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 1042
•9 SEPTEMBER 1997
FEDERAL COURT OF AUSTRALIA
Migration - application for protection visa - application for Minister for Immigration to exercise discretion provided for in ss 48A and 48B of the Migration Act.
Administrative law - statutory construction - legislative scheme where no general duty imposed upon Minister to consider whether to intervene in favour of applicant but where power to intervene preserved - principles of interpretation - statutory powers - underlying assumption that statutory powers will be exercised in accordance with fair procedures - whether a provision is mandatory or permissive in character.
Estoppel - operation of the doctrine of estoppel in a statutory context.
Migration Act 1958 - ss 46(1)(d), 48A(1), 48B, 475(2)(e), 485, 496, 497
Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 - cit.
Commissioner of State Revenue (Victoria) v Royal Insurance Australia Ltd (1994) 182 CLR 51 - appl.
Fazal Din v Minister for Immigration & Multicultural Affairs, Wilcox J, 19 August 1997, unreported - appl.
Minister for Immigration v Petrovski, Burchett, O'Loughlin and Tamberlin JJ, 12 March 1997, unreported - appl.
Minister for Immigration, Local Government and Ethnic Affairs v Ozmanian (1996) 141 ALR 322 - cons.
Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 - cons.
R v Home Secretary; Ex parte Doody [1994] 1 AC 531 - cons.
R v Home Secretary; Ex parte Pierson [1997] 3 WLR 492 - appl.
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: 9 SEPTEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 425 of 1996
ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA
BETWEEN:
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 RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENTAND EX PARTE:
ANA CECILIA ENCISO CHONG
PROSECUTORJUDGE:
BEAUMONT J
DATE OF ORDER:
9 SEPTEMBER 1997
WHERE MADE:
SYDNEY
ORDER:
Proceedings stood over for further directions.
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
BETWEEN:
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 RESPONDENTMINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
SECOND RESPONDENTAND EX PARTE:
ANA CECILIA ENCISO CHONG
PROSECUTOR
JUDGE:
BEAUMONT J
DATE:
9 SEPTEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
The prosecutor, Ana Cecilia Enciso Chong, a Peruvian citizen, arrived in Australia on 8 September 1992 as a visitor under an entry permit, valid until 8 October 1992. On 9 October 1992, Ms Chong was granted a further temporary entry permit, 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 (“the Convention”), as amended by the 1967 Protocol Relating to the Status of Refugees.
That application was refused by a delegate of the Minister for Immigration and Ethnic Affairs (“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. It appears that from 1 September 1994, the "protection visa" replaced all other types of visas issued to refugees. The protection visa is a permanent residence 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, as amended by the Protocol. Since all undecided applications for refugee status had become applications for a protection visa, after 1 September 1994, the Tribunal dealt with Ms Chong's application as one for a protection visa.
On 6 December 1995 the Tribunal decided and found that Ms Chong “is not a refugee” and affirmed the decision under review, “which [has] been reviewed as if it were a decision to refuse a protection visa.”
THE LEGISLATIVE SCHEME
The relevant legislative scheme is substantially enacted in the provisions of ss 46(1)(d), 48A(1) and 48B of the Migration Act 1958 (“the Act”).
By s 46(1)(d) it is relevantly provided that an application for a visa is valid if, inter alia, it is not prevented by s 48(A), which deals with protection visas.
By s 48A(1) it is provided 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); 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.”
By s 48B it is relevantly provided:
“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, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
....
(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 requested to do so by the non-citizen or by any other person, or in any other circumstances.” (Emphasis added).
Division 2 of Part 8 of the Act (ss 475-486) deals with the review by the Federal Court of certain decisions under the Act. By s 475(1) it is provided:
“475. (1) Subject to subsection (2), the following decisions are judicially-reviewable decisions:
(a)decisions of the Immigration Review Tribunal;
(b)decisions of the Refugee Review Tribunal;
(c)other decisions made under this Act, or the regulations, relating to visas.”
