CATCHWORDS

IMMIGRATION - jurisdiction to review decisions under Migration Act 1958 (Cth) - preparatory conduct of minister's delegate leading to decision on behalf of minister not to consider exercising powers under Migration Act, s 417 - whether Migration Act s 485(1) precluded Court from granting relief in relation to conduct in breach of rules of natural justice pursuant to Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") s 6 - discussion of amendments to Migration Act effected by Migration Reform Act 1992 (Cth) and consequential effect on rights of review - whether Migration Act s 485 can be characterized as abrogating or curtailing fundamental rights, freedoms or immunities.

ADMINISTRATIVE LAW - relationship between ADJR Act ss 5 and 6 - whether review of antecedent conduct available pursuant to ADJR Act s 6 where final and operative decision has been made.

WORDS AND PHRASES - "in respect of...decisions" - whether words in Migration Act s 485(1) sufficiently wide to exclude review of conduct not to consider exercising minister's powers - significance of statutory context.

STATUTORY INTERPRETATION - discussion of approach to construction of legislation envisaging interference with fundamental rights - whether Migration Act s 485(1) evinces unambiguous intention to preclude review of conduct prior to decision.

REMEDIES - whether a bare declaration (as to past conduct) should be made in circumstances where it is of doubtful utility - whether any legal procedural consequences would suffice.

Acts Interpretation Act 1901 (Cth), s 15AB.

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 6, 16.

Migration Act 1958 (Cth), ss 417, 476, 485

Migration Reform Act 1992 (Cth)

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Bropho v Western Australia (1990) 171 CLR 1

Chief Constable of North Wales Police v Evans [1982] 1 WLR
1155

Coco v The Queen (1994) 179 CLR 427

Dai Xing Yao v Minister for Immigration and Ethnic Affairs, FCA/FC, 18 September 1996, unreported

Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562

Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180

Hand v Hell's Angels Motorcycle Club Inc (1991) 25 ALD 667

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

Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693

New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369

State Government Insurance Office v Rees (1979) 144 CLR 549

State Government Insurance Office (Queensland) v Crittendon (1966) 117 CLR 412

Trans Realties Pty Ltd v Grbac [1975] 1 NSWLR 170

Trustees Executors and Agency Co Ltd v Reilly [1941] VLR 10

Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469

Workers' Compensation Board of Queensland v Technical Products Pty Limited (1988) 165 CLR 642

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR v OZMANIAN

VG 301 of 1996

Jenkinson, Sackville, Kiefel JJ.

Melbourne

21 November, 1996

IN THE FEDERAL COURT OF AUSTRALIA  )

VICTORIAN DISTRICT REGISTRY            )No. VG 301 of 1996

GENERAL DIVISION                   )

         ON APPEAL FROM A JUDGE OF THIS COURT

                      BETWEEN:

                          THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

                          First Appellant

                          BRONWYN McNAUGHTON

                          Second Appellant

                      AND:            

                          TOSN OZMANIAN

                          Respondent

CORAM:   JENKINSON, SACKVILLE, KIEFEL JJ.

PLACE:   MELBOURNE

DATE:    21 November, 1996.

                   MINUTES OF ORDER

THE COURT ORDERS THAT:

1.  The appeal be allowed.

2.  The declaratory order contained in paragraph 2 of the order made on 14 March 1990 in the proceeding numbered VG195 of 1995 and the order contained in paragraph 4 of the said order be set aside.

3.  The applicant's claims in the said proceeding be dismissed.

4.  Consideration of the question of costs of the said proceeding and of the appeal be adjourned.

5.  Each party be at liberty to file and serve within 21 days written submissions concerning the said questions of costs.

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

IN THE FEDERAL COURT OF AUSTRALIA   )

VICTORIA DISTRICT REGISTRY          )  No. VG301 of 1996

GENERAL DIVISION                    ) 

On Appeal from a Judge of the Court

                 BETWEEN:     THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

                                   First Appellant

                     AND:     BRONWYN McNAUGHTON

                                   Second Appellant

                     AND:     TOSN OZMANIAN

                                   Respondent

CORAM:    Jenkinson, Sackville and Kiefel JJ.

PLACE:    Melbourne

DATE:     21 November, 1995

                 REASONS FOR JUDGMENT

JENKINSON J.

           I have had the advantage of reading the reasons for judgment of the other members of the court.  I agree, for the reasons expressed by Sackville J., that the words "jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction conferred by this Part or by section 44 of the Judiciary Act 1903", in s.485(1) of the Migration Act 1985, comprehend the jurisdiction which the court had, before s.485 came into operation, by virtue of ss. 8 and 6 of the Administrative Decisions (Judicial Review) Act 1977.  I prefer to express no opinion concerning the appropriateness of the grant of declaratory relief by the learned trial judge,
supposing his Honour's construction of s.485(1), not the construction adopted by this court, to have been correct.

         I would allow the appeal, set aside the declaratory order and the costs order which the trial judge made, and order that the applicant's claims in the proceeding the subject of the appeal be dismissed.  The parties should have an opportunity to make submissions about the costs of that proceeding and of the appeal.

                          I certify that this and the preceding page is a true copy of the Reasons for Judgment of the Honourable Justice Jenkinson.

                                      Associate

                          Dated:  21 November, 1995

IN THE FEDERAL COURT OF AUSTRALIA)

VICTORIAN DISTRICT REGISTRY       )    No. VG 301 of 1996

GENERAL DIVISION                  )

            ON APPEAL FROM A JUDGE OF THIS COURT

                             BETWEEN:

                                     THE MINISTER FOR IMMIGRATION

                                     AND MULTICULTURAL AFFAIRS

                                  First Appellant

                                  BRONWYN McNAUGHTON

                                  Second Appellant

                             AND:

                                  TOSN OZMANIAN

                                  Respondent

CORAM:    JENKINSON, SACKVILLE, KIEFEL JJ.

PLACE:    MELBOURNE

DATE:     21 November, 1996.

                    REASONS FOR JUDGMENT

Sackville J:

Introduction

This is an appeal from a declaration made by the trial Judge that the first appellant ("the Minister") had breached the rules of natural justice.  The declaration states that the breach occurred in connection with conduct engaged in for the purpose of the Minister making a decision under s.417 of the Migration Act 1958 (Cth) ("the Migration Act") in relation to the respondent ("Mr Ozmanian").  Section 417(1) of the Migration Act empowers the Minister to substitute for a

decision of the Refugee Review Tribunal (the "Tribunal") a decision more favourable to an applicant for refugee status, if the Minister thinks that it is in the public interest to do so.

The case was described by the trial Judge as a test case.  His Honour noted that there were more than 40 applications dependent on the outcome.  We were informed by senior counsel representing the Minister and Mr Ozmanian, respectively, that the issue of principle to which his Honour was referring concerned the construction of s.417 of the Migration Act.  That issue was whether a decision not to consider exercising the power under s.417 in relation to Mr Ozmanian was one that could be made only by the Minister personally and, if so, whether the Federal Court had been deprived of jurisdiction by s.485 of the Migration Act (the terms of which are quoted later) to grant any relief in respect of that decision.

His Honour decided this issue of principle adversely to Mr Ozmanian.  He did so on the ground that, although the decision should have been made by the Minister personally, s.485 of the Migration Act had indeed deprived the Court of jurisdiction to grant any relief in relation to the decision.  However, his Honour went on to grant Mr Ozmanian declaratory relief relating to a breach of the rules of natural justice occurring before the decision had been made.  His Honour considered that, although s.485 deprived the Court of jurisdiction to review the decision made under s.417, it had not deprived the Court of the jurisdiction conferred by s.6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") to review conduct engaged in for the purpose of making that decision.

On the appeal, Mr Dwyer QC, who appeared with Mr Hurley for Mr Ozmanian, did not challenge his Honour's conclusion that s.485 of the Migration Act deprived the Court of jurisdiction to review the decision itself.  It follows that the issue of principle which was said, at least initially, to have made the proceedings a test case before the trial Judge did not arise on the appeal.  However, Mr Dwyer maintained that the grounds upon which the trial Judge ultimately granted relief raised additional important issues of principle.  In consequence, the proceedings retained their character as a test case, albeit for reasons different from those that were given at the outset of the trial.

The Legislative Framework

It is convenient first to set out the relevant legislation.  I shall refer later to the recent history of the Migration Act.

The Migration Act

Under s.29 of the Migration Act, the Minister may grant a non-citizen a visa to remain in Australia.  The visas that may be issued include a protection visa, a criterion for which is that the applicant is a non-citizen to whom Australia has protection obligations under the Convention relating to the Status of Refugees: s.36.  The decision to grant or refuse a visa initially can be made by a delegate of the Minister, pursuant to s.496 of the Migration Act.

Part 7 of the Act deals with review of protection visa decisions.  A decision that a non-citizen is not a refugee may be the subject of an application for review to the Tribunal: ss.412, 414.  The Tribunal has power to affirm or vary the decision, or to set it aside and make a fresh decision: s.415.

Section 417, to which reference has already been made, provides as follows:

          "(1)      If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

          (2)  ....

          (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)  ....

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

          (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."

Division 2 of Part 8 deals with review of decisions under the Migration Act by the Federal Court.  As the trial Judge observed, although the scheme has similarities to that provided by the ADJR Act, its provisions are more restrictive.

Section 475 specifies decisions which are "judicially reviewable decisions":

          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;

          (c)other decisions made under this Act, or the regulations, relating to visas.

