Australian National Training Fund Pty Ltd v Minister for Immigration
[2015] FCCA 1836
•3 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AUSTRALIAN NATIONAL TRAINING FUND PTY LTD v MINISTER FOR IMMIGRATION | [2015] FCCA 1836 |
| Catchwords: MIGRATION – Application for review of a “decision” made by a departmental officer – whether an email sent by the departmental officer was a “migration decision” for the purposes of s.5, s.474 and s.476 of the Migration Act 1958 (Cth) – whether the Court has jurisdiction to review the “decision” – no jurisdiction – application dismissed for want of jurisdiction. |
| Legislation: Migration Act 1958 (Cth), ss.5, 5E, 140E, 140F, 474, 476 Migration Regulations 1994 (Cth), regs.2.59, 2.61, 2.87B, 5.19 |
| Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 Dranichnikov v Centrelink [2003] FCAFC 133 Pegasus Leasing Ltd v Federal Commissioner of Taxation (1991) 32 FCR 158 Barkworth Olives Management Ltd v Federal Commissioner of Taxation [2003] FCA 443 Humane Society International Inc v Minister for the Environment and Heritage [2003] FCA 64; (2003) 126 FCR 205 Miller v Goldfields Land and Sea Council Aboriginal Corporation [2014] FCA 183 |
| Applicant: | AUSTRALIAN NATIONAL TRAINING FUND PTY LTD ABN 81 600 242 939 |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 3471 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 1 April 2015 |
| Date of Last Submission: | 1 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | Christopher Levingston & Associates, Lawyers |
| Counsel for the Respondent: | Mr P Knowles |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application made on 15 December 2014 and amended on 5 March 2015 is dismissed for want of jurisdiction.
The applicant pay the respondent’s costs set in the amount of $ 6825.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3471 of 2014
| AUSTRALIAN NATIONAL TRAINING FUND PTY LTD ABN 81 600 242 939 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
The immediate issue in these proceedings is whether the Court has jurisdiction to consider an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 15 December 2014 and amended on 5 March 2014. The application purports to seek review of a “decision” of an officer of the Department of Immigration and Border Protection (“the Department”). The sole ground of the application asserts that the “decision of 21 November 2014 was infected by legal error”.
The applicant asserts that an email sent by Mr Ben Meagher, “Director 457 and Sponsor Monitoring Policy” section in the Department (“Mr Meagher”), to Ms Liana Allen, a representative of Australian National Trading Fund Pty Ltd ABN 81 600 242 939 (“the applicant”), “constitutes a decision judicially reviewable” by the Court. The Minister submitted that the Court does not have jurisdiction as the email did not contain a “migration decision” within the meaning of ss.5 and 474 of the Act.
The Background
The applicant has provided written submissions which helpfully outline the background to the matter (see [1] – [2] of the applicant’s written submissions):
“[1] The applicant (ANTF) is a corporation which proposes to act as an intermediary, by which payments are to be made to it by sponsors of applicants for sub class 457 and 186 visas. ANTF would then make what is described as ‘contributions’ to the University of Sydney to finance the provision of training for employees of those sponsors. ANTF claims that this arrangement meets the requirements of ‘Benchmark A’ in Instrument 13/030 - specification of training benchmarks and training requirements (regs 2.59(d), 2.68(e), 2.87B(2), 2.87B(3) and 5.19(4)(h)(i)(B)(I)).
[2] On 21 November 2014 Mr Ben Meagher, who was ‘Director 457 and Sponsor Monitoring Policy’ of the Department of Immigration and Border Protection sent an email to Ms Liana Allen, representing ANTF, to the effect that contributions made by business sponsors to ANTF ‘would not meet current policy settings in relation to Benchmark A’ (Annexure ‘B’ at p. 18 of the affidavit of Christopher Levingston made on 15 December 2014)…”
The email of 21 November 2014 from Mr Meagher is in the following terms (“Annexure B” of the affidavit of Christopher Levingston of 15 December 2014):
“Dear Liana
I refer to your email below of 28 October regarding the proposed ANTF-University of Sydney scholarship fund. I apologise for the delay in responding.
Based on the information you have provided, I understand that the Australian National Training Fund proposes to receive contributions from Subclass 457 visa and Subclass 186 visa business sponsors seeking to meet training benchmark A and then make a donation to a University of Sydney scholarship fund that is ‘named’ after ANTF.
Under the current policy settings, any contributions made by a business sponsor directly to a scholarship fund operated by a TAFE or University would meet the requirements for training benchmark A.
However a business sponsor making a contribution to an intermediary such as ANTF seeking to establish a scholarship fund would not meet the current policy settings, even if the intermediary subsequently donates those funds to a scholarship fund operated by a University or TAFE.
The department does not approve, recognise or endorse training funds for the purpose of training benchmark A although we do advise processing staff whether funds which have come to our attention meet benchmark A requirements. Based on the information provided, we would be unable to advise that contributions made to the ANTF would meet the current policy settings in relation to training benchmark A.
The recent independent review into the integrity of the 457 programme recommended that the current training benchmarks be replaced by an annual training contribution model with funds managed by the Department of Industry. While the government is yet to announce its response to this recommendation, if it were accepted, the proposed ANTF-University of Sydney scholarship fund would not meet the requirements of that model as contributions would need be managed by the Department of Industry.
The review report is on the department’s website at: www. immi.gov.au/pub~res/Pages/reviews-and-inquiries/skilled-visa-programme.aspx?heading=releaseoftheindependentreviewintointegrityinthesubclass457programme.
Thank you for seeking the department’s feedback on this proposal before finalisation.
Please let me know if you have any questions.
Regards
Ben Meagher
Director 457 & Sponsor Monitoring Policy”
Relevant Legislation
Both parties agree that the Court has jurisdiction if a matter comes within or is not excluded by s.476 of the Act:
“476 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 or 501C;
(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.
Section 5 of the Act defines a “migration decision” as:
“migration decision means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non‑ privative clause decision.”
A “privative clause decision” is defined at s.474(2) of the Act as:
“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).”
The definition of a “decision” at s.474(3) of the Act includes, relevantly, the following:
“(3) A reference in this section to a decision includes a reference to the following:
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
…
(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;
…
(g) doing or refusing to do any other act or thing;
…”
[Emphasis added.]
Relevant to the applicant’s submissions, a “purported privative clause decision” is defined at s.5E of the Act as:
“In this Act, purported privative clause decision means 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.”
Section 140E of the Act, relevant to the background of the applicant’s request of Mr Meagher, is in the following terms:
“Minister to approve sponsor
(1) The Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied.
Note: A person (other than a Minister) who is a party to a work agreement is an approved sponsor and does not need to be approved as a sponsor under this section: see paragraph (b) of the definition of approved sponsor.
(2) The regulations must prescribe classes in relation to which a person may be approved as a sponsor.
(3) Different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a sponsor; and
(c) different classes of person within a class in relation to which a person may be approved as a sponsor.”
Regulation 2.59 of the Migration Regulations 1994 (Cth) (“the Regulations”) prescribes the required criteria for approval as a “standard business sponsor”:
“Criteria for approval as a standard business sponsor
For subsection 140E(1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person(the applicant) for approval as a standard business sponsor is that the Minister is satisfied that:
(a) the applicant has applied for approval as a standard business sponsor in accordance with the process set out in regulation 2.61; and
(b) the applicant is not a standard business sponsor; and
(c) the applicant is lawfully operating a business (whether in or outside Australia); and
(d) if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more—the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this paragraph; and
(e) if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months—the applicant has an auditable plan to meet the benchmarks specified in the instrument made for paragraph (d); and
(f) if the applicant is lawfully operating a business in Australia—the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to:
(i) employing local labour; and
(ii) non‑discriminatory employment practices; and
(g) either:
(i) there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and
(h) if the applicant is lawfully operating a business outside Australia and does not lawfully operate a business in Australia—the applicant is seeking to be approved as a standard business sponsor in relation to a holder of, or an applicant or a proposed applicant (the visa applicant) for, a Subclass 457 (Temporary Work (Skilled)) visa, and the applicant intends for the visa holder or visa applicant to:
(i) establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections; or
(ii) fulfil, or assist in fulfilling, a contractual obligation of the applicant; and
(i) the applicant has provided to the Minister the number of persons who the applicant proposes to nominate during the period of the applicant’s approval as a standard business sponsor, and:
(i) the proposed number is reasonable, having regard to the information provided to the Minister; or
(ii) if the Minister proposes another number of persons as part of considering the application—the applicant has agreed, in writing, to nominate no more than the other number of persons during the period of the applicant’s approval as a standard business sponsor; and
(j) if the applicant has previously been a standard business sponsor:
(i) the applicant:
(A) fulfilled any commitments the applicant made relating to meeting the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; and
(B) complied with the applicable obligations under Division 2.19 relating to the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; or
(ii) it is reasonable to disregard subparagraph (i).
Note 1: For paragraph (b), a person approved as a standard business sponsor before 14 September 2009 can make a new application to become a standard business sponsor on or after 14 September 2009. A person approved as a standard business sponsor on or after 14 September 2009, and who has not ceased to be a standard business sponsor, can apply under section 140GA of the Act for a variation of the terms of approval as a sponsor to extend the duration of the sponsorship approval—see regulation 2.68.
Note 2: For paragraph (g), the meanings of associated with and adverse information are explained in subregulations 2.57(2) and (3).”
Submissions
The applicant submitted that the Court does have jurisdiction to review the “decision” of Mr Meagher. The applicant’s submission was that Mr Meagher’s email was a “purported privative clause decision because it would have been a privative clause decision but for an excess of jurisdiction” ([9] of the applicant’s written submissions).
The applicant drew the Court’s attention to the High Court’s decision in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99 (“Griffith University”) in relation to whether Mr Meagher’s email was a decision made “under the Act”, in particular, at [89] per Gummow, Callinan and Heydon JJ:
“The determination of whether a decision is ‘made ... under an enactment’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘made ... under an enactment’ if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.”
[Emphasis added.]
The applicant asserted that Mr Meagher’s email constitutes a “decision” judicially reviewable by this Court. There is no dispute between the parties that the Court has jurisdiction if the matter comes within, s.476(1) of the Act and is not a decision record in s.476(2) of the Act. That is, whether Mr Meagher’s email constitutes a “migration decision” as defined in s.5 of the Act and, therefore, comes within s.476(1) of the Act. This section confers jurisdiction on this Court in relation to “migration decisions”, other than those matters described in the exceptions set out at s.476(2) of the Act.
The applicant’s argument that this Court has jurisdiction in this matter was as follows. Section 474(2) defines a “privative clause decision”. Such a decision is final and conclusive and cannot be challenged in any Court (s.474(1) of the Act). However, Mr Meagher’s email is a “purported privative clause decision”. A “purported privative clause decision” is defined in s.5E of the Act (see above).
In essence, and relevant to the applicant’s argument, a purported privative clause decision is a decision purportedly made under the Act. This was described before the Court as a decision which “tries to be a privative clause decision but does not address [achieve] this status.”
The applicant’s submissions directed close attention to the wording of s.474(2) of the Act, and in particular, to the words: “privative clause decision means a decision of an administrative discretion.” Further, the word “decision” is given a non-exhaustive (“includes”) meaning in s.474(3) of the Act (see at [8] above).
The applicant argued that, in light of this, what Mr Meagher said in his email is, in essence, that the Department would not approve the proposal from the applicant which Mr Meagher identified in the second paragraph of his email.
Therefore, what Mr Meagher stated in his email was a “decision” (with reference s.474(2) of the Act) because it involved the “granting”, “approval”, or the “doing or refusing to do any act or thing” under the Act. That is, it had some effect on the applicant, and was a decision of an administrative character (it was not legislative or judicial) made under an enactment.
As set out above, the term “under the Act” or “enactment” was the subject of consideration by the High Court in Griffith University. Both parties drew attention to Griffith University at [89] (see above at [13]).
In his submissions, the applicant also emphasised what was also said in Griffith University at [78] – [80]:
“[78] There is a line of authority in the Federal Court, beginning with the judgment of Lockhart and Morling JJ in Chittick v Ackland and including the judgments of Kiefel J and Lehane J in Australian National University v Lewins, which assists in fixing the proper construction of the phrase ‘decision of an administrative character made ... under an enactment’. As noted earlier in these reasons, the presence in the definition in the ADJR Act of the words (‘whether in the exercise of a discretion or not ...’) indicates that the decision be either required or authorised by the enactment. Mayer shows that this requirement or authority may appear sufficiently as a matter of necessary implication. However, whilst this requirement or authority is a necessary condition for the operation of the definition, it is not, by itself, sufficient.
[79] The decision so required or authorised must be ‘of an administrative character.’ This element of the definition casts some light on the force to be given by the phrase ‘under an enactment’. What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?
[80] The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?”
The applicant submitted that Mr Meagher’s email met both of the criteria referred to at [89] of Griffith University, and as contextually explained at [78] – [80]. That is, there was a decision that was impliedly required, or authorised, by the Act and Regulations, and the decision affected the rights of the applicant and others involved in the applicant’s “proposal”.
To make good these latter points the applicant drew attention to the legislative provisions relevant to what was asked of Mr Meagher and what the applicant says he “decided”.
Section 140E of the Act requires the Minister to approve a person as a “sponsor” (for the purposes of the Act) if certain criteria are met. Section 140F of the Act enables the creation of a process for a person to be approved as a sponsor. The relevant process is set out in reg.2.61 of the Regulations.
The criteria for “standard business sponsor” are prescribed in reg.2.59 of the Regulations. This includes reg.2.59(d) of the Regulations, which requires that for approval the applicant sponsor must meet certain training benchmarks, as specified in an instrument made for that purpose. Regulation 2.87B(2) and (3) and reg.5.19(4) of the Regulations, set out similar requirements.
Relevant to this regulatory scheme is Instrument 13/030 which sets out certain “Benchmarks” at “annexure A” to the Instrument. These relate to certain expenditures by the business seeking sponsorship and approval, and as it relates to training, including the funding of formal courses of study or scholarships for that purpose. The applicant’s proposal was, in essence, to receive contributions from certain business sponsors, of certain visa classes, who were seeking to meet the training Benchmarks. The applicant’s proposal was to then donate money to a scholarship fund set up at the University of Sydney.
Therefore, the applicant argued Mr Meagher’s email conveyed a decision under an enactment, authorised by an enactment, and effected under an enactment, and affected the legal rights and obligations of the applicant, business sponsors and others involved in the proposal.
There was no dispute between the parties as to the applicable law. The issue between them turned on its application, in the current circumstances, and the meaning and effect of what Mr Meagher said in his email.
The Minister’s position was that what Mr Meagher stated in his email was not a “migration decision” for the purposes of the Act. The Minister agrees that for this statement to be a “migration decision” it must be a decision made under the Act, or Regulations, and that that question is to be determined with reference to the two criteria, and the principles attendant on the articulation of these criteria, by the plurality of the High Court in Griffith University at [89].
The first criterion is that the “decision” must have the quality of being expressly or impliedly required, or authorised, by the Act. The Minister says what Mr Meagher did in his email did not have either of these qualities.
Consideration
For the reasons that follow, I agree with the Minister’s submissions. The applicant relied on the statutory scheme outlined above (at
[24] ‑ [27]), beginning with the reference to s.140E of the Act. That section requires the Minister to approve “persons” as a sponsor if certain criteria have been met.
The difficulty for the applicant now is that, on the evidence presented, it cannot be said that an application for such approval was made by the applicant, or anyone else. Without such an application it is difficult to see that what Mr Meagher said in his email, in response to what he was asked by Ms Allen, can be said to be characterised as a “decision” made under an enactment.
The email preceding Mr Meagher’s email, which is in evidence before the Court, supports the proposition that no application for a decision under the Act was made or sought from Mr Meagher. For example, Ms Allen, in her email of 3 November 2014 states (see annexure “A” to the affidavit of Mr Levingston of 15 December 2014):
“…Whilst there is no formal application to become ‘approved’ by the DIBP as a fund, out of respect to the DIBP, [the applicant] and the University of Sydney have sought to brief the DIBP and prove a background to the fund…”
Mr Meagher’s email contains features which also support the proposition that his email is a statement of policy, rather than a decision under an enactment in response to an application made under the Act. For example, Mr Meagher wrote in his email (annexure “B” to the affidavit of Mr Levingston of 15 December 2014):
“…However a business sponsor making a contribution to an intermediary such as ANTF seeking to establish a scholarship fund would not meet the current policy settings, even if the intermediary subsequently donates those funds to a scholarship fund operated by a University or TAFE…”
[Emphasis added.]
In addition, the use of the future indicative tense (as indicated above), in my view, emphasises that what Mr Meagher was seeking to do was to “indicate” what the Department’s position would, or would not, likely be, if an application for a business scholarship under the Act were to be made.
That position was expressed as follows (Annexure “B” to the affidavit of Mr Levingston of 15 December 2014):
“…The department does not approve, recognise or endorse training funds for the purpose of training benchmark A although we do advise processing staff whether funds which have come to our attention meet benchmark A requirements. Based on the information provided, we would be unable to advise that contributions made to the ANTF would meet the current policy settings in relation to training benchmark A.”
In short, what Mr Meagher was seeking to convey were the relevant “policy settings”. A contribution made by a business sponsor, direct to a scholarship fund operated by a university or TAFE, would meet the policy “settings”. Any payment to an intermediary, such as the applicant, would not.
The Minister submitted that the words “we would be unable to advise”, as they appear in Mr Meagher’s email (see [36] above), meant that Mr Meagher’s “policy section” (in the Department) would be unable to advise the Minister’s delegates (decision makers), who may be called upon in the future to process any applications from business sponsors, that a payment to an intermediary would meet the “current policy settings”.
The phrase “we would be unable to advise”, as it appears in Mr Meagher’s email, must be read in context of the paragraph as a whole. In my view what is meant is that the role of Mr Meagher’s policy area, is, if called upon, to advise “processing” staff (the delegates) about whether “particular” funds meet the policy settings, relevant to the Benchmarks. What he said in his email is that if his policy section was called upon to give advice to delegates, it would be unable to advise that the applicant’s proposal would meet the policy settings.
I agree with the Minister that what Mr Meagher was seeking to convey was not a “decision” on any application for sponsorship, but that he would be unable to “advise” processing staff that the proposal met the relevant policy. The question as to whether any future application for sponsorship would succeed would plainly be a matter for the relevant delegate, albeit in circumstances where Mr Meagher would be unable to provide “advice” that the donation to the applicant met the policy settings.
Importantly, the plain meaning of Mr Meagher’s words is to indicate what he could not do in the future, not that he had conveyed any advice to the decision makers. Again, this emphasises that he was not making a statement which had the character of being a decision under an enactment.
I also agree with the Minister that Mr Meagher’s use of the phrase “policy settings”, means that what he said in the email cannot be seen as some indication of direction to a decision maker in the future, if an application for sponsorship were to be made.
Ultimately, delegates seeking to exercise the Minister’s power to approve business sponsors are required to apply the law. In this case, the law as expressed in the statutory and regulatory scheme referred to above (at [5] – [11]). Even if Mr Meagher were at some future time to give any advice as to the “policy settings”, it is the statute and regulations that would govern the disposition of the decision on the sponsorship, and certainly not some inflexible application of policy settings.
In all, the applicant, through Ms Allan, sought advice from the Department as to the relevant policy (no formal application had been made), “we are waiting on the DIBP to give us an informal ‘green light’” (emphasis added) (Annexure “A” to the affidavit of Mr Levingston of 15 December 2014 – Ms Allan’s email of 3 November 2014). Mr Meagher understood that this was the nature and character of Ms Allan’s approach, “[t]hank you for seeking the department’s feedback on this proposal before finalisation…”. That is, that the applicant had not completed its preparation for the implementation of its scheme. In short, Mr Meagher’s email was not a decision under an enactment as no application for sponsorship had been made.
As set out above, both parties before the Court understood the importance of the two criteria, set out in Griffith University, to the disposition of this case.
The first criterion is that the decision must be expressly or impliedly authorised by the enactment. There was no dispute that in this case this meant the Act (and Regulations).
I agree with the Minister that in the circumstances presented, Mr Meagher’s statement was not a decision made under the Act. It was, as had been requested of him, an informal statement of policy, and importantly, an opinion as to how any application in the future may be decided in the context of “policy setting”. As the Minister submits, this is not a “decision expressly or impliedly authorised by the Act”. Advice, or an opinion as to how a matter may proceed, is not “a decision of an administrative character….made under an enactment” (Dranichnikov v Centrelink [2003] FCAFC 133 at [26] and [28]; Pegasus Leasing Ltd v Federal Commissioner of Taxation (1991) 32 FCR 158 at 162-163; Barkworth Olives Management Ltd v Federal Commissioner of Taxation [2003] FCA 443 at [27]-[28]; Humane Society International Inc v Minister for the Environment and Heritage [2003] FCA 64; (2003) 126 FCR 205 at [43]-[44]; Miller v Goldfields Land and Sea Council Aboriginal Corporation [2014] FCA 183 at [53]-[54]).
That is sufficient to dispose of the current matter, as the High Court’s judgment made plain, both criteria enunciated in Griffith University must be met such that it could be said that Mr Meagher’s statement is a decision under the Act.
However, I should indicate that I also agree with the Minister that Mr Meagher’s statement does not, of itself, “confer, alter or otherwise affect legal rights or obligations” (the second criterion).
I understood the applicant’s argument to be that the applicant’s legal rights were “affected” by Mr Meagher’s “decision”. However, the Minister correctly, in my view, pointed to the distinction between the proffering of Mr Meagher’s advice, and the capacity of the applicant to proceed with its agreement with the University of Sydney. The applicant’s “legal right” to proceed with its proposal remains. Further, what Mr Meagher said in his email does not prevent any future applicant for a business sponsorship proceeding to make any such application. Any decision to be made on such an application would be a matter for the Minister, or his delegate, to make according to the law, and not fettered by any inflexible application of policy, as may be advised in the future by Mr Meagher or otherwise.
Conclusion
Mr Meagher’s statement is not a “migration decision” for the purposes of the Act (s.5 and s.474 of the Act). This Court has no jurisdiction in relation to the application made by the applicant (s.476 of the Act). The application should be dismissed on that basis. I will make an order accordingly.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 3 July 2015
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