FEDERAL COURT OF AUSTRALIA

Burgess v Minister for Immigration & Multicultural Affairs [2000] FCA 926

MIGRATION – jurisdiction with respect to “judicially-reviewable decisions” – whether action of which review sought a decision “made under th[e] Act…relating to [a] visa[ ]” – whether Act confers on Minister power to decide to revoke earlier visa cancellation decision made under s 501(2) – whether intention appears in Act that power to decide to cancel visa under s 501(2) not to be exercisable from time to time as occasion requires

Migration Act 1958 (Cth), ss 475(1)(c), 478(1)(b), 478(2), 486, 501, 501A(3), 501C(4), 501G(1)(e)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Acts Interpretation Act 1901 (Cth), s 33(1)

Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth)

Judiciary Act 1903 (Cth), s 39B

Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 discussed

Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 referred to

Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789 referred to

Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 referred to

Comptroller-General of Customs v ACI Pet Operations Pty Ltd (1994) 49 FCR 56 referred to

Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 referred to

BRIAN JOHN LAWRENCE BURGESS v

THE HON. PHILIP RUDDOCK, MP

MINISTER FOR IMMIGRATION &

MULTICULTURAL AFFAIRS

N 711 of 2000

10 JULY 2000

KATZ J

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the respondent’s costs of the proceeding.

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

REASONS FOR JUDGMENT

1                     There is before the Court an application which seeks to invoke this Court’s jurisdiction under s 486 of the Migration Act 1958 (Cth) (“the Act”).  That jurisdiction is one with respect to “judicially-reviewable decisions”.  For present purposes, it is sufficient to say that “judicially-reviewable decisions” include, by reason of par 475(1)(c) of the Act, “decisions made under th[e] Act … relating to visas”, when such decisions are made by decision-makers including the Minister for Immigration and Multicultural Affairs (“the Minister”).

2                     It has been submitted before me by the applicant, Mr Brian John Lawrence Burgess, that his application is one for review of a judicially-reviewable decision within the meaning of par 475(1)(c) of the Act, being an application for review of a decision which was “made under th[e] Act … relating to [a] visa[ ]” and which was made by the respondent, the Minister.  The applicant identifies that decision as being one which was made by the respondent to refuse to revoke a decision earlier made by the respondent to cancel a visa that had been granted to the applicant.

3                     The respondent, on the other hand, denies that his action identified by the applicant as a judicially-reviewable decision within the meaning of par 475(1)(c) of the Act falls within that class.  If the respondent is correct, then this Court has no jurisdiction under the Act with respect to the respondent’s action and the applicant’s application is incompetent.

4                     The issue of this Court’s jurisdiction under the Act has arisen in the course of a motion by the applicant for interlocutory relief, which motion I heard late on Friday afternoon last.  Because the issue has arisen in the course of a motion for interlocutory relief, the evidence which I have before me presently is obviously not as extensive as it might otherwise be.  However, based on the evidence which I do have before me, which appears to me to be adequate for present purposes, the circumstances out of which the application for review has arisen appear to me to be as I set them out below.

5                     On 14 April 2000, the applicant was the holder of a permanent transitional visa.  On that day, the respondent decided (in person) to cancel that visa.  The power relied on by the respondent in doing so was that conferred by subs 501(2) of the Act, which conferred on the Minister a discretion to decide to cancel a visa that had been granted to a person who possessed what was described in s 501 of the Act as a “substantial criminal record”.

6                     It is not in dispute before me that the applicant did possess what was described in s 501 of the Act as a “substantial criminal record”.  He had been convicted in October 1996 (after pleading guilty) of two charges of importing into Australia a trafficable quantity of cocaine and had been sentenced on each charge to seven years’ imprisonment, beginning in July 1996.  The sentences were to be served concurrently and each had a non-parole period of four years, ending today.

7                     The applicant was notified of the visa cancellation decision on the day on which it was made.  The applicant did not, however, within the time permitted by par 478(1)(b) of the Act or at all, apply for review under the Act of the respondent’s visa cancellation decision and it is conceded by the applicant that that decision is now beyond the reach of review by this Court.

8                     However, it seems that, on 27 April 2000 and again on 26 May 2000, a Ministerial colleague of the respondent made representations to the respondent on behalf of the applicant concerning the applicant’s status in Australia.  By letter dated 2 June 2000 and received by the respondent’s Ministerial colleague on 7 June 2000, the respondent responded to those representations by declining to revoke his earlier visa cancellation decision.  As I understand the respondent’s letter, his reason for so declining was a purported absence of power in him to do so.