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

          ...

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

          ...".

Section 476 sets out the grounds on which application may be made for review by the Federal Court of a judicially-reviewable decision:

          "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;

          (c)that the decision was not authorised by this Act or the regulations;

          (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 appear 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."

Section 478 sets out the requirements governing an application to the Federal Court under s.476 of the Migration Act:

          "478(1)   An application under section 476...must:

          (a)be made in such a 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)."

The Migration Act confers exclusive jurisdiction on the Federal Court with respect to judicially-reviewable decisions (except for the jurisdiction of the High Court under s.75 of the Constitution): s.486.  However, s.485 of the Migration Act also limits the jurisdiction of the Federal Court 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."

As can be seen, s.485 of the Migration Act refers to ss.39B and 44 of the Judiciary Act 1903 (Cth).  Section 39B(1) of the Judiciary Act 1903 provides that the original jurisdiction of
the Federal Court includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.  This language reflects the terms in which s.75(v) of the Constitution confers original jurisdiction on the High Court.  Section 44 of the Judiciary Act 1903 provides that, subject to certain exceptions, any matter pending in the High Court, whether originally commenced in the High Court or not, may be remitted to the Federal Court, or a court of the State or Territory, "that has jurisdiction with respect to the subject-matter and the parties".

Part 9 of the Migration Act deals with the Minister's power of delegation and his or her power to give general directions.  Section 496(1) provides that the Minister may, in writing, delegate to a person any of the Minister's powers under the Act.  Section 499 of the Migration Act provides as follows:

          "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."    

The ADJR Act

Section 5(1) of the ADJR Act provides that a person who is aggrieved by "a decision to which the Act applies" may apply to the Court for an order of review on any one or more of nine specified grounds.  A "decision to which this Act applies" is defined to mean

          "a decision of an administrative character made, proposed to be made, or required to be made, as the case may be...under an enactment" (s.3(1)).

It is sufficient to refer to the first four grounds specified in s.5(1):

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

           (b)that procedures that were required by law to be observed in connection with the making of the decision were not observed;

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

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

Section 6(1) provides as follows:

          "Where a person has engaged, or 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..."

Section 6(1) then sets out nine grounds, corresponding to those specified in s.5(1).  The first four are as follows:

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

           (b)that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;

           (c)that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;

           (d)that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision".

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."

The powers of the Court on an application for an order of review are specified in s.16:

          "(1)On an application for an order of review in respect of a decision, the Court may, in its discretion, make all or any of the following orders:

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

              (b)...

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

              (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 Court considers necessary to justice between the parties."

           (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."

Finally, s.8 of the ADJR Act provides that the Court has jurisdiction to hear and determine applications to the Court under the ADJR Act.

The Facts

Mr Ozmanian is of Kurdish descent and until 1993 was a prominent Kurdish intellectual in Armenia.  He fled from Armenia to escape what he claims was mistreatment 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.

On 5 August 1993, Mr Ozmanian was interviewed by the Minister's delegate.  Following this interview, the delegate sought information from the Australian Embassy in Moscow concerning the plight of Kurds in Armenia.  A reply was received on 18 August 1993, recording the results of a visit by Embassy personnel to Armenia.  The cable suggested that Kurds were not maltreated or discriminated against in Armenia.

On 10 September 1993, the delegate rejected Mr Ozmanian's application.  The applicant thereupon applied to the Tribunal for review of the delegate's decision.

The Tribunal conducted a hearing on 28 February 1994.  At the hearing Mr Ozmanian, who was not then legally represented, complained that the inquiries made by Embassy officers in Armenia had improperly revealed his identity and exposed him to threats of violence.  The Tribunal  apparently did not regard those complaints as bearing on the issue it had to decide.  In the event, on 8 July 1994, the Tribunal affirmed the delegate's decision.

In the meantime, in May 1994, the then Minister issued a press release announcing guidelines to "assist him in exercising his discretionary power under s.166BE of the Migration Act [later renumbered as s.417]".  According to the press release, the Government wished

          "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 were headed "GUIDELINES FOR STAY IN AUSTRALIA ON HUMANITARIAN GROUNDS".  The purpose of the guidelines was stated as follows:

          "to provide a framework for recommending the grant of stay in Australia to persons of humanitarian concern who do not meet the requirements for refugee status but who face hardship if returned to their
country of origin which would evoke strong concern in the Australian public."

The document recorded that it was in the public interest to ensure that protection should be offered on humanitarian grounds to persons in certain specified circumstances.  These included cases where persons were likely to face treatment "closely approximating persecution" or serious mistreatment for non-Convention related reasons.  A grant of residence on humanitarian grounds was to be limited to "exceptional cases".

The guidelines dealt with the responsibility of case officers:

          "7.  When the Department receives the decision regarding a rejected case from the Tribunal under s.166E(2) [now s.430(2)] of the Act, a Departmental officer may, in accordance with these guidelines, refer the case for the Minister's consideration under this public interest provision although the Minister does not have a duty to consider whether to exercise his power.

          ...

          9.   These guidelines are not exhaustive of all the matters which may be taken into account.  They are indicative of the types of cases that may be appropriate for consideration by the Minister.   They are not intended as a set of criteria but as a framework which can be interpreted broadly where there are compelling claims for consideration of humanitarian access."

After the Tribunal made its decision, a departmental case officer, acting on her own initiative, considered the case under the Ministerial guidelines.  She recorded her conclusion in a file note dated 18 July 1994, that the case did not satisfy the requirements for consideration of the exercise of the Minister's discretion under s.166BE(1) of the Act.

Mr Ozmanian then instructed a solicitor to make what the trial Judge described as "a formal application on his behalf under [s.417]."  The solicitor, in a letter of 4 October 1994, requested the Minister to exercise his discretion under s.417(1) of the Act to grant Mr Ozmanian a visa on humanitarian grounds.  Among other issues raised in the letter, it was claimed that the Australian Embassy delegation had alerted Armenian officials as to Mr Ozmanian's identity and the fact that he had applied for refugee status in Australia.  This was said to have placed him and his family at considerable risk of persecution if he were forced to return to Armenia.

The letter of 4 October 1994 was referred almost immediately by the Minister's office to the Department.  A case officer, Ms Fraser, considered the letter and the supporting documentation, together with the existing file.  Ms Fraser did so for the purpose of determining whether the request for the exercise of the Minister's powers under s.417 should be referred to the Minister personally.  In the course of considering the matter, Ms Fraser made inquiries about the complaints concerning the alleged disclosure of information to Armenian officials.  Ms Fraser recorded that the inquiries had shown that Mr Ozmanian's identity had not been revealed to the Armenian authorities.  Ms Fraser concluded that the matter did not warrant referral to the Minister personally.

Ms Fraser then drafted a response to the letter of 4 October 1994.  She forwarded the draft response and a draft minute to her departmental supervisor.  The supervisor signed the minute and approved the draft response.  The minute was 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."

The file was then sent to the Minister's office for consideration by a ministerial adviser, Mr Richardson.  He formed the view that there was no reason to doubt that the matter did not come within the Minister's guidelines.  Had he considered the case borderline, or had he disagreed with the Departmental view, he would have either required further information or discussed the matter with the Minister.

The draft response was passed on to the Minister's then Senior Adviser, Ms McNaughton (the second appellant) for her signature.  She signed the letter, dated 29 November 1994, on the basis that its contents had been considered appropriate by both the Department and Mr Richardson.  The letter was 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 case 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."

It was not disputed at the trial that, although the letter was said to have been sent at the request of the Minister, the Minister had never seen the letter.  The letter itself was in standard form.

Mr Ozmanian subsequently filed an application seeking review of decisions of the Minister's officers not to refer to the Minister the request that the Minister exercise his powers under s.417 of the Migration Act.  That application attracted a notice of objection to competency, and was struck out on 4 April 1995.  The present proceedings were instituted on behalf of Mr Ozmanian on 13 April 1995.  No issue arises from the fact that the application was out of time under s.11 of the ADJR Act, since the Minister did not oppose an extension of time.

The High Court Application

On 22 March 1995, Mr Ozmanian filed in the High Court an application for orders nisi for writs of prohibition, mandamus and certiorari against the Minister, invoking the original jurisdiction of that Court conferred by s.75(v) of the Constitution.  Mr Ozmanian sought orders that this application be remitted to the Federal Court, pursuant to s.44 of the Judiciary Act 1903 (Cth).  It does not appear that any such order has yet been made.  We were not told why the application to the High Court has apparently not been pursued.

The Amended Application

The application filed on behalf of Mr Ozmanian appears to have been amended several times in the course of the two-day trial.  In its final form the amended application sought to review the conduct of the Minister, by his officers, pursuant to the ADJR Act or, alternatively, s.39B of the Judiciary Act 1903 (Cth).  The conduct identified was that of the Minister's officers, between 4 October 1994 and 29 November 1994, whereby Mr Ozmanian's request that the Minister exercise the powers given to him under s.417 of the Act was not referred to the Minister.

The principal grounds of the application under the ADJR Act were said to be that:

–         a breach of the rules of natural justice had occurred in connection with the conduct (s.6(1)(a) of the ADJR Act);

–         procedures required by law to be observed in respect of the conduct had not been observed (s.6(1)(b) of the ADJR Act); in particular a power which s.417(3) of the Migration Act required to be exercised by the Minister personally had been exercised by an officer;

–         the person who engaged in the conduct did not have jurisdiction to make the decision (s.6(1)(c) of the ADJR Act); and

–         the Migration Act did not authorise the making of the decision to refuse a request under s.417(1) by persons other than the Minister (s.6(1)(d) of the ADJR Act).

