FEDERAL COURT OF AUSTRALIA

Swee Yen Tay v Migration Review Tribunal [2009] FCA 515

MIGRATION – application for Skilled (Provisional) Graduate Visa – delegate of second respondent refused application – decision and reasons transmitted to applicant by e-mail – applicant taken, under legislative provision, to have received document at end of day on which document transmitted – applicant first saw decision and reasons after time period for application for review by first respondent had elapsed, due to applicant’s computer having been stolen and subsequent difficulty in obtaining access to e-mail – second respondent’s Department refused applicant’s request to re-notify or treat as void delegate’s decision – Tribunal wrote to applicant, noting possible ineligibility of application – applicant brought proceeding seeking declaration that relevant legislative provision creates rebuttable presumption as to date of receipt of document – application by second respondent to set aside originating process – whether originating process can be set aside because applicant has no prima facie case on merits – whether there is a matter in sense of justiciable controversy – whether there are jurisdictional limits on power of Court to make declaration, aside from statutory intention to exclude remedy – whether jurisdiction to make declaration in exercise of federal judicial power is narrower than in case of non-federal judicial power

Held: second respondent’s application dismissed – originating process cannot be set aside because applicant has no prima facie case on merits, and there is a matter in sense of justiciable controversy.  

Constitution Ch III

Federal Court of Australia Act 1976 (Cth) s 21, s 31A

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 476, 476A, 494B,  494C

Federal Court Rules O 8 r 3, O 9 r 7, O 11 r 16, O 20 r 2, O 29 r 2

Migration Regulations 1994 (Cth) reg 4.10

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 discussed

Amust Computer Corporation Pty Ltd v Australia Entre Business Centres Pty Ltd (No 2) [1987] ATPR 40-829 cited

Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 cited

Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 cited

F Sharkey & Co Pty Ltd v Fisher (1980) 50 FLR 130 cited

Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 discussed

Gardner v The Dairy Industry Authority of New South Wales (1978) 52 ALJR 180 cited

Ibeneweka v Egbuna [1964] 1 WLR 219 discussed

IMF (Australia) Ltd v Sons of Gwalia Ltd (admin apptd) (2004) 211 ALR 231 discussed

In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1920 (1921) 29 CLR 257 discussed

J N Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 referred to

Maryland Casualty Co v Pacific Coal & Oil Co 312 US 270 (1941) discussed

Mentha v GE Capital Ltd (1997) 154 ALR 565 referred to

Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550 referred to

Purchas v Estore Pty Ltd (in liq) (2006) 154 FCR 246 referred to

Re Gidley (2006) 150 FCR 345 referred to

Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 referred to

Re Tooth & Co Ltd (1978) 31 FLR 314; 19 ALR 191 discussed

Re Tooth & Co Ltd (No 2) (1978) 34 FLR 112 referred to

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 discussed

Southern Cross Airlines Holdings Ltd v Arthur Andersen & Co (A Firm) (unreported, Cooper J, 7 May 1998) cited

The University of New South Wales v Moorhouse (1975) 133 CLR 1 cited

Trade Practices Commission v The Gillette Company (No 1) (1993) 45 FCR 366 cited

Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 referred to

Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 referred to   

SWEE YEN TAY v MIGRATION REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND CITIZENSHIP

SAD 182 of 2008

BESANKO J

19 MAY 2009

ADELAIDE

THE COURT ORDERS THAT:

1.         The notice of motion issued by the second respondent and dated 27 November 2008 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          On 14 November 2008, Ms Swee Yen Tay instituted a proceeding in this Court against the Migration Review Tribunal (“the Tribunal”) and the Minister for Immigration and Citizenship. The claim made in the proceeding is said by the applicant to be within the original jurisdiction of the Court, “being an application for a declaration as to the proper construction of s 494C of the Migration Act 1958 (Cth)”. The legislative basis for the Court’s jurisdiction to hear the application and grant the relief sought is said by the applicant to be s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) and s 21 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”).

