FEDERAL COURT OF AUSTRALIA

NACO v Minister for Immigration & Multicultural Affairs [2002] FCA 474

MIGRATION – application for review of a decision of a delegate of the Minister to refuse to consider an application for a Subclass 831 (Prospective Marriage Spouse) visa – Notice of Objection to Competency lodged by Minister – applicant failed to meet requirements of subclause 832.211(3) of Schedule 2 to Migration Regulations 1994 (Cth) – proceedings doomed to failure

ADMINISTRATIVE LAW – Minister’s delegate determined that an application for a Subclass 831 (Prospective Marriage Spouse) visa was invalid and hence could not be considered – whether delegate’s decision was a “decision of an administrative character” – whether the decision was subject to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether the decision was a “privative clause decision” under s 474(2) Migration Act 1958 (Cth) – decision was a decision which the delegate was required to reach by operation of law

Migration Act 1958 (Cth) s 46(1)(d), 47(3), 47(4), 48, 48(1), 76, 474(1), 474(2), 476

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3, 5

Judiciary Act 1903 (Cth) s 39B

Migration Regulations 1994 (Cth) Reg 2.12, Schedule 2 subclause 832.211(3)

Federal Court Rules Order 20 rule 2

Sandery v Commissioner of Police (1986) 65 ALR 181 referred to

Whim Creek Consolidated NL v Colgan (1991) 103 ALR 204 referred to

R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598 cited

NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 referred to

Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 referred to

NACO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1572 OF 2001

HELY J

19 APRIL 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant was born on 12 March 1968.  He first arrived in Australia on a visitors visa on 12 February 1997, when he was 28 years of age.

2                     On 11 February 1998 the applicant applied for a Family (Residence) Class AO visa.  The application was refused by the Minister’s delegate on 14 August 1998.  On 6 November 1998 the Migration Internal Review Office affirmed the primary decision.

3                     On 19 November 2001 the applicant lodged another application for a Special Eligibility (Residence) Class AO visa.  There are two Subclasses for a Class AO visa, namely Subclass 831 (Prospective Marriage Spouse) and Subclass 832 (Close Ties).  The application was with respect to Subclass 831 (Prospective Marriage Spouse).  On 22 November 2001 the applicant was informed by letter that the Minister’s delegate had determined that the applicant had not made a valid application, hence it could not be considered.  The applicant was informed that as this was not a decision to refuse a visa, there was no right of review.

4                     The precise respect in which the application was invalid does not emerge, or does not emerge with any clarity, from the delegate’s letter of 22 November 2001.  The reason assigned in the letter for the invalidity of the application does not make sense.  The letter also described the visa application as being an application for a “Special Eligibility (Prospective Marriage Spouse) Class 832.  As noted above, it is Subclass 831 which relates to “Prospective Marriage Spouse” and the delegate was in error in referring to Subclass 832.

5                     By application lodged with the Court on 28 November 2001 the applicant sought review of the decision of the delegate of the Minister given on 22 November 2001.  The application invoked “s 476”, presumably of the Migration Act 1958 (Cth)(“the Migration Act”) and s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”).  On the morning of the hearing, over opposition from counsel for the Minister, I allowed an amended application to be filed in Court.  The amended application also invoked s 39B of the Judiciary Act 1903 (Cth)(“the Judiciary Act”).  I allowed the amended application to be filed without prejudice to the respondent’s entitlement to submit that the amended application should be dismissed under Federal Court Rules Order 20 rule 2.  The grounds contained in the amended application are as follows:

“1)      The delegate was not acting in good faith in making the decision.

2)                 The decision does not relate to the subject matter of the legislation.

3)                 Section 39B of the Judiciary Act 1903 is a source of original jurisdiction of Federal Court of Australia to review the decision sought to be challenged.

4)                 The application for a substantive visa by the applicant was not barred by section 48 of the Act.

5)                 The making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.”

6                     On 12 December 2001 the respondent lodged a Notice of Objection to Competency of the original application on the ground that the relevant decision is not a decision of an administrative character pursuant to s 474(1) of the Migration Act, or s 3 of the ADJR Act, and as such the Federal Court has no jurisdiction to review the determination.

7                     Section 46(1)(d) of the Migration Act provides, relevantly, that an application for a visa is valid if and only if it is not prevented by s 48.  Section 47(3) provides that, to avoid doubt, the Minister is not to consider an application that is not a valid application.  Section 47(4) provides that, to avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant a visa.

