In the Matter of an Application for Writs of Mandamus and a Writ of Prohibition in High Court Proceedings S39 of 1996, and Bedlington, Jennifer J and Anor and Ex Parte: Chong, Ana Cecilia Enciso

[1997] FCA 1416

FEDERAL COURT OF AUSTRALIA

Administrative law - relief to be granted on matter remitted from the High Court - whether Court should declare that the Minister for Immigration determine personally whether to consider an application for the exercise of the power conferred by s 48B(1) of the Migration Act - Minister’s administration of the Act - statutory construction of ss 48A and B of the Act.

Migration Act 1958 - s 48B(1) and (6)

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

On remittal from the High Court of Australia

IN THE MATTER of an Application for Writs of Mandamus and a Writ of Prohibition in High Court proceedings S39 of 1996, JENNIFER J BEDLINGTON AND THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS;  EX PARTE:  ANA CECILIA ENCISO CHONG

NG 425  OF   1996

JUDGE:        BEAUMONT J
PLACE:        SYDNEY
DATE:          15 DECEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 425  of   1996

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

IN THE MATTER of an Application For Writs of Mandamus and a Writ of Prohibition in High Court proceedings S39 of 1996, JENNIFER J BEDLINGTON FIRST RESPONDENT
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS SECOND RESPONDENT
EX PARTE:	ANA CECILIA ENCISO CHONG PROSECUTOR

JUDGE:	BEAUMONT J
DATE OF ORDER:	15 DECEMBER 1997
WHERE MADE:	SYDNEY

ORDER:

1. Declare that, on the true construction of the Migration Act 1958, the second respondent has no duty to consider whether to exercise the power under s 48B(1), except where the Minister thinks that it is in the public interest to do so.

1. Costs reserved.

1. Grant leave to appeal.

Note:Settlement 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 425 of 1996

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

IN THE MATTER of an Application For Writs of Mandamus and a Writ of Prohibition in High Court proceedings S39 of 1996, JENNIFER J BEDLINGTON FIRST RESPONDENT
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS SECOND RESPONDENT
EX PARTE:	ANA CECILIA ENCISO CHONG PROSECUTOR

JUDGE:	BEAUMONT J
DATE:	15 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT (No.2)
(on the relief to be granted)

BEAUMONT J:

Since delivery of my reasons dated 9 September 1997, the parties have now made submissions on the question of the relief, if any, now to be granted.

THE PROSECUTOR’S PRESENT CLAIMS FOR RELIEF
The prosecutor now seeks a declaration that, upon its proper construction, s 48B(1) of the Migration Act 1958 (“the Act”) requires that the Minister personally determine whether to consider an application for the exercise of the power to determine that s 48A of the Act does not apply. The prosecutor accepts that the making of any order absolute of mandamus to this effect must await the judgment of the High Court on grounds (ii), (iii) and (iv) in the application for an order nisi (cf. Thambythurai v Minister for Immigration, Finkelstein J, 16 September 1997, unreported).  The prosecutor now also seeks an order for prohibition, until further order, addressed to the Minister, so as to preserve the status quo.

THE RESPONDENTS’ SUBMISSIONS ON THE PRESENT QUESTIONS
On behalf of the respondents, it is again submitted, as noted in my earlier reasons, that relief should be refused for the reasons given by Lockhart J (with the agreement of Black CJ and French J) in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 (at 417-418).

The provisions considered in Morato were s 115(5) of the Act (the equivalent of s 48B(1)) and s 115(10) (the equivalent of s 48B(10)). It was argued for Mr Morato that s 115(10) “does not commence to apply until the first stage [i.e. s 115(5)] has been passed” (at 417). However, the argument was rejected.

Lockhart J said (at 417):

“In my opinion subs (5) cannot be construed in this fashion.  It does not involve a two stage exercise.  It empowers the Minister to set aside a decision of the kind mentioned in par (a) and substitute for that decision another decision of the kind mentioned in par (b) where the Minister thinks it is in the public interest to do so.  Subsection (10) operates to ensure that the Minister has no duty to consider whether to exercise the power under subs (5) in respect of any decision.”

In Morato, the Assistant Secretary of the Determination of Refugee Status Committee had sent minutes to the Minister dated 6 and 7 November 1991 seeking consideration by the Minister of the exercise of his powers under s 115.  In his memorandum dated 15 November 1991, the Minister said:

“I have not considered these cases.  I understand from staff in my office that the departmental decision maker has rejected their refugee claims.  I do not wish to exercise my Section 115 powers in either case.”  (Emphasis added).

Of this memorandum, Lockhart J said (at 418):

“[The Minister] was simply indicating, by both the first and third sentences, that he did not propose to consider whether to exercise his powers under s 115.”  (Emphasis added).

His Honour went on to say (at 418):

“Plainly the Minister had received (and I assume examined) the various minutes which were written to him and to which reference was made earlier, in particular those of 6 and 7 November 1991;  and doubtless he examined them, if only briefly, to decide if it was a case where he would embark upon the exercise of considering whether he should exercise the power under subs (5) or not.  The evidence does not establish that the Minister’s consideration had reached the point where he had embarked upon the task of undertaking that consideration.  If he had done so then different arguments might have been available to the appellant.”

