Le Tran Thuy v Cain

[2000] FCA 898

FEDERAL COURT OF AUSTRALIA

Le Tran Thuy v Cain [2000] FCA 898

JUDICIAL REVIEW – Administrative Decisions (Judicial Review) Act, s 6 – whether conduct engaged in for purpose of making unreviewable decision itself reviewable

JUDICIAL REVIEW – Administrative Decisions (Judicial Review) Act, s 7 – whether failure to make substantive decision by reason of declining jurisdiction involves delay in making substantive decision which is unreasonable

MIGRATION – Migration Act, s 485 – exclusion of Federal Court judicial review jurisdiction under other laws – whether jurisdiction excluded only in respect of valid decisions

MIGRATION – cancellation of visa – satisfaction that visa condition not complied with – whether achievement of such satisfaction is decision within meaning of Administrative Decisions (Judicial Review) Act – whether review under Administrative Decisions (Judicial Review) Act of achievement of satisfaction excluded from review by Migration Act, s 485

MIGRATION – Migration Act, s 485 – whether Tribunal decision declining jurisdiction reviewable by Federal Court under Migration Act

JUDICIAL REVIEW – discretion to refuse to grant remedy – whether discretion may be exercised without full investigation of merits

JUDICIAL REVIEW – discretion to refuse to grant remedy – successive applications, each one seeking to invoke different head of jurisdiction in respect of essentially similar claims

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 6(1), 7(1), 11(1)(c) and (3), 16

Judiciary Act 1903 (Cth)
Migration Act 1958 (Cth), ss 116(1)(b), 475, 478, 480, 485, 486

Le Tran Thuy v Minister for Immigration and Multicultural Affairs [1999] FCA 1598 considered
Lamb v Moss (1983) 49 ALR 533 referred to
Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829 referred to
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 referred to
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 applied
Thongchua v Attorney-General (1986) 11 FCR 187 applied
Kelly v Watson (1985) 10 FCR 305 applied
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 referred to
Barzideh v Minister for Immigration and Ethnic Affairs (1997) 72 FCR 337 referred to

LE TRAN THUY v MICHAEL CAIN & ORS
N1449 of 1999
KATZ J
6 JULY 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1449 of 1999

BETWEEN:

LE TRAN THUY
Applicant

AND:

MICHAEL CAIN
First Respondent

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent

MIGRATION REVIEW TRIBUNAL
Third Respondent

JUDGE:

KATZ J

DATE OF ORDER:

6 JULY 2000

WHERE MADE:

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondents’ costs of the proceeding.

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	N1449 of 1999

BETWEEN:

LE TRAN THUY
Applicant

AND:

MICHAEL CAIN
First Respondent

MINISTER FOR IMMIGRATION
& MULTICULTURAL AFFAIRS
Second Respondent

MIGRATION REVIEW TRIBUNAL
Third Respondent

JUDGE:	KATZ J
DATE:	6 JULY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the Court an application which seeks to invoke this Court’s jurisdiction both under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the JRA”) and under the Judiciary Act 1903 (Cth) (“the JA”).

2. It is convenient, before turning to the content of that application, to summarise the background to, and the history of, an earlier proceeding in the Court.

3. In early 1999, Mr Le Tran Thuy (“the applicant”) was the holder of a student visa which was valid until 5 November 2000.  On 12 March 1999, an officer acting on behalf of the Minister for Immigration and Multicultural Affairs (“the officer” and “the Minister” respectively) decided to cancel the applicant’s visa (“the visa cancellation decision”).  The applicant was immediately notified of the visa cancellation decision.  The visa cancellation decision was made in reliance on par 116(1)(b) of the Migration Act 1958 (Cth) (“the Act”), which provided that a visa might be cancelled on satisfaction that its holder had not complied with a condition of it. The officer was satisfied that the applicant’s student visa had been conditional both on his studying and on his not undertaking paid work and was further satisfied that the applicant had not complied with either of those conditions.