8                     Section 48(1) provides that a person in the position of the applicant may, subject to the Regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

9                     Regulation 2.12 prescribes classes of visas for the purpose of s 48.  Regulation 2.12 was amended on 1 November 2001.  Prior to the amendment, a Special Eligibility (Residence) (Class AO) visa was prescribed for the purposes of s 48 without any qualification.  After the amendment, Regulation 2.12(1) provides, insofar as is relevant:

“for the purposes of s 48 of the Act (which limits further applications by a person whose visa has been cancelled, or whose application for a visa has been refused) the following classes of visas are prescribed:

subject to subregulation (2), Special Eligibility (Residence) Class AO.”

(emphasis added)

Subregulation (2) provides that par (1)(a) applies to a person if he or she meets the requirements of subclause 832.211(3) of Schedule 2.  That requirement is applicable whether the visa sought is within Subclass 831 or 832.

10                  Subclause 832.211(3) of Schedule 2 is as follows:

“3.       An applicant meets the requirements of this subclause if

(a)               the applicant:

(i)                 is a person who:

(A)              was in Australia on 1 September 1994; and

(B)               was, immediately before 1 September 1994, a person to whom Section 37 of the Act as in force immediately before that date applied; and

(C)              has not been granted a substantive visa on or after 1 September 1994; or

(ii)               is a person to whom section 48 of the Act applies; and

(b)               the applicant has not been refused a visa or had a visa cancelled under section 501 of the Act; and

(c)                the applicant:

(i)                 has turned 18; and

(ii)               ceased to hold an entry permit or a substantive visa before turning 18; and

(iii)             immediately before ceasing to hold a substantive visa, did not hold a Subclass 771 (Transit) visa; and

(iv)             before turning 18, spent the greater part of the period that the Minister regards as the applicant’s formative years in Australia.”

11                  As the present application was made on 28 November 2001 it falls to be determined under the more restrictive conditions of Regulation 2.12 in its amended form.  The applicant does not fall within par (a)(i) of Clause 832.211(3) if only because the applicant was not in Australia on 1 September 1994.  Nor does the applicant fall within par 3(a)(ii) if only because the applicant does not satisfy the requirements of par (c)(ii) or par (c)(iv).  Hence, the Minister’s delegate correctly determined that the Minister was precluded by s 47 from considering the application for a Class AO visa, although the advice to the applicant wrongly identified the number of the applicable Subclass, and did not state the real reason for the invalidity of the application.

12                  The applicant submitted that: “The 831 Prospective Marriage Spouse subclass in which the applicant applied is one of the few prescribed under Regulation 2.12 for which those who have previously been refused a visa are eligible to apply”.  The submission does not correctly or sufficiently state the effect of Regulation 2.12.  Irrespective of whether the application is for Subclass 831 or 832, after 1 November 2001, an application for a Class AO visa will only be a valid application if the applicant meets the requirements of subclause 832.211(3) of Schedule 2.  The applicant did not meet those requirements.

13                  Thus there is no arguable case that the application was a valid application such that the Minister’s delegate made an error of law in determining that the application could not be considered.  In the circumstances of the present case, the decision (assuming it was a decision) to which the Minister’s delegate came was a decision which he was required to reach by operation of law.  The Notice of Objection to Competency provides:

“5.       Given that the applicant was aged 28 upon his last arrival in Australia (and that occurred after 1 September 1994), he cannot, under any circumstances, satisfy the requirements of subclause 832.211(3) of Schedule 2 of the Regulations.”

That statement is incontrovertibly correct.  In those circumstances, none of the grounds on which the decision is challenged could possibly be made out, and the proceedings are doomed to failure.  The application should be dismissed pursuant to Order 20 rule 2, even if the Court has jurisdiction to entertain it.

Jurisdiction

14                  Section 476 of the Migration Act does not confer jurisdiction on the Federal Court of Australia.  Section 476 excludes certain matters which might otherwise have been within the jurisdiction of the Federal Court from the Court’s jurisdiction.  Section 476 has no relevant application in the circumstances of the present case.

15                  Clause 6 of the Notice of Objection to Competency asserts that the “purported ‘decision’” of the Minister’s delegate “is not a decision of an administrative character pursuant to s 474(1) of the Act or s 3 of the [ADJR Act].  As such the Federal Court has no jurisdiction to review this determination”.  I am unable to follow this contention.  If the decision is not of an administrative character, it would not be a “privative clause decision” in terms of s 474(2), and the provisions of s 474(1) would have no application in relation to the decision.  If neither s 474(1) nor s 476 of the Migration Act applies to the decision, then the jurisdiction of the Court arising under s 39B of the Judiciary Act or s 5 of the ADJR Act would remain, as no provision of the Migration Act would operate to confine or remove that jurisdiction.