By s 475(2)(e) it is provided that certain decisions, including a decision under s 48B, are not "judicially-reviewable decisions". Section 475(2)(e) relevantly provides:
“(2) The following decisions are not judicially-reviewable decisions:
...
(e) a decision of the Minister not to exercise, or not to consider the exercise of, his or her power under section 48B, paragraph 72(1)(c), section 91F, 345, 351, 391, 417 or 454;” (Emphasis added).
By s 485 it is relevantly provided:
“485. (1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.
(2) ...
(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.”
Mention should also be made of the relevant miscellaneous provisions in Part 9 of the Act. By s 496(1) it is provided:
“496. (1) The Minister may, be writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.”
By s 497(1) it is provided:
“497. (1) If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted.”
Section 497(3) provides:
“497. (3) Nothing in subsection (1) or (2) shall be taken to imply that:
(a)a person on whom a power is conferred by or under this or any other Act; or
(b)a delegate of such a person;
is required personally to perform all administrative and clerical tasks connected with the exercise of the power.”
THE CORRESPONDENCE BETWEEN THE PARTIES
By letter dated 29 January 1996, the solicitors for Ms Chong wrote to the Minister as follows:
“We write requesting that you consider exercising your power under s48B(i) of the Migration Act to allow Ms Chong to lodge an application under s48A of the Migration Act.
History
· Ms Chong is a 35 year old Citizen of Peru
· Ms Chong arrived in Australia on 8.9.92
· An Application for Refugee Status was lodged on 23.10.92
· Ms Chong was interviewed by the Department of Immigration on 14.1.93
· Ms Chong’s application was rejected by the Department of Immigration on 20.10.93
· Ms Chong lodged an Application for Review with the Refugee Review Tribunal on 15.11.93
· A decision to reject her application by the Refugee Review Tribunal was made on 8.12.95
Ms Chong claimed Refugee Status on the grounds of her imputed political opinion, in particular her belief that her life was threatened by the Movimiento Revolucionario Tupac Amaru (‘MRTA’).
The Refugee Review Tribunal concluded that the MRTA was no longer a political force in Peru.
The RRT found that:
1.It agreed with the submissions by Ms Chong’s solicitors in relation to the inadequacies of the DORS decision and that the case officer did not understand the nature of the real chance test as expanded in Chan’s case. The RRT stated that ‘the major defect of the DORS decision was that the DORS officer completely failed to find any evidence concerning the MRTA as a movement’. The Tribunal concluded that the case officer did not consider the materials submitted by Ms Chong and as they were material to her claims, this meant that she did not give genuine consideration to the evidence presented on behalf of Ms Chong. The Tribunal took the view that the DORS decision was manifestly unreasonable in the Wednesbury sense.
2.The Tribunal found the evidence of Ms Chong to be highly credible, Ms Chong impressed the Tribunal as having a genuine fear were she to return to Peru.
3.The Tribunal found that Ms Chong’s fear of persecution at the time she left Peru was well founded but that the evidence available to the Tribunal at the time showed that the MRTA no longer existed as a political force in Peru.
4.On the basis of the finding that the MRTA was no longer a political force in Peru the Tribunal found that Ms Chong’s chance of persecution was remote rather than real and that, therefore, she did not have a strong enough claim at the time that the Tribunal made its decision to invoke convention protection as a refugee.
Ms Chong has been able to provide us with a number of new documents to indicate that the MRTA is a political force in Peru and we now enclose copies with certified English translations.
1.News Article published in ‘Careta’ Magazine on 7.12.95, ‘Change of Guard’;
2.News Article published in ‘Careta’ Magazine on 1.11.95, ‘The Resurrection of the MRTA’;
3.Excerpts from an article in ‘El Comercio’ newspaper dated 5.12.95;
4.Excerpts from an article in the ‘Spanish Herald’, ‘Fujimari confirm foreign participation in rebel group in Peru’.
A reading of the four articles clearly indicates that the MRTA continue to be a political force in Peru with new members being recruited, attacks still being made on army bases and extortion demands continuing. The articles also discuss ‘the surprising come back of the MRTA’ and conclude that it is premature to speak to the definite annihilation of the MRTA’. The articles discuss recent kidnapping of innocent people by the MRTA and report comments of the President of Peru confirming the recent arrest of a member of the MRTA and the organisation’s international affiliations.