4. On 22 March 1999, the applicant sought to apply to the Immigration Review Tribunal (“the Tribunal”) for review of the visa cancellation decision.  However, on 24 March 1999, an officer of the Tribunal wrote to the applicant, stating that, because his application was out of time, the Tribunal was unable to accept it and further stating that “the Tribunal has deemed your application to be ineligible for review” (“the jurisdiction-declining decision”).

5. On 9 April 1999, the applicant filed an application in this Court, seeking review both of the visa cancellation decision and of (what was alleged to be) the Tribunal’s jurisdiction-declining decision. The jurisdiction of the Court sought to be invoked by the application to it was solely that conferred on it by s 486 of the Act, which provided:

   “The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution.”

6. The Minister (who was the sole respondent to the application: see s 480 of the Act) objected to the competency of the application made to this Court on the basis that neither decision identified in the application was a “judicially-reviewable decision[ ]” within the meaning of s 475 of the Act. That section defined both those decisions which were (subs (1)) and those decisions which were not (subs (2)) judicially-reviewable decisions for the purposes of (relevantly) s 486 of the Act. (Subsection 475(1) of the Act was expressly made subject to subs 475(2) of the Act, so that a decision which fell within both provisions was not a judicially-reviewable decision.) I have been told on the applicant’s behalf in the current proceeding that, before the end of June 1999, the applicant was aware of the Minister’s position as to the competency of his April 1999 application.

7. The question of the competency of the application was argued before Branson J on 4 August 1999. I have been told on the applicant’s behalf in the current proceeding that the applicant made no application, whether before or concurrently with that argument, to amend his April 1999 application by seeking to invoke any alternative jurisdiction to entertain that application which this Court might have under either the JRA or the JA.

8. On 18 November 1999, her Honour gave her reasons for having concluded that the application was incompetent (see Le Tran Thuy v Minister for Immigration and Multicultural Affairs [1999] FCA 1598 (unreported)) and ordered that counsel be heard on 2 December 1999 as to the appropriate orders to be made in light of her reasons. On 2 December 1999, her Honour ordered that the application be dismissed and further ordered that her dismissal order take effect at the close of business on 17 December 1999.

9. As to the visa cancellation decision, her Honour drew attention in her reasons for judgment to the circumstances that, at the relevant time, par 475(2)(c) of the Act provided that decisions which were reviewable by the Tribunal were not judicially-reviewable decisions and that, also at the relevant time, as a result of other provisions of the Act and of regulations made thereunder, a decision to cancel a visa was one which was reviewable by the Tribunal. It therefore followed that the Federal Court had no jurisdiction under s 486 of the Act with respect to the visa cancellation decision. (See generally [6]-[12] of her Honour’s reasons.)

10. As to the jurisdiction-declining decision, her Honour expressed the view in her reasons for judgment that the letter of 24 March 1999 from the officer of the Tribunal to the applicant did not establish that it had been the Tribunal (as opposed to one of its administrative officers) which had made that decision.  In spite of the fact that that letter had said (my emphasis) that “the Tribunal has deemed your application to be ineligible for review”, her Honour said, “Nothing on the face of the letter suggests that the applicant’s application for review ever came to the attention of the Tribunal itself”. In those circumstances, her Honour’s conclusion naturally was that the jurisdiction-declining decision had been made by an administrative officer of the Tribunal. It therefore followed, according to her Honour, that the jurisdiction-declining decision did not fall within par 475(1)(a) of the Act, which provided at the relevant time that decisions of the Tribunal were judicially-reviewable decisions. Nor, her Honour held, did the Tribunal’s administrative officer’s jurisdiction-declining decision fall within par 475(1)(c) of the Act, which provided at the relevant time that decisions (other than decisions of the Tribunal and of the Refugee Review Tribunal) made under the Act or the regulations “relating to visas” were judicially-reviewable decisions.  That was because the jurisdiction-declining decision had “only incidentally and fortuitously related to a visa”; instead, assuming it to have been made under the Act in the relevant sense, it had related to compliance with the time limit for applying for review by the Tribunal of decisions. (See generally [13]-[15] of her Honour’s reasons.)

