David John Lally v the Honourable Stewart John West, Minister for Immigration and Ethnic Affairs
[1984] FCA 357
•05 NOVEMBER 1984
Re: DAVID JOHN LALLY
And: THE HONOURABLE STEWART JOHN WEST THE MINISTER OF STATE FOR IMMIGRATION
AND ETHNIC AFFAIRS
No. G 249 of 1984
Administrative Law
6 FCR 251
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.(1)
CATCHWORDS
Administrative Law - judicial review - competency of application - whether Court has jurisdiction in absence of notice for reasons pursuant to s.13(1) Judicial Review Act 1977 - whether notice of request for reasons given prior to decision is proper notice pursuant to s.13(1) Judicial Review Act.
Administrative Decisions (Judicial Review) Act 1977 s.13
Administrative Law - Judicial review - Administrative decision not to furnish applicant with statement of findings and reasons under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) - Findings and reasons sought in relation to three decisions of the Minister under the Australian Citizenship Act 1948 (Cth) and ss 6A(1), 31A of the Migration Act 1958 (Cth) - Written request for statement required - Time limits - Request made prior to the making of the three decisions - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 13(1)(2)(3)(5)(6)(7) - Australian Citizen Act 1948 (Cth) - Migration Act 1958 (Cth), ss 6A, 31A.
HEADNOTE
Held: (1) A written request for a statement of findings and reasons under s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (the Act) will fail to satisfy the requirements of the subsection if it is made before the date on which the relevant decisions are made.
(2) The Minister and the applicant cannot vary the effect of s 13(1) of the Act by agreeing prior to the making of the relevant decisions to treat an existing request for such a statement as a request in relation to subsequent decisions of the Minister.
(3) As the power conferred on the court by s 13(7) of the Act to order further and better particulars only arises where a statement has been furnished in pursuance of a request under subs (1) of that section an applicant has no right to such particulars where he has failed to make a request for a statement in accordance with subs (1).
Ralkon Agricultural Co Pty Ltd v. Aboriginal Development Commission (1982) 43 ALR 535, referred to.
HEARING
Melbourne, 1984, October 8; November 5. #DATE 5:11:1984
APPLICATION
Application for declarations and orders under s 13 of the Administrative Decisions (Judicial Review) Act 1977 relating to decisions of the Minister made under the Australian Citizenship Act 1948 and the Migration Act 1958.
E N McGee, for the applicant.
S C Kenny, for the respondent.
Cur adv vult
Solicitors for the applicant: Brett R E Ryan.
Solicitor for the respondent: Australian Government Solicitor.
GFV
ORDER
1. The Objection to Competency be allowed.
2. The Application be dismissed with costs.
Application dismissed with costs
JUDGE1
By his amended application, D.J. Lally ("the Applicant") is seeking orders relating to three separate decisions made on 26 June 1984. The three decisions which were made by the Minister for Immigration and Ethnic Affairs ("the Minister") can be identified as follows:
1. A decision under the Australian Citizenship Act 1948 that the Applicant should not be granted citizenship.
2. A decision under sub-section 6A(1) Migration Act 1958 that the Applicant should not be granted an entry permit. In that sub-section a reference to an entry permit is to be read as a reference to an entry permit other than a temporary entry permit; see sub-section 6A(8). For the sake of convenience this decision is described as a decision that the Applicant should not be granted permanent residence.
3. A decision under s.31A Migration Act that the Applicant leave Australia within 21 days from 10 July 1984.
The decisions were recorded in writing and were furnished to the Applicant's solicitor by letter dated 9 July 1984. There had been a long history relating to correspondence and other dealings between the Applicant and the Department of Immigration and Ethnic Affairs ("the Department") and this explains some of the contents of the letter dated 9 July 1984, which omitting formal parts is set out:
"I refer to your letter of 27 March 1984 to the Minister for Immigration and Ethnic Affairs concerning Mr David John Lally and to the departmental letter to you of 23 March 1984.
On 26 June 1984 the Minister considered afresh Mr Lally's applications for citizenship and permanent residence.
The Minister decided that Mr Lally
(i) should not be granted citizenship;
(ii) should not be granted permanent residence; and
(iii)should leave Australia within 21 days of the date of this letter.
As the decisions are adverse to your client I am, pursuant to your earlier request for a statement of reasons under Section 13 of the Administrative Decision (Judicial Review) Act 1977, supplying you with the submission placed before the Minister. This submission satisfies the requirements placed upon the decision maker under the said provision.
I must also inform you that as the Minister has decided that Mr Lally must depart Australia, he should do so within the time specified or otherwise action to enforce his departure will be taken under Section 18 of the Migration Act".
The submission referred to in the letter was not enclosed with the letter but the defect was remedied and the submission was furnished to the Applicant's solicitor under cover of another letter dated 10 July 1984 which made it clear that in decision 3. the Applicant should leave Australia within 21 days after the date of the letter of 10 July 1984.
