This view of the relationship between a "decision" and "conduct" is supported by an examination of the provisions of the A.D.(J.R.) Act. Section 6(1) provides for a direct challenge to conduct on procedural grounds only. The other grounds of challenge set out in the sub-section go to the invalidity of the proposed decision to which the conduct relates. Then, it is the proposed decision rather than the conduct which is challenged; s.6 merely allows the challenge to take place before the making of the proposed decision. In other instances, conduct may only be impugned upon procedural grounds: see, e.g., s.6(1)(a) and (b).

Some reference must be made to s.6(1)(f) which speaks of an error of law being "committed in the course of the conduct". On its face, this provision permits of review of any error of law made, for example, in an inquiry held for the purpose of making a "decision". Such a review of conduct might entail a challenge to a substantive, as well as a procedural, error of law. However, this ground of review of "conduct" does little to expand the "error of law" ground contained in s.5(1)(f) relating to errors of law "involved" in the decision. Ordinarily, if not always, an error of law made in the course of conduct engaged in for the purpose of making a decision would be an error of law involved in the decision itself: see, e.g., Chan v. Minister for Immigration. This ground for review does not detract, therefore, from the argument that the A.D.(J.R.) Act maintains a dichotomy between reviewable decisions and reviewable conduct.

It follows, therefore, that substantive decisions, findings of fact and inferences from findings of fact generally are not capable of review as "conduct" unless what is alleged is some breach of procedural requirements in the course of the conduct involved in reaching the relevant conclusion, although it is possible that they may give rise to subsequent conduct which is reviewable."

In the earlier decision of the High Court in Chan v. Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379 several members of the court were prepared to treat a determination on an application for refugee status, if not a decision, as conduct engaged in for the purpose of a decision (386 per
Mason CJ, 404 per Toohey J, 411-12 per Gaudron J and 420-1 per McHugh J).

In the passage in Bond set out above Mason CJ said "it was not precise" in Chan to describe the delegate's decision as reviewable conduct since the decision was not a matter of procedure.

Since then at least two Judges of this Court have observed that in that regard Chan may be treated as contradicted by Bond: see Somaghi v. Minister for Immigration and Ethnic Affairs (1991) 31 FCR 100, 115 per Gummow J and Tasmanian Conservation Trust Inc. v. Minister for Resources (1995) 55 FCR 516, 550 per Sackville J.

Other decisions in this court have drawn a clear distinction between reviewable decisions and reviewable conduct: see the discussion in NSW Land Council v ATSIC (1995) 131 ALR 559, 569-571 per Hill J). In Heshmati v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 123, even though, under the MA at that time, the failure of an applicant's claim to refugee status was an essential step in the reasoning to decide to refuse an entry permit under s.6(2) of the Act, that was not sufficient to make that a decision "under an enactment"; it was sufficient to attract the jurisdiction of Federal Court under ss.6 and 8 of the ADJR Act as "conduct".

In my view, irrespective of how any issue of potential overlap between ss.5 and 6 may ultimately be resolved, it is clear that there is a recognised and clear distinction drawn, in the ADJR Act, between the final and operative decision and the conduct constituting the procedures leading to that decision. The former is reviewable under s.5 and the latter, being essentially procedural, is reviewable under s.6.

In essence, the applicant's application under s.6 of the ADJR Act does not seek to review the conduct of the Minister as the "decision maker" or of any of the ministerial officers authorised by him to make the decision on his behalf.

Rather, the applicant seeks to review the distinct, antecedent and preparatory procedural conduct of departmental officers in conducting enquiries, making recommendations and preparing a proposed draft of the decision for presentation to the Minister or to his officers responsible for making the decision on his behalf. At that time the officers expected that, in the usual course, the recommendations and draft decision would be accepted and acted upon by ministerial officers without further enquiry. That is what occurred in the present case.

