FEDERAL COURT OF AUSTRALIA

Handa v Minister for Immigration and Multicultural Affairs

[2000] FCA 1830

MIGRATION – judicial review – internally-reviewable decision – decision made before
commencement of Migration Legislation Amendment Act (No 1) 1998 (Cth) – whether became MRT-reviewable decision and therefore excluded from judicial review

STATUTES – interpretation – drafting error – adding words – when permissible – repeal – application for review made before repeal – s 8(c) of Acts Interpretation Act 1901 (Cth)

Acts Interpretation Act 1901 (Cth)  s 8(c)

Migration Act 1958 (Cth)  ss 338, 475, 476

Migration Legislation Amendment Act (No 1) 1998 (Cth)

Migration Legislation Amendment Act 2000 (Cth)

Migration Regulations 1994 (Cth)  reg 4.02(4)

Migration Amendment Regulations 1999 (No 4) (Cth)  reg 4

Continental Liqueurs Pty Ltd v G F Heublein & Bro Incorporated (1960) 103 CLR 422  cited

G F Heublein & Bro Incorporated v Continental Liqueurs Pty Ltd (1962) 109 CLR 153  cited

Esber v The Commonwealth (1992) 174 CLR 430  cited

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297  applied

Envy Trading v State of Queensland [1998] 1 QdR 413  cited

Marshall v Watson (1972) 124 CLR 640  cited

State v West Side Street Railway Company 146 Mo 155; 47 SW 959 (1898)   referred to

Kammin’s Ballroom Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850  cited

Kingston v Keprose Pty Ltd (No. 3) (1987) 11 NSWLR 404  cited

Saraswati v R (1991) 172 CLR 1  cited

Jones v Wrotham Black Settled Estates [1980] AC 74  applied

Maxwell v Murphy (1957) 96 CLR 261  distinguished

VISHNU HANDA and TRADE LOGISTIC SERVICES PTY LTD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 357 of 1999

FINKELSTEIN J

MELBOURNE

15 DECEMBER 2000

THE COURT ORDERS THAT:

The application be dismissed.

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

REASONS FOR JUDGMENT

1                     The respondent, the Minister for Immigration and Multicultural Affairs, asks  for summary dismissal of an application brought under s 476 of the Migration Act 1958 (Cth) to review two decisions of his delegate. The respondent says the court does not have jurisdiction to entertain the application because the decisions are not judicially reviewable decisions under s 475.

2                     The first applicant, Mr Handa, applied for the grant of a business (long-stay) visa on 4 March 1999.  The criteria that an applicant must satisfy in order to obtain a business (long-stay) visa are found in Pt 457 of Sched 2 to the Migration Regulations 1994 (Cth).  One criterion applicable to the applicant is that he proposes to be employed in Australia by a pre-qualified business sponsor or a standard business sponsor: cl 457.223(6).  A person may be approved as a business sponsor under reg 1.20D of the Migration Regulations.  The second applicant, Trade Logistic Services Pty Ltd, who intended to employ Mr Handa, applied for approval as a business sponsor.  That application was also lodged on 4 March 1999.  The delegate refused the application by Trade Logistic Services (the sponsor decision) and also refused to grant Mr Handa a business (long-stay) visa (the visa decision).  Those decisions, being the decisions the subject of the application for review, were made on 29 May 1999.  By virtue of reg 5.03, the applicants are taken to have been notified of the decisions seven days later, on 5 June 1999. 

3                     Prior to 1 June 1999, a person who was dissatisfied with a decision that was an “internally-reviewable decision” within the meaning of s 338 could make application for the review de novo of that decision:  see s 339 of the Migration Act as then in force.  The review was undertaken by a review officer (s 340) who could exercise all the powers and discretions that were conferred on the person who made the original decision (s 341).  In addition, a decision that was an “IRT-reviewable decision” as defined in s 346 could be reviewed by the Immigration Review Tribunal (s 348) which could exercise the same powers as the person who made the decision under review (s 349).  Decisions made by a review officer were within the categories of decision that were IRT-reviewable decisions (s 346(1)(a)).