11. The applicant did not appeal from the decision of Branson J, but, on 16 December 1999, made the present application, seeking to invoke, as I have already said, this Court’s jurisdiction both under the JRA and under the JA. In the present proceeding, there were two respondents additional to the Minister, namely, the officer who had made the visa cancellation decision and the Migration Review Tribunal, which had, since the Tribunal’s administrative officer’s letter of 24 March 1999, replaced the Tribunal. The focus of the application was the same two decisions as those which had been nominated in the earlier, incompetent, application (although another decision by the officer, as well as conduct by the officer, proposed conduct by both the officer and the Minister and a failure by the Tribunal to make a decision were identified in the application as also being challenged under the JRA). Further, in spite of Branson J’s finding in the first proceeding that it had not been the Tribunal, but rather some administrative officer of the Tribunal, that had made the jurisdiction-declining decision, it was again alleged by the applicant that that decision had been made by the Tribunal.

12. As in the earlier proceeding, objection was taken to the competency of the application. However, that objection was not to the competency of the whole of the application, as formerly. Instead, it was not disputed by the side of the record on which the Minister was that the jurisdiction-declining decision had been made by the Tribunal itself, rather than by some administrative officer of the Tribunal, and it was further conceded that the challenge to that decision, which challenge sought to invoke only this Court’s jurisdiction under the JA, was competent. Of course, since the respondents’ consent to this Court’s exercise of that particular jurisdiction cannot confer such jurisdiction, it will be necessary for me to consider that jurisdictional issue as well as those raised by the respondents.

13. (It is probably convenient to say now that, since the respondents have not claimed in the present proceeding that the applicant is issue-estopped by Branson J’s earlier finding on the matter from alleging that it was the Tribunal itself which made the jurisdiction-declining decision, I do not consider myself bound to proceed on the basis that her Honour’s earlier finding creates any such estoppel.  Nor do I consider that the rule of comity, to which I adhere, regarding the approach to be taken by single Judges of this Court to earlier decisions of other single Judges of this Court, extends to findings of fact made in those earlier decisions.  Accordingly, I propose to proceed herein on the basis that the jurisdiction-declining decision was made by the Tribunal itself. I do so both because no party has submitted that I should proceed on any other basis and because I accept at face value the assertion in the Tribunal’s administrative officer’s letter of 24 March 1999 that the Tribunal had deemed the applicant’s application to be ineligible for review.)

14. In addition to the issue raised by the respondents of the competency of (part of) the application, the applicant recognised in his application that (assuming in his favour that the Court has jurisdiction under the JRA to entertain his application) he would require an extension of time in order to proceed with it. Although the applicant did not identify which aspects of his application under the JRA would require such extension of time, it is apparent that such extension would be required at least in respect of the challenge to the visa cancellation decision: see par 11(1)(c) and subs 11(3) of the JRA.

15. When the present application came on for hearing before me, I expressed my view that the two matters to which I have referred above, namely, the competency of the application and an extension of time under the JRA, should be dealt with at the outset of the hearing of the application. That view not being dissented from by the parties, that course was followed.

16. Further, as well as hearing submissions on those two matters before any of the other matters raised by the application, I also heard submissions on the matter whether the application should be dismissed in the exercise of the Court’s discretion. By way of elaboration of that third matter, I mention that it is accepted that, in appropriate cases, this Court may exercise its discretion under s 16 of the JRA to refuse to grant relief without conducting a full investigation of the merits of the application (see, for example, Lamb v Moss (1983) 49 ALR 533 at 564 (Bowen CJ and Sheppard and Fitzgerald JJ) and that it is also accepted that a similar approach may be taken in applications invoking this Court’s jurisdiction under the JA (see, for example, Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829 at 832 (Heerey J)). A question arose in the present proceeding whether, given the events to which I have referred in [5] to [8] above, the present proceeding is one in which such discretion should be exercised (assuming, of course, that the proceeding is within jurisdiction and that, to the extent to which any extension of time is needed in order to proceed with it, such extension of time is granted).

