FEDERAL COURT OF AUSTRALIA

Prasad v Minister for Immigration & Multicultural Affairs [2000] FCA 1177

NARENDRA PRASAD, ANITA PRASAD and NIRENDRA PRASAD

 v THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 319 of 2000

RYAN, MATHEWS and DOWSETT JJ

23 AUGUST 2000

MELBOURNE (Heard in SYDNEY)

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellants pay the respondent’s costs of the appeal.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

1                     The appellants, who are Fijian nationals, arrived in Australia on 9 August 1987 on a six months visitor’s visa.  Shortly before that visa expired they applied for residence in Australia claiming strong compassionate or humanitarian grounds.  The following statement of further facts is taken from the reasons for judgment of the learned primary Judge:

“The applicant was notified by letter dated 1 March 1988 that the application had been rejected.  A consideration of the assessment report indicates that the decision-maker, in reaching that decision, may have taken into account considerations which were later exposed as irrelevant in [Dahlan v Minister for Immigration, Local Government & Ethnic Affairs (Federal Court, Unreported, 12 December 1989)], as the report includes:

“The applicant has not shown ... that the hardship suffered has been greater than that experienced by other persons in similar circumstances in Fiji.”

On 25 March 1988 the applicant lodged with the Department a form styled “Request for Reconsideration of a Migration Act Decision”.  This was referred to the Immigration Review Panel which recommended on 15 June 1988 that the Departmental decision be maintained.  On 20 June 1988 a decision was made to accept the Panel’s recommendation and the minute of the Panel’s recommendation is endorsed under the heading of “Ministerial Decision” with a notation that the Departmental decision is maintained.  Notice of that decision was given to the applicant by letter dated 24 June 1988, which included the following:

“As you have had the full benefit of the merit review system, the case will not be re-examined.  If you wish to pursue the legal aspects of the decision, you should seek avenues available to you outside the Department.””

2                     Section 6 of the Migration Act 1958 (Cth) (“the Act”) in the form in which it was before 19 December 1989 provided, so far as is relevant:

“(1)     A non-citizen who, not being the holder of an entry permit that is in force, enters Australia thereupon becomes a prohibited non-citizen.

(2)       An officer may, in accordance with this section and at the request or with the consent of a non-citizen, grant to the non-citizen an entry permit.

(3)       An entry permit shall be in a form approved by the Minister and shall be expressed to permit the person to whom it is granted to enter Australia or to remain in Australia or both.

.....

(5)       An entry permit may be granted to a non-citizen either upon his arrival in Australia or, subject to section 6A, after he has entered Australia (whether or not that entry took place before, or takes place after, the commencement of this Part).”

3                     Section 6A(1) of the Act, also as in force before 19 December 1989, provided:

“An entry permit shall not be granted to a non-citizen after his entry into Australia unless one or more of the following conditions is fulfilled in respect of him, that is to say -

(a)       he has been granted, by instrument under the hand of a Minister, territorial asylum in Australia;

(b)       he is the spouse, child or aged parent of an Australian citizen or of the holder of an entry permit;

(c)        he is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of the Convention relating to the Status of Refugees that was done at Geneva on 28 July 1951 or of the Protocol relating to the Status of Refugees that was done at New York on 31 January 1967;

(d)       he is the holder of a temporary entry permit which is in force, is authorized to work in Australia and is not a prescribed non-citizen;  or

(e)        he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him.”

4                     A grant of an entry permit on the strong compassionate or humanitarian grounds specified in s 6A(1) was referred to as a Grant of Resident Status (“GORS”). 

5                     The learned primary Judge noted in his reasons a claim by the appellants that in 1996 they had lodged an application for reconsideration of their GORS application.  It was further noted that there is no extant record of any such application in the Departmental files.  If made, the application was never pursued by the appellants.  Subsequent events related to the appellants’ residence status have been recounted by his Honour in these terms:

“Whilst there is little evidence on the matter, the Department appears to have adopted a policy, which is said to have expired on 2 March 1998, of entertaining requests for reconsideration of GORS applications made prior to 19 December 1989 which were infected by error of the type described in Dahlan.  I will assume in favour of the applicant that there was some such policy.  The Minister submitted that there was no specific statutory foundation for this policy, and the applicant could point to none.  Both parties contended that the justification for the Department’s approach was that it is always open to the Minister to accept that a decision which he has made is infected by legal error, and that it should be treated as void, without the need to obtain a court order to that effect: Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 32 FCR 219, 230.