CONCLUSIONS ON THE RELIEF TO BE GRANTED
(a)       Is Morato decisive of the present question?

I cannot accept the respondents’ submission that the present issue is determined by the reasoning in Morato. The argument put (and rejected) in that case proceeded on the (unwarranted) assumption that the counterpart of s 48B(1) was a free-standing or self-contained provision which was to be addressed by the Minister without regard to the other provisions the equivalent of s 48B, in particular, the counterpart of s 48B(6), so that a two-stage exercise was called for. But I have held that s 48B must be construed as a whole, and not in two discrete parts (i.e. neither s 48B(1) nor (6) should be viewed in isolation). The real question, as I see it, is how these sub-sections are to be reconciled. In my view, as has been said in the earlier reasons, the apparent contradiction may be resolved by reading down the general language of s 48B(6), so that its provisions do not apply in the special case where the Minister thinks that it is in the public interest to determine that s 48A not apply. In other words, I would read s 48B(6) as subject to an implied qualification or proviso that nothing in its provisions is to detract from the operation of s 48B(1) where the Minister thinks that it is in the public interest that s 48A not apply. There is, in my opinion, nothing in Morato that would contradict this.

Nor, in my view, is there anything in the observations in Morato to suggest that the power described in s 48B(1) should not, if the appropriate circumstances exist, be treated as giving rise to a duty upon the Minister to waive the operation of s 48A. This accords with settled principles (of which Julius v Bishop of Oxford is the best known example) mentioned in the earlier reasons.

(b)      Should declaratory relief as to the meaning of s 48B be granted?

As has been noted, the prosecutor seeks a declaratory order that s 48B(1) requires that the Minister personally determine whether to consider an application for the exercise of the power to waive the operation of s 48A. Such a declaration would, in my opinion, travel beyond the provisions of s 48B(1) in two respects: first, s 48B(1) imposes a requirement upon the Minister to act by waiving the operation of s 48A if (and only if) the Minister thinks that it is in the public interest to do so; unless he thinks this, there is no obligation upon the Minister to act under s 48B(1) at all. Secondly, the proposed declaration makes no provision for the operation, in other circumstances, of s 48B(6).

Nonetheless, it is appropriate, in my view, that a declaration be made, in accordance with my earlier reasons, that on the true interpretation of s 48B when read as a whole, the Minister has no duty to consider whether to exercise the power under s 48B(1), except where the Minister thinks that it is in the public interest to do so.

(c)       Should further relief be granted?

I do not think that it is appropriate or necessary to grant any further relief.  Counsel for the respondents has indicated that the respondents will, without prejudice to their appellate rights, observe any declaratory order, made by the Court, without the necessity for injunctive or prohibitory relief.

Moreover, I do not see any need, as the matter now stands (necessarily in part only) before this Court, to decide how any duty that might be imposed upon the Minister under s 48B(1) should be discharged. It is clear from the terms of s 48B(2) that, if this power is to be exercised, the Minister must do so personally; thus he cannot delegate that particular function. It is equally clear that, under the Administrative Arrangements, the Minister personally has the general responsibility for administering the Act and, relevantly ss 48A and 48B. That is to say, the Minister cannot himself ignore the provisions of these sections; nor has he. In the interests of good administration, the Minister has established the Guidelines. In purporting to apply the Minister’s Guidelines, Ms Bedlington was acting at the Minister’s personal direction, at least to that extent. As was said in the earlier reasons, the establishment of proper guidelines may be regarded a valid step taken in the administration of legislation. But the actual operation of the Guidelines in the instant circumstances is not within the scope of this remitter. I do not see how this Court can usefully address these questions any further without trespassing into the matters necessarily reserved by the High Court by virtue of those provisions of the Act which deprive this Court of jurisdiction to deal with the entire matter. It is hardly necessary to add, that fragmentation of litigation in this way should be avoided where possible. Yet the explicit language used to confine this Court’s jurisdiction in this area must be accepted, however inconvenient and expensive for the parties.

(d)      Costs

In the circumstances, especially given the limited nature of the remitter, costs should be reserved now, but reviewed later when the High Court proceedings are concluded.

(e)       Leave to appeal

Given the novelty and importance of the points argued, leave to appeal to the Full Court should be granted.

ORDERS
I make the following orders:

1. Declare that, on the true construction of the Migration Act 1958, the second respondent has no duty to consider whether to exercise the power under s 48B(1), except where the Minister thinks that it is in the public interest to do so.

1. Costs reserved.

1. Grant leave to appeal.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:            15 December 1997

Counsel for the Prosecutor:	T A Game SC and G P Craddock
Solicitor for the Prosecutor:	Kessels & Associates
Counsel for the Respondents:	R Beech-Jones
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	10 December 1997
Date of Judgment:	15 December 1997