The amended application also sought a writ of mandamus or an injunction against the Senior Adviser requiring her to refer Mr Ozmanian's request to the Minister.  This relief was sought on the ground that s.417(1), (3) and (7) of the Migration Act did not authorise requests to the Minister under those provisions to be disposed of without being referred to the
Minister.

The Trial Judge's Reasons

The trial Judge records in his reasons for judgment that, at various times in their submissions, senior counsel for both Mr Ozmanian and the Minister suggested that no decision had been made under the Act.  In particular, the Minister had submitted that the only decision that had been made was by department and ministerial officers not to refer the matter to the Minister for his consideration.  The significance of this submission was that, if the decision was not made under the Act, it was not a "decision of an administrative character made...under an enactment", and was therefore not a "decision" as defined in s.3(1) of the ADJR Act.  It would follow that the actions between 4 October 1994 and 29 November 1994 could not constitute "conduct for the purpose of making a decision to which this Act applies" for the purposes of s.6(1) of the ADJR Act, since no such decision had ever been made.

The trial Judge took the view that s.417 of the Act provides for three kinds of decision: a decision to exercise the power under s.417(1); a decision to refuse to exercise the power under s.417(1); and a summary refusal to consider whether to exercise the power under s.417(1).  That there was a third category of decision was made clear by s.475(2)(e), since that sub-section refers to a decision of the Minister "not to consider the exercise of his or her power under [s.417]".

The trial Judge concluded that the Senior Adviser had made a decision, on behalf of the Minister, that the Minister would not consider whether to exercise his powers under s.417(1).  His Honour considered that this conclusion followed from the terms of the letter of 29 November 1994, which purported to be written on behalf of the Minister and communicated a decision that the Minister would not exercise his powers under s.417(1).  In any event, the trial Judge found, as a matter of fact, that the Senior Adviser was authorised by the Minister to make and communicate such a decision on his behalf.  It followed that the relevant departmental and ministerial officers were engaging in conduct for the ultimate purpose of making, by or on behalf of the Minister, one of the three categories of decisions provided for in s.417.

The trial judge then addressed the question of whether a decision under s.417 must be made by the Minister personally.  His Honour accepted that s.417(3) did not apply to a decision not to consider the exercise of the power under s.417(1).  The authority to make such a decision could be expressly delegated pursuant to s.496 of the Act, or could be the subject of "general directions" under s.499.  However, the case was not concerned with express delegation or general directions, but an implied authorisation to act on the Minister's behalf.

His Honour applied the principle that courts are reluctant to imply a statutory authorisation to act by others, where the exercise of that power may have drastic consequences for an individual.  The purpose of the Minister's functions under s.417 was to provide a safety net for people who face a significant threat to personal security, human rights or dignity if returned to their country of origin.  There was nothing in the scope, nature and purpose of the delegable power to refuse to consider an application that warranted a presumed intent that, if not delegated, the power did not have to be exercised by the Minister personally.  It followed that the decision made on behalf of the Minister and communicated to Mr Ozmanian on 29 November 1994 was not made in accordance with s.417.  Thus, the decision was an invalid exercise of the power conferred by s.417 of the Act.

Next, his Honour found that there had been a breach of the rules of natural justice, in that the Departmental officers had not disclosed to Mr Ozmanian information received by Ms Fraser in relation to the inquiries made in Armenia by Embassy officials.  That information, which suggested that the inquiries were non-specific and could not have identified Mr Ozmanian, was critical to the decision ultimately made.  That being so, the information should have been drawn to the attention of Mr Ozmanian or his advisers.

His Honour then addressed the effect of s.485 of the Migration Act upon the jurisdiction of the Federal Court to grant relief in relation to the decision not to consider the exercise of the Minister's power under s.417.  On this issue, his Honour reached the following conclusions:

–          Even though the decision had not been made by the Minister as required by the Migration Act, it was nonetheless a decision made under the authority of, and in purported reliance upon, s.417.  It was therefore a decision "under" the Migration Act, and a decision made under an enactment for the purposes of the ADJR Act.  It was also a decision "of" the Minister for the purposes of s.475(2)(e) of the Migration Act.

–          Section 485(1) of the Migration Act deprives the Federal Court of jurisdiction to review the decision on the ground that the person making it had no authority to do so.  This is because review on that ground would be the exercise of jurisdiction "in respect of...decisions covered by sub-section 475(2)".

–          Section 485(1) deprives the Court of the jurisdiction it would otherwise have had under s.5 of the ADJR Act to review the decision on the ground that the person making it was not authorised by, or had no jurisdiction under the Act to make it.  Nor does Part 8 of the Act provide for the decision to be reviewed on any of the grounds specified in s.476(1).  The trial Judge therefore accepted that he had no power to grant relief in relation to the decision, notwithstanding his conclusion that the decision was invalid.

–          Since the Court has no jurisdiction in respect of the decision not to consider the exercise of the Minister's power, there is no jurisdiction to review it on the ground that denial of natural justice occurred in connection with the making of the decision.

However, the trial Judge concluded that the deprivation of jurisdiction "in respect of" the decision does not extend to conduct engaged in by departmental officers for the purpose of making the decision.  In other words, although s.485 is apt to exclude the jurisdiction conferred by s.5 of the ADJR Act, since that jurisdiction is "in respect of...decisions", it does not exclude the jurisdiction in respect of conduct conferred by ss.6 and 8 of the ADJR Act.

The trial Judge relied on the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 341-343.  According to his Honour, that judgment drew a clear distinction between a decision and conduct engaged in for the purpose of making a decision.  Other cases had adopted a similar approach.  Mr Ozmanian's application under s.6 of the ADJR Act did not seek to review the Minister's conduct as the decision-maker.  Rather, he sought review of the distinct antecedent and preparatory procedural conduct of departmental officers in conducting inquiries, making recommendations and preparing a proposed draft of the decision.

The trial Judge expressed the following views in relation to s.6 of the ADJR Act and s.485 of the Migration Act:

–          Reviewable conduct under s.6 of the ADJR Act does not have to be that of the decision-maker.

–          While some paragraphs of s.6(1) of the ADJR Act clearly relate to proposed decisions only (s.6(1)(c), (d), (e), (h) and (j)), this is not the case with s.6(1)(a), which refers to a breach of the rules of natural justice "in connection with the conduct".

–          Reviewable conduct may be overtaken by a subsequent decision, but that is a matter of the Court's discretion, not power.

–          Since Division 2 of Part 8 of the Migration Act adopts the form and substance of the provisions in ss.5 and 6 of the ADJR Act, it is appropriate to refer to the construction of those provisions in construing s.485 of the Act. In view of the clear distinction in the ADJR Act between a "decision" and "conduct", Parliament should not be presumed to have intended to exclude review of conduct in addition to review of decisions.

Finally, the trial Judge addressed the question of relief.  He noted that, since the Court had no jurisdiction in respect of the invalid decision, the Court's jurisdiction "to make any order concerning that decision is severely circumscribed".  However, the authorities had given "great amplitude to the jurisdiction to grant declaratory relief", both in the inherent jurisdiction of the Court and pursuant to s.16 of the ADJR Act.  In his view, there was utility in granting declaratory relief, since an application was presently before the High Court, which had jurisdiction and power to review the decisions made on behalf of the Minister.  Accordingly, his Honour made the following declaration:

          "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."

The Minister's Contentions

First, the Minister contended that the letter of 29 November 1994 did not record a decision by the Senior Adviser, on behalf of the Minister.  Rather, the letter recorded action taken by departmental officers and persons within the Minister's office not to refer the matter to the Minister for his personal consideration.  Mr Tracey QC, who appeared with Mr Beech-Jones on the appeal, submitted that there was no evidentiary basis for his Honour's finding that the Senior Adviser had purported to make a decision on the Minister's behalf.

It followed that the letter of 29 November 1994 did not evidence a "decision to which this Act applies" within the meaning of s.3(1) of the ADJR Act.  The decision made by the departmental and ministerial advisers was not made under the Migration Act and thus was not a "decision under an enactment".  Nor was the decision final or operative and determinative in the sense required by Australian Broadcasting Tribunal v Bond at 336-337, per Mason CJ.  It also followed that there was no conduct engaged in "for the purpose of making a decision to which [the ADJR Act] applies", within the meaning of s.6(1)(a) of the ADJR Act.

Secondly, the Minister argued that, even if the letter of 29 November 1994 was properly characterised as a decision made on behalf of the Minister, it was not invalid.  Short of a formal delegation, the Minister was entitled to act through the agency of others in making the decision, on the basis of the principle stated in Carltona Limited v Commissioner of Works [1943] 2 All ER 560.

Thirdly, the Minister contested the trial Judge's finding that there had been a breach of the rules of natural justice by reason of the failure to inform Mr Ozmanian of the information relating to the inquiries made by Embassy officials in Armenia.

Fourthly, the Minister submitted that, on its proper construction, s.485 of the Act excludes the jurisdiction of the Federal Court under ss.6(1) and 8 of the ADJR Act to review "conduct engaged in for the purpose of making a decision".  The structure and legislative history of what is now Division 2 of Part 8 supported the conclusion that the legislation is intended to provide a comprehensive scheme of judicial review for decisions and actions engaged in under the Migration Act.  Thus, the words "in respect of...decisions covered by [s.475(2)]", in s.485(1) of the Migration Act, should be read as embracing conduct engaged in for the purpose of making a decision.