On 5 March 1998 solicitors acting for the applicant wrote a letter addressed to an officer in the “GORS Reactivation Section” of the Department.  Only the first page of that letter is in evidence.  I was informed that it is only the first page which is to be found on the Department’s file.  It was common ground that this letter sought to reactivate the GORS application originally made on 11 January 1988.  This request was made only days after the change of policy to which I earlier referred.

By an undated letter [RD 41] the Department declined to reconsider the original GORS decision on the basis that it is a principle of efficacy in decision making that decisions should not be challenged long after they have been made, when evidence is often not available.

On 19 February 1999 the applicants’ solicitors wrote to the Department enclosing statutory declarations to the effect that a request for reconsideration of the decision on the GORS application had been made back in 1996.  The applicants requested that their request for a reconsideration of the GORS application should be made on its merits.

On 7 April 1999 the Department requested further information in relation to the request for reconsideration of a decision to refuse a grant of resident status application.  The applicants’ solicitors responded to that request on 9 April 1999 and it was pointed out in that letter that one of the applicants’ children now qualified for Australian citizenship as he was born in Australia in 1988 and that the family have successfully integrated into the Australian community over a period of some twelve years.

On 6 September 1999 the Department declined the applicants’ request that the refused Grant of Residence Status application should be reconsidered.  The reason for that refusal was expressed as follows:

“Your request has been thoroughly reconsidered, however, I must advise that the circumstances surrounding your request do not fall within normal policy guidelines for proceeding to a reconsideration of the refused decision.””

6                     The short point which arose for decision at first instance and which has been agitated again on appeal is whether an error of law occurred in the Department’s declining to reconsider the refusal of the appellants’ original GORS application.  The first premise of the appellants’ contention was that the original refusal of the GORS application had been infected by the error of law subsequently exposed by Hill J in Dahlan v Minister for Immigration, Local Government & Ethnic Affairs (Federal Court, unreported, 12 December 1989).  It was then said that, having accepted the appellants’ application for reconsideration as lodged on 5 March 1998, the respondent Minister was bound, as a matter of law, to make a decision on the merits of that application notwithstanding the change of policy said to have taken effect on 2 March 1998.

7                     The appellants’ application was rejected at first instance, primarily on the ground that the 1999 decision refusing to reconsider the GORS application was not one to which s 475(1) of the Act applies.  In this respect, his Honour said:

“The applicants’ counsel was unable to point to any statutory or regulatory provision which authorised or empowered the Minister and/or the Department to reconsider the decisions made on or prior to 20 June 1988 to refuse the GORS application.  The reconsideration process was thus without specific statutory authority, although it may have been a matter falling within the general administration of the Act.  The Minister never accepted that the 1988 decisions were erroneously reached, let alone that they were void.  Consequently, the operation of s 6(4) of the 1989 Act and Regulation 21 was never enlivened.

The 1999 decision is not one for which provision is made by or under the Act: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337.  The decision was, to borrow the language of Weinberg J in Medru v Minister for Immigration & Multicultural Affairs [2000] FCA 153, no more than a response to a request for reconsideration by the Minister of an earlier decision made under a different legislative regime, albeit an Act bearing the same title as the present Act.  The decision was at least one step removed from a “decision relating to visas”, as the decision was a refusal to reopen an earlier decision which related to visas.  Accordingly, the decision is not one which is within s 475(1)(c), and thus is not a decision which is reviewable by the Federal Court.”