4                     Part 8 of the Migration Act deals with the review by the Federal Court of decisions made under the Migration Act and the Migration Regulations.  Speaking generally, the court has jurisdiction to review only a “judicially reviewable decision”:  s 476.  Judicially-reviewable decisions are defined in s 475.  Prior to 1 June 1999, judicially-reviewable decisions included “decisions of the Immigration Review Tribunal” (s 475(1)(a)) and “other decisions made under [the Migration] Act, or the regulations, relating to visas.” (s 475(1)(c)).  Certain decisions, although made under the Migration Act or the regulations, were specified not to be judicially-reviewable decisions.  They included an “internally-reviewable decision” (s 475(2)(b)) and an “IRT-reviewable decision” (s 475(2)(c)).

5                     It is common ground that, when made, the visa decision was an internally-reviewable decision, it being “a decision…to refuse to grant a non-citizen a visa where: (i) the visa could be granted while the non-citizen is in the migration zone; and (ii) the non-citizen made the application for the visa while in the migration zone; and (iii) the decision was not made when the non-citizen: (A) was in immigration clearance; or (B) had been refused immigration clearance and had not subsequently been immigration cleared”:  see s 338(1) and para (a) of the definition of “Part 5 reviewable decision” in s 337.  Accordingly, if dissatisfied with the visa decision, Mr Handa was entitled to apply for the review of that decision by a review officer and then, if dissatisfied with the decision of the review officer, he could seek review of that decision by the Immigration Review Tribunal.  He could not, however, have the visa decision reviewed by the Federal Court.  If the matter was to go to the Federal Court it could only be upon a review of the decision of the Immigration Review Tribunal. 

6                     The position as regards the sponsor decision was different.  That decision was not an internally-reviewable decision and could not be reviewed by a review officer.  However, the respondent had in place administrative arrangements for the reconsideration of decisions made under Div 1.4A of the Migration Regulations, where reg 1.20D is found.  Pursuant to those arrangements the respondent had appointed members of the Immigration Review Tribunal to “reconsider unfavourable decisions made in relation to applications for … business sponsor status and/or nominations.” The respondent placed reliance upon s 33(3) of the Acts Interpretation Act 1901 (Cth) as authority for the administrative arrangements.  Section 33(3) provides:

“(3)     Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.”

Whether s 33(3) permitted the respondent to “reconsider” decisions made under Div 1.4A and if it did not, whether such a decision could in any event be reconsidered, is not a matter that was raised as an issue.  For the purposes of the hearing it was accepted that the existence of a power to reconsider the sponsor decision did not deprive that decision of its character as a judicially-reviewable decision under s 475(1)(c).  Thus, in respect of the sponsor decision, Trade Logistic Services had the option of either having that decision reviewed under the administrative arrangements or by the Federal Court.

7                     On 1 June 1999 significant changes were made to the Migration Act and, in particular, to the manner in which decisions, such as the visa decision and the sponsor decision, could be reviewed.  The changes were made by the Migration Legislation Amendment Act (No 1) 1998 (Cth) (the 1998 Amendment Act).  Relevantly, the provisions dealing with the review of internally-reviewable decisions by a review officer (ss 338 to 345) and the review of IRT-reviewable decisions by the Immigration Review Tribunal were repealed and the Immigration Review Tribunal was dissolved.  A new method for the review of those decisions, and other decisions under the Migration Act and regulations, was introduced.  A tribunal known as the Migration Review Tribunal was established with power to review “MRT-reviewable decisions”.  Decisions under the previous regime that were internally-reviewable decisions and IRT-reviewable decisions now became MRT-reviewable decisions. 

8                     The first matter that is at issue between the parties is the following.  Mr Handa says that the visa decision, which was not a judicially-reviewable decision before 1 June 1999, has become a judicially-reviewable decision following the changes made by the 1998 Amendment Act.  Accordingly, so the argument goes, the visa decision is a decision which is amenable to review by the Federal Court.  He bases his argument on the following propositions.  When the 1998 Amendment Act abolished the review of internally-reviewable decisions by a review officer and the review of IRT-reviewable decisions by the Immigration Review Tribunal and replaced those procedures with the review of MRT-reviewable decisions by the Migration Review Tribunal, no amendment was made to s 475 to exclude MRT-reviewable decisions from the class of decisions that are reviewable by the Federal Court.  Accordingly, whether or not the visa decision became an MRT-reviewable decision on 1 June 1999, the Federal Court has jurisdiction to review the visa decision under s 476.