2                          The only substantive relief which the applicant seeks is a declaration in the following terms:

“A declaration that subs 494C(5) of the Migration Act 1958 (Cth) creates a rebuttable statutory presumption of the existence of the fact that, on 22 September 2008, the Applicant received notice of a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a Class VC Subclass 485 Skilled (Provisional) Graduate visa.”

3                          Under the Migration Act 1958 (Cth) (“the Act”), the Minister is required or permitted by various sections in the Act to give a document to a person, and may be required to give the document to the person by one of the methods in s 494B. That section specifies various methods whereby a document may be given to a person and those methods are by hand, by handing to a person at the last known residential or business address, by dispatching by prepaid post or by other prepaid means and transmission by fax, e-mail or other electronic means. Section 494C sets out when a person is taken to have received a document which the Minister has given by one of the methods specified in s 494B. It is in the following terms:

494C  When a person is taken to have received a document from the Minister

(1)        This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

Giving by hand

(2)        If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.

Handing to a person at last residential or business address

(3)        If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.

Dispatch by prepaid post or by other prepaid means

(4)        If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

(a)        if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

(b)        in any other case—21 days after the date of the document.

Transmission by fax, e‑mail or other electronic means

(5)        If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, e‑mail or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

(6)        Subsection (5) applies despite section 14 of the Electronic Transactions Act 1999.

Document not given effectively

(7)        If:

(a)        the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

(b)        the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.”

4                          The Full Court of this Court considered the proper construction of s 494C in Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 (“Xie”). The Court held that the effect of the section was to identify the date of receipt of a document and that it was not open to a person to establish that in fact he received the document on another date. In other words, the effect of the section was not merely to create a rebuttable presumption of fact (see also Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550).

5                          The declaration which the applicant seeks is to the effect that s 494C creates nothing more than a rebuttable statutory presumption. As I understand it, the applicant acknowledges that, in order to succeed, she would have to persuade the Court not to follow the decision in Xie. She also acknowledges that only a Full Court could make the decision not to follow Xie.

6                          The second respondent, the Minister for Immigration and Citizenship, has filed and served a conditional appearance. He has issued a notice of motion seeking the following order:

“The application for a declaration filed by the Applicant on 14 November 2008 be set aside pursuant to Order 9 rule 7 of the Federal Court Rules.”

7                          An affidavit was sworn in support of the motion, and that affidavit sets out the grounds upon which the application is made. They are as follows:

1.         There is no justiciable controversy or “matter” arising under a law made by the Parliament and therefore paragraph 39B(1A)(c) of the Judiciary Act is not a proper source of jurisdiction and the declaratory relief sought under s 21 of the Federal Court Act is not available.

2.         The relief sought should be refused in any event because an adequate alternative remedy is available, being a review by the first respondent, the Migration Review Tribunal, and, if appropriate, an application for constitutional writs directed to the Tribunal.

8                          At the beginning of her oral submissions, counsel for the second respondent also suggested that I could make an order under O 9 r 7 of the Federal Court Rules where I was satisfied that the applicant did not have a prima facie case on the merits. She also referred to this Court’s statutory power to give summary judgment (see Federal Court Act s 31A). Neither of those matters is referred to in the notice of motion or supporting affidavit and, by the conclusion of submissions, I do not think they were pressed, or pressed strongly, by the second respondent. However, as they were mentioned, I will deal with them.

9                          Before considering the issues, it is necessary to set out the factual context in which the issues arise. That can be done fairly briefly.

The facts

10                        An agreed book of documents was put before me. There does not appear to be any relevant factual dispute between the parties.

11                        The applicant is a national of Malaysia. In about the middle of December 2007, she completed a course of study in Australia as an overseas student. On 28 or 29 December 2007, she applied for a Class VC Subclass 485 Skilled (Provisional) Graduate Visa. On her application, she stated that she agreed to the Department contacting her via e-mail and she provided an e-mail address. She said in her affidavit, which was in the agreed book of documents, that she was in the habit of checking her e-mail account on a regular basis.

12                        On 22 September 2008, a delegate of the second respondent decided to refuse the applicant’s application. The delegate refused her application on the ground that she did not have competent English. The delegate’s decision and the reasons for it were given to the applicant by forwarding the documents to her e-mail address.

13                        The applicant’s computer had been stolen from her home on 25 June 2008. She had contacted the police and officers had attended at her home. The applicant had been able to use a friend’s computer to read her e-mail correspondence, including a letter dated 25 July 2008 sent by the Department, inviting her to provide relevant documents. She had provided documents to the Department in August 2008. Meanwhile, she had asked a friend in Malaysia to buy a new computer for her. He had done so on 24 September 2008. She had received the computer in Australia in late September 2008. She had difficulty obtaining access to her e-mails and did not do so until 16 October 2008. It was on that date that she saw, for the first time, the decision and reasons for decision of the delegate.

14                        The applicant sought legal advice on 20 October 2008. She received advice that an application for review by the Tribunal was out of time because the time limit was 21 days from the date she received notice of the decision (see Migration Regulations 1994 (Cth) reg 4.10), and because the Department was likely to take the view that she had received such notice on 22 September 2008 when the decision was sent to her e-mail address. She was also advised by her solicitors that, had she had the right to seek review by the Tribunal, she could have put forward further evidence of her English language ability.

15                        On 20 October 2008, the applicant’s solicitors wrote to the Department, asking the second respondent to re-notify or treat as void the delegate’s decision of 22 September 2008. The basis of the request was that the applicant had not in fact become aware of the delegate’s decision until 16 October 2008, and that there was reason to think that she could satisfy the Tribunal that she had competent English.

16                        On the same day, the Department advised the applicant’s solicitors that her request was refused.

17                        On 6 November 2008, the applicant made an application for review by the Tribunal. The following day, a Tribunal officer acknowledged receipt of the application. As I have said, the proceeding before this Court was issued on 14 November 2008. On 21 November 2008, the Tribunal wrote to the applicant in the following terms:

“Based on an initial assessment, your application may be ineligible for review by the Tribunal.

You are invited to comment, in writing, on the following information:

Section 347 of the Act sets out the requirements for making an eligible application for review, including the requirement to make the application within the prescribed time period.

According to Regulation 4.10, you were required to make the application for review within 21 calendar days of the date that the Department notified the visa applicant of its decision. The Department made its decision on 22 September 2008 and is taken to have notified the visa applicant of the decision on 22 September 2008. As the Department’s letter was emailed to the visa applicant, this date is the same day as the date of the Department’s notification letter. This means that the last day you could have made the application for review was 13 October 2008. You made the application for review on 6 November 2008.

Your application for review may not be eligible because the application was not made to the Tribunal within the prescribed time period.

If you disagree, and you think the Tribunal has power to consider your application, please write to us. We must receive your letter by 5 December 2008.”

18                        I was told that the Tribunal has not taken any further action pending the outcome of this application.

Order 9 rule 7 of the Federal Court Rules

19                        The second respondent’s application is made under O 9 r 7 of the Federal Court Rules, which is in the following terms:

“Setting aside originating process etc

(1)        The Court may make an order:

(a)        setting aside an originating process; or

(b)        setting aside the service of an originating process on the respondent; or

(c)        declaring that an originating process has not been duly served on the respondent; or

(d)        discharging any order giving leave to serve an originating process outside Australia or confirming service of an originating process outside Australia.

(2)        A respondent applying for an order under subrule (1) must file and serve the notice of motion:

(a)        before the respondent enters an appearance; or

(b)        within 14 days after the respondent enters a conditional appearance.”

20                        The order sought by the second respondent (set out at [6] above) is sought under O 9 r 7(1)(a). In Cell Tech Communications Pty Ltd v Nokia Mobile Phones (UK) Ltd (1995) 58 FCR 365 (“Cell Tech Communications”), Lindgren J made a number of observations about the scope of O 9 r 7(1). His Honour said that the rule was to be distinguished from an application for summary dismissal (O 20 r 2) and an application for the striking out of pleading (O 11 r 16). To these I would add an application for summary judgment (Federal Court Act s 31A) and an order for dismissal which may follow the determination of a separate question under O 29 r 2. Lindgren J also made the point (at 370) that, although the other procedures he identified were to be distinguished from O 9 r 7, that was not to say that “considerations relevant to such applications may not be relevant to an application under one or other of the paragraphs of O 9, r 7(1)”.