Finally, the Minister submitted that, in any event, a declaration should not have been made, since the Minister had indicated to the trial Judge that he would act consistently with the terms of any declaration the Court might otherwise be minded to make.

Mr Ozmanian's Submissions

Mr Ozmanian submitted that the trial Judge's reasons and conclusions were correct.  I shall deal with the submissions on the effect of s.485(1) of the Migration Act in more detail later.  However, it is important to note, as I have already said, that Mr Dwyer, counsel for Mr Ozmanian, did not challenge the trial Judge's view that s.485(1) deprives the Court of jurisdiction to review the decision made by or on behalf of the Minister not to consider the exercise of his power under s.417 of the Migration Act.  I shall say something later about the significance of the absence of a challenge on this issue for certain conclusions reached by the trial Judge.

The Jurisdictional Question

It is convenient to address the jurisdictional question first. If that question is resolved in favour of the Minister it is unnecessary to consider other issues dealt with by the trial Judge.

The Issues

The critical question is whether the language used in s.485(1) of the Migration Act denies jurisdiction to the Court to grant relief for a breach of the rules of natural justice occurring in the course of conduct undertaken for the purpose of making a decision on behalf of the Minister not to consider the exercise of his or her power under s.417.  In the absence of s.485(1), ss.6 and 8 of the ADJR Act would confer jurisdiction to review the conduct.  A decision of the Minister not to consider exercising his or her power under s.417 is a decision specifically referred to in s.475(2).  The question is therefore whether the words "in respect of...decisions covered by s.475(2)", as used in s.485(1), are wide enough to embrace conduct leading to a decision not to consider exercising the Minister's powers.

On the face of it, s.485(1) has a wide operation.  The Migration Act itself does not refer to conduct engaged in for the purpose of making a decision.  Nor does it define the word "decision".  The Act therefore does not, in terms, distinguish between a decision and conduct leading to that decision.  Moreover, the words "in respect of" are themselves broad.  In Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110, at 111, Mann CJ said that the

          "words `in respect of' are difficult of definition, but they have the widest possible meaning of any expression intended to convey some connexion or relation between the two subject-matters to which the words refer".

See State Government Insurance Office (Queensland) v Crittendon (1966) 117 CLR 412, at 416, per Taylor J, where these observations were cited with approval.  It is true that, like all statutory expressions of wide import, the meaning of the phrase "in respect of" must depend on the legislative context: State Government Insurance Office v Rees (1979) 144 CLR 549, at 560-561, per Mason J; Workers' Compensation Board of Queensland v Technical Products Pty Limited (1988) 165 CLR 642, at 646-647, per Wilson and Gaudron JJ.  Even so, the language of s.485(1) is clearly capable of being read as excluding the Court's jurisdiction, otherwise available under the ADJR Act, to grant relief in relation to conduct preceding the relevant decision.

Mr Dwyer, however, submitted that, although s.485 is effective to oust the Court's jurisdiction to grant relief in relation to the decision itself, the section does not affect the Court's jurisdiction to review conduct engaged in for the purpose of making that decision.   His argument was as follows.  Australian Broadcasting Tribunal v Bond draws a clear distinction between reviewable decisions and reviewable conduct.  It is a well established principle of construction that legislation should not be construed as ousting the jurisdiction of the Court.  Parliament should not be presumed to have intended such a result unless it has expressed itself in unmistakable and unambiguous terms.  Section 6 of the ADJR Act (in combination with s.8) confers important rights and procedural safeguards on individuals.  Section 485 of the ADJR Act does not manifest a clear and unmistakable intention to oust the jurisdiction under s.6 of the ADJR Act.  The phrase "in respect of...decisions covered by [s.475(2)]" is not sufficiently unambiguous to cover conduct anterior to such a decision.  Thus, although s.475(2) of the Migration Act refers specifically to a decision by the Minister not to consider the exercise of his or her powers under s.417, the language of s.485(1) should not be construed to exclude the jurisdiction of the Court in relation to conduct preceding that decision.

Legislative Background

In order to assess Mr Dwyer's argument, some background to the legislation is necessary.  What is now Part 8 Division 2 of the Migration Act, including s.485, was inserted by the Migration Reform Act 1992 (the "1992 Act").  The 1992 Act made a number of important amendments and additions to the Migration Act, some of which are described by Lehane J. in Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693.  (The decision in Mahboob was approved by the Full Court in Dai Xing Yao v Minister for Immigration and Ethnic Affairs, FCA/FC, 18 September 1996, not yet reported.) The Migration Act has since been renumbered and the references that follow, unless otherwise indicated, are to the renumbered provisions.  As Lehane J. explained (at 696), the changes included the following:

–          Part 2, Division 1AA of the Migration Act was repealed.  That Division had provided for the Minister to make a determination that a person was a refugee: see s.22AA of the Act, as inserted by the Migration Amendment Act (No.2) 1992 (Cth), commencing 30 June 1992.

–          A new category of visas called "protection visas" was introduced.  A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees: s.36.

–          A new code of procedure was introduced "for dealing fairly, efficiently and quickly with visa applications": see the heading to Subdivision AB of Division 3 of Part 2.  That code sets out the procedures for communication between the applicant and the Minister and specifies the powers and responsibilities of the Minister: ss.52-64.  A new subdivision AC sets out the circumstances in which the Minister is required to grant or refuse a visa and provides for the applicant to be notified of the Minister's decision.

–          Provision was made for "RRT-reviewable decisions" to be reviewed by the Tribunal, which was established by the
1992 Act: Part 7, Divisions 2, 9.  "RRT reviewable decisions" include a decision to refuse to grant a protection visa and a decision, made before 1 September 1994 (the date certain provisions of the 1992 Act came into force), that a non-citizen was not a refugee: s.411.

–          Decisions of the Tribunal are one of the categories of judicially reviewable decisions which the Court has power to review on specified grounds: ss.475, 476, 481, 486.

Somewhat surprisingly, although nothing turns on it in this case, various provisions of the 1992 Act have come into force at different times.  Thus, the provisions establishing the Tribunal (Part 7, Division 9) came into force on 7 December 1992: 1992 Act, s.2(1).  The provisions giving the Tribunal power to review decisions came into force on 1 July 1993 (1992 Act, s.2(2)).  The remaining provisions came into force on 1 September 1994 (see Migration Laws Amendment Act 1993 (Cth), s.2(2)).

The effect of this regime is that the Tribunal is given power to review RRT-reviewable decisions, including decisions relating to refugee status.  The Migration Act prescribes the manner in which the Tribunal is to exercise its powers: Part 7, Division 3.  The Tribunal is required to give the applicant an opportunity to appear before it to give evidence and is empowered to take evidence on oath or affirmation: ss.425, 427(1).  The Tribunal may exercise all the powers and discretions that are conferred by the Act on the primary decision-maker: s.415(1).  The Tribunal has power, inter alia, to affirm, vary or set aside the decision, or to substitute its own decision: s.415(2).  The Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick: s.420.  The Tribunal also must give reasons for its decision: s.430.

Section 417 operates within this framework.  It empowers the Minister, if he or she thinks it is in the public interest to do so, to substitute for a decision of the Tribunal under s.415 another decision, being one that is more favourable to the applicant.  Section 417(1) contemplates that the power conferred on the Minister will be exercised after the Tribunal has made a decision adverse to the applicant, presumably having conducted the proceedings in accordance with the procedural requirements specified in Part 7, Division 3.  (The applicant, of course, also has the opportunity to apply to the Court for review of the Tribunal's decision on the grounds permitted in s.476(1) of the Migration Act.)  Section 417(7) also makes it clear that the Minister is not under a duty to consider whether to exercise the power under s.417(1) in respect of any decision, whether or not the Minister is requested to do so by the applicant or any other person, or in any other circumstances.

The Distinction Between a Decision and Conduct

Mr Dwyer's argument was founded on the distinction between a decision and conduct engaged in for the purpose of that decision.

The trial Judge appreciated that a possible difficulty in the present case arose from the fact that the challenged conduct had, in a sense, been overtaken by a subsequent decision.  His Honour noted that comments had been made from time to time that s.6 of the ADJR Act relates only to proposed decisions, although he did not cite the cases he had in mind.  He expressed disagreement with these comments, at least in the case of conduct said to breach the rules of natural justice.  In such a case he thought that a Court exercising jurisdiction under the ADJR Act was not precluded from exercising a power of review under s.6(1)(a) of that Act, even if the conduct engaged in had already led to the decision being made.  The trial Judge accepted that the Court could decline to review conduct, if the conduct had been overtaken by a final decision reviewable under s.5 of the ADJR Act.  However, he considered that any such refusal to grant relief would be a matter of discretion only, rather than of power.  Accordingly, it was open to grant relief in relation to conduct engaged in for the purpose of a decision, even where the decision had been made.

This point was not examined in depth in the argument on appeal.  However, the relationship between ss.5 and 6 of the ADJR Act is not entirely clear and the authorities, if not inconsistent, reflect divergent approaches.  I do not think it is ultimately necessary to resolve the question of whether, where conduct has been engaged in for the purpose of making a decision to which the ADJR Act applies, and that decision has been made, the Court's power of review is confined to the decision itself and does not extend to the antecedent conduct.  Nonetheless, a reference to some recent authorities assists in understanding the relationship between conduct and a decision and in assessing the competing arguments on the construction of s.485 of the Migration Act.