9                     I have also been informed from the Bar table that the respondent’s Department informed the applicant (precisely when, I do not know) of an intention to remove the applicant from Australia today, on his expected release from prison on parole.  The interlocutory relief which has been sought by the applicant would, if granted, prevent that removal until the final determination of his application to this Court.

10                  It has been submitted before me by the applicant that it is the respondent’s letter of 2 June 2000 to his Ministerial colleague which evidences the making by the respondent on that day of a decision under the Act relating to a visa, namely, one to refuse to revoke his earlier visa cancellation decision.  It has further been submitted before me by the applicant that that decision was erroneous, because the respondent did have the power to decide to revoke his earlier visa cancellation decision.

11                  One problem which the applicant immediately faces in making both of the submissions to which I have just referred is that the Act does not expressly confer on the Minister a power to decide to revoke an earlier decision made by him under subs 501(2) of the Act to cancel a visa that has been granted to a person.  The applicant must therefore establish, at least in order to satisfy me that this Court has jurisdiction with respect to his application, that the Act impliedly confers on the Minister a power to decide to revoke a decision earlier made by him under subs 501(2) of the Act to cancel a visa that has been granted to a person.  If the Act does not impliedly do so, then the respondent’s declining to revoke his earlier visa cancellation decision cannot be a decision made under the Act within the meaning of par 475(1)(c) of the Act.

12                  The problem which the applicant faces is similar to that which was faced by the applicant in Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429.  That was a case in which a Ministerial delegate had declined, by reason of a purported lack of power to do so, to reconsider an earlier decision by a Ministerial delegate refusing to grant an entry permit to the applicant.  Such declining was challenged under the Administrative Decisions (Judicial Review) Act 1977 (Cth) by the disappointed entry permit applicant.  It was claimed by the applicant that the declining was the making of a decision under the Act and that that decision had been erroneous, because there existed an implied power to decide to grant an application for the particular type of entry permit applied for, nonetheless though a decision had already been made not to grant that application.  The respondent, on the other hand, objected to the competency of the application to the Court on the ground that his delegate’s declining to reconsider the earlier decision had not been a decision under the Act, the Act conferring no implied power to decide to grant an application for the particular type of entry permit applied for when a decision had already been made not to grant that application.

13                  In concluding that the Act did not confer an implied power to decide to grant an application for the particular type of entry permit applied for when a decision had already been made not to grant that application, French J said (at 443-44),

“… reconsideration of a statutory decision may itself be a course contemplated or authorised by the statute.  The question [whether it is such a course] is one of statutory construction.  It is not without difficulty and is attended by policy considerations which are in some degree in conflict.  The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless requests for reconsideration on new material or changed circumstances.  Each decision taken in the exercise of such an implied power would arguably attract the application of the Administrative Decisions (Judicial Review) Act or the constitutional jurisdiction conferred on the High Court by s 75(v) of the Constitution and in its statutory form, on this Court by s 39B of the Judiciary Act 1903 (Cth)….

Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision-maker may be persuaded on appropriate and cogent material that a decision taken ought to be re-opened without the necessity of invoking the full panoply of judicial or express statutory review procedures.  There is nothing inherently angelical about administrative decision-making under the grant of a statutory power that requires the mind that engages in it to be unrepentantly set upon each decision taken.

The general question whether an implication should be found in the express words of a statute has been said to depend upon whether it is proper, having regard to accepted guides to construction, to find the implication and not on whether the implication is ‘necessary’ or ‘obvious’: see F A R Bennion, Statutory Interpretation (1984), p 245.  While implication can often be justified by necessity, it should not be limited by that condition.  The question whether some power, right or duty is to be implied into a statute will depend upon the construction of the provisions under consideration having regard to their purpose and context and other traces of the convenient phantom of legislative intention….

While it may be accepted that a power to reconsider a decision made in the exercise of a statutory discretion will have the advantage of convenience, it cannot always claim the virtue of necessity.  And in the context of the Migration Act as it presently stands with specific provisions for review of decisions and the making of regulations relating thereto, I do not consider, in the absence of clear words, that it would be proper to imply such a power.  The implication so far as it would relate to the exercise of the power under the Act to grant or refuse to grant an entry permit is not to be affected by what appears in the Regulations.  Nevertheless, the existence of the regulation making power and the detailed provisions of s 115 in relation to the review of decisions tends to suggest a legislative purpose of codifying and confining the bases upon which decisions made under the Act or Regulations are able to be reviewed.   In my opinion there is no implied power on the part of an officer refusing the grant of a December 1989 (Temporary) Entry Permit to reconsider that decision once it has been formally made and notified to the applicant.  The objection to competency and the question raised by [the] ground [of review] … collapse into the same point.  The objection succeeds and [the] ground [of review] … fails.”