9                     The respondent submits that there are two answers to this argument.  First he says that it is readily apparent that the failure to amend s 475 by removing the references to internally-reviewable decisions and IRT-reviewable decisions in s 475(2)(b) and (c) and inserting a reference to MRT-reviewable decisions, is a drafting error which a court of construction can overcome.  He argues that s 475 (2) should be read as if the substitution had been made.  Second, the respondent points to the fact that the drafting error has since been cured by the Migration Legislation Amendment Act 2000 (Cth) (the 2000 Amendment Act). The 2000 Amendment Act has made the following changes to s 475.  Section 475(1)(a) has been amended by omitting “Immigration Review Tribunal” and substituting “Migration Review Tribunal”; s 475(2)(b) has been repealed; and s 475(2)(c) has been amended by omitting “IRT-reviewable decision” and substituting “MRT-reviewable decision”.  Those amendments are taken to have commenced on 1 June 1999:  see s 2(1) of the 2000 Amendment Act.

10                  Underlying each of the respondent’s arguments is the proposition that on 1 June 1999 the visa decision became an MRT-reviewable decision.  It will be necessary later to consider whether this assumption is correct.  Initially I will proceed on the basis that it is correct.

11                  The contention that the 2000 Amendment Act removed the right (if a right existed) to have the visa decision reviewed by the Federal Court cannot be sustained.  Section 8 of the Acts Interpretation Act relevantly provides that “[w]here an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not: … (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed…”.  Mr Handa lodged his application to review the visa decision on 2 July 1999.  Having invoked the jurisdiction of the Federal Court, he had the right to have the visa decision reviewed by that court.  Such a right was not merely “a power” to take advantage of an enactment.  It is a right which will be protected by s 8(c) of the Acts Interpretation Act and will not be affected by the 2000 Amendment Act in the absence of a clear contrary intention:  see Continental Liqueurs Pty Ltd v G F Heublein & Bro Incorporated (1960) 103 CLR 422; on appeal (1962) 109 CLR 153; see also Esber v The Commonwealth (1992) 174 CLR 430 at 440.  I cannot find such an intention in the 2000 Amendment Act.  It is true that this enactment introduced amendments which were to have retrospective effect.  But it is one thing for amendments to affect the ability of a person, who has not already done so, to institute a proceeding in a particular court.  It is another thing altogether for an amendment to bar a proceeding that has already commenced.  The 2000 Amendment Act does not go that far.

12                  This then brings me to the first submission which is that s 475 should be “amended” by the court, sitting as a court of construction, to correct what is alleged to be a blatant drafting error.  If s 475 is read in the manner proposed by the respondent, no issue of retrospectivity arises.  The court is being asked to consider the meaning of the section at the time the 1998 Amendment Act came into force, which is before the applicants commenced their action in the Federal Court. 

13                  The object of construction is to ascertain the intention of the legislature.  That object is usually achieved by giving effect to the language of a statute in accordance with its ordinary and natural sense.  But as we all know, the grammatical meaning of a statute does not always represent parliament’s intention.  According to the modern approach to statutory construction, there are a variety of circumstances in which a court is justified in departing from the literal construction of a statute.  Of course the court will depart from the literal meaning of the words chosen only if it is satisfied that those words do “not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions”:  Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.  One of the circumstances in which a court may depart from a literal construction is when there has been a drafting mistake.  But there are drafting mistakes and then there are drafting mistakes.  A distinction should be drawn between, on the one hand, a drafting error where the language employed does not adequately express the legislative intent and, on the other hand, a gap or oversight where parliament failed to deal with a particular situation.

14                  Where there has been carelessness in the expression of the text (the first type of mistake) the court will usually have little difficulty in correcting the error.  So, for example, where there has been an incorrect reference to a section and the intended reference is apparent, a court of construction can cure the mistake.  Envy Trading v State of Queensland [1998] 1 QdR 413 is a recent example of a case where the court held it proper to interpret an erroneous reference in one section to a paragraph of another section, as a reference to a different paragraph.

15                  But a drafting mistake that results in a gap or oversight presents more difficulty.  Here the court is not really being asked to give a strained or purposive construction to the legislation but is being asked to fill in the gap.  At one time it was thought that this was precisely what a court could not do.  In Marshall v Watson (1972) 124 CLR 640 at 649 Stephen J said that:  “It is no power of the judicial function to fill gaps disclosed in legislation”.  In State v West Side Street Railway Company 146 Mo 155; 47 SW 959 (1898) the Supreme Court of Missouri explained:  “The courts cannot venture upon the dangerous path of judicial legislation to supply omissions or remedy defects in matter committed to a co-ordinate branch of the government.  It is far better to wait for necessary corrections by those authorized to make them, or, in fact, for them to remain unmade, however desirable they may be, than for judicial tribunals to transcend the just limits of their constitutional powers.”