The starting point is Australian Broadcasting Tribunal v Bond itself.  In that case, Mason CJ (with whom Brennan and Deane JJ agreed) adopted a restrictive construction of the word "decision", as used in the ADJR Act.  His Honour's conclusions are embodied in the following well-known passages (at 337-338, 341-342):

          "The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations.  That answer is that a reviewable `decision' is one for which provision is made by or under a statute.  That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.  A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

          Another essential quality of a reviewable decision is that it be a substantive determination.  With the exception of s.3(2)(g) [of the ADJR Act], the instances of decision mentioned in s.3(2) are all substantive in character.  Moreover, the provisions in sub-ss.(1),(2),(3) and (5) of s.3 point to a substantive determination.

          ...

          If `decision' were to embrace procedural determinations, then there would be little scope for review of `conduct', a concept which appears to be essentially procedural in character.  To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality.  Then it is the `conduct' of the hearing in refusing an adjournment that is the subject of review.  To treat the refusal of the adjournment in this way is more consistent with the concept of `conduct' than with the notion of `decision under an enactment'.

          ...

          My view is more in accord with the tentative opinion expressed earlier by Ellicott J. in Ross v Costigan, [(1982) 59 FLR 184, at 197] when he said that `it may well be that the word `decision' means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person'.  However, I would not wish for myself to place emphasis on the words `of itself' in this statement.  To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach.  Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.

          ...

          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 a final determination.  Thus, 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."

In Bond itself, the Tribunal had found that commercial licensees under the Broadcasting Act 1942 (Cth) were no longer fit and proper persons to hold their broadcasting licences.  Mason CJ accepted as correct a concession that this finding was a "decision of an administrative character made...under an enactment" (at 335).  While the finding was an intermediate determination made on the way to making the ultimate decision whether to revoke or suspend the licences, it was a decision on a matter of substance for which the Broadcasting Act specifically provided (this being one of the statutory grounds for cancellation or suspension of the licence) (at 339).

The Chief Justice did not specifically address the question
whether relief could be granted in respect of conduct preceding the decision that the licensees were no longer fit and proper persons, as distinct from relief in respect of the decision itself.  The case is therefore not an authority on this issue.  However, the language in the last paragraph of the passages cited is consistent with the proposition that conduct overtaken by a subsequent decision is not independently reviewable, but should be considered in the context of review of the decision itself.

Mason CJ made some additional observations on s.6 of the ADJR Act.  He pointed out that s.6(1) is not concerned exclusively with challenges to conduct on procedural grounds.  Section 6(1)(a) and (b) provide for "an order of review in respect of the conduct" on the grounds, respectively, of a breach of natural justice or a failure to observe the required procedures.  Section 6(1)(f) provides for review in respect of the conduct where an error of law has been or is likely to be committed in the course of the conduct.  However, other paragraphs of s.6(1) are concerned with defects in the proposed decision, as distinct from procedural or other defects in the course of the conduct.  For example, s.6(1)(c) provides for the case where the person engaging in the conduct does not have jurisdiction to make the proposed decision and s.6(1)(d) for the case where the proposed decision is not authorised by the relevant enactment.  In these instances, s.6 "merely allows the challenge to take place before the making of the proposed decision" (at 343).  If the challenge is made after the decision, s.5 permits the decision to be challenged on precisely the same grounds as are available in relation to the proposed decisions: see s.5(1)(c) and s.5(1)(d).  In such a case, it would seem that the ground of review provided for in s.6(1) is overtaken by the ground of review provided for in s.5(1).

The fact that some of the grounds of review specified in s.6(1) of the ADJR Act apply only to a proposed decision, does not necessarily mean that the operation of other grounds is also exhausted once a decision is made.  But both s.6(1)(a) and s.6(1)(b) have precise counterparts in s.5(1)(a) and s.5(1)(b).  Once a decision has been made, it is not easy to see the relevance, for the purposes of the ADJR Act, of a breach of the rules of natural justice or a failure to comply with procedural requirements in the course of the conduct preceding the decision, except in order to challenge the decision itself.

The relationship between ss.5 and 6 of the ADJR Act has been touched upon in cases decided after Bond.   In New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 (FCA/Hill J), Hill J considered the judgment of Mason CJ in Bond at length.  He drew two propositions from Bond in relation to reviewable conduct (at 380-381):

          "The first is that it is necessary, before there can
be review of conduct under s 6(1) of the ADJR Act, that there be able to be identified decisions of the relevant kind, not yet made, in circumstances where the Tribunal has embarked upon, or proposes to embark upon, the decision-making process leading up to the making of these decisions.  The second matter is that the review must be concerned with the procedure adopted by the decision-maker as the decision-making process leading up to the making of the relevant decision, the making of a decision in the course of the process not being, conformably with Bond, relevant conduct." [Emphasis added.]

The underlined words were not necessary for his Honour's decision, but they suggest that the review of conduct pursuant to s.6 of the ADJR Act is confined to conduct in relation to a decision that has not yet been made.  See also Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469 (FCA/FC), at 481; Hand v Hell's Angels Motorcycle Club Inc (1991) 25 ALD 667 (FCA/FC) (where the Full Court addressed separately decisions to refuse entry visas to four individuals and the conduct relating to nineteen other applicants whose applications had not been finalised).

In Deloitte Touche Tohmatsu v Australian Securities Commission (1995) 54 FCR 562 (FCA/Lindgren J), the applicant sought review of what was said to be a decision made by the Australian Securities Commission ("ASC"), pursuant to s.50 of the Australian Securities Commission Act 1989 (Cth), that it was in the public interest to cause proceedings to be begun and carried on by a company against the applicant (the company's auditors).  Section 50 empowers the ASC to cause proceedings to begin in the name of another person where it
appears to the ASC to be in the public interest for the person to begin and carry on the proceedings.  The grounds relied upon were improper exercise of power (ADJR Act, s.5(1)(e)), error of law (s.5(1)(f)) and lack of jurisdiction (s.5(1)(a)).

The ASC objected to the competency of the application, on the ground, inter alia, that the ASC's opinion that it was in the public interest to begin and carry on proceedings was not a "decision" within the ADJR Act.  Lindgren J (at 575) upheld the submission, concluding that the ASC's opinion (referred to in the judgment as the "Decision") was not final or operative and determinative.  It was only the decision to bring and carry on the proceedings that had the necessary quality of finality.  Review of that decision would have exposed for consideration the ASC's reasons for its conclusion that it was in the public interest to do so.  His Honour continued (at 576):

          "what must be attacked in the present situation is the ultimate and operative determination, because the Decision is, in the light of the taking of that ultimate and operative decision, a spent force.

          Similarly, [the applicant] is not `aggrieved by' the Decision but by the ASC's decision to begin and carry on the proceedings.  The appearance to the ASC as to the public interest has not affected [the applicant's] interests because it was immediately overtaken by the ASC's decision to litigate.  All affection of [the applicant's] interests is attributable to the latter decision."

Lindgren J's observations were not directed to a case where relief is sought in relation to "conduct" by reason of a denial of natural justice.  However, his approach suggests
that where conduct has been overtaken by a decision, the applicant should be regarded as aggrieved by that decision rather than the antecedent conduct.

An appeal to the Full Court from orders made by Lindgren J was allowed: Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138 ALR 655 (FCA/FC).  However, the Full Court expressed agreement with his Honour's conclusion on the objection to competency (at 667-668).

On the other hand, at least one decision has granted relief in relation to conduct engaged in for the purposes of a decision, after the decision itself was made.  In Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123 (FCA/FC), a delegate of the Minister accepted a recommendation that the applicant not be granted refugee status.  The delegate's determination was made in April 1990.  In September 1990, another delegate decided that the applicant should be refused an entry permit.  The applicant instituted proceedings in May 1990, challenging what was said to be the April decision.  In October 1990 an amended application was filed seeking, in addition, review of the refusal to grant an entry permit.

Gummow J (with whom Keely and Jenkinson JJ agreed on this point) held (at 131) that, under the Migration Act as it then stood, the April decision was not a final and operative decision in the sense required by Bond.  However, the inquiries and investigations which attended that decision were conduct engaged in for the purpose of making the decision refusing permanent resident status.  That was a final and operative decision, as that concept had been explained in Bond.

Gummow J found that there had been a denial of natural justice in connection with conduct engaged in for the purpose of making the September decision.  Orders were made on the appeal pursuant to s.16(2) of the ADJR Act, declaring that a breach of the rules of natural justice had occurred in connection with that conduct.  An order was also made directing the Minister to refrain from acting further on the September decision until the breach of natural justice had been rectified.

It is not clear why Gummow J considered that a declaration should be made in relation to the conduct, as opposed to an order setting aside the refusal to grant an entry permit on the ground specified in s.5(1)(a) of the ADJR Act.  It is possible that his Honour was influenced by the fact that the proceedings were instituted before the September decision, although they were subsequently amended to attack that decision.  In any event, the judgment does not explore the relationship between ss.5 and 6 of the ADJR Act in circumstances where the conduct has led to a decision.  Even so, the judgment assumes that the making of a decision does not necessarily preclude relief in respect of anterior conduct engaged in for the purposes of that decision.

