FEDERAL COURT OF AUSTRALIA

BYN18 v Minister for Home Affairs [2019] FCA 1033

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding is dismissed.

2.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

FLICK J:

1    The Applicant in the present proceeding, identified by the pseudonym BYN18, was born in 1989 in Tehran, Iran.

2    In March 2013 he was granted a Class XA Subclass 866 Protection visa.

3    In August 2016, he was convicted in the Local Court of New South Wales of Common Assault (DV) and Stalk/Intimidate intend Fear Physical Harm (Domestic). He was sentenced to a term of imprisonment of 12 months. In March 2017, he was convicted of Stalk Another Person in the Magistrates Court of Victoria and sentenced to imprisonment of seven months.

4    On 4 April 2017, he was notified by the Department of Immigration and Border Protection (as it was then) that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the “Migration Act”). A delegate of the Minister had formed the view that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and did not pass the character test. In the notification letter, the Applicant was then invited “to make representations to the Minister about revoking the decision to cancel your visa” and informed “any representations MUST be made within 28 days after you are taken to have received this notice” (emphasis in original).

5    Notwithstanding the express reference to the time within which a representation could be made, a response was not provided until January 2018.

6    On 21 March 2018, the Department (now the Department of Home Affairs) advised the Applicant that it had “determined that your representations were not made within the prescribed time frame” and therefore that “the Minister cannot consider revoking the decision to cancel your visa”.

7    On 17 April 2018, the Applicant commenced a proceeding in the Federal Circuit Court of Australia seeking an extension of time under s 477 of the Migration Act. The jurisdiction which was invoked was that purportedly conferred on that Court by s 476 of the Migration Act.

8    Before the Federal Circuit Court it was common ground that no challenge was made to the actual decision to cancel the visa under s 501(3A); the challenge which was mounted was to the notification of that decision. In essence, the Applicant contended that the “person who purported to give the Notice to the Applicant … did not hold a delegation from the Respondent [Minister] to carry out his duty under the Migration Act 1958 s 501CA(3)”. If successful in that challenge, the Applicant would have – so the argument ran – 28 days from whatever date a new notification was given in which to make representations.

9    In December 2018, a Judge of the Federal Circuit Court, in an ex tempore judgment, dismissed the proceeding: BYN18 v Minister for Home Affairs [2018] FCCA 3838. In doing so, the Judge first addressed the question as to whether the Court had jurisdiction and resolved that question adversely to the Applicant as follows (without alteration):

[7]    I accept the submissions of the respondent that that this Court has no jurisdiction as the notification is not a migration decision within this Court’s jurisdiction. The notification is a procedural step and is not of an administrative nature so as to give rise to a migration decision enlivening this Court’s jurisdiction.

Although unnecessary to do so, the Judge noted that the application to that Court was filed 333 days outside the time permitted under s 477 of the Migration Act and went on to conclude as follows that the argument sought to be agitated by the Applicant as to the absence of delegation lacked sufficient merit to warrant an extension of time being granted:

Proposed ground 1

[17]    In the circumstances, proposed ground 1 lacks sufficient merit to warrant an extension of time under s 477 of the Act as being necessary in the interests of the administration of justice.

[18]    When the unsatisfactory explanation for the delay, which was substantial, is taken together with the insufficient merit, the Court is not satisfied that there is a sufficiently arguable case to warrant an extension of time under s 477 of the Act. But for the finding of there being no jurisdiction, the Court would otherwise have dismissed the application under s 477 of the Act.

10    Later in December 2018, the Applicant then filed in this Court an Originating application for relief under section 39B Judiciary Act 1903 (Cth). An Amended Originating application for relief under section 39B Judiciary Act 1903 (“Amended Originating Application”) was then filed in February 2019 in accordance with leave granted by this Court. Although that Amended Originating Application does not specifically identify the December 2018 decision of the Federal Circuit Court as the decision sought to be reviewed, it was common ground that that was the decision sought to be reviewed. Orders were sought from this Court setting aside the Order of the Federal Circuit Court and a “direction that the [Minister] properly notify the Applicant of his decision to cancel the Applicant’s visa”.

11    It is concluded that the Amended Originating Application is to be dismissed with costs.

The jurisdiction conferred by the Migration Act & the requirement of a decision

12    Section 501 of the Migration Act provides for the refusal or cancellation of a visa on character grounds and provides, in part, as follows:

Decision of Minister or delegate—natural justice applies

(1)    The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

…

(3A)    The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

…; and

(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

…

Character Test

(6)    For the purposes of this section, a person does not pass the character test if:

(a)    the person has a substantial criminal record (as defined by subsection (7)); or

…

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

Section 501(1) is the provision which confers on the Minister the discretion to refuse to grant a visa. The power relied upon by the delegate of the Minister in the present case to cancel the Applicant’s visa was that conferred by s 501(3A).

13    Where a decision has been taken under s 501(3A), the provision of a written notice setting out (inter alia) that decision is required by s 501CA. Section 501CA provides, in relevant part, as follows:

Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

  (3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

…

14    The provisions of the Migration Act relevant to the jurisdiction exercised by the Federal Circuit Court are ss 5, 474, 476 and 477.

15    It is s 476 which sets forth the parameters of the jurisdiction entrusted to that Court; it is s 477 which confers a statutory power to extend time within which a proceeding with respect to which that Court has jurisdiction may be commenced.

16    Section 476 provides as follows:

Jurisdiction of the Federal Circuit Court

(1)    Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

 (2)    The Federal Circuit Court has no jurisdiction in relation to the following decisions:

    (a)    a primary decision;

(b)    a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;

(c)    a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;

(d)    a privative clause decision or purported privative clause decision mentioned in subsection 474(7).

(3)    Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.

 (4)    In this section:

primary decision means a privative clause decision or purported privative clause decision:

(a)    that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or

(b)    that would have been so reviewable if an application for such review had been made within a specified period; or

(c)    that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).

17    Section 477 provides, in relevant part, as follows:

Time limits on applications to the Federal Circuit Court

(1)    An application to the Federal Circuit Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

(2)    The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

 (3)    …

(4)    For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3).

(5)    To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.

18    The reference in ss 476 and 477 to a “migration decision” is a reference back to the following definition of that phrase set forth in s 5, namely:

migration decision means:

(a)    a privative clause decision; or

(b)    a purported privative clause decision; or

(c)    a non‑privative clause decision; or

(d)    an AAT Act migration decision.

The phrase “privative clause decision” is picked up in s 474. That section provides, in part, as follows:

Decisions under Act are final

(1)    A privative clause decision:

    (a)    is final and conclusive; and

(b)    must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)    is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2)    In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3)    A reference in this section to a decision includes a reference to the following:

(a)    granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

(b)    granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c)    granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

    (d)    imposing, or refusing to remove, a condition or restriction;

(e)    making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

    (f)    retaining, or refusing to deliver up, an article;

    (g)    doing or refusing to do any other act or thing;

(h)    conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i)    a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

    (j)    a failure or refusal to make a decision.

(4)    For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision: …

19    If attention is confined for present purposes to the jurisdiction conferred by these provisions, common to many of them is the requirement that there be a “decision”.

20    The notification given to the Applicant on 4 April 2017 of the decision to cancel his visa, as opposed to the decision to cancel the visa, is not a “decision” for the purposes of these provisions and not a “decision” susceptible of review: cf. Chung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 442 (“Chung”). In concluding that the notification of a decision to refuse to grant a visa did not constitute a “decision” which enlivened the jurisdiction of this Court, Conti J there concluded as follows:

Jurisdiction of the Federal court to review the present application

[17]    The Federal Court of Australia has original jurisdiction, subject to certain statutory limitations, “with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth” (s 39B of the Judiciary Act). As Counsel for the Minister correctly postulated, the combined purpose of s475A and s 476 of the [Migration] Act, is to limit the jurisdiction of the Federal Court effectively to that conferred by s 39B of the Judiciary Act.

[18]    The applicants’ principal submission was that the notification contained in the Department’s letter of 14 May 2002 to the applicants, constituted a separate and distinct “decision”, for the purposes of Pt 8 of the Act. In contrast, the Minister contended that a notification did not represent a “decision”, for the reason that the giving of the notification did not involve a “final or operative determination and [consequently] does not amount to a decision for the purposes of s 474(2)”. The description “final or operative determination” was borrowed from the well known passage in the judgment of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338. Bond initially involved a consideration of the criteria for administrative review set out in subs 3(1) and subs 3(2) of the Administrative Decision (Judicial Review) Act 1977 (Cth). Those statutory provisions are almost identical to the terms of s 474(3) of the Act…

[19]    The Minister’s submission is I think clearly correct. For a decision-maker merely to communicate his or her decision to a person to be affected thereby, pursuant to his or her duty so to do, does not involve the making of a decision so to do within s 474(3), particularly where the decision-maker is subject to a statutory obligation so to do, whether explicit or implicit. The applicants' submission involves a tautology of the Minister’s decision-making function which is involved in the statutory process of making a privative clause determination.

In that decision it was s 66 of the Migration Act which imposed the requirement to notify an applicant of a decision to refuse to grant a visa. These conclusions of Conti J in Chung were subsequently endorsed by Gordon J, when sitting as a Judge of this Court, in MZXMI v Minister for Immigration and Citizenship [2007] FCA 1162 at [12] (“MZXMI”). In reliance upon the statements in Chung and MZXMI, Besanko J has also observed that “there are difficulties in treating a notice as a decision”: Kumar v Minister for Immigration and Citizenship [2009] FCAFC 55 at [76], (2009) 176 FCR 401 at 415. Stone and Greenwood JJ agreed with Besanko J.

