Hammadi v Minister for Immigration and Multicultural Affairs
[2000] FCA 748
•28 JULY 2000
FEDERAL COURT OF AUSTRALIA
Hammadi v Minister for Immigration & Multicultural Affairs [2000] FCA 748
MIGRATION – protection visas – application for temporary protection visa – whether decision of delegate of Minister advising application not properly made a judicially‑reviewable decision – whether decision of administrative officer of Refugee Tribunal that application is beyond jurisdiction was reviewable – whether prohibition against further application for protection visa by non-citizen in the migration zone applicable to application for temporary protection visa – whether amendment to Migration Regulations to provide for temporary protection visas affects prior expression of Parliamentary intention.
Migration Act 1958 (Cth) ss 48A, 475(1)(c), 476
Le Tran Thuy v Minister for Immigration and Multicultural Affairs [1999] FCA 1598, followed
Li v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 219, referred to
Singh v Minister for Immigration & Ethnic Affairs (1995) 38 ALD 295, cited
Sweeney v Fitzhardinge (1906) 4 CLR 716, cited
P F Webster v Macintosh (1980) 32 ALR 603, citedJEMARI HAMMADI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 29 OF 2000
R D NICHOLSON J
28 JULY 2000 PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 29 of 2000
BETWEEN:
JEMARI HAMMADI
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RespondentJUDGE:
R D NICHOLSON J
DATE OF ORDER:
28 JULY 2000
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The application be dismissed.
2. The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 29 of 2000
BETWEEN:
JEMARI HAMMADI
ApplicantAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
R D NICHOLSON J
DATE:
28 JULY 2000
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application for an order of review. At the time the application was filed the applicant was represented by solicitors on the record. He has since ceased to be so represented. Nevertheless, the application, which is particularised in terms of legal arguments, remains before the Court.
Applicant’s circumstances
The applicant asserts he is a citizen of Algeria. He arrived in Australia as a stow‑away on 20 February 1998.
On 4 June 1998 he lodged an application for a protection visa (“the first application”). On 31 July 1998 a delegate of the respondent refused the protection visa application. That decision was affirmed on review by decision of the Refugee Review Tribunal (“the Tribunal”) on 10 September 1998. In its reasons the Tribunal concluded it was not satisfied the applicant is a citizen of Algeria so, consequently, it could not find a well‑founded fear of persecution from Algerian authorities for any Convention reasons.
On 31 August 1999 the applicant filed an application in the Federal Court to review the decision of the Tribunal and other decisions relating to visas. On 29 October 1999 that application to the Federal Court was discontinued by order of Carr J.
By application dated 20 December 1999, the applicant made a further application for a protection visa (“the further application”). By letter dated 18 January 2000 an officer (“the officer”) of the Department of Immigration & Multicultural Affairs (“the Department), apparently acting as a delegate of the Minister, advised the applicant that the further application was not a valid application under Australian migration law because of the provisions of s 48A of the Migration Act 1958 (Cth) (“the Act”). He was advised by the officer that the provisions of that section would continue to apply while he remained in Australia unless he was granted a substantive visa. The further application form was returned to him by the delegate.
On 24 January 2000 the applicant applied to the Tribunal for review of the decision made in the officer’s letter dated 18 January 2000. By letter dated 2 February 2000 a Deputy Registrar of the Tribunal advised the applicant that the Tribunal had no jurisdiction under the Act to consider his application. The reason given was that a review application to the Tribunal could only be made after the Department had decided to refuse an application for a protection visa. It was said that the officer’s letter of 18 January 2000 did not refuse the application but instead indicated it was not a valid application. Reference was made to s 47 of the Act which provides that a decision an application for a visa is not valid is not a decision of refusal to grant the visa.
On 14 February 2000 the application for review was filed in this Court by the applicant’s then solicitors.
Application for review
The application for review commences as follows:
“Application to review the decision of the Refugee Review Tribunal and decision of DIMA made relating to visas that they have no jurisdiction under the Migration Act 1958 (the ‘Act’) to consider the applicant’s application.