Having regard to Heshmati, it is difficult to conclude that, where a final and operative decision has been made and the Court has power to make orders in relation to that decision, the Court lacks power to grant relief in relation to the conduct leading up to the decision.  However, the other authorities to which I have referred suggest that considerable care will be exercised in such a case before granting relief in relation to the antecedent conduct.  I think that the preferable view is that, in general, the conduct would be regarded as having been superseded by the decision, especially where the statutory grounds for review of the decision are in substance identical to those available in relation to conduct.  Thus, although there is a distinction between a decision and conduct engaged in for the purpose of that decision, the two concepts are closely related.  In particular, where a decision has been made, the Court will ordinarily review that decision, and should be cautious about reviewing the conduct engaged in for the purpose of making the decision.

The Approach to Construction

I turn now to the approach that should be taken to the construction of s.485(1) of the Migration Act.

The High Court has emphasised that the presence of general words in a statute

           "is insufficient to authorize interference with the
basic immunities which are the foundation of our freedom; to constitute such authorization express words are required".

Coco v The Queen (1994) 179 CLR 427, at 436, per Mason CJ, Brennan, Gaudron and McHugh JJ.  In the same case, their Honours continued (at 437):

          "The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them.  The courts should not impute to the legislature an intention to interfere with fundamental rights.  Such an intention must be clearly manifested by unmistakable and unambiguous language.  General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights."

The rationale for the presumption against the modification or abrogation of fundamental rights lies 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, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used`."

Bropho v Western Australia (1990) 171 CLR 1, at 18, citing Potter v Minahan (1908) 7 CLR 277, at 304.  Moreover, as the joint judgment in Coco v The Queen (at 437-438) pointed out:

          "curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights."

In Bropho, the Court accepted (at 18) that there might be circumstances in which the assumption underlying the presumption would be weakened or removed.  This would be the case, for example, if what was previously regarded as a fundamental principle or fundamental right ceased to be regarded as such.  In Coco the joint judgment observed (at 438) that the need for a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom does not exclude the possibility that the presumption may be displaced by implication.  This would be the case, for example, if an implication were necessary to prevent the statutory provision becoming inoperative or meaningless, although the Court considered it would be rare for general words to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made.

Construction of s.485

I am prepared to assume that the principles stated in Bropho v Western Australia and Coco v The Queen apply to the construction of s.485(1) of the Migration Act.  On this assumption it is necessary to determine whether the legislation clearly expresses an unmistakable and unambiguous intention to exclude the jurisdiction of the Court to review conduct engaged in for the purpose of the decision, as well as excluding jurisdiction to review the decision itself.

I have already referred to Mr Dwyer's concession that s.485(1) of the Migration Act deprives the court of jurisdiction to set aside the decision made by or on behalf of the Minister not to consider the exercise of the power under s.417(1) to make a decision in favour of Mr Ozmanian.  On his argument, the Court nonetheless retains jurisdiction to grant declaratory relief in relation to a breach of the rules of natural justice in the course of conduct leading to that decision. 

Clearly enough, neither Mr Ozmanian nor any of the applicants in similar cases, is seeking declaratory relief simply to make a point of academic interest only.  The trial Judge granted declaratory relief precisely because he thought that the breach of the requirements of natural justice was important to Mr Ozmanian's chances of securing a favourable decision under s.417.  In other words, the only practical utility of the relief obtained by Mr Ozmanian in these proceedings is to assist him in persuading the Minister, first, to consider exercising the power granted by s.417 and, secondly, to exercise that power in his (Mr Ozmanian's) favour.

If s.485 were given the construction supported by Mr Dwyer, it would deprive the Court of jurisdiction to review a decision authorised by s.417 of the Migration Act, yet preserve the Court's jurisdiction under the ADJR Act to review conduct engaged in for the purpose of that decision.  As I have pointed out, some of the grounds of review specified in s.6 of the ADJR Act apply only in relation to "proposed conduct".  It seems that their operation is exhausted once a decision is actually made.  However, some grounds are capable of surviving the making of the decision, such as those specified in s.6(1)(a) (breach of natural justice), s.6(1)(b) (failure to comply with required procedures) and s.6(1)(f) (error of law in the course of the conduct).

On Mr Dwyer's construction, where a decision is made under s.417 of the Migration Act, the Court can review the antecedent conduct on those grounds specified in s.6 of the ADJR Act that are capable of being applied after the decision has been made.  It would be open to a person in Mr Ozmanian's position to challenge the antecedent conduct on any of those grounds, for the purpose of requiring the Minister to revise his or her decision.  Such a challenge would be based on the very grounds that would have been available to challenge the decision itself, had s.485 not excluded the Court's jurisdiction to do so.

It is true that the narrow construction of s.485(1) supported by Mr Dwyer does not render the sub-section entirely inoperative or meaningless in relation to decisions made under s.417.  Antecedent conduct could not be challenged, for example, on the ground that the person proposing to make the decision did not have jurisdiction to make the proposed decision (ADJR Act, s.6(1)(c)).  That is because the power conferred by s.6 of the ADJR Act to review conduct on that ground is confined to a proposed decision and thus the power is exhausted when the decision is ultimately made.  But applicants could, in effect, secure review of decisions by challenging conduct on these grounds that are capable of application after a decision has been made.  An applicant could simply frame his or her application for review, for example, on the basis of an alleged breach of the requirements of natural justice in the course of conduct engaged in for the purpose of making the decision.  The relief sought could not include an order quashing the decision.  But, as in the present case, the practical effect of reviewing the conduct would be the same.

It is difficult to understand on what basis Parliament could be taken to have allowed decisions to be attacked in this indirect way on some of the grounds specified in s.6(1) of the ADJR Act, but not on others.  After all, s.6(1) of the ADJR Act was drafted on the assumption that s.5 would apply to decisions once they are made.  Mr Dwyer did not suggest any reason for Parliament to have drawn such a distinction.  The absence of a plausible explanation strongly suggests that, where a decision under s.417 of the Migration Act has been made, s.485(1) is intended to exclude the jurisdiction of the Court to review anterior conduct on any of the grounds specified in s.6(1) of the ADJR Act.

There is another difficulty confronting Mr Dwyer's argument.  It will be recalled that the argument was founded on the distinction between a decision and conduct engaged in for the purpose of that decision.  Mr Dwyer conceded that, if his argument were correct, it must mean that conduct leading to a "judicially-reviewable decision", as that term is used in the Migration Act, could be reviewed on the grounds specified in s.6(1) of the ADJR Act, even though the decision itself could be reviewed only on the limited grounds specified in s.476(1) of the Migration Act.

It follows from this concession that the conduct leading to the decision could be reviewed on the ground that a breach of the rules of natural justice had occurred in connection with that conduct.  Yet the judicially-reviewable decision itself could not be challenged on the ground that a breach of the rules of natural justice occurred in connection with the making of the decision: Migration Act, s.476(2)(a).  Any procedural challenge to such a decision is confined to a failure to observe the detailed requirements laid down by the Migration Act, or the regulations, for the making of the decision: Migration Act, s.476(1)(a).

In my opinion, this result is not consistent with the scheme established by Part 8 of the Migration Act.  Part 8 is intended to deal comprehensively with the procedures for and grounds of review of judicially-reviewable decisions.  It is not necessary to restate the provisions of Part 8.  This elaborate set of provisions is scarcely compatible with a construction of s.485(1) that permits the Court to review conduct leading to a judicially reviewable decision on grounds not provided for in Part 8 and in accordance with procedures untrammelled by the restrictions imposed by Part 8.

This view of the statutory scheme is confirmed by the Explanatory Memorandum which accompanied the Migration Reform Bill 1992. 

           "24.The Reform Bill contains an integrated package of amendments which will codify decision-making processes relating to the grant and cancellation of visas, greatly expand the availability of determinative merits review, and ensure that judicial review of migration decisions is available only on grounds which take into account the special nature of decisions on the status of non-citizens.  The package of amendments addresses concerns about the making of decisions under the Principal Act.  These concerns relate, on the one hand, to the fairness of procedures currently followed by decision-makers and, on the other hand, the potential for abuse of those procedures by non-citizens seeking to delay departure from Australia.

           ...

           28.  As noted above, the codified procedures to be established by the Reform Bill will replace the common law rules of natural justice or procedural fairness.  Those rules require that a person has a reasonable opportunity to present his or her case and, in most circumstances, be given an opportunity to respond to relevant and credible information which is adverse to that case.  The rules are embodied in the codified provisions set out in the Reform Bill which will also delineate precisely what is required to comply with the rules.

           ...

           44.  In acknowledgment of the special nature of immigration decisions and as a result of the widened availability of merits review the Reform Bill amends the Act to set down reformulated grounds for judicial review.  To ensure procedural fairness, procedures for decision making which embody the principles of natural justice have been set out in
the Reform Bill.

           45.  The specific codified procedures in the Reform Bill, and those to be set out in the Migration Regulations, replace the current uncertain rules with regard to natural justice and statutory criteria for decision-making will clarify the matters which must be considered in making a decision.  An applicant will be able to appeal to the Federal Court if the codified procedures and criteria have not been followed by decision-makers, but a Court appeal will only be permitted where the appellant has first pursued all merits review rights.

           46.  Codification of procedures will enable a balance between obligations on applicants - for instance in relation to time limits on applications and requirements to co-operate in processing of applications - and obligations on the Department - for example to provide applicants with an opportunity to comment on adverse material and take decisions only after prescribed periods have passed."

