FEDERAL COURT OF AUSTRALIA
Aye v Minister for Immigration and Citizenship [2010] FCAFC 69
Citation: Aye v Minister for Immigration and Citizenship [2010] FCAFC 69 Appeal from: Aye v Minister for Immigration and Citizenship [2009] FCA 978 Parties: ZIN MON AYE v MINISTER FOR IMMIGRATION AND CITIZENSHIP, MIGRATION REVIEW TRIBUNAL and MINISTER FOR FOREIGN AFFAIRS File number: NSD 1031 of 2009 Judges: SPENDER, LANDER AND MCKERRACHER JJ Date of judgment: 11 June 2010 Catchwords: MIGRATION – appeal from an order of a judge of this Court – application to review a decision of the Minister for Foreign Affairs and the Migration Review Tribunal (the Tribunal) was dismissed – the Tribunal affirmed decision to cancel visa on the ground that the Minister determined the appellant was a person whose presence in Australia is or would be contrary to Australia’s foreign policy interests – Minister for Foreign Affairs’ decision made under the Migration Regulations 1994(Cth) – decision is a privative or purported privative clause decision and therefore cannot be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) – if decision was made pursuant to a prerogative power it still cannot be reviewed under the ADJR Act – whether the decision is justiciable pursuant to s 39B of the Judiciary Act 1903 (Cth) – decision is susceptible to review depending upon the character and nature of the decision and not upon whether the decision was made under a legislative instrument or prerogative – if the matter was remitted to the Minister for Foreign Affairs the Minister would make the same decision Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3
Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 5E, 116, 189, 196, 198, 199, 474, 477Migration Regulations 1994 (Cth) r 2.43
Cases cited: Attorney-General of the Commonwealth v Oates (1999) 198 CLR 162, applied
Attorney-General (NSW) v Quin (1990) 170 CLR 1, cited
Aye v Minister for Immigration and Citizenship (2009) 111 ALD 546, referred to
Barton v The Queen (1980) 147 CLR 75, referred to
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, applied
FAI Insurances Ltd v Winneke (1982) 151 CLR 342, referred to
Laker Airways Ltd v Department of Trade [1977] QB 643, cited
Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274, referred to
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290, applied
Petrotimor Companhia de Petroleos SARL v Commonwealth (2003) 126 FCR 354, cited
Re Ditfort (1988) 19 FCR 347, cited
Re Refugee Tribunal; Ex parte AALA (2000) 204 CLR 82, referred to
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294, cited
Stead v State Government Insurance Commission (1986) 161 CLR 141, cited
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, referred to
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CaseChat Overview and Summary
In the case of Aye v Minister for Immigration and Citizenship, the applicant, Aye, sought to challenge the decision of the Minister for Foreign Affairs and the Migration Review Tribunal to cancel his visa on the grounds that his presence in Australia was contrary to Australia’s foreign policy interests. The Federal Magistrates Court dismissed the application, and Aye appealed to the Federal Court. The appeal centred on the legality of the decision-making process and whether it was subject to judicial review.
The central legal issue before the court was whether the decision of the Minister for Foreign Affairs, which led to the cancellation of Aye’s visa, was justiciable and could be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The court considered whether the decision was made under the Migration Regulations 1994 (Cth), which would render it a privative clause decision not subject to judicial review. Alternatively, the court examined whether the decision was made under prerogative power, which would similarly preclude review under the ADJR Act. If neither of these applied, the court needed to determine if the decision was justiciable under section 39B of the Judiciary Act 1903 (Cth). The court also needed to address whether the Minister for Foreign Affairs’ decision was validly made and if it was subject to review for procedural fairness.
The court found that the decision of the Minister for Foreign Affairs was indeed a privative clause decision or a purported privative clause decision within the meaning of the ADJR Act. Consequently, it was not subject to judicial review under the ADJR Act, and the application for review in the Federal Magistrates Court was properly dismissed. The court further held that even if the decision had been made under prerogative power, it would still not be subject to review under the ADJR Act. However, the court acknowledged that the decision might be justiciable under section 39B of the Judiciary Act, but the appellant's argument that the decision was a nullity due to procedural unfairness failed. The court concluded that the Minister for Foreign Affairs’ decision was not justiciable, and therefore, the appeal was dismissed.
ORDERS:
1. The appeal be dismissed.
2. The appellant pay the first and third respondents’ costs.
The central legal issue before the court was whether the decision of the Minister for Foreign Affairs, which led to the cancellation of Aye’s visa, was justiciable and could be reviewed under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The court considered whether the decision was made under the Migration Regulations 1994 (Cth), which would render it a privative clause decision not subject to judicial review. Alternatively, the court examined whether the decision was made under prerogative power, which would similarly preclude review under the ADJR Act. If neither of these applied, the court needed to determine if the decision was justiciable under section 39B of the Judiciary Act 1903 (Cth). The court also needed to address whether the Minister for Foreign Affairs’ decision was validly made and if it was subject to review for procedural fairness.
The court found that the decision of the Minister for Foreign Affairs was indeed a privative clause decision or a purported privative clause decision within the meaning of the ADJR Act. Consequently, it was not subject to judicial review under the ADJR Act, and the application for review in the Federal Magistrates Court was properly dismissed. The court further held that even if the decision had been made under prerogative power, it would still not be subject to review under the ADJR Act. However, the court acknowledged that the decision might be justiciable under section 39B of the Judiciary Act, but the appellant's argument that the decision was a nullity due to procedural unfairness failed. The court concluded that the Minister for Foreign Affairs’ decision was not justiciable, and therefore, the appeal was dismissed.
ORDERS:
1. The appeal be dismissed.
2. The appellant pay the first and third respondents’ costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first and third respondents’ costs.
Note:
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
A finding that the Foreign Minister’s decision is a decision made under reg 2.43(1)(a) has a further consequence. The ADJR Act does not apply because the determination is either a privative clause decision or a purported privative clause decision within the meaning of the Act. That follows because of the definition of “decision to which this Act applies” in s 3 of the ADJR Act which provides:decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):(a)under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or(b)by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;other than:(c)a decision by the Governor-General; or(d) a decision included in any of the classes of decisions set out in Schedule 1.Note:Regulations for the purposes of section 19 can declare that decisions that are covered by this definition are not subject to judicial review under this Act. Items (da) and (db) of Schedule 1 identify privative clause decisions and purported privative clause decisions as decisions that are not decisions to which the ADJR Act applies. Insofar as the application was brought in the Federal Magistrates Court under the ADJR Act, then it had to be dismissed. That conclusion follows even if I am wrong about the decision of 14 July 2008 having been made under reg 2.43(1)(a). If the decision was made under the prerogative power, then the same result would flow. It would not be a decision under an enactment and therefore not be reviewable under the ADJR Act. The primary judge was right to conclude that insofar as the proceeding sought orders under the ADJR Act it had to be dismissed. However, the appellant was entitled to rely on s 39B(1) of the Judiciary Act to have the decision of the Tribunal and the decision of the Minister for Foreign Affairs judicially reviewed. The only attack upon the Tribunal’s conclusion and decision is that the Minister for Foreign Affairs’ 14 July 2008 decision is a nullity, and therefore cannot form the basis for a decision under s 116 to cancel the appellant’s visa. If the Minister for Foreign Affairs’ decision was validly made, then there is no argument but that the first respondent had to cancel the appellant’s visa. The appellant contended that the Minister for Foreign Affairs’ decision was a nullity because the Minister for Foreign Affairs failed to accord the appellant procedural fairness, in that the decision was made without the appellant’s knowledge and therefore without the appellant being heard. The Ministers argued that the question of procedural fairness does not arise because the Minister for Foreign Affairs’ decision is not justiciable. The primary judge agreed with the Minister’s contention and dismissed the application.
Ratio Decidendi
Legal Principle Established
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