Bedlington, Jennifer J. v Chong, Ana Cecilia Enciso

[1998] FCA 1139

FEDERAL COURT OF AUSTRALIA

MIGRATION – request to the Minister to exercise power under s 48B(1) of Migration Act to allow a further application for a protection visa – whether Minister has a duty to exercise power under s 48B(1) – effect of s 48B(6) on the imposition of a duty under s 48B(1) – whether there is a duty to bring an application under s 48B to the attention of the Minister – whether Minister has the power to lay down guidelines indicating the circumstances in which he or she is prepared to consider the exercise of the power conferred by s 48B(1).

Migration Act 1958 (Cth) ss 48A, 48B(1), 48B(6)

Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401, distinguished

JENNIFER J. BEDLINGTON & ANOR v ANA CECILIA ENCISO CHONG
NG 50 of 1998

BLACK CJ, KIEFEL AND EMMETT JJ
SYDNEY
15 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 50  of  1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JENNIFER J. BEDLINGTON
First Appellant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Appellant

AND:

ANA CECILIA ENCISO CHONG
Respondent

JUDGES:

BLACK CJ, KIEFEL AND EMMETT JJ

DATE OF ORDER:

15 SEPTEMBER 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be allowed.

1. The declaration made on 15 December 1997 be set aside and in lieu thereof that the matter, insofar as it has been remitted to this Court, be dismissed.

NoteSettlement 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	NG 50  of  1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JENNIFER J. BEDLINGTON
First Appellant

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Appellant

AND:

ANA CECILIA ENCISO CHONG
Respondent

JUDGES:	BLACK CJ, KIEFEL AND EMMETT JJ
DATE:	15 SEPTEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT: The second appellant is the Minister for Immigration and Multicultural Affairs (“the Minister”) and the first appellant is a First Assistant Secretary, Australian Client Services Division within the Minister’s department (“the Secretary”). The respondent, Ana Cecilia Enciso Chong (“Ms Chong”), sought prerogative writs against the appellants in the High Court of Australia. The proceedings arise out of a failure on the part of the Minister to determine under s 48B of the Migration Act 1958 (Cth) (“the Act”) that s 48A of the Act does not apply to prevent Ms Chong from making a further application for a protection visa under the Act, notwithstanding that she has already been refused the grant of a such visa.

Sections 48A and 48B of the Act relevantly provide as follows:

48A     (1)       Subject to section 48B, a non-citizen who, while in the migration zone, has made:

(a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined);

(b)………………….

may not make a further application for a protection visa while in the migration zone.

………………….

48B     (1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

(2)The power under subsection (1) may only be exercised by the Minister personally.

(3)       If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

(a)       sets out the determination; and
(b)       sets out the reasons for the determination…

………………….

(6)       The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is required to do so by the non-citizen or by any other person, or in any other circumstances.

Ms Chong is a Peruvian citizen who arrived in Australia as a visitor on 8 September 1992.  She arrived under an entry permit which was valid until 8 October 1992 and on 9 October 1992, she was granted a further temporary permit which was valid until 8 November 1992.  On 23 October 1992, Ms Chong made an application for refugee status on the basis that she fell within the provisions of the 1951 Convention relating to the status of refugees, as amended by the 1967 protocol relating to the status of refugees (“the Convention”). 

The application was refused by a delegate of the Minister on 20 October 1993.  On 15 November 1993, Ms Chong lodged an application with the Refugee Review Tribunal (“the Tribunal”) to review the delegate’s decision. Since all undecided applications for refugee status became applications for protection visas with effect from 1 September 1994, the Tribunal dealt with Ms Chong’s application as one for a protection visa.  A person will be eligible for a protection visa if he or she is found to be a refugee to whom Australia has protection obligations under the Convention.  However, on 6 December 1995, the Tribunal decided and found that Ms Chong “is not a refugee” and affirmed the decision under review not to grant a protection visa.

On 29 January 1996, the solicitors for Ms Chong wrote to the Minister requesting that he consider exercising his power under s 48B(1) of the Act to allow Ms Chong to lodge an application under s 48A of the Act. On 1 March 1996, the Secretary replied to that request saying, inter alia, the following:

Your request that the Minister determine that a further application for protection visa be permitted in this case has been examined against the Minister’s guidelines on further applications.  Ms Enciso Chong’s case falls outside the scope of the guidelines and it has not been referred to the Minister.

It was in those circumstances that Ms Chong sought relief in the High Court to the effect that:

1. A writ of mandamus issue:

   · directing the Secretary to bring to the attention of the Minister Ms Chong’s request that he exercise the power conferred by s 48B of the Act.

   · directing the Minister to determine whether or not to consider Ms Chong’s request for a decision under s 48B of the Act according to law.

1. A writ of prohibition issue, prohibiting the Minister from acting upon or giving effect to or proceeding further upon the decision of the Secretary of 1 March 1996 not to refer the request to the Minister.

The grounds relied on in the High Court were as follows:

1. the Secretary was obliged to bring to the attention of the Minister the application made by Ms Chong for the Minister to exercise his discretion under s 48B of the Act but failed to do so;

1. the decision of the Secretary not to refer Ms Chong’s application to the Minister was unreasonable;

1. relevant considerations were left out of account, namely;

   (a)       that Ms Chong’s case fell within the Minister’s guidelines; and

   (b)that it is in the public interest that Ms Chong be permitted to make a further application for refugee status;

1. the decision involved a denial of procedural fairness; and

1. the Minister was obliged to determine whether to consider Ms Chong’s application but failed to do so.

On 4 April 1996, Gummow J ordered that there be remitted to this Court so much of the matter pending in the High Court, being the application for writs of mandamus and prohibition, as rely upon grounds (i) and (v).  The matter pending in the High Court, in so far as it relies upon the other grounds, was not remitted to this Court.

The part of the matter remitted to this Court was heard by a judge of the Court who considered that if s 48B(1) stood alone and if the public interest criterion there mentioned were satisfied, there would, in accordance with well established principles, be a duty imposed upon the Minister to exercise the power of intervention conferred by the section. For reasons published on 9 September 1997 and 15 December 1997, his Honour made a declaration that, on the true construction of the Act, the Minister has no duty to consider whether to exercise the power under s 48B(1) except where the Minister thinks it is in the public interest to do so. The Minister and the Secretary now appeal from his Honour’s orders.

The principles to which his Honour referred are those relating to the distinction between powers which are of an obligatory character on the one hand and powers which are of a merely permissive character on the other hand.  If the purpose for which a power is conferred is such as to lead to the inference that its exercise was not intended to be at the discretion of the donee, the provision will be construed as obligatory, notwithstanding that its language is of a permissive character.  In addition, his Honour referred to the wider principle that a discretion conferred by an Act must be exercised on proper legal grounds and in accordance with the policy of that Act.

His Honour considered, however, that s 48B(6) on its face appeared to contradict the application of those principles and that, accordingly, there was a tension between s 48B(1) and s 48B(6). His Honour approached the question before him as one of statutory interpretation in order to determine whether that apparent tension could be resolved. His Honour’s resolution of the tension which he perceived was to read down s 48B(6) so as to confine its application to the general position, that is to say, to cases other than those to which s 48B(1) applies. His Honour said that if an application appears to satisfy the “public interest” criterion in s 48B(1), then s 48B(6) can have no relevant application.

In our view, the difficulty with that approach is that it appears to us to be in conflict with the language of s 48B(6). The language of s 48B(6) indicates that it was intended to excuse the Minister from any obligation of considering whether or not to exercise the power conferred by s 48B(1). It is expressly provided that the Minister is to have no such duty “in any… circumstances” whether or not he or she is requested to do by the non-citizen or by any other person. It appears to us that to require s 48B(6) to be read down in some circumstances would be in conflict with that part of the language of the sub-section which provides that the Minister does not have a duty to consider whether to exercise the power “in any circumstances”.

His Honour accepted that s 48B(1) was not intended to impose any general duty to intervene although the Minister’s power to intervene in a special case was preserved. That distinction is critical to the intended operation of s 48B. That is to say, the section, read as a whole, is intended to confer upon the Minister the power to negate the privative effect of s 48A but it imposes no duty to bring a matter to the attention of the Minister. To conclude otherwise would, in our view, be to render s 48B(6) largely inoperative because s 48B(6) would then operate only where no successful case for the application of s 48B(1) could be made out.

Moreover, if s 48B(6) were to operate only in a limited class of case, to be determined by reference to whether s 48B(1) might apply, s 48B(6) would necessarily have a very uncertain operation. It is most unlikely that uncertainty of this nature in the operation of the sub-section, and thus in the section as a whole, was intended.

Counsel for the appellants referred to the decision of the Full Court of this Court in Morato v Minister of Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401, to which his Honour referred in his second reasons for judgment. However, the decision in that case is of little assistance in the present case. There, a provision of the Act similar to that presently under consideration empowered the Minister to set aside certain decisions. A provision corresponding to s 48B(6) provided that the Minister did not have a duty to consider whether to exercise that power. In that case, however, the Minister had received a minute from the departmental officer recommending that the Minister did not exercise his discretion in that case. The Minister had made a positive decision not to exercise the power which the Act conferred upon him in the circumstances.

In the present case, the application proceeded on the assumption that the Secretary did not ever refer Ms Chong’s application to the Minister. The Minister had not exercised any discretion in relation to Ms Chong’s specific application because it did not come to his attention. The real issue in the present case, therefore, is whether the Secretary was under any duty, in the light of the terms of s 48B read as a whole, to bring Ms Chong’s application to the attention of the Minister. That explains the joinder of the Secretary as a respondent in the proceedings.

In her letter of 1 March 1996, the Secretary referred to guidelines (“the Guidelines”) against which, she said, the application for a protection visa had been examined.  The Guidelines relevantly provide as follows:

Purpose

1.        The purpose of these Guidelines is to provide a framework for case managers when considering whether to forward to the Minister cases where he/she may wish to consider using his/her non-compellable and non-delegable power to allow a further application for a protection visa to be made.

………………….

Scope of Guidelines

7.        These Guidelines will be used in considering every:

.          purported further application by a person for a protection visa; and/or
.          request for Ministerial intervention under s48B,

lodged on or after 13 September 1995, where the previous application has been ‘finally determined’ as defined in the Act.

………………….

Responsibility of Case Managers

19.      The case manager should consider all relevant information currently available to them, including updated country information, in considering a purported further application for a protection visa.

20.      CASE MANAGERS SHOULD NOT ENGAGE IN A COMPLETE ASSESSMENT AND DECISION AT THIS STAGE, AS AN APPLICATION HAS NOT BEEN VALIDLY MADE.  However, they should ensure that their consideration is consistent with Australia’s international obligations to prevent refoulement.  Notwithstanding the preceding paragraphs, wherever it appears that Australia’s protection obligations may be engaged, the case manager must forward the purported further protection visa application to the Minister’s office for consideration in accordance with the agreed format.

21. Where the purported further application appears to come within these Guidelines, the case manager should refer the case to the Minister’s office for consideration under s48B of the Act, in accordance with the agreed format. However, the case manager must be mindful that the Minister does not have a duty to consider the exercise of that power.

22.      After consideration (including referral to the Minister’s office where required) the case manager should advise the client as soon as practicable, in writing, either that:

.          their application had not been accepted as a valid application; or

.the Minister had exercised his/her discretion to allow the further protection visa application to be made.

23.      Consideration of a purported further application, or request for Ministerial intervention under s48B, in accordance with these Guidelines, should be completed in 2 working days from receipt in the Department.

Allowed Further Protection Visa Applications

24. Where the Minister decides to exercise his/her power under s48B of the Act to allow a further protection visa application from a particular non-citizen, the application should be considered in accordance with normal procedures, guidelines and legislation.

In the High Court the respondent contends that the criteria laid down in the Guidelines are unreasonable and that the Secretary’s decision not to refer Ms Chong’s application to the Minister was outside the terms of the Guidelines. However, while the matter before the High Court raises those grounds, they are not before this Court. The question before this Court resolves into whether it was open to the Minister to lay down guidelines for determining whether any possible exercise of the power conferred by s 48B(1) should be referred to him.

The Guidelines constitute the Minister’s determination, in advance, of the circumstances in which he would consider exercising the power.  By the Guidelines, the Minister was, in effect, saying:

Notwithstanding that I have no duty to consider the exercise of the power conferred by section 48B(1), I am prepared to consider exercising that power in the circumstances set out in the Guidelines.

There is no reason why the Minister should not lay down guidelines for the assistance and guidance of Departmental officers, such as the Secretary, indicating the circumstances in which he was prepared to consider the exercise of the power conferred by s 48B(1). That is what he did.

So long as the Secretary was acting in accordance with the Guidelines, she had no duty to refer Ms Chong’s application to the Minister.  In reaching that conclusion, of course, we should not be understood as saying that, if the Secretary was not acting in accordance with the Guidelines, Ms Chong was entitled to any relief.  That is not a matter before us.  However, in so far as Ms Chong’s application for relief is based solely on the Secretary’s failure to bring Ms Chong’s application to the attention of the Minister or on any failure on the part of the Minister at this stage to consider her application, it should be dismissed.

The appellants have indicated that they do not seek any costs of the appeal or of the costs below and, accordingly, there should be no order as to the costs of the appeal or of the proceedings before the trial judge.  We should also note that the respondent, although served with the notice of appeal and informed of the hearing, did not appear before us.

In the circumstances, we consider that the appeal should be allowed.  In lieu of the declaration made by the trial judge there should be an order that the proceedings be dismissed in so far as they rely on grounds (i) and (v) referred to above.

I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Black CJ, Kiefel and Emmett JJ

Associate:

Dated:             15 September 1998

Counsel for the Applicant:	G.K. Downes QC with R.T. Beech-Jones
Solicitor for the Applicant:	Australian Government Solicitor
Solicitor for the Respondent:	No appearance
Date of Hearing:	2 July 1998
Date of Judgment:	15 September 1998