Mr Dwyer contended that this was not an appropriate case to refer to the Explanatory Memorandum, since the meaning of s.485(1) is clear on its face.  For my part, I think that the ordinary meaning of s.485(1), in its statutory context, is that the Court is deprived of jurisdiction to grant relief in relation to conduct preceding a decision, as well as in relation to the decision itself, other than on the grounds specified in s.476(1) of the Migration Act.  Reference to the Explanatory Memorandum is therefore justified by s.15AB(1)(a) of the Acts Interpretation Act 1901 (Cth), which provides as follows:

          "(1)...in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material -

          (a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act...".

See generally D.C. Pearce and R.S. Geddes, Statutory Interpretation in Australia (4th ed. 1996), paras. 3.5 - 3.8.

Exclusion of s.417 from Judicial Review

It follows from what I have said that, where a decision authorised by s.417 has been made, s.485(1) should be construed as excluding the jurisdiction of the Court to review conduct engaged in for the purpose of making that decision.  One consequence of this conclusion is that decisions authorised by s.417 are removed from the scope of judicial review, except to the extent that the original jurisdiction of the High Court extends to the review of those decisions.

I think that this consequence is contemplated by Part 8.  As I have explained, s.417(1) empowers the Minister to make a decision more favourable to a person than that made by the Tribunal on an application for refugee status.  The power can be exercised only after the applicant has had an opportunity to put his or her claim for refugee status to the Tribunal in accordance with the procedures which that Tribunal must follow.  The applicant also has an opportunity to challenge the Tribunal's decision on one or more of the grounds specified in s.476(1) of the Migration Act.  The special character of the Minister's discretionary power is shown by the requirement that any decision made in the exercise of the power must be laid before Parliament: s.417(4).  It is also shown by the express provision relieving the Minister from any duty to consider whether or not to exercise the power: s.417(7).  Parliament has clearly treated the Minister's discretionary power under s.417 (and equivalent powers conferred by other provisions in the Migration Act, such as ss.351, 391 and 454, referred to in s.475(2)) as a special case.  The Explanatory Memorandum to which I have referred shows that Parliament was concerned, rightly or wrongly, about the potential for abuse by non-citizens of the processes of judicial review.  The view appears to have been taken that a residual Ministerial discretion was warranted, but not at the price of judicial review of decisions made in the exercise of that discretion.

 A Denial of Fundamental Rights?

I have approached the question of construction on the basis that s.485 can properly be characterised as abrogating or curtailing fundamental rights, freedoms or immunities.  Although it is not necessary to resolve the question, I think the better view is that, having regard to its statutory context, the section should not be characterised in this way.

Section 485 excludes the jurisdiction of the Court to review judicially-reviewable decisions, excepting the jurisdiction conferred by Part 8 itself and the jurisdiction provided by s.44 of the Judiciary Act.  Part 8 provides for grounds of review, although they are narrower than those prescribed in s.5 of the ADJR Act.  The most significant differences, as Black CJ and Sundberg J recently pointed out in Dai Xing Yao v Minister for Immigration and Ethnic Affairs, FCA/FC, 18 September 1996, not yet reported, are that (at 4):

–         except for actual bias, a breach of the rules of natural justice is no longer a ground for review (s.476(2)(a));

–         Wednesbury unreasonableness is no longer available (s.476(2)(b));

–         although improper exercise of a power is a ground, it does not include taking an irrelevant consideration into account, failing to take a relevant consideration into account or exercising a discretionary power in bad faith (s.476(3)); and

–         an error of law is confined to an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found (s.476(1)(c)).

However, the available grounds are the eight grounds specified in s.476(1), including a failure to conform to the prescribed procedures (s.476(1)(a)) and the absence of evidence or other material to justify the making of the decision (s.476(1)(g)).

In Dai v Minister, Davies J expressed the view (at 15) that Part 8 of the Migration Act "is not illustrative of the outright ousting of jurisdiction".  Compare the principle that "a citizen's right to unimpeded access to the courts can only be taken away by express enactment": Raymond v Honey [1983] 1 AC 1, at 14, per Lord Bridge.  Davies J. described the effect of the amendments to the Migration Act as follows:

          "The provisions of the Migration Act have been strengthened with a view to ensuring that an applicant will have fair treatment at the level of primary decision-making and will also have the opportunity of internal review and of further review by the Immigration Review Tribunal or the Refugee Review Tribunal.  Both the Immigration Review Tribunal and the Refugee Review Tribunal are required to provide a mechanism of review that is fair, just, economical, informal and quick and both are required to act according to substantial justice [and] the merits of the case.  Statutory rights have been provided in place of, indeed additional to, the rights that previously found their basis in the common law.  The provisions with respect to judicial review have been adjusted by Parliament in the light of this framework."

There may be a question concerning the relationship between the requirements of s.420 of the Migration Act and the ground of review specified in s.476(1)(a) of the Act, that the procedures required to be observed have not been observed.  See Dai v Minister, at 17, per Davies J; compare Velmurugu v Minister for Immigration and Ethnic Affairs, FCA/Olney J, 23 May 1996, unreported (a case concerned with an alleged failure to comply with the requirements in s.420(1)(b) that the Tribunal should act according to "substantial justice and the  merits of the case").  Even so, I agree with Davies J's general description of the effect of the 1992 Act.

I should add that Part 8 does contain stringent time limits.  An application must be lodged within 28 days of notification of the Tribunal's decision and the Court has no power to extend the period: s.478.  Thus, where an individual, whether through ignorance or mistake, or for some other reason, fails to lodge an application in time, no relief is available under Part 8 of the Migration Act.  Whatever view is taken about the fairness of this requirement, it does not constitute a denial of jurisdiction to the Court to review judicially-reviewable decisions.  It is also necessary to take into account the jurisdiction of the High Court under s.75(v) of the Constitution, which may allow aggrieved persons to seek relief outside the 28 day period.

Section 485 has the effect, for the reasons I have given, of excluding the Court's jurisdiction under the ADJR Act to review decisions under s.417 of the Migration Act.  As I have said, Parliament appears to have taken the view that a residual Ministerial discretion, capable of being exercised in favour of an unsuccessful applicant for refugee status, is warranted, but not at the price of review by the Federal Court of such a decision or of the refusal to make such a decision.  It is not for the courts to say whether the legislative reconciliation of the competing interests of flexibility and speed is or is not appropriate.  But the exclusion of jurisdiction to review a decision of this kind is not necessarily to be regarded as an abrogation or curtailment of fundamental freedoms.  Particularly is this so in the light of the preservation of the Court's jurisdiction on remitter from the High Court, pursuant to s.44 of the Judiciary Act. 

Mr Ozmanian's application to the High Court has not been pursued, for reasons which have remained unexplained.  It is therefore inappropriate to comment on that application.  The trial Judge, however, appeared to assume that the High Court would have "jurisdiction and power to review the decision made on behalf of the Minister".  If that is so, it is difficult to see why s.485, insofar as it affects decisions made under s.417, should be regarded as abrogating or curtailing fundamental rights, freedoms or immunities.

The "Invalidity" of the Decision

I have referred to the conclusion reached by the trial Judge that s.485 of the Migration Act deprived the Court of jurisdiction to review the decision not to consider the exercise of a Minister's power under s.417 of that Act.  Despite this conclusion, his Honour expressed the view that the decision was an invalid exercise of the power conferred by s.417, on the ground that such a decision had to be made by the Minister personally.

In certain circumstances, it is doubtless appropriate for a trial judge to express an opinion on an issue which he or she has held to be beyond the jurisdiction of the Court to resolve.  This might be the case, for example, if there is doubt about the jurisdictional ruling and the expression of opinion is likely to assist an appellate court in the event that it takes a different view on the jurisdictional issue. See, for example, Velmurugu v Minister.  In the present case, the trial Judge may have expressed an opinion as to the validity of the decision for this purpose, although it is not clear whether, at the trial, Mr Ozmanian disputed the jurisdictional ruling made by his Honour in relation to the decision itself.

However, in my respectful opinion, it is appropriate to exercise some caution when dealing with an issue the Court has no jurisdiction to resolve.  In Parsons v Martin (1985) 5 FCR 235 (FCA/FC), at 240, the Court adopted the following definition of "jurisdiction" put forward in Halsbury's Laws of England (4th ed. 1975), vol.10, para.715:

          "the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision".

A ruling on the validity or invalidity of a decision, unless qualified in some way, is an exercise of jurisdiction in relation to that decision.

I should add that Mr Dwyer made it clear in argument before this Court that the invalidity or otherwise of the decision itself was not relevant to the argument concerning the proper construction of s.485(1) of the Migration Act.

The Declaration

Since preparing these reasons, I have had the opportunity of reading in draft the observations of Kiefel J relating to the grant of declaratory relief.  I agree generally with her Honour's comments on this issue.

Conclusion

In my opinion, the appeal should be allowed and the orders made by the trial Judge should be set aside.  In lieu of those orders, Mr Ozmanian's application should be dismissed.  The parties should have an opportunity to make submissions on costs.

                        I certify that this and the 59 preceding  pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

                        Associate:

                        Dated: 21 November 1996

Heard:             7 October, 1996

Place:             Melbourne

Decision:          21 November 1996

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

No VG 301 of 1996

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

BETWEEN:

                                    THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Appellant

AND:

                                    BRONWYN McNAUGHTON

Second Appellant

AND:

                                    TOSN OZMANIAN

Respondent

CORAM:                                            Jenkinson, Sackville and  Kiefel JJ

DATE:                                               

PLACE:                                              Melbourne (Heard in Melbourne)

REASONS FOR JUDGMENT

KIEFEL J:

      I have had the advantage of reading the reasons of Sackville J and agree with them and the orders proposed by his Honour.  The limitation expressed in s 485(1) Migration Act 1958, that this Court “does not have any jurisdiction in respect of ¼decisions covered by sub-section 475(2)” encompasses conduct leading to that decision, for the reasons given by his Honour.