In light of your guidelines we submit that it is in the public interest for you to exercise your discretion for the following reasons.
1.The RRT has found the applicant to be a credible witness and accordingly we submit that the new information provided by the applicant appears to be credible. In any event, it is objective material and comes from independent sources.
2.The information is convention related as it directly relates to her fear of persecution in relation to her ‘imputed political opinion’.
3.Had this material been available to the Refugee Review Tribunal it may have enhanced the applicant’s chances of making a successful claim having regard to the Tribunal’s comments in their decision.
4.The information was only published subsequent to the RRT hearing and determination. As a result, the applicant could not have presented this material to the Tribunal and so was not able to counter the member’s conclusion that her fears were not objectively well-founded.
We submit that this new material goes to the very foundation of the applicants claim for protection and clearly casts doubt upon the finding of the RRT that the MRTA is no longer operative in Peru. Given the importance of this funding to the rejection of the claim, it is possible that the Tribunal would have found the applicant to be a refugee had it been aware of this new material. Unless the applicant is given a further opportunity to lodge a protection visa application there is the real chance that she will face persecution upon her return to Peru.
If you have any queries please do not hesitate to contact the writer.”
By letter dated 1 March 1996, the first respondent, Jennifer J. Bedlington, First Assistant-Secretary, Australian Client Services Division, replied as follows:
“Thank you for your letter of 29 January 1996 to the Minister for Immigration and Ethnic Affairs, Senator the Hon Nick Bolkus concerning Ms Ana Cecilia Enciso Chong’s attempt to lodge a further application for a protection visa. Your letter has been referred to me for reply.
Section 48A of the Migration Act states that a non-citizen may not make a further application for a protection visa. The Minister has the power to determine that Section 48A does not apply to a particular non-citizen where he considers it is in the public interest to do so. However, the Minister is under no obligation to consider a case.
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.
Thank you for drawing this matter to attention.”
THE MINISTER'S GUIDELINES ON FURTHER APPLICATIONS
The Minister has issued Guidelines, dated November 1995, dealing with further applications for a protection visa and requests for Ministerial intervention under s 48B. The Guidelines state that their purpose 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."
The Guidelines then refer to the provisions of ss 46(1)(d) and 48A, which have been detailed above. It is then stated:
“5. The Minister for Immigration and Ethnic Affairs has a non-compellable and non-delegable power under s 48B(1) of the Act to determine that S48A does not apply to prevent an application for a protection visa by a particular non-citizen, if the Minister considers such action to be in the public interest.
6. The exercise of this discretion would have the effect of enabling the applicant to make a further application for a protection visa.”
The "Scope of the Guidelines" is dealt with relevantly as follows:
“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 18 September 1995, where the previous application has been ‘finally determined’ as defined in the Act.
8. ...
9. Purported further applications containing additional information, including changes in country circumstances, are to be referred in accordance with the agreed format to the Minister’s office for consideration where the information appears to be credible, is Convention related and enhances the applicant’s chances of making a successful claim and either:
· was not known to the applicant during the consideration of the previous application; or
· is not known to the applicant but is now known to the Department and is relevant to the claims; or
· was available to the applicant but was not provided earlier for plausible and compelling reasons. (This includes the situation of a person who previously applied as a member of a family unit of another person, and did not provide any specific claims to refugee status in their own right.)
10. The Guidelines identify two categories of what constitutes additional information:
· claims of Refugee Sur Place; or
· other new claims provided by the applicant (which may or may not have been known to the applicant during consideration of the previous protection visa application).” (Emphasis added).
The Guidelines then deal with "Claims of Refugee Sur Place" and with "Other Claims Provided by the Applicant". It is not necessary for present purposes to refer to this detail.
The Guidelines then deal with "Responsibility of Case Managers" relevantly as follows:
“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.” (Emphasis added).
The Guidelines conclude with a statement dealing with "Allowed Further Protection Visa Applications" as follows:
“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.”
THE HIGH COURT PROCEEDINGS
In March 1996 Ms Chong instituted proceedings in the High Court in its original jurisdiction under s 75(v) of the Constitution. In the proceedings, as amended on 4 April 1996, Ms Chong sought orders to the effect that: (1) a writ of mandamus issue (a) directing Ms Bedlington to bring to the attention of the Minister Ms Chong's application; and (b) directing the Minister to determine whether or not to consider Ms Chong's application of 29 January 1996 for a decision under s 48(B) of the Act according to law; and (2) a writ of prohibition issue out of the Court, directed to the Minister, to prohibit him from acting upon or giving effect to or proceeding further upon the decision of Ms Bedlington of 1 March 1996.
The grounds of the application were stated to be that:
“i.[Ms Bedlington] was obliged to bring [Ms Chong’s] application to the attention of the [Minister];
ii.the decision of [Ms Bedlington] not to refer [Ms Chong’s] application to the [Minister] was unreasonable;
iii.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;
iv.the decision involved a denial of procedural fairness;
v.the [Minister] was obliged to determine whether to consider [Ms Chong’s] application.” (Emphasis added).
The matter came before Gummow J on 4 April 1996. His Honour observed that:
“[T]here does seem to be a question of construction of the legislation at the heart of [the application].... That would be reviewable for error of law, for misconstruction of the law, obviously enough ... That part of the matter is something that could be remitted to the Federal Court ... leaving [in the High Court] the balance of the matter, including [the] Wednesbury unreasonableness grounds?”
Gummow J then made an order for a remitter under s 44 of the Judiciary Act 1903 in these terms:
“2.[T]here be remitted to the Federal Court of Australia... so much of the matter pending in this Court, being the application for orders absolute for writs of mandamus directed to the respondents and for a writ of prohibition directed to the second respondent as rely upon grounds (i) and (v) [in both cases]...”
MS CHONG'S CONTENTIONS
On behalf of Ms Chong the following submissions are now advanced:
This Court has jurisdiction to grant the relief sought by virtue of ss 44 and 39B of the Judiciary Act and s 486 of the Act.
Notwithstanding Ms Chong's application by letter dated 29 January 1996, the application was never considered by the Minister. The effect of Ms Bedlington's reply dated 1 March 1996, was that the matter had been referred to her for reply and that she had determined not to refer the matter to the Minister because it did not fall within "the Minister's guidelines".
As in Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 (reversed on appeal by the Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Ozmanian (1996) 141 ALR 322), there is no suggestion here of any effective delegation under s 496, even if that were possible.
Section 48B of the Act envisages the making of an application by a person directly to the Minister for a determination enabling the person to make a second application for the grant of a visa. The Carltona principle of ministerial delegation or agency is not applicable to the decision of the Minister to permit or refuse an applicant an opportunity to make a second application for refugee status or a visa dependent upon a finding that a person is a refugee (see Carltona Ltd v Commissioners of Works [1943] 2 All ER 560). Reliance is placed by Ms Chong upon the reasoning of Merkel J, at first instance, in Ozmanian. See also now Fazal Din v Minister for Immigration & Multicultural Affairs, Wilcox J, 19 August 1997, unreported.
However, Merkel J’s view that the power to determine whether to consider the exercise of the analogous power in s 417 was delegable, pursuant to ss 496 and 497 of the Act, should not be accepted. Even if Merkel J were correct, Ms Bedlington's decision would, nevertheless, still be invalid as the Minister did not purport to delegate his power to Ms Bedlington.
There are features of the present statutory scheme which compel the conclusion that the Minister is not entitled to delegate the power to determine whether or not to consider the exercise of the power in s 48B. Reliance is placed upon the observations made by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 (at 37-8).
The object of the introduction of amendments to the Act in 1989 was to meet the public criticism that the history of Australia's migration policy, to that point, reflected its highly discretionary character and the situation then prevailing that major changes had resulted from decisions made departmentally, or within the Cabinet, without the benefit of legislation.
Where a decision turns upon an assessment of the public interest, as s 48B(1) provides, it is for the Minister to determine the matter. He is the political head of the Department. The determination of public interest is a matter in the political domain. The proper means of accountability for such assessments is in the political arena. The Minister, and not the official, is best placed to provide that accountability.
The accountability for the determination of the public interest lies in the statutory obligation to provide a statement pursuant to s 48B(3) and this must be exercised personally by the Minister, by virtue of the provisions of s 48B(2). The provision, thus, is couched in terms requiring a personal accounting by the Minister, rather than the presentation by the Minister of a subordinate official's reasoning.
It is true that s 48B(6) absolves the Minister from any responsibility to consider whether to exercise the power in all cases. However, this provision does not allow the Minister to abdicate the responsibility to decide the question by allowing an official to filter out cases which the official believes to be unworthy of a positive decision under s 48B(1). Reference is made in this connection to the provision of s 475(2)(e), mentioned above, which contemplates the making of “a decision of the Minister not to exercise, or not to consider the exercise of, his or her power under section 48B...”
In order that the Minister make a decision whether to consider the exercise of the s 48B(1) power, it is necessary that the application be brought to his attention.
It may be that the Minister is entitled to establish administrative procedures for the processing of applications. However, the Parliament did not intend by these provisions that an official could finally determine that an applicant should not have the benefit of s 48B, thus preventing the Minister from exercising the power in the applicant's favour. On this analysis, there would be no error in the Minister determining not to consider the exercise of the power, having turned his mind to a fair and accurate departmental summary. However, if the Minister mechanically accepts the view of another as to whether an application ought to be considered, then the Minister has unlawfully abdicated his responsibility or has, perhaps, acted under dictation. Reliance is placed in this connection by Ms Chong on R v Stepney Corporation [1902] 1 KB 317 and upon the approach taken and reasoning adopted in Taylor v Public Service Board (NSW) (1976) 137 CLR 208.
The Minister must determine whether he will consider the exercise of the power. Parliament intended that s 48B could be used to provide relief in appropriate cases. Such cases will necessarily raise important issues concerning the health and physical integrity of persons present in Australia, in the context of Australia's international commitments under the Convention. Were the Minister not obliged to decide whether to consider the exercise of the power, the power itself may be rendered obsolete, thus denying the relief Parliament intended to provide in worthy cases.
THE RESPONDENTS’ CONTENTIONS
In summary, the respondents submit that no case for the relief sought has been established. They submit that on the proper construction of s 48B, there is no duty upon the Minister, personally, to consider a request for the exercise of the power available under s 48B(1). Nor is there any enforceable obligation upon Ms Bedlington to refer such a request to the Minister.
The respondents concede that Part 8 of the Act does not deprive this Court of jurisdiction to hear that part of "the matter" that has been referred from the High Court.
However, it is submitted that the letter from Ms Bedlington, dated 1 March 1996, does not, itself, record any "decision" and, in particular, no decision under the Act relating to a visa within the meaning of s 475(1)(c) of the Act. The respondents say, nevertheless, that their concession of the existence of jurisdiction does not mean that Part 8 of the Act is irrelevant to the approach to be adopted to applications for prerogative writs, in relation to matters such as this. They rely upon the observations made by the Full Court in Ozmanian, above (at 347).
The respondents then make the following submissions:
Provisions similar to s 48B are found in ss 91F, 345, 351, 391, 417 and 454 of the Act. Unlike the remainder of the Act, which establishes a detailed code for the manner and circumstances in which visas can be granted and/or powers are generally to be exercised, this group of provisions confers a wide discretionary power upon the Minister, but only in circumstances where some earlier application has been refused. It may be seen, therefore, that the avenue for merits review of the decision has been exhausted, with the exception of s 91F. The exceptional nature of these powers is demonstrated by the detailed requirements with which the Minister must comply, in the event that he decides to exercise the power by tabling a statement before the Parliament. These requirements may be contrasted with the complete absence of any such requirement where such a power is not exercised, and the absence of a duty upon the Minister even to consider exercising the power enacted in s 48B(6). Reference is made to the comments expressed in the Full Court in Ozmanian, per Sackville J (at 345), in relation to s 417. It is said, citing Ward v Williams (1955) 92 CLR 496 (at 505), that where a statute uses permissive language, the "burden of argument" falls upon the party who contends that a duty exists despite the use of such language.