8                     On appeal, it was sought to overcome that conclusion by arguing, first, that the decision to refuse reconsideration was a “reviewable decision” in the sense used by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.  We disagree.  In the relevant part of his judgment in Bond, Mason CJ said, at 337:

“.....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), 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.  In this context the reference in s.3(2)(g) to “doing or refusing to do any other act or thing” (emphasis added)should be read as referring to the exercise or refusal to exercise a substantive power.  I do not perceive in s.16(1)(b) or in par. (e) of Sched. 1 or par. (a) of Sched. 2 to the A.D.(J.R.) Act any contrary implication.  These exclusions from the A.D.(J.R.) Act or from s.13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them.

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”.”

9                     The decision not to reconsider the appellants’ GORS application was not determinative of any issue of fact falling for consideration under that application.  Nor was it a substantive determination of the appellants’ application for Australian residence. 

10                  In the alternative, it was argued that the phrase “a judicially reviewable decision” in s 475 of the Act embraced, within its limited context, a wider range of decisions than the word “decision” used in the Administrative Decisions (Judicial Review) Act 1977 (Cth) where it is defined as “a decision of an administrative character made ..... under an enactment.”  S 475(1) of the Act provides:

“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.”

Then follows a list in s 475(2) of decisions which are not judicially reviewable decisions. 

11                  The learned primary Judge in the course of his reasons set out the effect of Reg 21 of the Migration Reform (Transitional Provisions) Regulations (S.R. 261 of 1994) which provided by sub-regs (1) and (2):

“(1)     This regulation applies to:

(a)       an application for the grant of a visa or entry permit made before 19 December 1989 on which the Minister had not made a decision before 1 September 1994;  or

(b)       an application for reconsideration of a refusal to grant a visa or entry permit, if:

(i)        the original application for the grant of a visa or entry permit was made before 19 December 1989;  and

(ii)       the Minister refused that application, and the applicant applied for reconsideration of that refusal, before 1 September 1994;  and

(iii)      the Minister had not made a decision on the application for reconsideration before 1 September 1994;  or

(c)        an application for reconsideration of a refusal to grant a visa or entry permit, if:

(i)        the original application for the grant of a visa or entry permit was made before 19 December 1989;  and

(ii)       the Minister refused that application before 1 September 1994, and on or after that date the applicant applied for reconsideration of that refusal under regulation 173A of the Migration (1989) Regulations or regulation 7.8 of the Migration (1993) Regulations as continued in force by regulation 24.

(2)        If, on or after 1 September 1994, the Minister decides that a non-citizen is entitled to be granted a visa or entry permit under the provisions continued in effect by subsection 6(4) of the Migration Legislation Amendment Act 1989, the non-citizen is taken to be granted:

(a)        if the primary application was for a temporary visa or entry permit - a transitional (temporary) visa;  or

(b)        if the primary application was for a permanent visa or entry permit - a transitional (permanent) visa.”

12                  His Honour’s rehearsing the effect of that regulation seems to have been by way of a narrative demonstration that it had no application to the present appellants.

13                  However, in the course of the hearing of the appeal, Mr de Robillard of Counsel for the appellants seized on Reg 21(1)(c) and contended that the application made in 1998 for reconsideration of the 1988 refusal of an entry permit should be regarded as, in effect, having been made under Reg 173A of the Migration Act (1989) Regulations or Reg 7.8 of the Migration (1993) Regulations notwithstanding that an application for reconsideration may not have been made in the form prescribed for applications under either of those regulations.  The consequence of regarding the 1998 application in that way, so it was argued, is that the Minister’s refusal to reconsider was a decision made “under the regulations” within the meaning of s 475(1) of the Act (since by s 17(2) of the Acts Interpretation Act 1901 “regulations” means “regulations under the Act”).  This point was raised for the first time in the course of the hearing of the appeal and the Court was concerned to have the benefit of full argument on it tracing the relevant legislative history with accuracy.  We therefore gave leave to Counsel for the appellants to file and serve, after the completion of oral argument, supplementary written submissions directed to the point.