In these circumstances the relevant conduct was that of the departmental officers who received and acted upon the information provided by Mr. Laidlaw without drawing it to the attention of the applicant and affording him an opportunity to respond, or otherwise to be heard, in relation to it. Such steps have been treated in this Court as reviewable conduct under s.6 of the ADJR Act. (see Merman Pty. Ltd. v. Comptroller-General of Customs [1988] ALD 88).

In Whim Creek v. Colgan (1991) 31 FCR 469 at 481 O'Loughlin J, in a judgment, concurred in by Spender and French JJ, said:

The legislative recognition that the making of an order is to be regarded as a decision points to the activity along the way that precede its making being relegated in most, if not all cases, to "conduct". Hence, in this case, the various inquiries that were made by customs officers, the various reports and submissions that were submitted, the attainment of a concluded determination and the stated intention to implement that determination are to be treated as procedural matters that, in the absence of any specific legislative mandate to the contrary, are to be treated as "conduct" and not as a "decision".

Although from time to time there have been suggestions to the effect that, under s.6, the reviewable conduct must be that of the decision maker, I have no doubt that that is not correct.

In Chan at 386 Mason CJ, in that context, observed that -

"It matters not that the antecedent decision was not made by the person who makes the decision to which the Act applies."

There have also been comments made from time to time that s.6 only relates to proposed decisions. Certainly that it so under s.6(1)(c),(d),(e) and (j). Accordingly, if that be correct, there could be no review on the ground of absence of authority or jurisdiction under s.6(1)(c) or (d) once a decision is made. These matters would then be covered, if at all, under s.5(1) (c) or (d). There is no reason why that should necessarily be so in respect of conduct under s.6(1)(a).

The clear distinction drawn between decisions and conduct does not require that conduct can only be reviewable in respect of proposed decisions. Indeed the fact that several grounds in s.6 apply only to proposed decisions suggests that other grounds are not so restricted. A Court may exercise its discretion by declining to review conduct if the reviewable conduct has been overtaken by a subsequent decision. But that is a matter of discretion not power.

Of course, the entirety of the above analysis relates to ss.5 and 6 of the ADJR Act and, of itself, cannot answer the question raised at the outset of this section in relation to the ambit of s.485.

For the reasons given earlier, the adoption by the legislature in Division 2 of Part 8 of the MA of both the form and substance of the relevant counterpart provisions in the ADJR Act, obviously warrants resort to judicial consideration of those provisions to assist in the construction of their counterparts in the MA and, in that context, s.485.

Several observations can be made in that regard.

First, in enacting the Division the legislature must be taken to have been aware of the clear distinction in the ADJR Act between the jurisdiction to review in respect of a decision and of conduct for the purpose of making the decision. It
must also be taken to have been aware of the significance attached to that distinction in the High Court in Bond's case.

Second, if there was a legislative intention to exclude conduct from review under the ADJR Act that could be achieved simply by adding the MA Act, or particular provisions of it, to the matters excluded from review under schedule 1 to the Act. That was not done.

Third, in arriving at the conclusions I have reached in these reasons in relation to Division 2 of Part 8 I have placed considerable reliance on the counterpart provisions in the ADJR Act and the decisions on matters arising under those provisions. It would be anomalous and inconsistent to not do so when examining the width of the limitation on jurisdiction in s.485.

Fourth, having carefully considered the matters it wishes to have included for, and excluded from, review by the Federal Court under the MA, the legislature has not expressly excluded from review conduct for the purpose of making a decision. Given the distinction drawn in the cases between review of decisions and of antecedent conduct I am not satisfied that the legislature should be assumed to have intended to exclude review of conduct merely by construction of or an implication arising from the words "in respect of" in s.485.

Fifth, there is much to be said for the application of the rule of construction which requires clear and unambiguous words before a statutory provision will be construed as displaying a legislative intent to abolish or significantly modify fundamental rights or principles.