16                  But it now appears to be accepted that in order to arrive at, and give effect to, the legislature’s intent, a court can fill in a gap when words have been omitted (as in Kammin’s Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850) or where, because of inadvertence, parliament has failed to deal with a matter required to be dealt with, if the purpose of the Act is to be achieved:  Kingston v Keprose Pty Ltd (No. 3) (1987) 11 NSWLR 404 at 422; Saraswati v R (1991) 172 CLR 1.  In Jones v Wrotham Park Settled Estates [1980] AC 74 Lord Diplock explained the conditions that were satisfied in Kammin’s Ballroom Co Ltd to justify that course.  He said (at 105):

“First, it was possible to determine from consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the act or remedy; secondly, it was apparent that the draftsman and parliament by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by parliament had their attention been drawn to the omission before the bill passed into law.”

17                  Although it may now be appropriate to construe legislation by “filling in the gaps” in this way, there is always the danger that the court may be seen to be engaging in judicial legislation.  Hence the court must exercise extreme caution.  But, if the omission or defect is plain, there is now no reason in principle why the court should not supply the necessary words to give effect to the legislative intent, in cases where the omission or defect is due to inadvertence, mistake, accident or clerical error.

18                  That parliament inadvertently failed to amend s 475 is clear.  First, the 1998 Amendment Act did not repeal s 475(1)(a) although there no longer existed an Immigration Review Tribunal.  Second, the 1998 Amendment Act did not repeal ss 475(2)(b) or (c) although there were no longer any internally-reviewable decisions or IRT-reviewable decisions.  Third, what had previously been IRT-reviewable decisions that could not be reviewed by the Federal Court had become MRT-reviewable decisions.  On a literal reading of s 475, those discussions are now reviewable by the court.  If intended, this would be a dramatic change to the manner in which decisions made under the Migration Act and the Migration Regulations are reviewed.  There is no suggestion that this is what had been intended.  Indeed it is inconsistent with the establishment of the Migration Review Tribunal, whose only function is to review MRT-reviewable decisions.  Plainly, therefore, there has been an error in drafting.  In these circumstances it is appropriate to construe s 475 as if it had been amended.

19                  For the respondent to show that the Federal Court does not have jurisdiction to review the visa decision it is not sufficient, however, to establish that MRT-reviewable decisions cannot be reviewed by the court.  The respondent must also establish that the visa decision is an MRT-reviewable decision or put forward some other basis why the court cannot entertain the proceeding. 

20                  Section 338 of the Migration Act, as introduced by the 1998 Amendment Act, sets out the various decisions that are MRT-reviewable decisions.  The only category that is relevant for present purposes is that mentioned in s 338(2) which provides:

“A decision…to refuse to grant a non-citizen a visa is an MRT-reviewable decision if:

(a)       the visa could be granted while the non-citizen is in the migration zone; and

(b)       the non-citizen made the application for the visa while in the migration zone; and

(c)        the decision was not made when the non-citizen:

            (i)         was in immigration clearance; or

            (ii)        had been refused immigration clearance and had not

                        subsequently been immigration cleared.”

Had the visa decision been made on or after 1 June 1999 the parties agree that it would have been an MRT-reviewable decision under s 338(2) because it would have satisfied each of the conditions mentioned therein.  Can a decision which satisfies those conditions, but which was made before 1 June 1999, be an MRT-reviewable decision? 

21                  The general principle of construction to be applied is that in the absence of a contrary intention, a statute only applies to facts which have occurred after the enactment has come into force.  In Maxwell v Murphy (1957) 96 CLR 261 at 267 Dixon CJ said:

“The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.  But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption.”

Applying this general rule, the decisions that are referred to in s 338 would not encompass decisions made before the 1998 Amendment Act came into force.  This view finds some support when regard is had to transitional provisions in Pt 2 of Sched 1 to the 1998 Amendment Act.  Items 40 and 41 deal with how certain decisions that were formerly internally-reviewable decisions and IRT-reviewable decisions are to be dealt with.  For example, Item 40(1) provides that if before the commencement of the 1998 Amendment Act an application for the internal review of a decision had been made that application is now taken to be an application for review to the Migration Review Tribunal.  Item 40(2) provides that if before the commencement of the 1998 Amendment Act an application for internal review could have been made, an application for review can now be made to the Migration Review Tribunal.  The fact that the transitional provisions deal with decisions made before 1 June 1999 suggests that s 338 is concerned only with decisions made after that date.