On its proper construction, s 48B does not require every request for the exercise of the power to be brought to the Minister's attention. The power mentioned in s 48B(2) is the power to intervene under s 48B(1); that is, the power to intervene positively in a non-citizen's favour. The distinction between the exercise of that power and the situation of not intervening is illustrated by the onerous procedural requirements, previously mentioned, where the power is exercised.
The Minister is clearly entitled to refuse to consider whether to exercise the power in s 48B. This is confirmed by the provisions of s 475(2)(e), mentioned above. It follows that s 48B does not require every request for the consideration of the power to be brought to the Minister's attention. It further follows that the Minister may issue guidelines which seek to identify the request that he may wish to be brought to his attention or referred to his office for further consideration. In creating a "filter" for these requests for the exercise of the extraordinary power, the Minister is acting through the officers of his Department within the Carltona principle. Reliance is placed in this connection upon the reasoning and approach taken by the High Court in O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 and see also, Fazal Din, above.
In answer to Ms Chong’s submissions, it is maintained that the observations of Merkel J in Ozmanian were not obiter but per incuriam, in that they were made in proceedings which, as the Full Federal Court held, Merkel J had no jurisdiction to hear. Also, it is only the power under s 48B(1) that s 48B(2) dictates must be exercised by the Minister personally, and not every decision or action contemplated by s 48B.
The extraordinary discretion conferred by s 48B and the other sections in identical form, stand in complete contrast to the detailed scheme for the granting of visas set out in the Act. The scheme of "accountability" urged by Ms Chong in her submissions relates only to decisions made by the Minister to exercise the power to intervene in a visa applicant's favour, as that is otherwise an interference with the detailed scheme of the Act. The Act does not contemplate there being scrutiny by Parliament, or by the Courts, of a refusal, constructive or otherwise, by the Minister to intervene. A person who has not persuaded the Minister to intervene has, by definition, already had an application for a visa refused by a delegate and an independent tribunal. Reference is made in these connections to the observations in the Full Court in Ozmanian (at 345) to similar effect.
Ms Bedlington's letter, dated 1 March 1996, must be considered against the statutory background. The letter does no more than record that Ms Chong's request had been assessed as falling outside the Guidelines and, therefore, had not been referred to the Minister.
The present application should be dismissed because: (a) in relation to order (1) sought, s 48B, on its proper construction, does not require that every request for its exercise be brought to the Minister's personal attention; and (b) further, and in the alternative, in relation to order (2) sought, to direct the Minister to "determine whether or not to consider the Prosecutor's application of 29 January 1996”, would be to contravene s 48B(6) of the Act since, by ordering the Minister to undertake such a determination, would effectively be ordering him to embark upon a consideration of whether to exercise his power under s 48B(1). Reliance is placed upon the observations of Lockhart J in Morato v The Minister for Immigration (1992) 39 FCR 401 (at 417-418). Such an order would require the Court to supervise the Minister to ensure that he "determined" whether to consider, or not to consider, the exercise of his power without requiring him to consider whether to exercise his power. It is a distinction without a difference and a writ should not issue in such circumstances, which are analogous to those described by Samuels JA in Tebbutt v Egg Marketing Board of New South Wales [1976] 2 NSWLR 179 (at 188).
CONCLUSIONS ON THE PRESENT ISSUES
(a) The relevant principles of statutory interpretation
The principles by which the courts resolve the question whether a statutory provision by which powers are conferred is of an obligatory, or merely permissive, character, that is to say, whether it is to be taken as requiring, or merely authorising, the exercise of those powers, are well settled. The answer depends primarily on the language of the particular enactment, Parliament usually being understood to have intended a duty in cases where it has used language of an imperative character such as "shall", and a discretion where the language is, on its face, merely permissive, such as "may." Qualifying words may, however, result in permissive language being construed as mandatory. The terms in which the provision is framed are not conclusive, for there may be something in the surrounding circumstances to show that authorising words were intended to operate by way of command. If, therefore, 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 (see “Halsbury's Laws of England” 4th ed. Reissue, contributed by Francis A.R. Bennion, vol 44(I), at par 1337). This inference may well arise where the purpose is to effectuate legal rights and, in particular, rights of individuals rather than rights vested in the public generally. A discretionary power may be accompanied by a duty to exercise it or refrain from exercising it in certain circumstances. There is also a 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. Conversely, mandatory provisions casting duties on public authorities have sometimes been interpreted as permitting the authority a discretion in the manner and extent of the performance of the duty (see Halsbury op cit; see also Wade and Forsyth, “Administrative Law” 7th ed. at 267-8; Mark Aronson and Bruce Dyer, “Judicial Review of Administrative Action” (at 781-3)).
The relevant principles were recently considered by the High Court of Australia in Commissioner of State Revenue (Victoria) v Royal Insurance Australia Limited (1994) 182 CLR 51.
Mason CJ referred (at 80-1) to:
“the principle that mandamus requires the exercise of the relevant statutory discretion, rather than its exercise in a particular way.”
His Honour went on to say (at 81):
"But that principle means no more than that the administrator to whom mandamus is directed will be required to perform the legal duty to the public which is imposed by the statute and ordinarily that duty is limited to exercising the statutory discretion according to law, there being no obligation to exercise the discretion in a particular way. However, if the administrator is required by the statute to act in a particular way and in certain circumstances, or if the exercise of a statutory discretion according to law in fact requires the administrator to decide in a particular way, so that in neither case does the administrator in fact have any discretion to exercise, then mandamus will also issue to command the administrator to act accordingly. Moreover, it has long been recognized that mandamus will issue as a remedy for certain forms of abuse of discretion upon the principle that ‘the improper or capricious exercise of discretion is a failure to exercise the discretion which the law has required to be exercised’.”
Brennan J (with the agreement of Toohey and McHugh JJ), after citing the well-known observations by Earl Cairns LC in Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 (at 222-3), said (at 88):
“The Commissioner is a public officer vested with a power to be exercised for the purpose, inter alia, of discharging her liabilities. When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or to refrain from exercising the power.”
(b) The present question: The true meaning of s 48B
Turning then to the language of the enactment under consideration in the present case, it appears clearly enough from the language of ss 48A(1) and 48B that there was not intended to be imposed upon the Minister any general duty to intervene. But, in my opinion, it is equally clear that the Minister’s power to intervene in a special case was preserved. If s 48B(1) stood alone and if the public interest criteria there mentioned were satisfied, there would, in my view, be a duty imposed upon the Minister to exercise the power of intervention conferred by s 48B(1), in accordance with the principles previously mentioned. If, therefore, s 48B(6) (which on its face may appear to contradict the application of these principles) is read down so as to be confined to the general position, that is to say, to cases other than those to which s 48B(1) applies, the apparent tension between ss 48B(1) and 48B(6) is removed. In other words, if an application appears to satisfy the "public interest" criterion in s 48B(1), then s 48B(6) can have no relevant application.
It is true that this is not to say that s 48B(6), when considered in abstract or general terms, can never have any operation. Its general application is, as I have said, clear enough. But the present question does, I think, fall to be resolved by determining how the apparent tension or conflict between the operation of ss 48B(1) and 48B(6) is to be resolved.
In my view then, the method of resolution of the apparent contradiction between the two subsections is, as I have indicated, to be undertaken as part of a process of statutory interpretation, by which one reads down s 48B(1) as intended to apply in a general sense only.
Support for this general approach may be found in what Lord Browne-Wilkinson has recently described as "the underlying assumption" by the legislator that powers would only be reasonably exercised in accordance with fair procedures, in a context in which it can be taken that Parliament has left it to the judiciary to assess that fairness and reasonableness. See R v Lord President of the Privy Council; Ex parte Page [1993] AC 682 (at 701); and in R v Home Secretary; Ex parte Doody [1994] 1 AC 531 Lord Mustill said (at 560):
“[W]here an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.... The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.”