The applicant was notified of the RRT decision on 2 February 2000.
The applicant was notified of the DIMA decision on 19 January 2000.”
The application itself appears on Form 56 which by operation of O 54 r 2 and O 54B r 2(1) may be utilized in connection with applications for review pursuant to the Administrative Decisions Judicial Review Act 1977 (Cth), (the“ADJR Act”) and the Migration Act 1958 (Cth).
The grounds of review rely solely upon errors made by the officer. It is appropriate therefore to commence with the application in respect of that decision and then to turn to the decision of the Tribunal, if it were such.
For reasons which appear, the application is not one which can be addressed pursuant to the ADJR Act.
Jurisdiction of the Court
For the respondent it is conceded that the decision of the officer is a “judicially‑reviewable decision” within the compass of s 475(1)(c) which includes in that description “other decisions made under this Act, or the regulations, relating to visas”.
The concession is two‑fold in its elements. The first is that the decision of the officer was a decision “relating to visas” in that, it affected the applicant for a visa: cf Li v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 219 at 224 [25]. Secondly, it is said the officer’s decision was made under the Act as it involved the application of the terms of the Act to the terms of whether the applicant’s visa application was valid. It was therefore expressly or impliedly required by the Act or given force or effect to by it: cf Li at 224 [ 23].
Sub-paragraph 475(1)(c) is subject to subs (2) of the same section. That sub-section excludes from the category of judicially-reviewable decisions under subs (1) “an RRT-reviewable decision”: see s 475(2)(d). “RRT‑reviewable decision” is defined by s 5 of the Act to have the meaning given by s 411. Section 411(1)(c) provides that a decision to refuse to grant a protection visa is an RRT‑reviewable decision, subject to subs (2) of that section which has no presently relevant effect. That provision must be read in conjunction with subs 47(4) which provides that “to avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa”. Applying that subsection, the decision by the officer acting on behalf of the Minister would not be a decision to refuse to grant the visa and hence the decision would not qualify as an RRT-reviewable decision.
I therefore consider the respondent’s concession is properly made.
A consequence of the decision of the officer falling within jurisdiction is that the Court has no other jurisdiction in respect of the decision: s 485 of the Act. Consequently, if the application purported to be made under the ADJR Act, it would be incompetent.
Grounds of the application
The application is based upon s 476 of the Act. The first, is s 476(1)(e). The second, is s 476(1)(g) as applied in accordance with s 476(4)(b).
Each of the grounds is supported by reference to s 48A of the Act. The essence of the argument for the applicant as particularised is that when s 48A commenced on 18 September 1995 it was intended by Parliament to prevent the making of further permanent protection visa applications. Consequently, it is contended, when on 20 October 1999 Parliament amended the Act by making provision for “temporary protection visas” it could not have intended that s 48A would apply to those visas.
Legislative provisions
Section 48A(1) provides:
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); or
(b)applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined):
may not make a further application for a protection visa while in the migration zone.”
Section 48B, to the details of which it is not necessary to refer, makes provision for the Minister to determine that s 48A does not apply to a non‑citizen if the Minister thinks that it is in the public interest to do so.
Application of s 48A to applicant
The applicant is a non-citizen as defined in s 5 of the Migration Act.
The applicant, when he made the further application, was in the migration zone as defined in s 5 of the Migration Act. In making the further application the applicant made “an application for a protection visa” within s 48A(1)(a).
The further application is made in circumstances where the grant of the visa had been refused by the decision of the respondent’s delegate on 30 July 1998 affirmed by the Tribunal on 10 September 1998.
Consequently, the effect of s 48A(1) is to provide that the applicant could not make a further application while he remained in the migration zone. That would be the position if s 48A(1) applied to the further application of the applicant. It is that proposition which the particularised grounds seek to challenge.
As has been seen, those grounds contend that s 48A(1) can have no application to the grant of temporary protection visas. The further application itself is an application for a protection visa, rather than a temporary protection visa. However, in the application it is stated that it is “based on the newly introduced protection visas class XA and in particular the temporary protection visa sub-class 785: see the Migration Amendment Regulations 1999 (No 12) SR No 243 effective from 23 October 1999 (GAZ S 493, 20 October 1999)”.