14                  It must be pointed out immediately that, in Sloane, as in the submissions before me in the present case, no reference was made to subs 33(1) of the Acts Interpretation Act 1901 (Cth), which provides that, “Where an Act confers a power …, then, unless the contrary intention appears, the power may be exercised … from time to time as occasion requires.” It was that provision, together with an absence of the appearance of a contrary intention in the Act, which had led Gummow J, in obiter in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 (Neaves, Ryan and Gummow JJ), to conclude (at 218) that the Minister’s power under the Act to make a deportation order was exercisable so as to revoke a deportation order previously made.

15                  Sloane, subs 33(1) of the Acts Interpretation Act and what Gummow J had said in obiter in Kurtovic were recently discussed in the joint reasons for judgment of Beaumont and Carr JJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789 (Beaumont, Carr and Lehane JJ, 15 June 2000, unreported).  In those joint reasons for judgment, their Honours distinguished Sloane, as having concerned a decision-making power of the Minister, rather than of the Immigration Review Tribunal, it being the latter decision-maker with whose powers the Court was concerned in Bhardwaj.  It is, however, to be noted that their Honours did not conclude that Sloane had been wrongly decided and, for myself, I can see no reason to assume that French J would have reached in Sloane a different conclusion than the one which he actually reached if he had taken into account subs 33(1) of the Acts Interpretation Act and what Gummow J had said in obiter in Kurtovic.  I infer that French J’s response to any reliance before him on subs 33(1) of the Acts Interpretation Act would obviously have been that the contrary intention referred to in that provision did appear in the Act for the very reasons which he gave for construing as he did the provision conferring the power to decide to grant an application for the particular type of entry permit there under consideration. 

16                  Certainly, so far as French J’s approach generally to the question of implication in statutes is concerned, it was subsequently referred to with approval in the joint reasons for judgment of French and Beazley JJ (at 37) in Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 (Gummow, French and Beazley JJ).  Further, in Comptroller-General of Customs v ACI Pet Operations Pty Ltd (1994) 49 FCR 56, a Full Court of this Court (Beaumont, French and Drummond JJ) would apparently have followed French J in Sloane if it had been necessary (which, in the result, it was not) to decide a similar question in the circumstances of that case (see at 72-73).  Finally, in the reasons for judgment of Madgwick J in the recent case of Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240 (Spender, Higgins and Madgwick JJ, 16 March 2000, unreported), his Honour referred (at [107]) to French J’s decision in Sloane with apparent approval.

17                  In all the circumstances, I will approach the question whether the Act impliedly confers on the Minister a power to decide to revoke an earlier visa cancellation decision made by him under subs 501(2) of the Act in a fashion similar to that of French J in Sloane, but asking myself instead whether the provisions of the Act disclose a contrary intention for the purpose of subs 33(1) of the Acts Interpretation Act.

18                  In that connection, it is significant that subs 501(2) of the Act, the provision which was relied on by the respondent in the present matter as conferring the power to decide to cancel a visa, was added to the Act as part of a package of amendments dealing with the making of decisions on character grounds regarding the entry of non-citizens into, and their presence in, Australia: see the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth).

19                  When one examines that package, one finds that the power conferred by subs 501(2) of the Act to decide to cancel a visa on character grounds was one only of a number of such powers conferred.  In particular, subss 501(3) and 501A(3) of the Act also conferred such powers to decide to cancel a visa.  However, what is striking about the latter two provisions is that subs 501C(4) of the Act expressly conferred a power to decide to revoke visa cancellation decisions made under them.   Subsection 501C(4) of the Act, however, did not extend to subs 501(2) of the Act, although, as I have already said, the provisions were enacted simultaneously.

20                  Confronted with the presence in the Act of subs 501C(4), the applicant sought to overcome its effect by arguing that I should infer that the Parliament’s only purpose in adding subs 501C(4) to the Act was to substitute for the implied powers to decide to revoke visa cancellation decisions made under subss 501(3) and 501A(3) of the Act, which powers would have been unconfined, express powers which were confined.

21                  I accept that subs 501C(4) of the Act does ensure that the Minister’s power to decide to revoke visa cancellation decisions made under subss 501(3) and 501A(3) of the Act is confined, at least in the sense that there are conditions precedent to its exercise.  However, I am not persuaded that the confinement of such a power otherwise impliedly conferred was the Parliament’s purpose in adding subs 501C(4) to its package of amendments to the Act.  To my mind, the far more obvious inference to be drawn from the subsection’s presence in the package is that the Parliament specifically turned its mind to the question of which of those powers being conferred to decide to cancel a visa should be accompanied by a power to decide to revoke the original decision; then, having specifically turned its mind to that question, it decided that the decision-making powers conferred by subss 501(3) and 501A(3) of the Act should be accompanied by a power to decide to revoke the original decision, but that no other such decision-making power, including the decision-making power conferred by subs 501(2) of the Act, should be so accompanied.