14                  However, in the written submissions filed pursuant to that leave, Mr De Robillard confined himself to identifying several administrative actions taken within the respondent’s Department from March 1998 when the first appellant’s request for “re-activation” of his GORS application was accepted.  In the course of that recital, Counsel reiterated the contention advanced during oral argument that the administrative history revealed a confusion within the Department between the first appellant and another person, also named Narendra Prasad, who had lodged a GORS application on 8 December 1990.  It was then contended that the series of administrative acts between March 1998 and 6 September 1999, recited in the written submissions, must have had a basis in the Act or the Regulations.  In the same context, it was rhetorically asked “would an affirmative decision to grant the appellants a visa have been made without any statutory basis?”

15                  It will be seen that the supplementary written submission travelled well beyond the leave pursuant to which it was purportedly filed.  As Counsel for the respondent pointed out in written submissions in reply, the appellants’ supplementary submission did not condescend at all to address Reg 173A of the Migration (1989) Regulations, or Reg 7.8 of the Migration (1993) Regulations.  However, the short answer to the question concerning those Regulations, which was raised during the hearing of the appeal is, Reg 173A of the Migration (1989) Regulations as amended from time to time was always confined in its application to a person who satisfied the cumulative requirements in Reg 173A(1).  That sub-regulation was in these terms:

“Where a person whose application under the provisions of the Act as in force before 19 December 1989 for the grant of a visa or entry permit has been refused after 18 September 1989:

(a)       did not lodge under regulation 29B, 29BA, 29BB or 29BC of the Migration Regulations as in force before 19 December 1989 a second application for the visa or entry permit;  and

(b)       is not entitled to apply under the provisions of the Migration (Review) Regulations for review of the decision;

the person may make one application to the Minister, in a form approved by the Minister, to reconsider the decision.”  (emphasis added)

16                  It is common ground that the appellants’ original application was refused on 1 March 1988 so they did satisfy the requirement indicated by the words to which we have added emphasis.

17                  The same requirement for the application for the grant of a visa or entry permit to have been refused after September 1989 was preserved in Reg 7.8(1) of the Migration (1993) Regulations.  It is therefore unnecessary to consider whether the present appellants were also caught by the stipulation in Reg 173A(2) and Reg 7.8(2) respectively that

“subregulation (1) does not apply if the application was made;

(a)       on humanitarian grounds;”

18                  In the written submissions referred to in para 14 above, leave was sought to amend the application which had been considered at first instance to raise the following additional ground:

“The Minister has failed in his duty to make a judicially-reviewable decision in relation to the application lodged by the Appellant on 11 January, 1988.

Particulars

·        No decision under Section 6 of the Migration Act, 1958 (Reprint No. 2) has been communicated to the Appellant;

·        The Minister has failed to consider the Appellant’s application according to law by failing to apply the principles enunciated in Dahlan in relation to Section 6A(1)(c).

The Applicant claims:-

1          An order that the Minister determine the application made on 11 January, 1988;

2          A declaration that the Appellant’s application made on 11 January, 1988 has still not been finally determined by the Minister.”

19                  That additional ground challenges an entirely different decision from that to which the application in its present form is addressed.  That challenge would have to overcome the serious objection that it is more than 12 years out of time.  As well, we consider, it would be bound to fail because the findings reproduced at para 1 of these reasons preclude an assertion that the Minister failed in 1988 to make a judicially reviewable decision.  For these reasons, leave to amend the application is refused.

20                  For the reasons which we have endeavoured to explain, we consider that the learned primary Judge was plainly correct when he concluded that the Minister’s decision not to reconsider the 1988 refusal of an entry permit was not made under the Act or the Regulations as required by s 475(1) of the Act to enliven the jurisdiction of this Court.  The Minister’s decision was simply one made in the course of what was seen as good departmental administration or in the implementation of general policy.  It was not contemplated, or required, by any identifiable provision of the Act or the Regulations.  Accordingly, there was no occasion for this Court to determine whether the decision was infected by any of the grounds made available by s 476(1) of the Act.  The appeal will therefore be dismissed with costs.

Associate:

Dated:              23 August 2000