The Applicant has not sought an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") of any of those three decisions.
On 14 September 1984 the Applicant filed an application in the Federal Court seeking relief under the Judicial Review Act. On 28 September 1984 the Applicant was given leave to amend that application. The relief sought in the amended application can be summarized:
(a) declarations that the letters of 9 and 10 July 1984 together with the enclosure constitute a statement in response to a request by the Applicant made under sub-section 13(1) Judicial Review Act with respect to each of the three decisions but that those letters and that statement do not set out the findings on material questions of fact and a reference to the evidence or other material on which those findings were based and the reasons for decision and that they do not contain adequate particulars thereof
(b) an order under sub-section 13(1) Judicial Review Act that the Minister furnish to the Applicant a statement with respect to each of the three decisions in compliance with that sub-section
(c) an order under sub-section 13(7) Judicial Review Act that the Minister furnish to the Applicant a statement containing further and better particulars with respect to the findings, evidence or other material and reasons relevant to each of the three decisions.
The Minister gave notice of objection to the competency of the application. The substance of the objection to competency was that since the Applicant had not by notice in writing given to the Minister requested him to furnish the statement referred to in sub-section 13(1) Judicial Review Act with respect to any of the three decisions, the Court had no jurisdiction or power to make any of the orders sought. The objection to competency was heard on 8 October 1984. At the conclusion of the hearing the Court announced that it proposed to allow the objection and that it would make the formal order and furnish its reasons for so doing at a later date. Immediately thereafter the Court commenced to consider directions in a related matter in which the Applicant was seeking an order of review of a decision made by the Minister under s.18 Migration Act. The further directions hearing in that matter has been adjourned to 5 November 1984 being the date on which the order will be made in the proceedings seeking orders under s.13 Judicial Review Act and being the date on which these reasons will be published.
To understand the contentions made with respect to the objection to competency it is necessary to set out in some detail parts of s.13 Judicial Review Act:
"13.(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision.
(2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request.
(3) Where a person to whom a request is made under sub-section (1) is of the opinion that the person who made the request was not entitled to make the request, the first-mentioned person may, within 28 days after receiving the request-
(a) give to the second-mentioned person notice in writing of his opinion; or
(b) apply to the Court under sub-section (4A) for an order, declaring that the person who made the request was not entitled to make the request."
Sub-sections (4) and (4A) need not be set out.
" (5) A person to whom a request for a statement in relation to a decision is made under sub-section (1) may refuse to prepare and furnish the statement if-
(a) in the case of a decision the terms of which were recorded in writing and set out in a document that was furnished to the person who made the request-the request was not made on or before the twenty-eighth day after the day on which that document was so furnished; or
(b) in any other case-the request was not made within a reasonable time after the decision was made, and in any such case the person to whom the request was made shall give to the person who made the request, within 14 days after receiving the request, notice in writing stating that the statement will not be furnished to him and giving the reason why the statement will not be so furnished.
(6) For the purposes of paragraph
(5)(b), a request for a statement in relation to a decision shall be deemed to have been made within a reasonable time after the decision was made if the Court, on application by the person who made the request, declares that the request was made within a reasonable time after the decision was made.
(7) If the Court, upon application for an order under this sub-section made to it by a person to whom a statement has been furnished in pursuance of a request under sub-section (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the Court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons."
Sub-sections (8) to (11) inclusive need not be set out but it should be noted that each of the three decisions is a decision to which s.13 applies.
On the material before the Court and from admissions made by counsel for the Applicant, it is clear that the Applicant has not, since 26 June 1984 being the date on which each of the three decisions was made, by notice in writing requested the Minister to furnish a statement under sub-section 13(1) Judicial Review Act. Counsel for the Applicant contended however that such a request had been given on 31 October 1983. As will appear later the Court finds that the notices in writing given on that date cannot in fact refer to the decisions given on 26 June 1984 but that finding is not necessary to determine the correct construction to be given to s.13 Judicial Review Act.
The Judicial Review Act is remedial in nature conferring rights on persons who are aggrieved by decisions of an administrative character made under a power conferred by Federal law. Under s.5 a person so aggrieved may make application to the Federal Court for an order of review in respect of the decision on any one or more of the grounds specified in that section. In order to enable such a person to enforce those rights effectively, s.13 prescribes procedures by which the person who made the decision may be compelled to give reasons for the decision which reasons must contain the material referred to in sub-section 13(1). The person making the decision may, at the time the decision is made, give reasons for his decision. If no reasons are given or if the person aggrieved considers that the reasons given are not adequate, he may give the notice in writing under sub-section 13(1).
The wording of sub-section 13(1) makes it clear that the sub-section operates only when a decision has been made. It is only where a decision has been made that the person aggrieved may by notice in writing request the person who "made the decision" to furnish the statement referring to matters "on which those findings were based". The syntax of the sub-section supports the view that the request must be made after the decision has been made. A request may be made before a decision has been given, but that request cannot be a request under sub-section 13(1). If pursuant to such a request before the decision is made, reasons are furnished at the time the decision is given to that person, there is nothing to prevent that person, if he is a person aggrieved, from making the request under sub-section 13(1) after the decision has been made with reasons furnished to him. This is of particular importance if the person aggrieved desires to enforce the rights conferred upon him by sub-section 13(7).
Section 13 contains its own code dealing with time limits for the giving of reasons for decisions. The time limit contained in sub-section 13(2) runs from the time the request is made to the person "who made the decision". That time limit could have no application if the request under sub-section 13(1) could be given before the decision is made. Sub-section 13(1) contains no time limit within which the request is to be made but a consideration of sub-section 13(2) and paragraph (a) of sub-section 13(5) makes it clear that the request under sub-section 13(1) must be made on or before the 28th day after the day on which the document in which the decision is recorded was furnished to the person aggrieved; see Ralkon Agricultural Co. Pty. Ltd. v. Aboriginal Development Commission (1982) 43 ALR 535. The Judicial Review Act does not empower the Court to extend that time limit of 28 days. Where the decision is not recorded in a document furnished to the person aggrieved, the relevant time within which the request may be made under paragraph (b) of sub-section 13(5) and under sub-section 13(6) is a "reasonable time after the decision was made".
Sub-section 13(7) confers a separate right upon a person aggrieved. On the face of that sub-section the right arises only where "a statement has been furnished in pursuance of a request under sub-section (1)". Sub-section 13(7) can have no application to a statement furnished pursuant to a request made before a decision is made. It is for that reason that if a person aggrieved desires to obtain further and better particulars of reasons given at the time the decision is made, the person aggrieved must, after the decision has been made and reasons have been furnished, give the requisite notice under sub-section 13(1).
The Applicant has not given a notice in writing under sub-section 13(1) within 28 days or at all after each of the decisions which have been recorded in writing and set out in a document furnished to him. It follows therefore that no statement "has been furnished in pursuance of a request under sub-section (1)" to him and thus the Court has no jurisdiction or power to make the orders sought in the application. The objection to competency must be upheld and the application dismissed with costs.
To conclude these reasons, it is necessary to make brief reference to an issue of fact relating to the giving of notice under sub-section 13(1) before the three decisions were made on 26 June 1984. By letter dated 31 October 1983 the solicitor for the Applicant wrote to the Minister enclosing three notices in writing each dated 30 October 1983 under sub-section 13(1). Each notice was directed to the Minister. The letter and the notices made reference to named officers of the Department. Each notice referred to a decision which had been made in September 1983 and furnished to the Applicant in October 1983. By letter dated 24 November 1983, the Secretary of the Department referred to the three notices under sub-section 13(1) and gave notice that under sub-section 13(3) the Applicant was not entitled to make the requests for statements of reason. The Applicant took no action under sub-section 13(4A) to have that matter determined by the Court. By a further letter dated 23 March 1984, signed by the Assistant Secretary (Legal Branch) the Department notified the Applicant's solicitor that the Applicant's application for permanent residence was being reviewed. The letter contained the following paragraph:
"A fresh decision will be taken according to law. As the Department will not be implementing the original decision and a fresh decision, when taken, will supplant the original decision it is not proposed to supply a statement of reasons for the original decision.
You will be notified as soon as a fresh decision has been taken by the Minister. If that decision is adverse to your client, a statement of reasons will be supplied in respect of that decision in pursuance of your earlier requests. When made, that decision will be the only operative decision with respect to your client's application for permanent residence."
Thereafter fresh decisions were made on 26 June 1984 and were furnished to the Applicant under cover of the letters dated 9 and 10 July 1984. The reference to the earlier correspondence explains the penultimate paragraph of the letter of 9 July 1984. The statement was furnished to the Applicant under cover of the letter of 10 July 1984.
Counsel for the Applicant contended that the
notices dated 30 October 1983, although referring to decisions made in October 1983, constituted notices under sub-section 13(1) with respect to each of the three decisions made on 26 June 1984. He contended that the Minister had accepted that position and had acted accordingly. In my opinion that contention should not be accepted. Parties to proceedings cannot by consent confer jurisdiction or power on the Court. Further, the notices were directed to the Minister who by letter dated 24 November 1983 relied upon sub-section 13(3). I do not accept counsel's contention that the letter dated 24 November 1983 does not apply to the decisions of the Minister since the decisions were made by officers of the Department and not the Minister. For these reasons I am not satisfied that on any view the notices dated 30 October 1983 can be treated as notices under sub-section 13(1) with respect to the decisions made on 26 June 1984. In any event s.13 does not permit notices given prior to the making of the decision to be a notice under sub-section 13(1).
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