See the discussion by Christopher Forsyth in "Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review" [1996] 55 CLJ 122 (at 135); R v Home Secretary; Ex parte Pierson [1997] 3 WLR 492, per Lord Steyn at 521, where his Lordship cites Dicey's view that the rule of law has both a procedural and substantive effect; and see, on the rule of law, the Hon Sir Gerard Brennan “The State of the Judicature” address to the 30th Australian Legal Convention, Melbourne, 19 September 1997 (at 2).
The view that the rule of law has both procedural and substantive effect has also been recognised in a recent decision of this Court (see Pickering v Deputy Commissioner of Taxation, Cooper J, 5 September 1997, unreported); and support for the approach on statutory interpretation I favour here may also be found in the application of the old doctrine of “the equity of the statute” (see Nelson v Nelson (1995) 184 CLR 538 per Deane and Gummow JJ (at 552-4); McManus v Scott-Charlton (1996) 140 ALR 625 per Finn J (at 635)); and as to the duty to consider whether, in a fiduciary context, a discretion should be exercised, cf. Finn, “Fiduciary Obligations” (1977) (Ch 8).
I have reached my conclusion as a matter of statutory interpretation, by applying the settled principles to which I have referred, but also in the context of the underlying assumption mentioned by Lord Browne-Wilkinson. I do not find it necessary to consider the argument addressed to me based upon the reasoning at first instance, or on the appeal in Ozmanian. I note that the questions raised in that case by Merkel J at first instance that appear to be relevant to the present matter did not need to be addressed by the Full Court. Nonetheless, since the appeal was allowed, I think the preferable course is that I neither follow, nor decline to follow, the obiter observations made there by Merkel J. In my view, the present question is one of statutory construction and the issue that now arises did not arise in any relevant sense in Ozmanian's Case, either at first instance or on the appeal.
I should add two further observations for completeness. First, I accept that there is no scope in the present case for the application of any doctrine of estoppel. I accept that, in this connection, I am bound by the recent decision of the Full Federal Court in Minister for Immigration v Petrovski, Burchett, O'Loughlin and Tamberlin JJ, 12 March 1997, unreported, that the ordinary doctrine of estoppel is not available in the present kind of case. Secondly, I accept that for my purposes, I must assume that the Guidelines are a valid exercise of administrative power, at least in a general sense. See the discussion by French and Drummond JJ in Minister for Immigration v Gray (1994) 50 FCR 189 (at 206-8). See also, the observations of McHugh JA in Carroll v Sydney City Council (1989) 15 NSWLR 541 (at 550). See also, the discussion by the Full Federal Court (Bowen CJ, Beaumont and Gummow JJ) in Broadbridge v Stammers (1987) 76 ALR 339 (at 343); and on the constitutional validity of a provision conferring a legislative function upon the Minister, see Giris Pty Ltd v The Commissioner of Taxation (1969) 119 CLR 365 and the discussion by Debra Russell in (1988) 16 MULR 548 (at 548-550)).
(c) Relief
A question then arises as to the application of the interpretation I have placed upon the statutory provisions in the present case. The related question also arises of whether any relief should be granted and, in particular, whether any relief should be granted at this stage of the proceedings, given the circumstance that only part of the matter has been remitted to this Court. This is, indeed, a complex question in its own right (cf. Thambythurai v Minister for Immigration, Finkelstein J, 16 September 1997, unreported). I propose to adopt the course taken by Wilcox J in Fazal Din, above; that is to say, I do not make any formal order at this stage. Rather, I will give the parties an opportunity to consider the future course of the proceedings, especially in the light of the circumstance that there has been a partial remitter.
I will therefore order, at this stage, that, in the first instance, the proceedings stand over to a directions hearing for this purpose.
I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont
Associate:
Dated: 9 September 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: 5 August 1997 and 5 September 1997 Date of Judgment: 9 September 1997
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