Alkiaat v Minister for Immigration and Multicultural Affairs

[2000] FCA 1316

FEDERAL COURT OF AUSTRALIA

Alkiaat v Minister for Immigration & Multicultural Affairs [2000] FCA 1316

CITIZENSHIP AND MIGRATION – protection visa – applicant in immigration detention – decision not yet made by Minister or delegate – application for order of review in respect of failure to make a decision – objection to competency – whether if Minister under a duty to grant visa the Minister is under a duty to make a judicially-reviewable decision for the purposes of s 477 of the Migration Act 1958 (Cth)

Migration Act 1958 (Cth) ss 47(1), 65, 411, 475, 477

Migration Regulations 1994 (Cth) Sch 2, para 886.225; Sch 4, Pt 1

ABDULRAZAQ ALKIAAT v MINISTER FOR IMMIGRATION &     
MULTICULTURAL AFFAIRS

N 881 OF 2000

EMMETT J
6 SEPTEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 881 OF 2000

BETWEEN:	ABDULRAZAQ ALKIAAT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	6 SEPTEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The notice of objection to competency be dismissed.

1. The costs of today and the costs generally of the objection to competency be the parties’ costs in the proceedings.

   3.The matter be stood over for further directions Friday 8 September 2000 at 9.30 am.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 881 OF 2000

BETWEEN:	ABDULRAZAQ ALKIAAT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	6 SEPTEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant arrived in Australia on 14 October 1999, under a false Malaysian passport. On 22 October 1999 the applicant applied for a protection visa. For present purposes it has been assumed that the application is a valid application within the meaning of section 46 of the Migration Act1958 (Cth) (“the Act”). Accordingly under section 47(1) the respondent, the Minister for Immigration and Multicultural Affairs (“the Minister”), must consider the application. Under section 65(1) of the Act if, after considering the application, the Minister was satisfied as to the matters referred to in section 65(1)(a), the Minister would be under an obligation to grant the visa. Alternatively, if having considered the application, the Minister were not so satisfied, he must refuse to grant the visa.

2. The Minister has not yet either granted or refused to grant the visa. The applicant has therefore applied to this court for an order of review pursuant to section 477 of the Act. Section 477(1) relevantly provides as follows:

   “477(1) If:

   (a)a person, other than a tribunal, has a duty to make a judicially-reviewable decision; and

   (b)there is no provision that specifies a period within which the person is required to make the decision; and

   (c)the person has failed to make the decision.

   application may be made to the Federal Court for an order of review in respect to the failure to make the decision on the ground that there has been an unreasonable delay in making the decision.”

3. On 31 August 2000 the Minister filed notice of objection to competency.  I directed that the argument on the notice of objection take place in advance of any hearing of the substance of the application.

4. The applicant contends that the Minister is under a duty pursuant to section 65(1)(a) to grant the visa for which the applicant has applied. The Minister will only be under such a duty if satisfied as to the matters referred in section 65(1)(a). As to whether the Minister is so satisfied or as to whether he ought to be so satisfied is a matter that would be the subject of evidence and findings at the substantive hearing of the application.

5. One question that arises in relation to the objection to competency is whether, assuming section 65(1)(a) is applicable, the Minister would be under a duty to make a judicially-reviewable decision. If having, considered the application, the Minister were not satisfied as to the matters referred to in section 65(1)(a) then the Minister would be under a duty to refuse to grant a visa by the operation of 65(1)(b). The decision to refuse to grant a visa would be an RRT-reviewable decision within the meaning of section 411(1)(c). By the operation of section 475(2)(d) that decision would not be a judicially-reviewable decision. Accordingly, section 477(1)(a) would not be satisfied.

6. However, if after considering the valid application the Minister is satisfied as to the matters referred to in section 65(1)(a) there would be a duty to grant the visa. The decision to grant a visa is not an RRT-reviewable decision. It is however a decision under the Act. It would therefore be a judicially reviewable decision under section 475(1)(c). Accordingly it would be within section 477(1)(a).

7. The real issue in the proceeding therefore seems to me to be whether it can be said at this stage that the Minister is under a duty to make a decision. That question will turn on whether or not the Minister is satisfied as to the matters set out in section 65(1)(a). If the Minister has completed consideration of the valid application made by the applicant, that is to say if after considering that application the Minister is satisfied as to the matters in 65(1)(a), such a duty would exist.

8. The matter that has been the subject of argument on the hearing of the objection to competency is the requirement of section 65(1)(a)(ii). Section 65(1)(a)(ii) refers to other criteria for a visa prescribed by the Act or Migration Regulations. In other words, the Minister must be satisfied that those criteria have been satisfied.

9. Under paragraph 866.225 in Schedule 2 of the Regulations an applicant must satisfy public interest criteria 4001, 4002 and 4003. Those criteria are contained in Schedule 4. Relevantly public interest criteria in 4002 provides as follows:

   “The applicant is not assessed by the competent Australian authorities to be directly or indirectly a risk to Australian national security.”

   It is common ground that at the present time the applicant has not been assessed by any competent Australian authority to be directly or indirectly at risk to Australian national security.  If the consideration by the Minister or his delegate of the application under section 47 were complete as at the commencement of the proceeding, it would follow that the Minister must be satisfied that public interest criteria in 4002 is satisfied.  It would not be open to the Minister then to be otherwise than satisfied that public interest criteria in 4002 is satisfied.  The Minister in communications with the applicant, however, has indicated that he is still awaiting a report from competent Australian authorities as to the matters referred to in public interest criterion 4002.

10. I do not consider that the scheme necessarily requires that there be a report from the competent Australian authorities as to the matters referred to in public interest criteria 4002.  In other words the scheme contemplates a negative requirement.  On the other hand, the administrative arrangements within the Department of Immigration and Multicultural Affairs may well require that, before consideration is given to a valid application, a report be obtained from the competent Australian authorities.  Whether such arrangements exist, and whether consideration of the application is yet complete, will be a matter for the substa ntive hearing.

11. If the consideration is not complete then the application will fail because the Minister is not yet under a duty to make any decision under section 65. A fortiori the Minister is not under any duty to make a decision to grant a visa to the applicant. There is evidence before me that by as late as June of this year the Minister, or his delegate, was still considering the applicant’s application. I am not satisfied one way or the other at present as to whether or not the Minister’s consideration is complete so as to attract section 65(1).

12. It follows, however, from the analysis that I have undertaken that it is possible that the applicant will establish the prerequisite for the operation of section 477(1). It is common ground that there is no provision that specifies a period within which the Minister is required to make a decision under section 65. Accordingly section 477(1)(b) is satisfied. It is also common ground that section 477(1)(c) is satisfied, in that, if there is a duty on the Minister to make a decision to grant a visa, the Minister has not yet made that decision. Thus the outcome of the application will turn on whether the applicant can establish that the Minister is yet under a duty pursuant to section 65(1)(a) to grant the visa applied for. That is a matter for evidence.

13. I consider, therefore, that the objection to competency should be dismissed.  I will order that the costs of today and the costs generally of the objection to competency be the parties' costs in the proceedings.  I will stand the matter over for further directions on Friday, 8 September at 9.30 a.m.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             19 September 2000

With leave Mr J Bulbeck appeared for the applicant
Solicitor for the Respondent:	Mr M Snell of Sparke Helmore
Date of Hearing:	6 September 2000
Date of Judgment:	6 September 2000