22                  However, to hold that the visa decision did not become an MRT-reviewable decision will result in the decision being a judicially-reviewable decision, and I have already shown that this was not what parliament intended.  Once it is accepted that it was not intended that decisions such as the visa decision were to become judicially-reviewable decisions, I am bound to read the relevant provisions in such way as to ensure that this object is achieved.  I can do that by giving s 338(2) a retrospective operation.  Although this would ordinarily be inconsistent with the general rule enunciated in Maxwell v Murphy, it is an approach which is necessary to give effect to one of the objects underlying the amendments. 

23                  The position as regards the sponsor decision follows a different line.  Here again the respondent argues that the sponsor decision has become an MRT-reviewable decision which the court cannot review.  The path which leads to the sponsor decision becoming an MRT-reviewable decision is said to be as follows.  Section 338(9) provides that “a decision that is prescribed for the purposes of this subsection is an MRT-reviewable decision”.  The Migration Regulations, by reason of amendments made by the Migration Amendment Regulations 1999 (No 4), prescribe certain decisions to be MRT-reviewable decisions.  In particular, reg 4.02(4) relevantly provides that:

“For subsection 338(9) of the Act, each of the following decisions is an MRT-reviewable decision:

(a)       a decision under regulation 1.20D to reject a person’s application;…”.

The respondent says that the sponsor decision, being a decision made under reg 1.20D to reject Trade Logistic Services’ application, is therefore an MRT-reviewable decision.

24                  To consider this argument reference should also be made to the transitional regulations contained in the Migration Amendment Regulations.  Regulation 4 is concerned with “original decisions”.  These are decisions that are made in relation to business sponsors and include “a decision under regulation 1.20D to reject a person’s application”:  see reg 4(1).  Regulation 4(2) provides that:

“For subsection 338(9) of the Act, an original decision is an MRT-reviewable decision if:

(a)       notice of the original decision is given to the person to whom it relates in the period from the beginning of 11 May 1999 to the end of 31 May 1999 and an application has not been made for review by a review officer of that decision; or

(b)       an application for review by a review officer of the original decision is not decided by the officer before 1 June 1999.”

The reason why the sponsor decision is not an original decision, within the meaning of reg 4(2), is because notice of the decision was given after 31 May 1999.  Regulation 4(3) is also relevant.  It provides that a review officer’s decision is an MRT-reviewable decision if the same conditions as stipulated in reg 4(2) have been satisfied.

25                  It seems, at least on one construction of the regulations, that reg 4.02 of the Migration Regulations is concerned with decisions made after the commencement of the regulations, while reg 4 of the Migration Amendment Regulations is dealing with decisions made beforehand.  On this view, the sponsor decision could not be an MRT-reviewable decision, because it was made before the commencement of the Migration Amendment Regulations and is not an “original decision”.

26                  Nevertheless, what is evident from an examination of the new regulations as a whole is that they disclose an intention that a decision made in relation to business sponsors, including a decision to reject a person’s application to become a business sponsor, whether made before or after the new regulations came into force, is to be an MRT-reviewable decision.  On a literal reading of the regulations, however, a handful of decisions may escape this characterisation.  They are decisions that were made on or before 31 May 1999 of which notice was given after that date.  The sponsor decision is one of that type.

27                  Here again the question is whether I should give the new regulations their literal meaning or construe them in accordance with their obvious intent.  It seems to me, as in the case of statutory construction, that it is no longer possible for a court to construe an instrument, such as regulations, in a way that would have it miss its target. This is especially so when the target is perfectly visible.  I can achieve what was intended by the regulations by allowing reg 4.02(4) to pick up decisions made in the past.  That is how I propose to construe that regulation.  The result is that the sponsor decision is now an MRT-reviewable decision.

28                  It follows that the court does not have jurisdiction to entertain the application and an order will be made on the respondent’s motion that the proceeding be dismissed.  However, in the circumstances of this case, it would be unjust for the respondent to have his costs.  I propose to allow costs to lie where they fall. 

Associate:

Dated:              15 December 2000