"Examples of such "rules" are those relating to the construction of a statute which would abolish or modify fundamental common law principles or rights (see, e.g. Benson v. Northern Ireland Road Transport Board, which would operate retrospectively (see, e.g. Maxwell v. Murphy), which would deprive a superior court of power to prevent an unauthorised assumption of jurisdiction (see, e.g. Magrath v. Goldsbrough, Mort & Co. Ltd.) or which would take away property without compensation (Attorney-General v. De Keyser's Royal Hotel). The rationale of all such rules lies in an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear Thus, the rationale of the presumption against the modification or abolition of fundamental rights or principles is to be found in the assumption that it is "in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, natural sense, would be to give them a meaning in which they were not really used" (Potter v. Minahan), and see, also, Ex parte Walsh and Johnson; In re Yates. If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear." Bropho v. State of Western Australia and Another (1990) 171 CLR 1 at 17-18."

In Coco v. The Queen (1993) 179 CLR 427, at 438 in a joint judgment Mason CJ and Brennan Gaudron and McHugh JJ said:-

"The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasise that the test is a very stringent one. As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope".

In my view those principles are applicable in the present case. A denial of or restriction upon the exercise of jurisdiction to review administrative conduct engaged in for the purpose of refugee or other asylum decisions may be a modification of a fundamental right. Further, such a denial or restriction would operate to deprive the Federal Court of jurisdiction, as a superior court, of power to review the unlawful exercise of administrative power by officers of the Commonwealth. Finally, s.6 of the ADJR Act conferred important rights and procedural safeguards, which if not taken away under Schedule 1, ought only to be taken away under other legislation by clear and unambiguous language to that effect.

I am satisfied that that result has been achieved under s.485 of the MA in relation to the review of decisions under s.5 of the ADJR Act but not in relation to review of conduct under s.6 of that Act.

It was submitted by senior counsel on behalf of the applicant that there is no anomaly, let alone absurdity, in s.485 excluding the operation of s.5, but not of s.6, in so far as each may relate to decisions that are not judicially-reviewable decisions under the MA. It was said, and I accept, that the legislature may have taken comfort, in excluding certain decisions from Federal Court review, from the fact that the conduct engaged in for the purposes of the decision can be reviewed. Put simply, it was said that cleansing the
procedural process may have made Parliament feel better about denying access to the Federal Court regarding the end result.

For present purposes it matters not whether such an objective was considered. It is sufficient to say that the legislature's exclusion of the operation of s.5, but not of s.6, does not necessarily result in anomaly or absurdity.

For all of those reasons I have concluded that the words "in respect of" in s.485 exclude review in respect of decisions under s.5 of the ADJR Act but do not exclude review of conduct for the purpose of making decisions under s.6 of that Act.

The applicant has established a breach of the rules of natural justice by departmental officers. This is a ground of review under s.6(1)(a) of the ADJR Act which can found a grant of relief under s.16(2) of that Act. I am satisfied that I have jurisdiction under ss.6(1)(a) and 8 of the ADJR Act to grant relief under s.16(2) of that Act.

7.0 SHOULD RELIEF BY GRANTED?

The power of the Federal Court to grant relief in the present matter arises under s.16(2) of the ADJR Act. The sub-section provides as follows:-

"16(1) ...

(2) On an application for an order of review in respect of conduct that has been, is being, or is proposed to be, engaged in for the purpose of the making of a decision, the Court may, in its discretion, make either or both of the following orders:

(a) an order declaring the rights of the parties in respect of any matter to which the conduct relates;

(b) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Court considers necessary to do justice between the parties."

Two problems arise in respect of the grant of relief. Although I have found that no valid decision under s.417 has yet been made by the Minister, at the least, s.417(7) operates to preclude a Court from directing the Minister to make a decision under s.417(1).

Second, as the Federal Court has no jurisdiction in respect of the invalid decision made under s.417 the Court's jurisdiction to make any order concerning that decision is severely circumscribed.

Consequently the scope for the grant of any substantive relief in the present matter is, at best, extremely limited.

But recent decisions of the High Court have given great amplitude to the jurisdiction to grant declaratory relief.

In Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564 at 581-582 a majority of the court said:-

"It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and
relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties".