Federal Court of Australia

Nguyen v Federal Circuit and Family Court of Australia [2024] FCA 471

ORDERS

THE COURT ORDERS THAT:

1.    The amended originating application filed on 26 February 2024 is dismissed.

2.    The applicant is to pay the second respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

MARKOVIC J:

1    This is an application brought by Mr Nguyen under s 39B(1) of the Judiciary Act 1903 (Cth) for orders quashing the decision of the first respondent, the Federal Circuit and Family Court of Australia (Div 2), and remitting the proceeding to that court for reconsideration according to law. The second respondent to the application is the Minister for Immigration, Citizenship and Multicultural Affairs.

2    In the Federal Circuit Court Mr Nguyen applied for an extension of time in which to seek judicial review of the Minister’s decision “treating [him] as having withdrawn his application for the visa”. The visa in issue was Mr Nguyen’s mother’s Contributory Parent (subclass 143) visa on which he was listed as a dependent. The Minister contended that there was no relevant “migration decision” and that accordingly the Federal Circuit Court did not have jurisdiction.

3    At the request of the parties, the Federal Circuit Court determined the question of jurisdiction before determining the application for an extension of time and found that it did not have jurisdiction to review a withdrawal of a visa application under s 49 of the Migration Act 1958 (Cth): see Nguyen v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 1010. Mr Nguyen has brought his application for review of that decision under s 39B of the Judiciary Act because, as he points out and the Minister agrees, there is no available avenue of appeal from the decision in Nguyen.

4    In his amended originating application filed on 26 February 2024 Mr Nguyen contends that the Federal Circuit Court made the jurisdictional error of erroneously denying jurisdiction. The amended application is particularised but, in summary, Mr Nguyen contends that the basis for the Federal Circuit Court’s denial of jurisdiction was the application of Gillera v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1396 which that court found could not be distinguished and by which it was bound and that Gillera is per incuriam, plainly wrong, and should not be followed in the present case.

Background

5    Mr Nguyen was born in 1995. He was included as a dependent in his mother’s offshore application for the Contributory Parent visa lodged on 24 June 2016.

6    On 20 September 2022 Mr Nguyen lodged a Form 1446 Withdrawal of a visa application. By email of the same date addressed to parents@homeaffairs.gov.au Mr Nguyen stated (as written and omitting formal parts):

My name is Thanh Dam Nguyen, DOB 30/10/1995

I am writing this letter to withdraw my visa application. I was listed as dependent in my mother’s application. However, some information are not correct, so I am afraid that it will affect my future.

The application was sent in 2016 by my brother but he can not find his details with Immigration, so my mother used an agent to organise the documents. But I would like to submit my withdrawal myself, so I send this form directly to you.

7    By letter dated 24 September 2022 the Department of Home Affairs, as the Minister’s department was then known, acknowledged receipt of Mr Nguyen’s withdrawal of his Contributory Parent visa application.

8    On 24 September 2022 there was also an exchange of emails between Mr Nguyen’s lawyer and the Department including:

(1)    by email sent at 2.15 pm Mr Nguyen’s lawyer informed the Department that (as written and omitting formal parts):

I refer to the email today 24 September 2022 and advise that the dependent does apply to withdraw his application for parent 143 visa. He has never sign a withdrawal form and I have never send or notify of his withdrawal.

Thus, the applicant was requested to pay for 2nd VAC for herself and dependent. The applicant has arranged her money and ready to make payment on the Monday 26 September 2022.

I think there is an misunderstanding. Can you please adjust this so that the applicant can make 2nd VAC for herself and her dependent.

I look forward to your reply and please treat this as urgent matter because they are very stress and anxiety upon received your email.

(2)    by email sent at 2.35 pm the Department requested that Mr Nguyen provide “additional and more specific information” in relation to his claim in the Form 1446 that “some of the information provided in the application are not true”.

9    On 25 September 2022 Mr Nguyen submitted an online enquiry form in which he stated:

Regarding your questions about additional information for my withdrawal: I was not dependent on my mother since many years ago, and I also had a partner. We pay for our living ourselves.

10    By email sent on 26 September 2022 Mr Nguyen’s solicitor informed the Department, among other things, that:

I refer to the email sent on 24 September 2022 by my colleague Kim Uyen PHAM and once again confirm that the dependent does not wish to draw his application. He believes that someone has hacked his email with the intention to cause trouble for him and his family. I hereby enclose the statement from the dependent for your information.

Could you please advise me whether you need any other document in order for the dependent to be joined in with his mother’s application for parent 143 visa.

11    By email sent on 3 October 2022 the Department relevantly informed Mr Nguyen’s lawyer that (as written):

The application was withdrawn and we are satisfied that the applicant signed the form.

Dealing with this matter has taken a considerable amout of time and resources. The matter is closed and we will not respond to any further communciation regarding the status of the application for NGUYEN, Thanh Dam.

Legislative framework

12    Section 47 of the Migration Act is titled “Consideration of valid visa application” and relevantly provides:

(1)    The Minister is to consider a valid application for a visa.

(2)    The requirement to consider an application for a visa continues until:

(a)    the application is withdrawn; or

…

(3)    To avoid doubt, the Minister is not to consider an application that is not a valid application.

(4)    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 the visa.

13    Section 49 of the Migration Act is titled “Withdrawal of visa application” and provides:

(1)    An applicant for a visa may, by written notice given to the Minister, withdraw the application.

(2)    An application that is withdrawn is taken to have been disposed of.

(3)    For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.

(4)    Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.

14    Section 476 of the Migration Act defines the jurisdiction of the Federal Circuit Court. It relevantly provides:

(1)    Subject to this section, the Federal Circuit and Family Court of Australia (Division 2) has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.

15    The term “migration decision” is defined in s 5 of the Migration Act to mean:

(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.

16    Section 474(2) of the Migration Act defines a “privative clause decision” to mean:

… 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).

17    Section 474(3) of the Migration Act provides that a reference in s 474 to a decision includes a reference to, among other things:

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

…

(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;

…

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

18    The term “purported privative clause decision” is defined in s 5E(1) of the Migration Act as follows:

… a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:

(a)    a failure to exercise jurisdiction; or

(b)    an excess of jurisdiction;

in the making of the decision.

The proceeding in the Federal Circuit Court

19    As set out above, Mr Nguyen filed an application for an extension of time in which to seek judicial review in the Federal Circuit Court but, given the Minister’s contention that there was no “migration decision” for the purposes of the Migration Act before the court, the parties asked the Federal Circuit Court to determine the question of jurisdiction before determining the application for an extension of time and, if granted, the application for judicial review.

20    Mr Nguyen identified the decision under review as the decision made on 3 October 2022 by the Minister’s Department that the withdrawal was submitted by him or with his authority. Mr Nguyen submitted that the Department’s communication of 3 October 2022 (see [11] above) was capable of amounting to a decision having regard to the broad categories in s 474(3) and specifically subs (3)(a), (g) and (h): Nguyen at [24].

21    Against that the Minister submitted that there was no relevant decision for the purposes of the Migration Act capable of enlivening the Federal Circuit Court’s jurisdiction. The Minister relied on the decision in Gillera as determinative of the question of jurisdiction, which the Minister said was binding on the Federal Circuit Court: Nguyen at [25].

22    After referring in detail to the decision in Gillera Judge Laing noted that Mr Nguyen sought to distinguish that decision on the basis that it was “not dealing with the determination of the fact of withdrawal by notice from the Applicant” and that Gillera “goes to whether the notice, indisputably given by the applicant in that case, was void or could be retracted for mistake”. However, her Honour was not persuaded that Gillera could be distinguished in the manner contended for by Mr Nguyen, observing at [34] that:

… As in the present case, the appellant in Gillera contended that the Federal Circuit Court had jurisdiction to determine the effectiveness or validity of the purported withdrawal of the applicant’s visa application. Whilst the challenge to validity was for different reasons than in the present case, this does not appear to render the reasoning in Gillera inapplicable.

23    Nor was her Honour convinced that no “anterior question of occurrence and ascertainment” occurred in Gillera in contrast to the facts before her: Nguyen at [35].

24    Judge Laing accepted the Minister’s submission that Mr Nguyen had not demonstrated that a purported opinion of fact, contained in the Department’s 3 October communication, could be said to have been a decision of an administrative character made under the Migration Act or under a regulation or instrument made under that Act: Nguyen at [38]. Her Honour continued (at [38]):

… It is not clear how a factual assessment of the source of the applicant’s signature, as distinct from an assessment of whether a withdrawal had been received within the meaning of s 49 of the Act, could be said to “itself confer, alter or otherwise affect legal rights and obligations”: see Gillera at [26]. In Gillera, it was found that the Minister “makes no ‘decision’ about whether there has been a withdrawal” in finding that the withdrawal has, or has not, occurred (at [32]). In this regard, it was found that “an application will (or will not) be withdrawn under s 49 by virtue of statute, regardless of the respondent’s view about the withdrawal” and that “no ‘decision’, whether actual or purported, regarding the withdrawal… was, or could have been, made” by the Minister (at [45]-[46]). I therefore accept the Minister’s submission that it has not been demonstrated that the view expressed in the correspondence of 3 October 2022 was a “decision” in the requisite sense.

25    Judge Laing was not persuaded that Gillera was sufficiently distinguishable that it ought not be followed. That was so notwithstanding the broad characterisation of “decision” in s 473(3) of the Migration Act. Her Honour said that even if the reasoning in Gillera was not directly binding because of the factual distinction relied on by Mr Nguyen, its persuasive force was such that it ought to be followed in the present case: Nguyen at [39].

26    Judge Laing concluded that Gillera ought to be followed in finding that the Federal Circuit Court lacked jurisdiction in the proceeding before her and accordingly dismissed Mr Nguyen’s application for an extension of time: Nguyen at [42]-[43].

The decision in Gillera

27    At the centre of this application is the decision in Gillera.

28    In that case the appellant appealed from a decision dismissing her application for judicial review of a purported decision of the Minister not to consider whether her visa application was validly withdrawn pursuant to s 49 of the Migration Act. Justice Thomas summarised the facts at [2]-[10]. Relevantly:

(1)    Ms Gillera applied for a partner (Temporary) (Class UK, Subclass 820) visa and Partner (Residence) (Class BS subclass 801) visa (together partner visa application). On 2 August 2018 a delegate of the Minister granted the Class UK visa;

(2)    two years later on 26 August 2019 the Minister sent a letter to Ms Gillera advising her that he had received information that her relationship with her partner (who was her sponsor for the partner visa application) had ended and that she could withdraw the partner visa application by notifying the Minister in writing and enclosing a blank Form 1446;

(3)    Ms Gillera completed and returned the Form 1446 and on 28 August 2019 the Minister advised Ms Gillera in writing that the partner visa application had been withdrawn;

(4)    on 29 September 2019 Ms Gillera’s migration agent wrote to the Minister asking him to reconsider the acceptance of the Form 1446 on the basis that she had signed and returned it without knowing the real consequences. The Minister did not respond; and

(5)    Ms Gillera applied to the Federal Circuit Court for a declaration that the partner visa application had not been validly withdrawn and a writ of mandamus requiring the Minister to consider the partner visa application. That application was dismissed. The Federal Circuit Court relevantly found that the partner visa application was validly withdrawn and that, in any event, the Federal Circuit Court had no jurisdiction to hear Ms Gillera’s application.

29    Two issues were raised before Thomas J, only the first of which is relevant to Mr Nguyen’s application, namely whether the Federal Circuit Court erred in its finding that it had no jurisdiction to review the Minister’s decision.

30    At [25] Thomas J set out the two “decisions” which Ms Gillera said were made by the Minister and which she contended were, in each case, a “migration decision”. They were:

(1)    the Minister’s failure or refusal to consider what Ms Gillera asserted was a valid visa application. She contended that this was a decision because a decision includes refusing to do an act or thing; and

(2)    the Minister’s conclusion that the partner visa application had been withdrawn. She contended that this was a decision because it was a positive act of doing something (i.e. reaching a view about the status of the withdrawal notice and the partner visa application).

31    After referring to Ms Gillera’s submissions Thomas J observed at [29] that:

The arguments advanced by [Ms Gillera] relied, for their force, on the existence of a “decision”. Whether those arguments are correct depends upon the way in which the sections of the Migration Act operate to effect the withdrawal and consequent disposal of the Visa Application. The question is whether the process operated to bring about the result (the withdrawal and disposal) by operation of the Migration Act, or whether the process outlined required a decision to be taken by the [Minister].

32    At [31] Thomas J observed that it was the application of s 49 of the Migration Act to the facts which led to the result that the partner visa application was withdrawn rather than any administrative decision on the part of the Minister and that the language used in s 49 made that clear. His Honour continued at [32] noting that:

The [Minister] makes no “decision” about whether there has been a withdrawal. The withdrawal occurs by operation of s 49 of the Migration Act and is not dependent upon a decision of the [Minister] in order for the withdrawal to take effect.

33    As to the second “decision”, Thomas J found at [33] that the Minister cannot make a decision to refuse to consider a visa application in circumstances where the application has been withdrawn by operation of s 49, noting that s 47 of the Migration Act provides that the Minister’s requirement to consider an application continues until it is withdrawn.

34    At [34]-[35] Thomas J referred to earlier decisions concerning forfeiture under the Customs Act 1901 (Cth) which considered the position where an outcome arose by force of statute rather than as a result of an administrative decision. His Honour noted that those decisions were considered in a migration context in NACO v Minister for Immigration and Multicultural Affairs [2002] FCA 474 (Hely J) and that in NACO:

His Honour referred (at [18]) to the earlier cases as being where the “outcome arises by the application of the law to the facts, rather than an outcome which evolves from administrative decision”. In that particular case, it was held that it was the application of the relevant sections of the Migration Act to the facts which produced the outcome that the respondent was precluded from considering the application for a visa, rather than any administrative decision on the part of the respondent’s delegate.

35    At [46] Thomas J concluded that that the Federal Circuit Court had no jurisdiction to hear Ms Gillera’s amended application for review as there was no relevant “migration decision” regarding withdrawal of a visa application made under the Migration Act and that no “decision”, actual or purported, regarding the withdrawal of the partner visa application was, or could have been, made by the Minister.

36    The High Court refused special leave to appeal from Gillera.

The plainly wrong test

37    As is plain from the amended application, in order to succeed Mr Nguyen must establish that Gillera is plainly wrong.

38    In Australian Securities and Investments Commission v BHF Solutions Pty Ltd [2021] FCA 684; 153 ACSR 469 Halley J set out the principles in relation to the “plainly wrong” test and the per incuriam rule including relevantly at [106]-[110]:

106    Plainly wrong is well established as the requisite standard for a single judge in the original jurisdiction of the Federal Court who has been asked to depart from an earlier decision of a single judge in the same jurisdiction: see Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 at [75]-[76] (French J) and the cases cited therein. The authorities warn against the formulation of exhaustive criteria, noting that a finding of plainly wrong will “depend upon the nature of the controversy, the strength of the arguments and the particular circumstances attendant upon the case”: Transurban City Link Ltd v Allan (1999) 95 FCR 553; [1999] FCA 1723 at [31] (Black CJ, Hill, Sundberg, Marshall and Kenny JJ). Relevant to the present circumstances, an example of a “transparent error” that would generally give rise to a plainly wrong finding was given by Greenwood J (Sundberg J agreeing) as a “failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error”: BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234; [2007] FCAFC 157 at [83].

107    The Full Court in Bob Brown Foundation Inc v Commonwealth of Australia [2021] FCAFC 5 (Bob Brown Foundation) at [78] (Griffiths, Moshinksy and SC Derrington JJ) defined per incuriam with reference to the Latin meaning of the expression: “through want of care”. The Full Court said per incuriam would include decisions “given in ignorance or forgetfulness of an earlier relevant case or inconsistent legislative provision”. The Full Court considered that the label “through want of care” did not seem apposite in circumstances where an argument was not presented to the Court. The Full Court ultimately rejected the per incuriam submission in Bob Brown Foundation because it was not fully elaborated by counsel for the appellant and the earlier decision in question did in fact expressly refer to the contentious legislative provision in its written reasons.

108    The authorities do not appear to have taken a uniform approach in distinguishing between contentions that an earlier decision was plainly wrong and that it was made per incuriam. The distinction appears at times to be elusive or somewhat arbitrary. On one view, it might be construed as a more polite way for a court to decline to follow a court of the same status in the judicial hierarchy and avoid the need to find expressly that the relevant judge or judges were plainly wrong. It is difficult to conceive of a situation, however, in which a judge at first instance could decline to follow a decision of another judge of the same court at first instance on the basis that the judge’s reasoning was per incuriam unless the first judge was persuaded that it was plainly wrong.

109    The Full Court in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 82 at [15] (North, Jessup and Reeves JJ) drew a distinction between a per incuriam submission, where an earlier decision fails to refer to a relevant legal authority, and a plainly wrong submission, where an earlier decision fails to address an argument that was advanced during the hearing.

110    In other cases, the distinction is not drawn and the concept of per incuriam is either treated as a basis for a finding of “plainly wrong” or the terms are used interchangeably. …

While BHF Solutions was reversed on appeal (see Australian Securities and Investments Commission v BHF Solutions Pty Ltd (2022) 293 FCR 330), no criticism was made of his Honour’s exposition of these principles.

39    In Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757 French J cautioned at [75]-[76] that:

75    It is well established that a judge of this Court should follow an earlier decision of another judge unless of the view that it is plainly wrong – Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 33 (Goldberg J), citing Towney v Minister for Land and Water Conservation for New South Wales (1997) 147 ALR 402 at 412 and Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1997) 150 ALR 117 at 121. See also La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204 where Burchett J said:

‘The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while “deserving of the closest and respectful consideration”, does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that “a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong”: Halsbury, 4th ed, vol 26, para 580. The word “usually” indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle…’

76    The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction. Indeed, where a serious doubt arises on the part of one judge, about the correctness of the law as stated by another, in a matter of importance, it may be desirable for a case to be stated to the Full Court for early resolution of the question in contention.

40    In Totaan v R (2022) 108 NSWLR 17 at [72] Bell CJ noted the following in relation to the “plainly wrong” test and its application:

Before turning to a consideration of whether the prevailing case law in relation to s 16A(2)(p) is “plainly wrong” within the meaning of that expression as used in Marlborough Gold Mines and Farah, reference should also be made to the cognate cautionary principle articulated in the New South Wales Court of Appeal’s decision in Gett at [273], [277]–[278], [281] and [286]. That principle is to the effect that, whilst intermediate appellate courts are not legally bound by their own earlier decisions, they should only depart from such authority or the authority of courts of coordinate jurisdiction within the national system if they are of the view that the decision in question is “plainly wrong” and, such an error having been identified, there are “compelling reasons” to depart from the earlier decision or decisions. The fact that reasonable minds might differ on the interpretation of a statutory provision will generally be insufficient to warrant a conclusion that an earlier or existing interpretation of the provision or provisions in question was “plainly wrong”: Transurban City Link Ltd v Allan (1999) 95 FCR 553; [1999] FCA 1723 at [29]; JD Heydon, “How far can trial courts and intermediate appellate courts develop the law?” (2009) 9(1) Oxford University Commonwealth Law Journal 1 at 26.

41    After I had reserved my decision, the parties referred me to the recent decision of the New South Wales Court of Appeal in David William Pallas & Julie Ann Pallas as trustees for the Pallas Family Superannuation Fund v Lendlease Corporation Ltd [2024] NSWCA 83 (Bell CJ, Ward P, Gleeson, Leeming and Stern JJA). In Pallas v Lendlease Corporation the Court of Appeal relevantly set out the principles to be applied when a court is asked to depart from previous authority of a court of coordinate jurisdiction or its own previous decisions.

42    After referring to Totaan at [72]-[76] and Hill v Zuda Pty Ltd (2002) 275 CLR 24 at [25], Bell CJ observed (at [23]) that the court’s judgment “does not treat considerations of whether an earlier decision was ‘plainly wrong’ and whether there are ‘compelling reasons’ to depart from it as separate limbs of a test, as opposed to two sides of the same coin”. His Honour continued:

To that extent, the statement of principles summarised in Totaan at [72] should be qualified insofar as it suggested two independent limbs would need to be satisfied before any such departure could occur. If a decision is “plainly wrong” in the sense identified by this Court in Gett (namely, that there is a strong conviction that the earlier judgment was erroneous, as opposed to being a choice of approach which was open and the nature of the error can be demonstrated with a degree of clarity by the correct legal analysis), then there will often be compelling reasons to depart from the earlier decision. Conversely, one compelling reason to depart from an earlier decision is that the judgment is clearly demonstrated to be erroneous. One matter left unresolved on the authorities concerns what a Court is to do in circumstances where neither of two competing interpretations can be said to meet the onerous threshold of being “plainly wrong”. Where one of those decisions is that of the same Court which has previously expressed a view on the matter, that Court should adhere to its previously expressed view.