17. I turn first to the jurisdictional issue, focusing at the outset on the question whether the visa cancellation decision was reviewable under either the JRA or the JA.

18. For the respondents, it was not submitted that the visa cancellation decision was not prima facie reviewable under both the JRA and the JA, but reliance was placed on subs 485(1) of the Act, which, at the relevant time, provided:

    “In spite of any other law, including … 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….”

19. It was submitted by the respondents that the visa cancellation decision was a decision “covered by subsection 475(2)” of the Act, as had been expressly held by Branson J in the applicant’s first proceeding in the Court, and that therefore, in spite both of the JRA and the JA, this Court had, by reason of subs 485(1) of the Act, no jurisdiction in respect of that decision.

20. For the applicant, it was submitted that subs 485(1) of the Act did not exclude the jurisdiction which this Court would otherwise have had under the JRA and the JA in respect of the visa cancellation decision, because subs 485(1) of the Act should be read by implication as excluding only the jurisdiction which this Court would otherwise have had under the JRA and the JA in respect of valid decisions covered by subs 475(2) of the Act. Since it was here being alleged that the visa cancellation decision, although covered by subs 475(2) of the Act, was invalid, it followed that subs 485(1) of the Act did not prevent this Court from inquiring into the question of the validity of the visa cancellation decision and, if persuaded that it was invalid, giving a remedy in respect of it under either the JRA or the JA.

21. Although I have above encapsulated the applicant’s submission on the proper construction of subs 485(1) of the Act, the applicant was unable to provide me with any reason which I consider satisfactory as to why that provision should be construed as containing the implied limitation for which he contended. He was able to point to neither legislative history nor judicial authority in support of his construction. As I understood it, the only justification which he offered for his construction was that, if it were not accepted, that would mean that a person who had wished to challenge in the Federal Court the validity of a decision which was reviewable by the Tribunal would have needed to go to the Tribunal first.

22. I find nothing in the existence of such a requirement to cause me to depart from what appears to me to be the plain meaning of subs 485(1) of the Act. As the applicant himself conceded before me, in so far as the Tribunal had had conferred on it by the Act a jurisdiction to review decisions, that jurisdiction extended to invalid, as well as valid, decisions: compare Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 (FCA: Bowen CJ and Smithers and Deane JJ). A requirement that a person who had wished to challenge in the Federal Court the validity of a decision which was reviewable by the Tribunal go to the Tribunal first might well have resulted in a satisfactory resolution of the person’s grievance at the Tribunal level, thus relieving the Court of some of the burden of cases under the Act to which it would otherwise have been subject.

23. I therefore accept the respondents’ submission that the present application was incompetent in so far as it sought to challenge the visa cancellation decision.

24. I mentioned earlier that, as well as challenging in his present application the two decisions attacked in his earlier application, the applicant also sought to challenge under the JRA what he identified as another decision by the officer, as well as what he identified as conduct by the officer, proposed conduct by both the officer and the Minister and a failure by the Tribunal to make a decision.

25. I deal next with the additional decision of the officer identified in the present application as one reviewable under the JRA.

26. It is best to introduce that topic by repeating the substance of par 116(1)(b) of the Act. That provision conferred a discretion to cancel a visa, but imposed a condition precedent to the existence of that discretion, namely, that the decision-maker be satisfied that the visa’s holder had not complied with a condition of the visa.

27. The applicant submitted that the achieving of satisfaction by a decision-maker that the visa holder had not complied with a condition of the visa was itself the making of a decision within the meaning of the JRA. It was the achieving of that satisfaction by the officer in the present case which was identified as the additional decision of the officer which was reviewable under the JRA.

28. Of course, even if the achieving of that satisfaction was, prima facie, a reviewable decision under the JRA, it would still be necessary for the applicant to establish that jurisdiction in this Court to review that decision under the JRA had not been excluded by subs 485(1) of the Act. As to that matter, the applicant submitted that such a decision had not been a non‑judicially-reviewable decision covered by par 475(2)(c) of the Act. That provision, it may be recalled, provided that decisions which were reviewable by the Tribunal were not judicially-reviewable decisions. The applicant submitted that neither the Act nor regulations made thereunder conferred on the Tribunal jurisdiction to review the achieving of a state of satisfaction by a decision-maker that a visa condition had not been complied with.

1. On that aspect of the case presently under discussion, the respondents submitted that the so-called decision that a visa condition had not been complied with was, according to established principles, not a decision within the meaning of the JRA, but that, even if it was, the decision that a visa condition had not been complied with was, because of par 475(2)(c) and subs 485(1) of the Act, just as unreviewable under the JRA as was the visa cancellation decision itself.

2. Of those two submissions by the respondents, I reject the first, but accept the second.

3. As to the first of those submissions, I am unable to distinguish the achieving of a state of satisfaction that the holder of a visa has not complied with a condition of it from the achieving of a state of satisfaction by the Australian Broadcasting Tribunal under subpar 88(2)(b)(i) of the Broadcasting Act 1942 (Cth) that commercial licensees were no longer fit and proper persons to hold licences which they held. The achieving of the latter state of satisfaction was, of course, held by the High Court of Australia, in the leading case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, to amount to the making by the Australian Broadcasting Tribunal of a decision under the JRA. As Mason CJ said (at 339),

   “It follows from my interpretation of the word ‘decision’ that the Federal Court had jurisdiction under s. 3(1) of the A.D.(J.R.) Act to review the Tribunal’s finding that the licensees were no longer fit and proper persons to hold their broadcasting licences under the Act. Although that decision was an intermediate determination made on the way to deciding whether to revoke or suspend the licences or to impose conditions on them, it was a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision.”

4. As to the second of those submissions, while I accept that the Act and regulations made thereunder did not, in terms, make the achieving of a state of satisfaction that the holder of a visa had not complied with a condition of it a decision reviewable by the Tribunal, they did nevertheless make the achieving of that satisfaction a decision reviewable by the Tribunal.  They did so by making it reviewable by the Tribunal when the achieving of that satisfaction had matured into the cancellation of a visa, something to which the achieving of that satisfaction was “an essential preliminary”, to quote Mason CJ in Bond. That, in my view, was sufficient to bring the decision that a visa holder had not complied with a condition of it within par 475(2)(c) of the Act and thus to exclude that decision from review under the JRA by reason of subs 485(1) of the Act.

5. An analogy to the approach which I have just taken may be found in Thongchua v Attorney-General (1986) 11 FCR 187, a decision of a Full Court of this Court. The JRA excludes from review thereunder decisions of the Governor-General. Section 19A of the Crimes Act 1914 (Cth) conferred on the Governor-General a particular decision-making power, which decision-making power was expressed to be one “acting with the advice of the Attorney-General”.  It was argued by the appellant in Thongchua that the giving of the Attorney-General’s advice was the making of a reviewable decision under the JRA, nonetheless though the making of a decision by the Governor-General, acting with that advice, was not. The Full Court, however, rejected that argument. In joint reasons for judgment, Neaves and Burchett JJ pointed out (at 192) that,

   “… the advice of the Attorney-General is only involved as a part, indeed a necessary part, of the ordinary process of the making of such a decision by the Governor-General.   It is therefore within a fair understanding of what is comprehended by the reference in the Judicial Review Act to ‘a decision by the Governor-General’ …”

6. In the same way, I consider that the achieving of a state of satisfaction that a visa holder has not complied with a condition of it “is only involved as a part, indeed a necessary part, of the ordinary process of the making of” a decision to cancel that visa.  “It is therefore within a fair understanding of what is comprehended by the reference in” par 475(2)(c) of the Act to a decision reviewable by the Tribunal.

7. I deal next with a particular type of conduct alleged to have been engaged in by the officer and to have amounted to reviewable conduct under the JRA. It was identified in the application as conduct preparatory to the officer’s making of his decision that the applicant had not complied with conditions of his visa.

8. I can deal quite shortly with the applicant’s attempt to obtain review under the JRA of that identified conduct. The chapeau of subs 6(1) of the JRA authorises an aggrieved person to apply for review of conduct engaged in (or proposed to be engaged in) by another person only if that conduct has been engaged in (or is proposed to be engaged in) “for the purpose of making a decision to which this Act applies”.  As I have already held that the officer’s decision that the applicant had not complied with conditions of his visa was not a decision to which the JRA applies, it therefore follows that any conduct by the officer preparatory to the making of that decision is likewise not reviewable under the JRA. (I should add here that I did not understand the applicant to resist before me the conclusion that, if the decision that the applicant had not complied with conditions of his visa was not reviewable under the JRA, then neither was any conduct engaged in preparatory to the making of that decision.)

9. In his application, the applicant identified one further type of conduct said to have been engaged in by the officer and one type of conduct said to be proposed to be engaged in by both the officer and the Minister, each of which was said to be reviewable under the JRA. The conduct engaged in was said to have been the recording by the officer of his visa cancellation decision and the conduct proposed to be engaged in was said to be the conduct whereby the applicant would be removed from Australia.

10. As to both that conduct and that proposed conduct, I take an attitude similar to that which I have already taken to any conduct preparatory to the making of the decision that the applicant had breached conditions of his visa. As I have already mentioned, the only conduct or proposed conduct which is reviewable under the JRA is conduct either engaged in or proposed to be engaged in for the purpose of making a decision to which the JRA applies. The applicant was unable to point before me to any decision to the making of which the JRA would apply and for the purpose of the making of which either the identified conduct of recording the visa cancellation decision had been engaged in or the identified proposed conduct of removing the applicant from Australia would be engaged in. Indeed, the applicant appeared to me rather to give the game away in that respect during his submissions before me, when he said, in respect of the conduct and proposed conduct which I am presently discussing, that respectively it was “consequential” on and would be “consequential” on the visa cancellation decision. That exactly reverses the relationship between conduct or proposed conduct, on the one hand, and a decision, on the other, which is required under the JRA in order that the conduct or proposed conduct be reviewable under the JRA.

11. I deal next, so far as the jurisdictional issue is concerned, with the Tribunal’s failure to make a decision, which failure was identified in the present application as one reviewable under the JRA.

12. The failure concerned was the failure by the Tribunal to make a decision, on its merits, on the applicant’s application to it for review of the visa cancellation decision. It is apparent that the applicant, in complaining of that failure, was seeking to achieve the same outcome as he was seeking to achieve by complaining of the Tribunal’s decision wrongfully to decline jurisdiction on his application for review of the visa cancellation decision. It is further apparent that, in dressing up his complaint as a failure to make a substantive decision, rather than as the making of a decision to decline jurisdiction, the applicant was seeking to rely on subs 7(1) of the JRA.

13. As to this aspect of the applicant’s case, my conclusions are as follows: first, I accept that the Court has jurisdiction with respect to it; and, secondly, this aspect of the applicant’s case must necessarily fail on the merits, because it misconceives the effect of subs 7(1) of the JRA. The only ground of review created by subs 7(1) of the JRA in respect of a failure to make a decision is that “there has been unreasonable delay in making the decision”.  In a case in which a decision-maker has failed to make a substantive decision because the decision-maker has decided that there is no jurisdiction to make that substantive decision (as in the present case), it is wrong to say that there has been unreasonable delay by the decision-maker in making the substantive decision: see Kelly v Watson (1985) 10 FCR 305 at 311-12 (Neaves J).