21    There is no reason why the same conclusion should not be reached in respect to the notification pursuant to s 501CA of a decision made pursuant to s 501(3A) of the Migration Act. Nor is there any reason to conclude that the primary judge erred in finding that the notification provided to the Applicant on 4 April 2017 did not constitute a “migration decision” susceptible of review by the Federal Circuit Court: cf. [2018] FCCA 3838 at [7].

22    The definition of a “privative clause decision” in s 474(2), it may further be noted, has many of the hallmarks of the manner in which the requirement of a “decision” has been interpreted under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “Judicial Review Act”). When considering that legislation, the following observations of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335 to 336 are oft repeated:

The fact that the AD(JR) Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word “decision”. …

Nonetheless other considerations point to the word having a relatively limited field of operation. First, the reference in the definition in s 3(1) to “a decision of an administrative character made … under an enactment” indicates that a reviewable decision is a decision which a statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision. Secondly, the examples of decision listed in the extended definition contained in s. 3(2) are also indicative of a decision having the character or quality of finality, an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Dean J, “a determination effectively resolving an actual substantive issue”. Thirdly, s. 3(3), in extending the concept of “decision” to include “the making of a report or recommendation before a decision is made in the exercise of a power”, to that extent qualifies the characteristic of finality. Such a provision would have been unnecessary had the Parliament intended that “decision” comprehend every decision, or every substantive decision, made in the course of reaching a conclusive determination. Finally, s. 3(5) suggests that acts done preparatory to the making of a “decision” are not to be regarded as constituting “decisions” for, if they were, there would be little, if any, point in providing for judicial review of “conduct” as well as of a “decision”.

Although it is the particular statutory context under consideration in any given case which dictates whether a “notice” may constitute a “decision”, it may be noted that in McLachlan v Australian Securities Commission (1998) 52 ALD 298 at 304 Finn J concluded that a decision to issue a notice of hearing under s 57(2) of the Australian Securities and Investments Commissions Act 1989 (Cth) was not one which could “of itself result in any determination of rights or liabilities or of any substantive issue” – it merely put in train a process which could lead to a decision which had consequences of that kind. This decision was affirmed on appeal: McLachlan v Australian Securities and Investments Commission [1999] FCA 244, (1999) 85 FCR 286. Similarly, it was the making of the decision under s 501(3A) which was the substantive decision impacting upon the Applicant and the giving of the notice under s 501CA(3) was not itself a “decision” but merely a step which put in train the process of inviting a further representation from the Applicant so that the Minister could thereafter make a separate substantive decision under s 501CA(4) as to whether to revoke the visa cancellation. For present purposes the analogy is sufficient.

23    The Applicant’s submission that the definition, in s 474, of a privative clause decision (as including “doing or refusing to do any other act or thing”: s 474(3)(g)) captured the notification provided on 4 April 2017 such that it was a migration decision reviewable by the primary Judge is therefore rejected.

24    No submission was advanced, and accordingly no concluded view is expressed, as to whether the specific statutory context now under consideration could lead to a conclusion that the giving of notice under s 501CA(3) was “conduct engaged in for the purpose of making a decision…” for the purposes of the Judicial Review Act. That question, not surprisingly, did not arise in the present case.

25    Section 39B of the Judiciary Act 1903 (Cth), it may be noted in passing, would not have availed the Applicant in the present proceeding in his attempt to invoke the jurisdiction of the Federal Circuit Court as s 39B is drafted in terms of conferring jurisdiction on this Court alone.

26    The Federal Circuit Court Judge was thus correct in concluding that jurisdiction was not vested in that Court to review the notification given to the Applicant on 4 April 2017.

CONCLUSIONS

27    It is to be recalled that the decision the Federal Circuit Court was called upon to make was an application to grant an extension of time within which an application could be made to that Court. It was within that context that the primary Judge concluded as a preliminary matter that that Court did not have jurisdiction vested in it pursuant to the Migration Act. Although unnecessary to do so, the primary Judge nevertheless also went on to consider the separate question as to whether the argument sought to be advanced had sufficient merit to warrant an extension of time being granted.

28    It has been concluded that the primary Judge was correct in concluding that the notification was not a “decision” susceptible of review in accordance with the jurisdiction conferred on the Federal Circuit Court by the Migration Act.

29    That is a sufficient basis upon which the present proceeding can be resolved.

30    The proceeding is to be dismissed.

31    The parties were in agreement that costs should follow the event.

THE ORDERS OF THE COURT ARE:

1.    The proceeding is dismissed.

   2.    The Applicant is to pay the costs of the First Respondent, either as agreed or assessed.

Associate:

Dated:    4 July 2019