43    Justice Leeming (who agreed with Bell CJ) relevantly said (at [140]):

… it is preferable to express the test applicable when one intermediate appellate court departs from a decision of another intermediate appellate court on federal or uniform legislation or common law which is materially unaffected by statute by asking whether there is a “compelling reason” to do so. I respectfully agree with Lee J’s statement in the last mentioned case that this is a “more constructive articulation of the principle enunciated by the High Court”. As Bell CJ notes, the equivalence of the formulations was endorsed by the High Court in Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21 at [25]. In many or most such cases, it will be better to speak to the quality and cogency of the case made out for departure from the earlier decision, rather than the egregiousness of the court’s error. One reason for that is that the court’s reasons will typically be a response to the parties’ submissions, and it is not unknown for the point which is now sought to be departed from not even to have been contested before the earlier court…

Consideration

44    Mr Nguyen raised four “criticisms” of the decision in Gillera, which if made out, he submits would lead to the conclusion that Gillera is per incuriam and, it ought to be found, is plainly wrong.

45    I consider each of those “criticisms” in turn.

First criticism: failure to make visa application decision and purported privative clause decision

46    Mr Nguyen’s first criticism concerns the notion of a failure to make a visa application decision in s 474(3)(j) of the Migration Act and the definition of “purported privative clause decision” in s 5E(1) of the Migration Act, which Mr Nguyen contends was not considered in Gillera.

Mr Nguyen’s submissions

47    Mr Nguyen relies on the decision in SZVBN v Minister for Immigration [2015] FCCA 2977. In that case the applicants sought judicial review of a decision to reject as invalid under s 48A of the Migration Act their application for a protection visa because a previous application for a protection visa had been refused. In particular, Mr Nguyen relies on SZVBN at [11] where, he submits, Judge Driver described the determination made by an officer in the Minister’s department as a “determination” which was “an expression of opinion as to the operation” of s 48A of the Migration Act and did “not have any legal force in itself”.

48    Mr Nguyen notes, as recorded at [13] of SZVBN, that in that case the parties agreed, and the court accepted, that the Federal Circuit Court had jurisdiction. Judge Driver explained why that was so by reference to s 474(2) and s 5E of the Migration Act. Despite an appeal to a Full Court of this Court, subsequent remittal and a further appeal, Mr Nguyen observes that at no point was the jurisdiction of the Federal Circuit Court or the analysis at [13] of SZVBN questioned.

49    Mr Nguyen submits that the reasoning in SZVBN as to a failure to make a visa application is equally applicable to Gillera. He contends that the jurisdictional provisions extend the concept of a privative clause decision to a failure or refusal to make a decision, relying on s 474(3)(j) of the Migration Act, and that the Minister is obliged to proceed to consider and decide upon the validity and merits of a visa application unless there has been a withdrawal under s 49 of the Migration Act. Mr Nguyen submits that if a purported withdrawal is invalid the duty persists and there has been a failure or refusal to make a visa application decision.

50    Mr Nguyen submits that in Gillera Thomas J offered no answer to this analysis and that his Honour seemed to suggest that there can be no decision to refuse to consider a visa application where it has been withdrawn and that the fact of withdrawal precludes further consideration. Mr Nguyen contends that this reasoning assumes that a decision for the purposes of the jurisdiction of the Federal Circuit Court is discretionary but, having regard to s 474(2) of the Migration Act, discretion is not essential to a migration decision.

51    Mr Nguyen submits that, in any event, in the context of s 474(3)(j) of the Migration Act the focus is on the decision the department has failed to make, instead of whether a step leading to that failure is a decision, relying on EFX17 v Minister for Immigration and Border Protection (2019) 273 FCR 508. Mr Nguyen contends that in Gillera the Minister failed further to consider the validity and merits of the partner visa application. He says that the latter process entails a migration decision and that therefore the failure to do so is itself a migration decision reviewable on the ground that the withdrawal giving rise to the failure was invalid.

52    Mr Nguyen submits that the reasoning in SZVBN as to the applicability of s 5E of the Migration Act also applied in Gillera. He observes that s 5E was not drawn to the attention of, nor considered by, Thomas J in Gillera. Mr Nguyen submits that s 5E refers to a decision “purportedly made” that “would be a privative clause decision” if there were not a “failure to exercise jurisdiction” that arose “in the making of the decision”. He contends that as was the case in SZVBN, the context of Gillera answers this description. Mr Nguyen says that the decision purportedly made is the treatment of the withdrawal as effective and the decision that would be a privative clause decision is consideration of the partner visa application. Mr Nguyen submits that the failure to exercise jurisdiction is the absence or refusal of such consideration and arose in the making of the decision as to withdrawal because, given recognition of the withdrawal, consideration of the partner visa application was not pursued.

Is the first criticism made out?

53    The starting point to consider these submissions is SZVBN. That decision concerned a separate question identified pursuant to Pt 17 of the Federal Circuit Court Rules 2001 (Cth) (now repealed), namely whether Minister for Immigration v Kim (2014) 221 FCR 523 applied to s 48A of the Migration Act in circumstances where a second application for a protection visa is made by a person who was included in a protection visa application without his or her knowledge as a member of the family group of the former applicant.

54    In SZVBN the applicants were mother, daughter and son. When they first arrived in Australia the mother applied for a protection visa. She included the daughter and son in that application. On 18 April 2012 a delegate of the Minister refused to grant a protection visa to the mother which in turn meant that protection visas were not granted to the daughter and son. On 12 August 2014 the mother, daughter and son made applications for protection visas with the son and the mother included in the daughter’s application. The mother did not raise any independent claims but the son did, although his claims were largely the same as those made by the daughter. On 15 August 2014 an officer of the Minister’s department rejected the application stating:

On 18 April 2012 you were refused a Protection (Class XA) visa. Under section 48A of the Act, a person who has not left Australia since they were refused a protection visa is prevented from making a subsequent protection visa application.

55    The application for judicial review before the court concerned the officer’s decision made on 15 August 2014. The parties agreed that the Federal Circuit Court had jurisdiction to hear the application. Judge Driver agreed. At [13]-[14] of SZVBN his Honour explained:

13    It is common ground between the parties and the Court, and I accept, that the Court has jurisdiction to deal with the application. The departmental officer’s determination, while not an exercise of any power under the Migration Act, was a “migration decision” for the purposes of s.476(1). Although a determination as to the validity of the applicants’ protection visa applications, it had the effect that the departmental officer refused to consider those applications. That was a “decision” as understood in the definition of “privative clause decision” in s.474(2) because it was a refusal to do a certain act. Given the command in s.47(3), in one sense the departmental officer’s refusal to consider the visa applications was a decision that took place “under” the Migration Act.

14    Alternatively, it could be said on the applicants’ case that the departmental officer’s refusal to consider the applicants’ visa applications was a decision purportedly made under the Migration Act that would have been a privative clause decision had the officer not failed to exercise jurisdiction and considered those applications as required by s.47(1). On that view, the determination could be characterised as a purported privative clause decision.

(Footnotes omitted.)

56    It is the reasoning at [13]-[14] of SZVBN that Mr Nguyen argues applies equally here and should have been applied in Gillera. However, SZVBN and Gillera are two completely different cases. Gillera did not concern s 48A of the Migration Act, rather it concerned a notice of withdrawal and the operation of s 49 of the Migration Act. In Gillera, in contrast to the position in SZVBN, there was no determination by a departmental officer. At [32] of Gillera (see [32] above) Thomas J found that the withdrawal took effect by reason of the operation of s 49 of the Migration Act and was not dependent upon a decision by the Minister, his delegate or indeed any other officer in the Minister’s department. In SZVBN the departmental officer determined that the visa application was not valid because of s 48A of the Migration Act and consequently did not consider the visa application or refused to do so.

57    In circumstances where Thomas J found that the withdrawal occurs by operation of s 49 of the Migration Act, with no decision being made in order for the withdrawal to take effect, it is difficult to see how there could be any argument that there has been a failure or refusal on the part of Minister to make a decision in relation to the visa application. The argument that the failure to consider the visa application was a purported privative clause decision within the meaning of s 5E of the Migration Act in the circumstances of Gillera or this case is, for the same reasons, equally untenable.

58    The first criticism is not established.

Second criticism: preparatory conduct

59    The second criticism concerns the application of s 474(3)(h) of the Migration Act to the decision in issue in Gillera.

Mr Nguyen’s submissions

60    Mr Nguyen submits that the inclusion of preparatory conduct under s 474(3)(h) of the Migration Act was intended to overcome the decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, referring in support of that submission to the explanatory memorandum to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (by which s 474 was enacted). Mr Nguyen observes that in Bond the High Court held that the definition of decision in s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) did not include a conclusion reached as a step along the way in a course of reasoning leading up to the making of the decision and that the reviewable conduct referred to in s 6 of the ADJR Act was procedural in nature.

61    Mr Nguyen submits that the breadth of the definition of “migration decision” in subs 474(2) and (3) of the Migration Act is buttressed by s 476 of the Migration Act, which was enacted in its current form by the Migration Litigation Reform Act 2005 (Cth) (2005 Act). Mr Nguyen contends that the purpose of s 476 as it now appears in the Migration Act is, as explained in the explanatory memorandum to the Migration Litigation Reform Bill 2005 (Cth), to “direct nearly all migration cases to the [Federal Circuit Court], to limit the Federal Court’s original jurisdiction in relation to migration cases, and to direct migration cases remitted by the High Court to the appropriate lower court”.

62    Mr Nguyen submits that Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 107 is consistent with Gillera and NACO and notes that in Dhillon French J was compelled by Bond to conclude that the relevant conduct did not constitute a decision under the ADJR Act but was “a determination along the way to a decision”. Referring to French J’s reasoning at 125 of Dhillon, Mr Nguyen contends that there is an overlap between his Honour’s approach and the reasoning in NACO.

63    Mr Nguyen submits that the position is different for a “migration decision” because Bond is excluded, and preparatory conduct is treated as a decision by s 474(3)(h) of the Migration Act. He submits that the High Court and the Full Court of this Court have so held, referring to the decisions in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 and EFX17.

64    Mr Nguyen submits that preparatory conduct was also present in Gillera. He contends that the Department acknowledged the notice of withdrawal and treated it as effective despite contrary protestations. Mr Nguyen says that the question of withdrawal is a preliminary step to consideration of the validity or merits of a visa application, which is the making of a “migration decision”. If withdrawal is present, then further consideration of the visa application is precluded by s 47(3) and s 49(2) of the Migration Act. If withdrawal is not present, consideration of the visa application must proceed pursuant to s 47(1) of the Migration Act and, if that occurs, the visa application will be determined by reference to validity under s 47 of the Migration Act or on its merits under s 65 of the Migration Act.

Is the second criticism made out?

65    At the heart of Mr Nguyen’s submissions is the proposition that the treatment of a notice of withdrawal as effective is “conduct preparatory to the making of a decision” within the meaning of s 474(3)(h) of the Migration Act and is therefore a decision for the purposes of s 474(2). In effect, Mr Nguyen contends that Thomas J took a narrow view of the term “decision” by reason of his reliance on NACO which was determined under the ADJR Act.

66    In considering the issue that arose in Gillera Thomas J was aware of the definition of decision under the Migration Act. At [11]-[16] his Honour referred to the relevant statutory regime under the Migration Act and at [22] he noted expressly that “what constitutes a ‘decision’ under the Migration Act is broad and includes ‘doing or refusing to do an act or thing’”, referring expressly to s 474(3) of the Migration Act. At [25] Thomas J noted the way in which the appellant in that case characterised the conduct as a “decision” by: refusing to do an act or thing, in the case of refusing to consider what the appellant asserted was a valid visa application; and by positively doing an act, in the case of concluding that the partner visa application was withdrawn.

67    Mr Nguyen relies on two decisions to support his contention, both of which can be distinguished.

68    The first is SZSSJ which concerned two appeals heard together, one brought by the Minister against SZSSJ and the other brought by the Minister against SZTZI. The two appeals raised the same issues. For present purposes it is only necessary to set out a summary of the factual background to the appeal brought by SZSSJ.

69    SZSSJ was taken into immigration detention upon expiry of his student visa. He applied for and was refused a protection visa. On 10 February 2014, at a time when SZSSJ had exhausted his rights to review of the decision to refuse him a protection visa, the Department, which was then known as the Department of Immigration and Border Protection, published a document on its website in which information was embedded which disclosed the identities of 9,258 applicants for protection visas who at the time were in immigration detention (Data Breach). The Department commissioned an investigation by KPMG into the Data Breach. An abridged version of KPMG’s report was made available to affected applicants.

70    On 7 March 2014, after he had been informed by the Department of the data breach, SZSSJ commenced a proceeding in the Federal Circuit Court seeking declaratory and injunctive relief against the Minister and the Secretary of the Department. The Federal Circuit Court dismissed the application for want of jurisdiction. SZSSJ appealed successfully to a Full Court of this Court which held that the Federal Circuit Court had jurisdiction and remitted the matter for its determination.

71    In the meantime, on 1 October 2014, the Department informed SZSSJ that it had commenced an international treaties obligations assessment (ITOA) process to assess the effect of the Data Breach on Australia’s non-refoulement obligations in relation to him. SZSSJ was invited to provide any information he wished to have taken into account as part of that process and was given further information about the procedure and the consequences of a conclusion that Australia’s non-refoulement obligations were engaged. On 23 December 2014 the Department again wrote to SZSSJ enclosing country information proposed to be taken into account in the ITOA process and inviting a response within 14 days.

72    While the ITOA process was ongoing the Federal Circuit Court heard and determined the remitted matter. It dismissed the proceeding on the basis that it was not satisfied at that time that SZSSJ had been denied procedural fairness and was not satisfied that SZSSJ faced a realistic threat of sudden removal while the ITOA process was ongoing. SZSSJ appealed to a Full Court of this Court where he was successful.