16                  In the course of submissions, counsel for the Minister withdrew par 6 of the Notice of Objection to Competency.  Nonetheless the submission that the Court had no jurisdiction to entertain the application was maintained on the basis that there cannot be a reviewable decision where, as here, on the facts of the case the statute pursuant to which the decision was made prescribes the decision reached as the only possible outcome.  Counsel for the Minister submitted that “There is nothing the Court can do in relation to an application for a visa that is barred by the Migration Act and Migration Regulations.”

17                  By force of the Migration Act, the delegate’s decision is not a decision to refuse a visa.  Is it nonetheless a decision of an administrative character made under that Act so as to be reviewable under the ADJR Act, subject to the exclusion of a privative clause decision within s 474(2) of the Migration Act from ADJR Act review?

18                  There are some cases, eg customs forfeitures, where the outcome arises by the application of the law to the facts, rather than an outcome which evolves from an administrative decision to which the ADJR Act might attach.  In those cases it is the relevant Act, and not any conduct thereunder, which determines that property is forfeited goods: see eg, Sandery v Commissioner of Police (1986) 65 ALR 181, 184; Whim Creek Consolidated NL v Colgan (1991) 103 ALR 204, 211.

19                  It may be said here, correctly in my view, that it is the application of s 46(1)(d) and s 47(3) of the Migration Act to the undisputed facts which produces the outcome that the Minister is precluded from considering the application for a Class AO visa, rather than any administrative decision on the part of the Minister’s delegate.  On that basis, ADJR Act review is not available as the letter of 22 November 2001, properly understood, is no more than an expression of an opinion on the part of the delegate as to the operation of the Migration Act in the circumstances of the particular case, rather than a decision of an administrative character.  However, if the delegate’s opinion that the application was invalid were wrong, and the application was one which, in point of law, the Minister was obliged to consider, then mandamus would lie under s 39B of the Judiciary Act to compel the Minister to determine the application according to law.

20                  For those reasons, the ADJR Act did not apply to the notification contained in the letter of 22 November apart altogether from the provisions of clause (da) of Schedule 1 to the ADJR Act, and the impact of that clause on the definition of decision to which this Act applies in s 3 of the ADJR Act.

21                  On this basis, the Federal Court would have jurisdiction to entertain a claim for relief under s 39B of the Judiciary Act, if the delegate erroneously came to the conclusion that the application for a Class AO visa was invalid.  That jurisdiction would not be affected by s 474(2) of the Migration Act, as acceptance of the Minister’s submission that the notification of 22 November 2001 is not a decision of an administrative character made under the Migration Act, leads to the conclusion that it is not a privative clause decision under s 474(2) of the Migration Act.  Hence the claim under s 39B of the Judiciary Act fails not for want of jurisdiction to entertain such a claim, but because the delegate correctly concluded that the application of the law to the facts was such that the Minister was precluded from considering the application.  In those circumstances, there is no case for relief under s 39B.

22                  If I were wrong in the views which I have so far expressed, and the letter of 22 November 2001 incorporated or reflected a decision of an administrative character made under the Migration Act, then the decision is a privative clause decision in terms of s 474(2) of the Migration Act, as it is a decision of an administrative character made under that Act (whether in the exercise of a discretion or not) and the exceptions to that notion are of no current relevance.  On this basis ADJR Act review would not be available having regard to the provisions of clause (da) of Schedule 1 to the ADJR Act. 

23                  Section 474(1) of the Migration Act provides that a private clause decision is final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any court and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.  However, notwithstanding the provisions of s 474(1) a decision will be reviewable in accordance with what have come to be known as the Hickman principles: R v Hickman; Ex Parte Fox and Clinton (1945) 70 CLR 598, 614-615, 616, ie the decision will not be invalidated on the ground that the body concerned has not conformed to the requirements governing its proceedings or the exercise of its authority, or has not confined its acts within the limits laid down by the instrument giving it authority, provided that:

·           the decision is a bona fide attempt to exercise the statutory power;

·           the decision relates to the subject matter of the legislation; and

·           the decision is reasonably capable of reference to the power given to the body.

See generally NAAX v Minister for Immigration & Multicultural Affairs [2002] FCA 263 (Gyles J) and Ratumaiwai v Minister for Immigration & Multicultural Affairs [2002] FCA 311 (Hill J).

24                  Accordingly, on this basis the Court would have jurisdiction under s 39B of the Judiciary Act, but only if the challenge to the decision is within one of the exceptions to the operation of a privative clause recognised by the Hickman principles.  Some of the grounds on which review is sought attempt to bring the present case within those principles.  However, if the Minister’s delegate made a decision, it was a decision which he was required to reach by operation of law.  Any application for mandamus or judicial review in those circumstances is bound to failure.

25                  The application should be dismissed with costs.

Associate:

Dated:              19 April 2002