14. What I have thus far said on the jurisdictional issue leaves only for consideration the question of this Court’s jurisdiction under the JA to review the Tribunal’s jurisdiction-declining decision, a jurisdiction which the respondents did not dispute that this Court had.

15. In spite of the fact that the respondents did not submit that this Court did not have jurisdiction under the JA to review the Tribunal’s jurisdiction-declining decision, I am unable to see how the Court does have such jurisdiction. Subsection 485(1) of the Act excluded at the relevant time any jurisdiction which this Court would otherwise have had under the JA to review decisions which were judicially-reviewable within the meaning of (relevantly) par 475(1)(a) of the Act. Paragraph 475(1)(a) of the Act, as I have already mentioned, made decisions of the Tribunal judicially-reviewable. I can see no basis for excluding from the reach of par 475(1)(a) of the Act a decision by the Tribunal declining jurisdiction, especially when decisions by decision-makers to decline jurisdiction are treated as decisions for the purposes of the JRA: see Kelly. I add that the applicant accepted before me (consistently with the position which he had taken in his first application to this Court) that the Tribunal’s jurisdiction-declining decision did fall within par 475(1)(a) of the Act, but submitted at the same time that, on the proper construction of subs 485(1) of the Act, that decision was not excluded from review under the JA. Of course, I have already rejected that submission by the applicant as to the proper construction of subs 485(1) of the Act.

16. (It may be appropriate here to mention that the respondents drew my attention during argument on the aspect of the matter presently under discussion to the decision of Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301 at 308. There, Goldberg J said that, in order to be a “decision” within par 475(1)(a) of the Act, the decision concerned must deal with and determine in a final way a substantive application by an applicant; it must not be a decision which is merely procedural in nature. I find nothing in such a test which would exclude from par 475(1)(a) of the Act a decision of the Tribunal declining jurisdiction, nor was Jayasinghe concerned with such a decision. I add that if I had been of the view that what Goldberg J had said in Jayasinghe had conflicted with what Neaves J had decided in Kelly, then I would have preferred what Neaves J had decided.)

17. In the result, I have decided that, of the decisions, conduct, proposed conduct and failure to make a decision said by the applicant to be reviewable under the JRA or the JA or both in the present proceeding, the only thing which is reviewable is the failure by the Tribunal to make a decision, on its merits, on the applicant’s application for review of the visa cancellation decision. At the same time, however, I have pointed out that, although this Court has jurisdiction under the JRA to review that failure, no ground of review can be made out with respect to it. In circumstances in which I am satisfied that the applicant’s challenge under the JRA to the Tribunal’s failure to make a decision, on its merits, on the applicant’s application for review of the visa cancellation decision must necessarily fail, I consider it unnecessary to decide whether any extension of time is necessary in order to permit that challenge to proceed: see Kelly at 310. However, if such an extension of time is necessary, I decline to grant it, taking the view which I do that the challenge must necessarily fail in any event. If, on the other hand, no such extension of time is necessary, then it is obviously appropriate that I dismiss the application, in so far as the present aspect of it is concerned, on the ground that no reasonable basis for it is disclosed. I add that, when I drew his attention to the decision in Kelly, the applicant conceded that his application, in so far as the present aspect of it is concerned, must necessarily fail.

18. Given the conclusions which I have expressed above, it is unnecessary for me to express a conclusion as well on the third of the three matters to which I referred above as having been debated before me.  However, in case there should be an appeal from my decision and I should be held to have been wrong in any of the conclusions which I have expressed above, I propose to say something as to whether I should, in my discretion, dismiss the application by reason of the events to which I have referred in [5] to [8] above.

19. For the respondents, the argument in favour of discretionary dismissal of the application was essentially that applicants should not be permitted to split their case as the present applicant was seeking to do. The decisions of which the applicant had complained in the first proceeding had been taken in March 1999. The applicant had chosen in his first proceeding, commenced in April 1999, to seek to invoke only one head of this Court’s jurisdiction in respect of those decisions, that under the Act. Then, although on notice before the end of June 1999 that the Minister disputed the availability of that head of jurisdiction in respect of those decisions, the applicant took no steps to apply to amend his application to seek to invoke alternative heads of jurisdiction in respect of those decisions either before or at the hearing, in August 1999, of the competency argument. Only when the Minister’s competency argument was held, in November 1999, to have succeeded, did the applicant seek, in December 1999, to put before the Court an application attempting to invoke alternative heads of jurisdiction to challenge in substance the same decisions as those which he had sought to challenge in this Court from the outset.

20. The applicant’s response to the respondents’ argument was as follows: the applicant should not be faulted for not having sought to invoke the jurisdiction of this Court under the JRA and the JA at the outset of his first proceeding; there was a short, inflexible, time limit for beginning proceedings in this Court under the Act (see par 478(1)(b) and subs 478(2) of the Act), whereas the time limit under the JRA, though short, was at least flexible and there was no time limit at all under the JA; in those circumstances, it was only to be expected that the applicant would, in the first instance at least, devote his energies solely to seeking to invoke the jurisdiction under the Act in respect of the two decisions; then, when the applicant learnt of the Minister’s attitude to his attempted invocation of this Court’s jurisdiction under the Act in respect of those decisions, there was insufficient time between his learning of that objection to competency and the hearing of the argument on competency for him to apply to amend his application; in any event, he was reasonably entitled to predict that it would be held that the Court did have jurisdiction under the Act and to decline to incur the extra cost of an application to amend; finally, it was submitted that the allegations made against the officer in the present proceeding were so serious that the Court would be loath to dismiss the proceeding on discretionary grounds without a full investigation of the merits of those allegations.

21. If it were necessary for me to reach a decision on the debate which I have just summarised, I would have been persuaded by the respondents’ submissions that the present is a case in which it is appropriate to exercise my discretion now to dismiss the application.  I do not consider that an applicant should be able to bring successive proceedings challenging in substance the same administrative decisions, relying in each successive proceeding on a different potential head of the Court’s jurisdiction, certainly not when the applicant has been made aware in a timely way in the first of those proceedings that the respondent denies that the Court has the jurisdiction sought at first to be invoked.  An example of the consequences of such an ability would be that, in July 2000, there would still remain outstanding the question of the validity of decisions made as long ago as March 1999, nonetheless though those decisions were made in respect of a visa which, if not cancelled, would have expired in any event in November 2000.

22. As to particular submissions made by the applicant on the discretionary issue, I wish to add to what I have already said the following particular comments: first, the applicant’s submissions much overstated the necessity imposed on him by s 478 of the Act to concentrate all of his efforts at the outset on an application seeking to invoke this Court’s jurisdiction under the Act, given that it is accepted that an application under the Act is effective even if it contains no grounds of review at all (see Barzideh v Minister for Immigration and Ethnic Affairs (1997) 72 FCR 337 at 341 (Hill J)); secondly, a period of over one month between learning of the Minister’s objection to the competency of his application and arguing the competency issue was not, in my view, too short a period within which to expect the applicant to be ready to apply for an amendment of his application in an attempt to invoke this Court’s jurisdiction under the JRA and JA; and, finally, given that the allegations made against the officer in the present proceeding are disputed and I am not in a position presently to conclude whether or not they are likely to be correct, their mere making is not a matter which weighs against the discretionary dismissal of the proceeding.

23. In all the circumstances, I will order that the present application be dismissed with costs. 

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.

Associate:

Dated:             6 July 2000

Counsel for the Applicant:	Mr R B Wilson
Solicitors for the Applicant:	Janice Vu & Associates
Counsel for the Respondents:	Mr G Johnson
Solicitor for the Respondents:	Australian Government Solicitor
Dates of Hearing:	30 June and 5 July 2000
Date of Judgment:	6 July 2000