73    One of the issues raised before the High Court was whether the jurisdiction of the Federal Circuit Court was excluded by s 476(2)(d) of the Migration Act. At [63] the High Court observed that the issue was whether an ITOA conducted by an officer of the Department answered the description of a privative clause decision in s 476(2)(d) of the Migration Act or purported privative clause decision in s 474(4). In relation to that issue, at [66]-[70] the High Court said:

66    Subject to s 476(2)(d), the claims to declaratory and injunctive relief made by SZSSJ and SZTZI engaged the jurisdiction of the Federal Circuit Court under s 476(1). That was because, the Minister having made a procedural decision to consider whether to grant a visa or to lift the bar in the exercise of one or other of the powers conferred by ss 48B, 195A and 417 of the Act, the conduct of an ITOA by an officer of the Department met the definition of a “privative clause decision” in s 474(2). The conduct of the officer met that definition by reason of the extended definition of “decision” in s 474(3)(h). The conduct of an ITOA by an officer of the Department is conduct under the Act preparatory to the making of a substantive decision by the Minister – specifically, it is the holding of an inquiry or investigation.

67    To conclude that the jurisdiction so engaged is excluded by s 476(2)(d), it would be necessary to read the same extended definition of “decision” in s 474(3)(h) into the reference in s 474(7) to “a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power”, relevantly under s 48B, s 195A or s 417.

68    The structure of s 474 is against that reading. The section is more naturally read sequentially: s 474(3) serving to spell out an extended meaning of the generic term “decision” for the purpose of the operative expression “privative clause decision”, and s 474(7) serving the distinct and specific function of clarifying that operative expression to include specified statutory decisions of the Minister. None of the other paragraphs of s 474(3) can sensibly be read into s 474(7), and s 474(3)(h) should be treated no differently. Section 474(3)(h) for that textual reason should not be read into s 474(7). But even if it could, s 474(3)(h) as read into s 474(7) could not sensibly be read as encompassing conduct other than that of the Minister.

69    The reference in s 474(7) to a decision of the Minister not to exercise the Minister’s power is properly read as limited to a substantive decision made by the Minister personally not to exercise one or more non-compellable powers. The reference to a decision of the Minister not to consider the exercise of the Minister’s power is limited to a procedural decision made by the Minister personally not to consider whether to make a substantive decision. Neither reference is apt to encompass conduct of an officer of the Department preparatory to the making of a decision by the Minister.

70    Operating by reference to s 474(7) so construed, s 476(2)(d) excludes the jurisdiction of the Federal Circuit Court in a matter in which the relief sought is founded in a claim that a decision made by the Minister personally not to exercise or not to consider whether to exercise a non-compellable power is affected by jurisdictional error. Section 476(2)(d) does not exclude the jurisdiction of the Federal Circuit Court in a matter in which the relief sought is founded in a claim that an officer of the Department has failed to observe an implied limitation on his or her statutory power in holding an inquiry or conducting an investigation to inform the Minister as to the making of a substantive decision after the Minister has made a procedural decision.

74    The procedure considered by the High Court in SZSSJ, an ITOA, is to be contrasted with the procedure for withdrawal of a visa application. SZSSJ concerned the exercise by the Minister of the non-delegable power under s 48B of the Migration Act by which the Minister may determine that s 48A does not apply to prevent an application for a protection visa made by a non-citizen. The ITOA prepared by an officer of the Department was conduct that was preparatory to the making by the Minister of that substantive decision under the Migration Act. It was an inquiry or investigation. There was no analogous step in Gillera. There was no inquiry or investigation or other step that could be described as preparatory to the making of a decision by the Minister or his or her delegate, being the approval or refusal of the partner visa application.

75    Secondly, Mr Nguyen relies on EFX17. In that case by letter dated 3 January 2017 the Minister notified the appellant that he had cancelled his visa under s 501(3A) of the Migration Act. The letter was handed to the appellant on 4 January 2017 while in jail by an officer of the Queensland Department of Corrective Services. The appellant signed and dated an acknowledgement of receipt of the letter in the presence of the officer who handed him the letter. The appellant was illiterate and did not speak good English. There was also evidence before the Court that he was confused about the cancellation notice and that he had been diagnosed as having a schizophrenic illness.

76    Section 501CA(3) requires that as soon as practicable after making a decision under s 501(3A) of the Migration Act the Minister must give the person, in the way that the Minister considers appropriate in the circumstances, a written notice setting out the cancellation decision and “particulars of the relevant information” and invite the person to make representations to the Minister, within the period and in the manner set out in the regulations, about revocation of the cancellation decision. The appellant failed to seek revocation of the cancellation decision within the time prescribed.

77    Justice Greenwood summarised the appellant’s argument at [13]-[15]:

13    The appellant says that in discharging the obligation to give notice of the cancellation decision and particulars of the relevant information, in the way the Minister considers appropriate, the Minister is required to reach that state of considered “appropriateness”, “in the circumstances”, as the statute requires. Those circumstances are said to include factors called the “capacity matters” which are said to be the “characteristics and individual circumstances” of the person to whom the written notice and particulars are to be given, which may affect the individual’s “capacity to receive, read, understand and make representations in response to the notice”. The capacity matters are said to include such things as the recipient’s literacy, capacity to understand English, mental capacity and health, and, if in custody, the facilities available to the individual in custody to enable that person to understand the notice and particulars.

14    The appellant says that the act of the delegate of sending the Corrective Services officers a cancellation letter addressed to the appellant attaching the nominated enclosures (for hand delivery to the appellant) with an instruction to secure the appellant’s signature on the acknowledgement form, fails to discharge the Minister’s obligation under s 501CA(3)(a)(i) and (ii), having regard to the circumstances of the appellant and the capacity matters said to inform the scope of the duty.

15    As to the invitation required to be made to the appellant by reason of s 501CA(3)(b), the appellant says that the invitation must be “real and meaningful” and in discharging the mandatory obligation to invite the appellant to make representations about revocation, the invitation must, it is said, take into account the capacity matters specifically relevant to the appellant in “formulating the substance of the invitation; and determining how the invitation was to be given”.

78    On appeal, as he did before the Federal Circuit Court, the Minister contended that the Federal Circuit Court did not have jurisdiction to determine the question agitated before that court because, as described at [20] by Greenwood J, the cancellation decision “was not under challenge on any ground of jurisdictional error and the contended failures on the part of the Minister or his delegate to discharge the s 501CA(3) obligations were simply ‘procedural steps’ or ‘steps along the way’ to a possible decision to revoke the cancellation decision (or not revoke it) under s 501CA(4) if the relevant decision-making contemplated by that subsection ever became engaged by reason of representations having been made within the period, and in the manner required, by the Regulations”.

79    Mr Nguyen relies in particular on the reasons of Rares J in EFX17. At [166] his Honour held that the Federal Circuit Court did have jurisdiction because:

… the appellant sought a writ of mandamus in relation to the conduct of the Minister or an officer of his Department under s 501CA(3) of the Migration Act 1958 (Cth) to require the Minister to give the appellant a written notice, particulars and an invitation in the manner that the section specified preparatory to the Minister making a decision under s 501CA(4). That conduct consisted of the failure of the Minister or officer to give the appellant an invitation in accordance with s 501CA(3)(b).

80    After referring to SZSSJ, Rares J said at [168]-[170]:

168    Here, the process of carrying out the obligations that s 501CA(3) imposed, following the making of the decision under s 501(3A), necessarily involved the Minister or an officer of his Department, being an officer of the Commonwealth, within the meaning of s 75(v) of the Constitution. The valid or invalid performance of the function or duty under s 501CA(3) complained of was conduct preparatory to the Minister making a decision under s 501CA(4). Just as the Minster [sic] could not have been compelled to make a decision after the completion of an ITOA in SZSSJ 259 CLR 180, so too, here, he may never have to make a decision, if after the steps mandated in s 501CA(3) have occurred validly, the person whose visa had been cancelled does not make representations in accordance with s 501CA(3)(b). …

169    Here, compliance with s 501CA(3) can only occur if the Minister or an officer of the Department carries out the steps in compliance with what the section mandates. Those steps are both preparatory and essential to, first, enabling a person in prison whose visa has been cancelled under s 501(3A) without any natural justice to seek revocation of the decision to cancel it and, secondly, the enlivening of the Minister’s power to act under s 501CA(4), if the person makes representations in accordance with a validly given invitation under s 501CA(3)(b).

170    The appellant sought a writ of mandamus to compel the Minister or an officer of his Department to perform his obligations under s 501CA(3) by engaging in conduct preparatory to, and for the purpose of, the Minister making a decision under s 501CA(4). That conduct was a “privative clause decision” within the meaning of s 474(3)(h) and thus, the appellant’s claim to compel the proper performance of the Minister’s or officer’s duty or function under s 501CA(3) by a writ of mandamus was within the jurisdiction of the Federal Circuit Court.

81    In contrast to the position in EFX17, there was no notice requirement in Gillera. A withdrawal of a visa application is made by the visa applicant by written notice given to the Minister. No obligation falls on the Minister or his or her delegate to take any step prior to the giving of such a notice, nor could there be given that the decision to withdraw is one for a visa applicant.

82    Mr Nguyen has not made out his second criticism of Gillera.

Third criticism: doing or refusing to do an act or thing

83    Mr Nguyen’s third criticism concerns s 474(3)(g) of the Migration Act which provides that a reference in s 474 to a decision includes a reference to doing or refusing to do any other act or thing.

Mr Nguyen’s submissions

84    Mr Nguyen refers to a number of decisions including EFX17 and McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 283 FCR 602 and submits that Gillera also involves doing or refusing to do an act or thing. He contends that the Department received the notice of withdrawal purportedly under s 49(1) of the Migration Act, acknowledged the notice as giving rise to withdrawal and did not further assess its veracity or proceed to consider the partner visa application. Mr Nguyen submits that acknowledging the notice, treating it as effective and refraining from considering the visa application under s 47 of the Migration Act was doing or refusing to do an act or thing.

Is the third criticism made out?

85    Mr Nguyen refers to the reasons of Greenwood J and Logan J in EFX17 each of whom found that the giving of the notice under s 501CA(3) was the doing of an act or thing for the purposes of s 474(3)(g) of the Migration Act.

86    At [43] Greenwood J rejected the Minister’s submission that the acts contemplated by s 501CA(3) were properly characterised as a procedural step along the way to making a decision contemplated by s 501CA(4), the decision to revoke or not revoke the original cancellation decision. That was for two reasons: first, because of the text of s 474(3)(g); and secondly, because the character of the act or thing required of the Minister under s 501CA(3) is the means by which a measure of procedural fairness is to be provided to the recipient of the notice having regard to the “non-application of the rules of natural justice to the original cancellation decision under s 501(3A)”. His Honour said that it was a substantive, rather than a procedural step along the way, “because it is the act or thing that affords the former visa holder the opportunity to be heard (in writing) as to the reasons why the Minister ought to be ‘satisfied’, in light of the former visa holder’s ‘representations’, that there is a ‘reason why the original decision should be revoked’”: see EFX17 at [44]-[45].

87    Logan J also concluded that the giving of the notice under s 501CA(3) was the doing of an act for the purpose of s 474(3)(g) of the Migration Act and thus that the Federal Circuit Court had jurisdiction: see EFX17 at [216]. His Honour noted that to read down s 474(3) of the Migration Act in the way referred to in Bond would be contrary to the purpose of the statutory scheme in s 474 which was to confer a wide jurisdiction on the Federal Circuit Court.

88    In McHugh a Full Court of this Court (Allsop CJ, Besanko and Mortimer JJ – as the Chief Justice then was) determined that the conduct of an officer in detaining a person on the basis of knowledge or reasonable suspicion pursuant to s 189(1) of the Migration Act is a migration decision by reason of s 474(3)(g) of the Migration Act. That is because it is “doing or refusing to do any act or thing”: at [13]-[14] (Allsop CJ), [74] (Besanko J).

89    In Mokhlis v Minister for Home Affairs [2020] HCA 30; (2020) 94 ALJR 843 Edelman J considered whether the proceeding, which was commenced in the original jurisdiction of the High Court of Australia, could be remitted to the Federal Circuit Court. After referring to s 476(1) of the Migration Act, at [11]-[12] Edelman J said in relation to the decision in issue:

11    A “migration decision” is defined in s 5(1) to include a “privative clause decision”. A privative clause decision, by ss 5(1) and 474(2) with exceptions that are not relevant here, includes “a decision of an administrative character made, proposed to be made, or required to be made ... under [the Migration Act] (whether in the exercise of a discretion or not)”. Section 474(3) provides that a “decision” in relation to s 474(2) includes a wide range of conduct including “doing or refusing to do any other act or thing”.

12    The relief sought by the plaintiff concerns two migration decisions. One relevant decision that was made (not in the exercise of a discretion), which involved “doing ... any ... thing”, was the detention of the plaintiff under s 189(1) of the Migration Act. Another is a decision which is required to be made under s 198(1) involving the act of removing an unlawful non-citizen as soon as reasonably practicable after that person asks the Minister, in writing, to be so removed.

(Footnotes omitted.)

90    Finally, Mr Nguyen refers to Spurr v Minister for Immigration [2018] FCCA 1090 in which Mr Spurr was issued with a notice of intention to remove advising him that he was liable for removal from Australia under s 198(5) of the Migration Act. Mr Spurr approached the Federal Circuit Court seeking an order quashing the decision of the Minister to remove him from Australia and urgent injunctive relief restraining his removal. The Minister argued that the Federal Circuit Court did not have jurisdiction because s 198(5) compelled the Minister to remove Mr Spurr from Australia so that the decision to remove was not a privative clause decision for the purposes of the Migration Act. Judge Kendall rejected that argument. In doing so his Honour referred to a number of authorities including, as highlighted by Mr Nguyen, at [64]:

In WAJZ, WAKA, WAGF, WAKB, WAKE and WADX v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCA 1332 (WAJZ) French J (as he then was) stated (at [70]):

The definition of ‘privative clause decision’ includes proposing to do an act under the Act. So proposing to remove a person from Australia under s 198(6) is a privative clause decision, albeit it involves the discharge of a non-discretionary statutory duty.

91    In contrast to each of the decisions relied on by Mr Nguyen, in Gillera no one did or refused to do an act. That is because the partner visa application process came to an end by force of the statutory framework: s 49 and s 47(2). The language of s 49 of the Migration Act made it clear that there was no decision either in the form of preparatory conduct or any conduct that may have amounted to doing an act or thing, such as accepting, receiving or acknowledging the withdrawal, or refusing to do an act or thing, such as considering the partner visa application. The application of s 49 to the facts led to the result that the partner visa application was withdrawn and taken to have been disposed of rather than that result coming about because an administrative decision was made on the part of the Minister.

92    Mr Nguyen has not made out the third criticism.

Fourth criticism: making a determination

93    The fourth criticism is in relation to s 474(3)(a) of the Migration Act, which concerns granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination.

Mr Nguyen’s submissions

94    Mr Nguyen submits that the Minister’s department, by acknowledging receipt of the notice of withdrawal in Gillera and refraining from revisiting its validity, evidently satisfied itself that the notice was effective, notwithstanding the protestations that it was completed without being understood. Mr Nguyen submits that this is a determination and therefore a migration decision under s 474(3)(a) of the Migration Act. In support of that submission Mr Nguyen relies on two decisions which considered reg 2.08A of the Migration Regulations 1994 (Cth).

Is the fourth criticism made out?

95    Is it difficult to see how the decisions relied on by Mr Nguyen which considered reg 2.08A of the Regulations are relevant and assist him in establishing that there are compelling reasons to depart from Gillera. Regulation 2.08A concerns the addition of certain applicants, a spouse or de facto partner or a dependant child, to certain applications for permanent visas.

96    It is only necessary to refer to one of the decisions relied on by Mr Nguyen, Pham v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 38. One of the issues raised in Pham was whether a determination made on 9 February 2016 (February 2016 determination), that the third to fifth appellants had been validly added to the visa application, remained valid in the absence of demonstrated jurisdictional error and could not be disturbed: at [3]. Commencing at [35] of Pham Middleton J addressed the February 2016 determination. The appellants submitted that if the February 2016 determination was characterised as an administrative decision of an officer of the department under the statute it was binding unless made in jurisdictional error, by reason of functus officio. Middleton J said at [36]-[40] and [42]-[43]:

36    Regulation 2.08A is the regulatory mechanism by which certain applicants may be added to an existing visa application. Once the conditions under subreg (1)(a)-(da) are met, then the consequences under subreg (1)(e)-(f) ensue, namely that the application is deemed to have been made as a combined application at a certain time and place.

37    The dispute between the parties focused primarily on paragraphs (b)-(c), each of which refer to the concept of a ‘dependent child’. The appellants’ case proceeded on the basis that reg 2.08A required the Minister to ascertain or be satisfied that the additional applicant was indeed a ‘dependent child’ of the original applicant.

38    However, in my view, it is quite clear that reg 2.08A(1)(a)-(da) constitutes a purely objective criteria that does not require any such ascertainment or satisfaction of the Minister: Vahaakolo v Minister for Immigration and Multicultural Affairs (1999) 60 ALD 239; [1999] FCA 1709 at [10]. In simplified terms, the requirements under the regulation where a purported dependent child is to be added to an existing application are as follows:

(a)    the visa class being applied for permits combined applications;

(b)    the Minister receives a request to have a dependent child of the original applicant added to their application;

(c)    the request includes a statement that the additional applicant is a dependent child of the original applicant;

(d)    the additional applicant charge is paid; and

(e)    the whereabouts of the additional applicant satisfy the relevant provisions of Sch 1.

39    In particular, paragraphs (b) and (c) do not require the additional applicant at this point of the application to be determined to be a dependent child or for the Minister to ascertain or be satisfied that the additional applicant is in fact a dependent child. The regulation requires only a request that includes a statement claiming that the additional applicant is a dependent child of the original applicant. That this is so is not only supported by a literal interpretation of those paragraphs, but if it were otherwise and in fact the Minister was required to be satisfied that the additional applicant was properly a dependent child, it is unclear what function the statement required by paragraph (c) would have in the regulatory scheme.

40    Further, the construction I favour is supported by subreg (2) and the applicable secondary criteria for the visa in this case (section 143.3 of Sch 2 of the Regulations). As set out earlier in these reasons, the applicable secondary criteria includes the concept of a ‘member of the family unit’. …

    …

42    However, it is worth emphasising the wider definition of ‘member of the family unit’ relative to the concept of a ‘dependent child of the original applicant’ under reg 2.08A. This is relevant because it was the Minister’s submission in this appeal that the third to fifth appellants could not be dependent children of the original applicant (being the first appellant), even if the Minister considered whether arrangements in the nature of adoption pursuant to reg 1.04(2) applied, because the Vietnamese custody order had been made with respect to the second appellant only and so the children could only possibly be dependent children of the second appellant. Clearly, such a submission would not be applicable to the third to fifth appellants for the purposes of subreg (2) and the applicable secondary criteria for the granting of the visa, given the definition of ‘member of the family unit’ includes a child of the original applicant or their ‘spouse or de facto partner’.

43    Given my interpretation of reg 2.08A, it is clear that the third to fifth appellants’ additional applications satisfy the objective criteria under paragraphs (1)(a)-(da) and there was otherwise no submission that there was any other obstacle arising under s 46 of the Act in regards to the validity of the additional applications. The additional application Form 1436 received by the Department on 9 February 2016 included a ‘request’ from the original applicant to have the third to fifth appellants added to her visa application and, by way of question 5 of the form, a ‘statement’ that the additional applicants were dependent children in relation to the main applicant.

97    At [44] his Honour found that the February 2016 determination that the third to fifth appellants’ combined application was valid was correctly made within jurisdiction and that the later determinations that their applications were invalid on the basis that they were not dependent children under reg 2.08A of the Regulations were determinations made outside jurisdiction and thus were of no effect at law.

98    Mr Nguyen submits that in making that finding Middleton J exercised on the appeal before him jurisdiction with respect to a migration decision under s 474(3)(a) of the Migration Act. However, the question of the Court’s jurisdiction was not raised in Pham. At first instance, the Federal Circuit Court was asked to review two decisions made by the Minister: the February 2016 determination and two subsequent determinations that the children had not been validly added to the visa application. They were decisions about whether the relevant appellants were dependent children for the purposes of reg 2.08A.

99    The acknowledgement of receipt of withdrawal of the partner visa application in Gillera is not of the same nature. Again, that is because of the operation of s 49 of the Migration Act which, as Thomas J found to be the case, does not require that a decision be made. It operates upon the provision by a visa applicant of a withdrawal. No analogy can be drawn with reg 2.08A of the Regulations.

100    The fourth criticism is not made out.

Conclusion

101    It is clear, as Mr Nguyen submits, that s 474(3) of the Migration Act was intended to give and does give the Federal Circuit Court a wide jurisdiction. Notwithstanding that and the breadth of cases to which I was taken in argument, Mr Nguyen has not made out any of his criticisms and has not established that there are compelling reasons to depart from Gillera. He has not established that the conclusion in Gillera, in light of the material to which I was taken, is not reasonably open.

102    It follows that the amended application should be dismissed and that Mr Nguyen should pay the Minister’s costs. I will make orders accordingly.

Associate:

Dated:    7 May 2024