Reference to that amendment to the Migration Amendment Regulations shows that protection visas (class XA) were constituted by two sub-classes being 785 (temporary protection) and 866 (protection).
The basic rule in connection with amending Acts is that when any Act is amended by a later Act, the two are to be regarded as one connected and combined statement of the will of Parliament: Sweeney v Fitzhardinge (1906) 4 CLR 716 at 735 per Issacs J. The presumption can be displaced but takes very clear evidence to do so. The general rule in relation to regulations is that delegated legislation made under an Act should not be taken into account for the purposes of interpretation of the Act itself: P F Webster v Macintosh (1980) 32 ALR 603 at 606. There are no special circumstances here present to vary the application of the general rule: Acts Interpretation Act 1901 (Cth) s 15AB.
In that context there are two specific answers to the particularised contentions made for the applicant. The first is that the amending regulations referred to did not amend the Act. The regulations must be read subject to the Act in which s 48A appears.
The second is that when the amending regulations were made, the Parliamentary intention expressed in s 48A was known. No steps were taken to ameliorate the application of s 48A in respect of sub‑class 785 temporary protection visas. By the making of the regulations by the Governor‑General acting with the advice of the Federal Executive Council, there can be no imputation of a change in the Parliamentary intention s 48A that it should apply in its terms.
Furthermore, the amending regulations made clear that the description “protection visa” included each of the sub‑classes 785 (temporary protection) and 866 (protection). Nor is there any apparent reason of policy why any limitation on the application of s 48A should be implied. Indeed, the presence of s 48B of the Migration Act and the power of the Minister to ameliorate any harsh effects of the application of s 48A when it is in the public interest to do so, preclude any such construction.
The result is that s 48A(1) applied to the further application by the applicant. The result is that the application was prevented by s 48A and so was not a valid application: see s 46(1)(d) of the Migration Act. The “decision” of the officer was therefore correct. There is no basis to review that decision.
Decision of Tribunal officer
In Li at 223‑224 Gyles J tended to the view that the communication there in issue advising lack of jurisdiction was not “under the Act or the regulations” because it was something done by officers of the relevant Tribunal on its behalf but not sitting as the Tribunal. He considered the point was not easy and views could legitimately differ. He followed established practice and over‑ruled an objection to competency.
In Le Tran Thuy v Minister for Immigration and Multicultural Affairs [1999] FCA 1598, Branson J considered an application for review of a decision of the Immigration Review Tribunal to refuse to review the decision of a department cancelling the applicant’s student visa. She referred to the fact that nothing on the face of the letter of advice from an Assistant Registrar of the Tribunal suggested that the applicant’s application for review ever came to the attention of the Tribunal itself. Rather, she thought it likely that an administrative decision was made by or on behalf of the Assistant Registrar that the application had not been properly made and that the Tribunal was therefore not entitled to review it. She concluded that “decision” could not properly be characterised as a decision made under the Act relating to visas within the meaning of s 475(1)(c) of the Act. Her Honour therefore concluded the jurisdiction of the Court in respect of that Tribunal did not include jurisdiction to review a decision apparently made by an administrative officer attached to the Tribunal: citing Singh v Minister for Immigration & Ethnic Affairs (1995) 38 ALD 295 at 298.
The “decision” of the Deputy Registrar of the Tribunal here was, in my opinion, neither made under the Act relating to visas within s 475(1)(c) nor made by the Tribunal. I follow the reasoning of Branson J in Le Tran to arrive at that conclusion. Consequently no jurisdiction arises in this Court in relation to that decision. The respondent’s concession properly does not extend to it.
Conclusion
For the above reasons the application should be dismissed.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson. Associate:
Dated: 28 July 2000
The Applicant appeared on his own behalf Counsel for the Respondent: Mr M Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 July 2000 Date of Judgment: 28 July 2000
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