22                  As well as seeking to avoid the natural inference to be drawn from the presence in the Act of subs 501C(4), the applicant also relied on the presence in the Act of par 501G(1)(e) as supporting the existence of an implied power in the Minister to decide to revoke an earlier decision under subs 501(2) of the Act to cancel a visa.  Paragraph 501G(1)(e) of the Act relevantly requires the Minister to give to a person whose visa the Minister has decided to cancel under certain provisions of the Act, including subs 501(2), a written notice that sets out the reasons for that decision.  The applicant submitted that it should be inferred from that requirement that the Minister had an implied power to decide to revoke an earlier visa cancellation decision made by the Minister (in person) under (relevantly) subs 501(2) of the Act, since the requirement was plainly not imposed in aid of review by a tribunal of that earlier decision, there being no such tribunal review available.

23                  I reject that submission.  If there could have been no conceivable reason for imposing such a requirement other than assisting in an application to the Minister to exercise a power to decide to revoke an earlier visa cancellation decision made by the Minister under subs 501(2) of the Act, then I agree that the imposition of such a requirement would support an inference that such an implied power existed.  However, there exists at least one other, obvious, reason for imposing such a requirement, namely, to facilitate an applicant’s right of judicial review of a visa cancellation decision made by the Minister under subs 501(2) of the Act, a right of which the applicant in the present matter chose not to avail himself.  Thus, the presence in the Act of par 501G(1)(e) is neutral on the issue presently under discussion.

24                   I should add that, as well as being influenced by the presence in the Act of subs 501C(4) in reaching a conclusion that, for the purpose of subs 33(1) of the Acts Interpretation Act, a contrary intention appears, I am also influenced by the imposition by the Act of a short, inflexible (see par 478(2) of the Act), time limit for seeking review by this Court of judicially-reviewable decisions.  It appears to me that it would fit awkwardly with such a regime that there should be an implied power to decide whether to revoke an earlier visa cancellation decision made under subs 501(2) of the Act.  If there were such an implied power, the Minister would presumably be under a duty to exercise it on the making of an application for its exercise.  Further, an application for its exercise could presumably be made at any time, which would mean that the Parliament’s obvious intention that disputes about visa cancellation decisions under subs 501(2) of the Act be resolved as expeditiously as possible could be frustrated.

25                  There remain only two further matters to mention for present purposes.

26                  First, as I understood it, it was the applicant’s submission before me that, since I was hearing a motion by him for interlocutory relief, I should only decide presently whether I was satisfied that there existed a serious question as to whether the Minister has an implied power to decide to revoke an earlier visa cancellation decision under subs 501(2) of the Act and not decide that question finally.  I reject that submission.  To use the language used by French J in Sloane, the question whether the Minister has an implied power to decide to revoke an earlier visa cancellation decision made under subs 501(2) of the Act and the question whether this Court has jurisdiction to entertain the applicant’s application “collapse into the same point”.  Before deciding whether to grant interlocutory relief, it was appropriate that I should, if at all possible, decide whether this Court has jurisdiction in the matter.  In the present case, as I have had the weekend to consider the matter, it has been possible for me to reach a decision on this Court’s jurisdiction and I should give effect to that decision.

27                  Secondly, although the application filed by the applicant seeks to invoke, as I said at the outset of these reasons, this Court’s jurisdiction under s 486 of the Act, when the applicant’s motion for interlocutory relief came on for hearing before me, the applicant filed in Court, with leave, a document (seemingly inappropriately) headed “Notice of Motion”, which document contained a reference to s 39B of the Judiciary Act 1903 (Cth).  I must confess to being unsure whether that reference was intended by way of amendment to the application or otherwise.  However, as the matter developed during argument, I understood the applicant not to be pressing any attempted invocation on his part of this Court’s jurisdiction under the Judiciary Act.  Nevertheless, I mention that the conclusion which I have reached, for the necessary purpose of deciding whether this Court has jurisdiction under the Act, on the question whether there exists an implied power in the Minister to decide to revoke an earlier decision by the Minister to cancel a visa under subs 501(2) of the Act, would necessarily mean that any application made by the applicant in reliance on the Judiciary Act, based on an allegedly erroneous belief by the respondent as to the scope of his powers, would also fail.

28                  In the circumstances, I will dismiss the application as incompetent.  The applicant must pay the respondent’s costs of the proceeding.

Associate:

Dated:              10 July 2000