      I also agree with his Honour’s observations concerning the apparent lack of relevance of conduct, to which s 6 Administrative Decisions (Judicial Review) Act
1977 (“AD(JR) Act”) might refer, when it is overtaken by a final decision.  In areas such as judicial review the Courts often express reluctance to confine provisions providing for review or to foreclose the possibility of its application to circumstances which cannot presently be envisaged.  Nevertheless it can be said that s 6 does appear to have regard to the circumstance where a decision has not yet been made, as Hill J observed in New South Wales Aboriginal Land Council & Ors v Aboriginal and Torres Strait Islander Commission & Anor (1995) 59 FCR 369, 380.  And this is, to an extent, reinforced by the relief provided, with respect to conduct, by s 16(2) which is in these terms:

    “(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.”

The remedies provided for would have the effect of adjusting the parties’ positions and setting the process on a correct course towards a conclusion which has not yet occurred.  In this connexion, the view expressed by Lindgren J in Deloitte Touche Tohmatsu v The Australian Securities Commission (1995) 54 FCR 562, and referred to by Sackville J, as to the causal link required, is to the point.  In a case such as this it would be relevant to enquire just what the applicant has been “aggrieved by”.  It is clearly enough the decision which had the consequence that he be denied the necessary status for migration.  These matters were not however relied upon by the Minister on the appeal and I need take them no further.

      The aspect of the primary Judge’s decision to which I wish to refer is that concerning the grant of a declaration in circumstances where it is of doubtful utility.  Assuming, for present purposes, that there remained jurisdiction to review conduct leading to a decision, it was not possible by reason of s 417(7), to direct the Minister to make a decision, under s 417(1), as his Honour acknowledged.  That left only the possibility of a bare declaration, not declaratory of any present right, and amounting only to an acknowledgment of past infringement of a right to procedural fairness. 

      The declaration made by his Honour the primary Judge was in these terms:

    “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.”

      Even if one were to read s 16(2)(a) AD(JR) Act as not confined to a declaration as to the present rights of the parties, it would usually either have attached to it consequential directions or orders, or the terms of the declaration itself would make clear to those concerned what was to follow. 

      Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564 was referred to by his Honour as exemplifying a broad view of the circumstances in which a declaration might be appropriate.  The Court there granted a declaration, to the effect that the applicants had been denied natural justice, although the report concerning their probity had been tabled in Parliament and no further order was possible.  I do not however detect from the judgments a view that a declaration was appropriate if it had
no practical consequences.  In the judgment of Mason CJ, Dawson, Toohey and Gaudron JJ (582) their Honours reaffirmed the statement of principle in Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180, 188 that leave would not be granted if “the Court’s declaration will produce no foreseeable consequences for the parties”.  The statement in Gardner’s case, to which their Honours made reference, was made in the background of arrangements which were no longer in operation by the time the matter came to Court and which had been superseded by further legislation.  In Ainsworth’s case their Honours clearly considered that the declaration would have utility in that it may redress some of the harm done to the applicants’ reputation.

        Brennan J in Ainsworth (596-7) did adopt the following statement of Lord Brightman in Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155:

    “it would, to my mind, be regrettable if a litigant who establishes that he has been legally wronged, and particularly in so important a matter as the pursuit of his chosen profession, has to be sent away from a court of justice empty-handed save for an order for the recoupment of the expense to which he has been put in establishing a barren victory.”

In Chief Constable v Evans it was not possible to add to the declaration, that a breach of procedural fairness had occurred, an order for mandamus.  Such an order would have been appropriate except that it was considered to cut across the powers of the Chief Constable.  Nevertheless it was possible to make a declaration of some utility and as to the probationary constable’s then existing rights.  Lord Brightman (at 1175), after concluding that the Chief Constable had acted unlawfully, said:

    “That having been established, the respondent is, in my view, entitled at least to a declaration to that effect.  But the matter cannot be satisfactorily left there.  One must know what are the consequences that flow from the breach of duty.”

And I did not infer from the passage quoted by Brennan J from Lord Brightman’s judgment, that his Honour considered that there was some entitlement to relief wherever a breach of natural justice was shown.  From what follows in his Honour’s reasons it appears his Honour also considered that the declaration might remedy, to some extent, the situation created by the conduct.

      None of the other cases referred to by the primary Judge establish any principle different from that stated in Gardner’s  case and Ainsworth.  A declaratory order must be productive of some effect before it could be said to be warranted.  And, given that his Honour listed a number of grounds which might support the making of the declaration in question, one infers that his Honour took that to be so.  From what follows however the question which arises is whether any effect will suffice.  And for the purpose of that consideration one needs to bear in mind that any consequences could not be brought about by the declaration itself, as might occur where there is a pronouncement of the parties’ rights.  If it were to have operation it would be in another sphere.

      In the present case Mr Ozmanian’s reputation was not impeached in any way by the conduct or by the decision which followed, although the latter was not relevant to his Honour’s assessment.  And, whilst his Honour was correct to observe that the consequences for the applicant “of the processes followed by the Department” were drastic, that is because a decision was made upon them.  The declaration could in no way redress it save for some ill-defined prospect that the Minister might be moved to consider it.  Indeed his Honour put it no more highly than a possibility that a valid decision might be made at some time in the future.  In this connection his Honour had
stated, as the last of the bases for his decision, that Counsel for the Minister had advised that the Minister would be assisted by declaratory relief, to better enable him to discharge his functions under the Act.  If the Minister had, by this process, invited the making of a declaration on the basis that it would be acted upon, one could not conclude that exercise of his Honour’s discretion had miscarried.  But the statement by Counsel for the Minister did not go this far.  It was apparently said that there was no need for any order directing the Minister to do anything and that a declaration would suffice.  But, as I understand it, this was on the basis that the issue was whether the Minister’s consideration was required by the Act.  A declaration such as that made was not envisaged.

      The only other ground referred to by his Honour, and which might provide the necessary consequences, related to the proceedings brought by the applicant in the original jurisdiction of the High Court for orders for prohibition and mandamus and certiorari against the Minister and which might be the subject of application for remittal to this Court.  As Sackville J has observed, nothing appears to have been done towards achieving this.

      His Honour held that the justiciable dispute between the parties remained unresolved by the proceedings before him.  So much is clear.  And, although having expressed some reservation about the likely extent of this Court’s jurisdiction on remittal (a matter upon which comment should presently be withheld), his Honour considered that declaratory relief might prove to be of some significance to those proceedings and productive of some legal consequences.

      With respect to his Honour, the enquiry for the Court, when considering the grant of declaratory relief in such circumstances, cannot be whether it will be productive of any legal consequence.  If the utility of a declaration is to be found in its operation within other proceedings between the parties, the Court must consider what use it will serve and what it might resolve.  It is, after all, to operate by way of a remedy.  And a consideration of possible outcomes does not support the order made.  The example given by his Honour - the creation of an issue estoppel - highlights the problem.  For what facts and issues the declaration forecloses, it had the potential to create dispute between the parties as to the extent of its operation and produce the undesirable consequence of preventing the Judge, who is to hear and determine the matter, from coming to a view on an important aspect of the matter and one influential as to the appropriate relief to be granted.  It is, needless to say, regrettable that it was not sought to have those proceedings heard at the same time as the application before his Honour.

      Regardless of the source of power for the grant of a declaration of this kind the object of it, in the context of its effect on other proceedings, must be the determination of matters in controversy between the parties and the limitation of proceedings.  This finds expression of course in s 22 Federal Court of Australia Act (Cwth) 1976.  To like effect is s 63 Supreme Court Act (NSW) 1970.  In Trans Realties Pty Ltd v Grbac [1975] 1 NSWLR 170, 183 all that could be achieved by the declaration there sought was the creation of an issue estoppel which might operate in later proceedings brought for damages for breach of contract.  Mahoney JA did not consider that that sufficed as a proper use of the power (see also Glass JA at 176). 

      Subject to what I have said above, about the uncertainty which often attends the extent of an issue estoppel, it might be thought that at least it might provide some benefit to Mr Ozmanian, although this was not a reason given by his Honour.  This is not a case, such as Ainsworth, where the judicial pronouncement was seen to have some mitigating effect on damage suffered by him personally, in the sense of his reputation or business interests.  In the context presently under consideration its use can only be justified if it serves to do justice between the parties to the controversy by playing a part in the resolution of their dispute.

      For these reasons, had the declaration not been set aside on the grounds set out by Sackville J, I would have felt obliged, in any event to do so.  In my respectful opinion it will be a rare case where a bare declaration will be seen to be justified and the present is not such a case.

            I certify that this and the preceding seven pages are a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.

                  Associate

                  Date:

Counsel for the appellants:                           Mr RRS Tracey SC and with him

                                                                  Mr RT Beech-Jones

Solicitors for the appellants:              Australian Government Solicitor

Counsel for the respondent:                          Mr JL Dwyer and with him Mr T Hurley

Solicitors for the respondent:                        Erskine Rodan & Associates

Date of Hearing:                                       7 October 1996

Place of Hearing:                                      Melbourne

Place of Judgment:                                   Melbourne

Date of Judgment: