FEDERAL COURT OF AUSTRALIA

Diep v Minister for Immigration and Multicultural Affairs [2001] FCA 1130

MIGRATION – objection to competency – whether Court had jurisdiction to hear and determine application for review of decision of Minister for Immigration and Multicultural Affairs – failure to file application for order of review within prescribed time – whether adequate reasons for decision.

Administrative Decisions (Judicial Review) Act 1977 (Cth):  s 13

Migration Act 1958 (Cth):  ss 475, 478(1), 501, 501G

Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854  applied

Re Ruddock, Minister for Immigration and Multicultural Affairs; ex parte Truong (Hayne J, 22 March 2001, unreported)  referred to

Pochi v Macphee (1982) 151 CLR 101  referred to

TRI VAN DIEP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 742 of 2001

GOLDBERG J

13 AUGUST 2001

MELBOURNE

THE COURT ORDERS THAT:

1.           The respondent’s objection to competency be upheld.

2.           The applicant’s application be dismissed.

3.           The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     On 19 July 2001, the applicant filed an application seeking orders under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”), the Migration Act 1958 (Cth) (“Migration Act”), the Federal Court of Australia Act 1976 (Cth) (“Federal Court of Australia Act”) and the Judiciary Act 1903 (Cth) (“the Judiciary Act”), by way of review of a number of decisions of the respondent (“the Minister”) between 27 November 1999 and 13 July 2001.  The applicant also sought other relief in relation to the fact that he was being held in immigration detention.  The application relates to a number of decisions of the Minister in respect of a decision of the Minister on 16 November 1999 pursuant to s 501 of the Migration Act, to cancel the applicant’s visa to enter and remain in Australia permanently.

2                     On 31 July 2001, the Minister filed a notice of objection to competency, objecting to the jurisdiction of the Court to hear and determine the application for an order of review under Pt 8 of the Migration Act, ss 5, 8, 11 or 16 of the ADJR Act, ss 21(1), 22 or 23 of the Federal Court of Australia Act, or s 39B of the Judiciary Act.  The grounds of objection were that the application sought review of a decision of the Minister made on 16 November 1999 to cancel the applicant’s visa pursuant to s 501 of the Migration Act, and other relief in respect of that decision.  It was said that the decision was a “judicially‑reviewable” decision within the meaning of s 475 of the Migration Act, and that the application was not lodged with the Court within 28 days of the applicant being notified of the decision, contrary to s 478(1)(b) of the Migration Act.  The decision of the Minister to cancel the applicant’s visa pursuant to s 501(2) of the Migration Act, although made on 16 November 1999, was only communicated to the applicant and to his solicitor by letter dated 7 May 2001, which was received by the applicant and his solicitor on 9 May 2001.  It can, therefore, be seen that over two months elapsed between the time of the notification of the Minister’s decision and the lodging of the application for review.

3                     The notice also raised the ground that the Court had no jurisdiction under the ADJR Act, the Federal Court of Australia Act or s 39B of the Judiciary Act, in respect of a judicially‑reviewable decision by reason of s 485(1) of the Migration Act.

4                     The applicant was born in Vietnam on 18 April 1964, and arrived in Australia on 27 November 1985 as the holder of a K4671 visa on a refugee camp clearance program.  Between April 1989 and February 1998, the applicant was convicted of a number of offences including theft, trafficking in and possessing amphetamines, and trafficking in and possessing heroin.  On 21 June 1998, a delegate of the Minister made a decision, pursuant to s 200 of the Migration Act, that he be deported.  On 28 July 1999, the Administrative Appeals Tribunal (“the Tribunal”) set aside the delegate’s decision and the applicant was released from immigration detention.On 24 August 1999, the Department of Immigration and Multicultural Affairs wrote to the applicant, informing him that his visa might be liable to cancellation under s 501 of the Migration Act.  The applicant was invited to provide any further information he might wish in relation to the matter.

5                     On 16 November 1999, the Minister decided that the applicant did not pass the character test specified in s 501 of the Migration Act, that the applicant had not satisfied him that he did pass the character test and cancelled his visa pursuant to s 501(2) of the Migration Act.  On 7 May 2001, the Department of Immigration and Multicultural Affairs wrote letters to the applicant and his solicitor informing them that the Minister had cancelled the applicant’s visa pursuant to s 501(2) of the Migration Act on the ground that he did not pass the character test in s 501(6)(a) of the Migration Act.  There was enclosed with the notice of cancellation of the visa a copy of the decision record that set out the Minister’s reasons for the decision, a copy of every document that was relevant in the making of the decision and information about the applicant’s review rights.

6                     There was included within the reasons for the decision what appeared to be a brief for the Minister.  The brief was set out personal details relating to the applicant and stated that the relevant ground for cancellation of his visa was s 501(6)(a) of the Migration Act, relating to a substantial criminal record.  There was annexed to the reasons a number of documents, including certificates of the applicant’s convictions and the decision of the Tribunal on 28 July 1999 setting aside the order for deportation of the applicant.  Details of the convictions were set out and there was a reference to observations of the Tribunal that:

·                   an expert psychologist had testified that despite the applicant’s destructive conduct and imprisonment, he had contributed positively towards the upbringing of his children;

·                   the best interests of all three children would be best served by the applicant remaining in Australia;

·                   for the sake of the best interests of the applicant’s children, the risk of re‑offending was worth one last try, despite the applicant’s disregard of previous warnings.

There were then set out matters relevant for the Minister to consider whether to exercise his discretion to not cancel the applicant’s permanent visa, despite a finding that he had not passed the character test.  Factors were set out relating to the seriousness and nature of the conduct of the applicant, the likelihood that the conduct might be repeated, including any risk of recidivism, general deterrents, the expectations of the Australian community, the best interests of the children, which included references to the evidence from a clinical psychologist, and other relevant matters.  At the end of the brief, provision was made for the Minister to indicate what was his decision.

7                     As I have noted earlier, the notification of the Minister’s decision was made by way of letter dated 7 May 2001.  On 13 June 2001, the applicant’s solicitors wrote to the Minister and requested, pursuant to s 13 of the ADJR Act, that he furnish a statement in writing in the terms provided by s 13 of the ADJR Act.  On 16 July 2001, Senator Patterson, the Parliamentary Secretary to the Minister, wrote to applicant’s solicitor in response to the letter of 13 June 2001 stating, inter alia, with regard to furnishing a statement of reasons, that on 7 May 2001, the applicant was sent a copy of the Minister’s decision and the documents on which that decision was based and that this complied with s 13 of the ADJR Act.  Senator Patterson said that any further provision of documents was unnecessary.

8                     The Minister submitted that the Court had no jurisdiction to entertain the application on the following grounds:

·                   Insofar as it was based on provisions of the ADJR Act, the Federal Court of Australia Act and the Judiciary Act, jurisdiction under those Acts was excluded from the Court by s 485(1) of the Migration Act, as the decision of 16 November 1999 and the decisions prior to it, and on that day, were judicially‑reviewable decisions, as they related to visas and therefore came within s 475(1)(c) of the Migration Act;

·                   Insofar as the application was based on jurisdiction under the Migration Act, the application had been lodged more than 28 days after the applicant was notified of the decision, and the Court had no power to extend the time for lodging an application outside that period of 28 days:  s 478 of the Migration Act.

9                     The applicant submitted that time did not begin to run for the filing of an application for an order of review of the decision of the Minister until the Minister had complied with the request for reasons for the decision which had been made pursuant to s 13 of the ADJR Act.  The applicant submitted that the decision record which was enclosed with the notice of the decision, under cover of the letters dated 7 May 2001, did not set out reasons and that what had been given to him were not real reasons as they left out a number of matters such as matters which had been the subject of consideration at the hearing before the Tribunal.

10                  I reject the submission that time did not begin to run for the lodging of an application for an order of review of the Minister’s decision until after there had been compliance with the applicant’s request for reasons in his solicitor’s letter of 13 June 2001.  There are a number of reasons why this submission cannot be sustained.  The requirement of an administrative decision‑maker to give reasons for a decision pursuant to s 13 of the ADJR Act only applies first, where the decision‑maker makes a decision to which s 13 applies:  s 13(1) and secondly, where a request has been made by a person who is entitled to make an application to the Court under s 5 of the ADJR Act:  s 13(1).

11                  Section 13(11) provides, inter alia, that the expression “decision to which this section applies” does not include a decision included in any of the classes of decisions set out in Sch 2.  Those classes of decisions include decisions under the Migration Act, being, inter alia, “decisions in connection with the issue or cancellation of visas”.  All the decisions in respect of which the applicant wishes to make complaint are decisions “in connection with the issue or cancellation” of his visa.  Further, the applicant was not entitled to make an application to the Court under s 5 of the ADJR Act in relation to the Minister’s decision of 16 November 1999, as jurisdiction under that Act is not given to the Court in respect of judicially‑reviewable decisions, which includes the decision on 16 November 1999:  s 485(1) of the Migration Act.

12                  The only jurisdiction which this Court has in this matter is under Pt 8 of the Migration Act.  Section 478(2) makes it clear that the 28 day period after the decision within which an application for an order of review must be lodged cannot be extended.  The authorities establish that s 478(1)(b) of the Migration Act has the effect that the filing of an application within the period of 28 days specified is a condition of the exercise of the Court’s jurisdiction:  Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672; Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269. 

13                  I turn to the applicant’s submission that the Minister’s reasons were inadequate.  Section 501G(1) of the Migration Act required the Minister to give the applicant a written notice that inter alia:

·                   set out the decision

·                   specified the provision under which the decision was made,

·                   set out the effect of the provision, and

·                   set out the reasons for the decision.

14                  The Minister submitted that the documentation given to the applicant and his solicitors under cover of the letter of 7 May 2001 set out the reasons for the Minister’s decision.  The applicant submitted that reasons for the Minister’s decision had not been given in any relevant sense, as the material contained in the documentation relied upon by the Minister as constituting the reasons did not cover matters which the applicant submitted were of central relevance.  It was submitted that it did not include evidence before the Tribunal, nor did it consider that the Minister could speculate as to the issue of any future criminality on behalf of the applicant.  It was also submitted that the Minister did not deal with issues raised by the expert psychologist who gave evidence before the Tribunal.

15                  I am satisfied that the documentation given to the applicant under cover of the letter of 7 May 2001 included the reasons for decision of the Minister required by s 501G(1)(e).  I am satisfied that the matters of which the applicant complained about the reasons are set out in the reasons, such as a consideration of the evidence of the expert psychologist, the best interests of the children and the risk of recidivism.  Although the document was in the form of a brief or submission to the Minister on the issues for consideration in respect of the possible cancellation of the applicant’s visa under s 501(2) of the Migration Act, the document set out detailed matters relating to the applicant and then provided for the decision of the Minister, which was couched in terms of him having considered all relevant matters.

16                  The fact that the reasons referred to by the Minister may be contained in a brief or submission to the Minister by his Department does not detract from the proposition that they constitute the reasons for his decision.  A submission similar to that made the applicant was rejected by Stone J in Javillonar v Minister for Immigration and Multicultural Affairs [2001] FCA 854.  In that case, her Honour concluded that a brief prepared by the Department, similar to the brief in the present case, constituted sufficient compliance with s 501G(1)(e) of the Migration Act and that it was irrelevant that the document was not prepared by the Minister personally.  With respect, I agree with her Honour’s conclusion.  As her Honour pointed out, support for this conclusion is to be found in Re Ruddock, Minister for Immigration and Multicultural Affairs; ex parte Truong (Hayne J, 22 March 2001, unreported) in which the only document purporting to comply with s 501G(1)(e) was a brief prepared by the Department.  Hayne J said:

“In my opinion, it is not arguable that this document alone or this document in conjunction with the notice insufficiently complied with the obligation imposed by section 501G(1)(e).  Read as a whole, the document reveals the matters that were before the Minister, assigned to various of them particular weight, and it was on the basis of that information - and I interpolate – only that information, that the Minister then reached the decision which he did.  In any event, as I have said, the matter is put beyond doubt by the terms of the notice that were given to Mr Truong that the decision record sets out the reasons for the decision that was reached.”

17                  In any event, even if the Minister had not complied with s 501G(1)(e) in relation to the provision of reasons (as to which see s 501G(1)(4)), his decision cancelling the applicant’s visa was still a judicially‑reviewable decision within s 475(1)(c) of the Migration Act.  Any failure to comply with s 501G(1)(e) was only reviewable by application made pursuant to s 476.  But s 478(1) still required that application to be lodged within 28 days of the applicant being notified of the decision. 

18                  The applicant sought to avoid this difficulty by submitting that the decision of the Minister was not a decision in relation to a visa, but was rather a decision relating to the applicant’s detention.  The applicant put the matter another way when he submitted that the reasons were a sham as they ignored matters considered by the Tribunal.  I reject these submissions.  No matter how one looks at the matter, the Minister’s decisions, which the applicant seeks to review, are decisions which constitute judicially‑reviewable decisions, as they are all decisions relating to the applicant’s visa.

19                  The applicant also submitted that as he had been in Australia for an extended period of time, the Minister no longer had any power under the Migration Act to take action in relation to his visa.  The applicant submitted that because he had lived in Australia for such a long period of time there was now no link between his entry into Australia, which was controlled by the Migration Act, and the decision of the Minister.  He submitted that the immigration power is limited to matters linked temporally to an act of immigration.  It was submitted that the immigration power exercisable over the applicant was exhausted because he had been absorbed into the community.  There is a class of visa known as an “absorbed person” visa:  s 34 of the Migration Act.  However, that classification only applies to a non‑citizen who was in Australia on 2 April 1984.  The applicant arrived in Australia on 27 November 1985 and does not fall into that category.

20                  Although the matter was not fully developed in argument, I reject the submission that length of stay in Australia pursuant to a visa granted under the provisions of the Migration Act has the result that if the applicant has been absorbed into the Australian community, he does not otherwise remain subject to the provisions of the Migration Act.  The basis for this submission was rejected by the High Court in Pochi v Macphee (1982) 151 CLR 101.  At 111, Gibbs CJ said:

“The argument was put in another way by submitting that the fact that the plaintiff has become totally absorbed into the Australian community meant that he is no longer an alien.  This argument is impossible to maintain.  It was well settled at common law that naturalization could only be achieved by Act of Parliament – even action by the Crown under the prerogative could not give an alien the status of a British subject.”

See also Nolan v Minister for Immigration and Ethnic Affairs (1998) 165 CLR 178 at 186. 

21                  I am therefore satisfied that the objection to competency should be upheld.  The applicant submitted that the further hearing of the application and any directions hearing should be adjourned for six weeks as he wished to make an application for relief before the High Court.  However, any jurisdiction which that Court may be called upon to exercise is not dependent upon the currency of a proceeding in this Court.  As the application was filed out of time - that is, not in accordance with the time prescribed under s 478(1) of the Migration Act - there is no reason for preserving the application pending any application to the High Court.  The application will therefore be dismissed.

22                  The respondent Minister seeks his costs of the application this day and the costs of the proceeding.  That application is opposed by the applicant, who has submitted that I should take into account the fact that by virtue of the decision of the Minister, the Minister has put the applicant into the position of being in immigration detention and can exercise control or power over the applicant.  The difficulty facing the applicant in this case is brought about by the fact that the Minister has exercised a statutory power in circumstances where I have found that the proceeding brought to review the decision of the Minister was incompetent and bound to fail.  Although a consequence for the applicant, if his application were to be successful might be that he would retain his liberty.  It is not an appropriate analogy just to look at this proceeding as one where the applicant is compelled to bring a proceeding to obtain his freedom.

23                  The application which was filed was an application for review in a substantive way of the Minister’s decision.  The objection to competency was taken within the time prescribed by the Federal Court Rules, the application by the applicant only being filed on 19 July 2001.  In all those circumstances, I consider it appropriate that the usual orders should apply, that is that the costs follow the event.  I have had regard to the fact that the applicant is in detention, but the application is not just to seek his release from detention but, rather, to overturn the Minister’s decision.  In those circumstances, the substantive application brought by the applicant has failed and he should pay the costs of the Minister. 

Associate:

Dated:              15 August 2001