21                        The authorities establish that O 9 r 7(1) is not confined to cases where there has been service outside the jurisdiction. While O 9 r 7(1)(b), (c) and (d) refer to service of an originating process, (a) does not, and under that subparagraph an originating process may be set aside where the Court does not have jurisdiction to entertain the claim made in it, or where the originating process constitutes an abuse of process: F Sharkey & Co Pty Ltd v Fisher (1980) 50 FLR 130; 33 ALR 173; Cell Tech Communications (at 370). The second respondent’s first ground (see [7] above) raises an issue of jurisdiction and, if made good, engages the power to set aside the originating process. By contrast, the second ground does not raise an issue of jurisdiction, and, even if made good, does not engage the power to set aside the originating process.

22                        The power in O 9 r 7 may be exercised where the originating process has been served outside the jurisdiction and the Court is satisfied that there is no prima facie case: Amust Computer Corporation Pty Ltd v Australia Entre Business Centres Pty Ltd (No 2) [1987] ATPR 40-829; Trade Practices Commission v The Gillette Company (No 1) (1993) 45 FCR 366; Southern Cross Airlines Holdings Ltd v Arthur Andersen & Co (A Firm) (unreported, Cooper J, 7 May 1998). That follows from the fact that, in certain cases, a prima facie case must be shown before service outside the jurisdiction is effective: O 8 r 3.

23                        I have not been able to find any direct authority addressing the submission by the second respondent that an originating process served within the jurisdiction may nevertheless be set aside because the applicant has no prima facie case on the merits. There is authority that it is not appropriate to exercise the power in O 9 r 7 on the ground that a party’s pleadings are defective: Cell Tech Communications at 371 per Lindgren J. I do not think the power in O 9 r 7 extends to cases where the originating process has been served within the jurisdiction and a respondent claims that the applicant has no prima facie case on the merits. The rules, and now s 31A of the Federal Court Act, provide adequate procedures for a party who claims that the case against him or her has no substance.

24                        The second respondent’s submission that I can order that the application be set aside under O 9 r 7 because the applicant does not have a prima facie case on the merits must be rejected. I would not permit the second respondent to call in aid s 31A of the Federal Court Act in circumstances where it was not referred to in the application or supporting affidavit and was only mentioned briefly in submissions.

Jurisdiction

25                        In her application, the applicant relies on s 39B(1A)(c) of the Judiciary Act and s 21 of the Federal Court Act. The important provision is s 39B(1A)(c) because s 21 gives this Court power to grant declarations only in those matters in which the Court has original jurisdiction.

26                        The second respondent contends that the Court does not have jurisdiction to entertain the application because there is no matter, in the sense of a justiciable controversy, within s 39B(1A) of the Judiciary Act. It is common ground that the word matter in that subsection has the same meaning as it has in Ch III of the Constitution (see Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 584-586 [50], [51] and [54] per Gleeson CJ, Gaudron and Gummow JJ).

27                        The starting point in determining whether there is a matter within s 39B(1A) of the Judiciary Act is the early decision of the High Court in In re the Judiciary Act 1903-1920 and In re the Navigation Act 1912-1920 (1921) 29 CLR 257 (“In re Judiciary and Navigation Acts”). For there to be a matter, it is not enough that there be a legal proceeding; there must be “some immediate right, duty or liability to be established by the determination of the Court” (see at 265 per Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ). The Court said (at 267) that the power to confer jurisdiction under Ch III of the Constitution did not include a jurisdiction to “determine abstract questions of law without the right or duty of any body or person being involved”.

28                        There have been considerable developments in the law relating to declarations since the decision in In re Judiciary and Navigation Acts. One of the leading High Court decisions in the area of declarations is Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421. That case dealt with the statutory power of the Supreme Court of New South Wales in s 10 of the Equity Act 1901 (NSW) to make a declaration. Gibbs J said (at 437) that it was neither possible nor desirable to fetter the broad discretion in s 10 by laying down rules as to the manner of its exercise. His Honour said that, in general, the requirements identified by Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 should be satisfied before the discretion to make a declaration is exercised. In the latter case, Lord Dunedin said (at 448):

“The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who has a true interest to oppose the declaration sought.”

29                        Gibbs J also referred with approval to a passage in the advice given by Viscount Radcliffe on behalf of the Privy Council in Ibeneweka v Egbuna [1964] 1 WLR 219 at 225:

“After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration.”

30                        There has been a good deal of debate in the authorities as to whether, in the case of a general statutory power to make declarations, and leaving aside a statutory intention to exclude the remedy of declaration, there are any jurisdictional limits on the power of the Court to make a declaration, or whether all the matters which from time to time have been identified in the authorities as relevant are no more than discretionary considerations (see, for example, the discussion of this issue by King CJ in J N Taylor Holdings Ltd (in liq) v Bond (1993) 59 SASR 432 at 436-437). There is also a question of whether jurisdiction and discretion are “congruent” in relation to declaratory relief. That was said by French J in IMF (Australia) Ltd v Sons of Gwalia Ltd (admin apptd) (2004) 211 ALR 231 (“Sons of Gwalia”) at 243 [45] to be debatable.

31                        One issue which has arisen is the extent to which the jurisdiction to make a declaration in the exercise of federal judicial power is narrower, because of the need to show that a matter is involved, than it is in the case of the exercise of non-federal judicial power. This issue was mentioned by Brennan J sitting as a judge of this Court in Re Tooth & Co Ltd (1978) 31 FLR 314; 19 ALR 191 (“Re Tooth & Co”) at 330-331; 206 (see also Re Tooth & Co Ltd (No 2) (1978) 34 FLR 112 at 118-119 per Bowen CJ). Perhaps the point will not matter a great deal in practice because, in the case of non-federal judicial power, the considerations identified in the authorities as relevant will be, in any event, powerful discretionary considerations likely to lead to the refusal of declaratory relief.

32                        In any event, it is clear enough that there is no matter if there is no real controversy between parties. Various words have been used to describe what will not qualify as a matter on this ground: abstract question, theoretical question or hypothetical question. In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, Mason CJ, Dawson, Toohey and Gaudron JJ referred to the discretionary power to grant a declaration as being confined by considerations which mark out the boundaries of judicial power. Their Honours said (at 581-582):

“It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which ‘[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.’ However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’.”

(Citations omitted.)

(See also Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 at 613 [52] per Gaudron J).

33                        The considerations referred to in the above passage are essential to the presence of a matter and therefore the jurisdiction of this Court under s 39B(1A) of the Judiciary Act (see also Mentha v GE Capital Ltd (1997) 154 ALR 565 at 574 per Finkelstein J; Re Gidley (2006) 150 FCR 345; Purchas v Estore Pty Ltd (in liq) (2006) 154 FCR 246).

34                        The second respondent’s submission in this case is that there is no matter within s 39B(1A)(c) of the Judiciary Act because there is no real controversy between parties. He submits that the question raised, and the relief sought, is abstract or hypothetical. If that proposition is rejected, the second respondent does not put any other argument suggesting that the Court does not have jurisdiction to make the declaration sought. It is not said, for example, that the Court would never make the declaration sought because it is claimed in relation to circumstances that have not occurred and might never happen in the sense explained by Gibbs J in The University of New South Wales v Moorhouse (1975) 133 CLR 1 at 9-11, or because it will produce no foreseeable consequences for the parties in the sense explained by Mason J in Gardner v The Dairy Industry Authority of New South Wales (1978) 52 ALJR 180; 18 ALR 55 at 188; 69.

35                        In Re Tooth & Co, Brennan J addressed the difference between a hypothetical and a non-hypothetical question. His Honour was dealing with a case involving a declaration as to the lawfulness of future conduct. He said that the difference between a hypothetical and a non-hypothetical question was one of degree and he referred to the following passage from the United States case of Maryland Casualty Co v Pacific Coal & Oil Co 312 US 270 (1941) at 273:

“The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in every case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

Brennan J said (at 333-334; 209):

“A controversy as to the lawfulness of future conduct cannot be said to be immediate and real if it is unlikely that the applicant will engage in the conduct (Golden, Acting District Attorney of Kings County v. Zwickler (1969) 394 U.S. 103, at p. 109). If the prospects of the applicant engaging in the conduct are uncertain, the uncertainty may deprive the controversy of a sufficient immediacy and reality to warrant the making of a declaration (Steffel v. Thompson (1973) 415 U.S. 452, at p. 460). The degree of uncertainty as to whether the applicant will engage in the conduct proposed will usually determine whether the circumstances call for the making of a declaration.”

(Original emphasis.)

36                        In Sons of Gwalia, French J considered a case involving a declaration as to the lawfulness of future conduct. His Honour said (at 243 [44]):

“In my opinion, the issue in the present application is neither hypothetical nor contingent. It involves a real question, namely whether IMF can lawfully proceed to do what it intends to do in using information on the Sons of Gwalia register to approach members and former members of the company with a view to joining them in possible recovery action against the company. The capacity of courts to declare that conduct, which has not yet taken place, will or will not be in breach of the law ‘contributes enormously to the utility of the jurisdiction’: Commonwealth of Australia v Sterling Nicholas Duty Free Pty Ltd (1972) 126 CLR 297 at 305; [1972-3] ALR 23.”

37                        In my opinion, there is a matter in this case and it arises under a law of the Parliament, namely, the Migration Act 1958 (Cth). There is a real controversy and the question raised is not an abstract or hypothetical question. It seems to me important not to confuse considerations relating to the desirability of the Tribunal ruling on the issue and then the matter proceeding by way of judicial review through the seeking of constitutional writs. Those considerations are relevant, perhaps highly relevant, to whether this Court should, as a matter of discretion, entertain the application for declaratory relief. They do not go to the question of whether there is a matter.

38                        In this case, the facts necessary for determining whether a declaration should be made have occurred and are not in dispute. The second respondent claims that the applicant was given notice of the delegate’s decision and the reasons therefor on 22 September 2008, and that by reason of s 494C of the Act (and the construction placed on that section in Xie) the applicant’s application for review by the Tribunal is not competent. The applicant wishes to pursue an application for review by the Tribunal with a view to having the decision of the delegate reversed. Those circumstances are sufficient to give rise to a matter.

39                        One submission made by the second respondent should be addressed before leaving this topic. It was suggested that this case was similar to Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 in that the thrust of the application was an attack on the reasoning in Xie and that did not give rise to a justiciable issue (cf at 394-396 [22] and [26] per Gleeson CJ). That argument must be rejected because, in this case, the proper interpretation of s 494C of the Act has a direct effect on the competency of the applicant’s application for review.

Discretion

40                        As I have said, the presence of an alternative procedure or remedy is a discretionary consideration which may lead a Court to conclude that it should not entertain an application for declaratory relief. I should make it clear that it was not suggested in this case that the provisions creating the alternative procedure or remedy evinced an intention to exclude the Court’s power to make a declaration.

41                        On the face of it, there is a strong case for declining to make a declaration solely on the ground there is an alternative procedure or remedy available to the applicant. That alternative procedure or remedy involves pursuing the matter before the Tribunal and then by an application for constitutional writs in the Federal Magistrates Court. In fact, the Act provides that such an application for constitutional writs must be brought in the Federal Magistrates Court (see s 476 and s 476A). The difficulty for the second respondent is that this is a discretionary matter and I do not think the procedure in O 9 r 7 can be used to set aside an originating process on discretionary grounds. For reasons I have given, I think O 9 r 7(1)(a) is confined to cases where the Court does not have jurisdiction or the originating process is an abuse of process. Whether it is open to the second respondent to utilise a different procedure which will enable him to ventilate the issue as a preliminary question is a matter for him.

Conclusion

42                        The notice of motion issued by the second respondent and dated 27 November 2008 must be dismissed. I will hear the parties as to costs.

Associate:

Dated:         19 May 2009