Ma, Hip Kwok v Minister for Immigration and Ethnic Affairs

[1995] FCA 846

IN THE FEDERAL COURT OF AUSTRALIA     ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY    )  NG 536 of 1995
  )     
GENERAL DIVISION  )     

BETWEEN:                  HIP KWOK MA

Applicant

AND:                   MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

Respondent

Coram:      Davies, J
Place:                  Sydney
Date:          13 October 1995

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.      The application be dismissed. 

2.The applicant pay the respondent's costs of the application.

NOTE:        Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA     ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY    )  NG 536 of 1995
  )     
GENERAL DIVISION  )     

BETWEEN:                  HIP KWOK MA

Applicant

AND:                   MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

Respondent

Coram:      Davies, J
Place:                  Sydney
Date:          13 October 1995

REASONS FOR JUDGMENT
  EX TEMPORE

This is an application which seeks an order for judicial review. 

The amended application reads:-

"1Application to review the decision of the Minister for Immigration and Ethnic Affairs dated 5 July, 1995 that the Applicant's Application for a Review of a decision by the Minister's Delegate dated 31 May, 1995, by the Immigration Review Tribunal be refused."    

The relevant facts are that on 26 May 1995 the applicant lodged an application for Bridging Visa E subclass 050.  The application stated that the applicant had a valid ticket to depart from Australia and the date of expiry of the booking was 30 May 1995.  The applicant stated in his application that he was departing voluntarily.

That application was considered under the provisions of subclass 050 which are set out in Schedule 2 of the Migration Regulations 1994. One of the conditions which must be met is that the Minister must be satisfied that "the applicant is making, or is the subject of, acceptable arrangements to depart Australia."

It appears to be on that basis that a decision was made on 26 May granting a Bridging Visa E-Subclass 050 expiring on 30 May 1995.  The visa specifically required the applicant to depart from Australia before 31 May 1995, that is by 30 May 1995. 

On 29 May 1995, however, a further application was lodged.  This was an application appropriate for changing Bridging Visa conditions or for replacing a Bridging Visa which had ceased. 

The application that was made was supported by a letter from Mr David de Pinna which set out certain circumstances, including that the applicant and his brother had purchased a business, the Wi Ling Restaurant, for $10,000 three years ago.  It referred to the prejudice which would be suffered by the brother, an Australian permanent resident, if the applicant should have to leave Australia on 30 May 1995. 

That matter was dealt with on 31 May.  The officer dealt with the matter as if there were an application for a new Bridging Visa.  A letter addressed to Mr
de Pinna from a Ms C.B. O'Connor, Manager, Compliance, Bankstown office for the Department, said:-

"As Mr Ma already holds a bridging visa E I have considered his application as an application for a briding (sic) visa E with a variation of conditions." 

The letter went on to say:

"Mr Ma's application for a bridging visa E has been approved however there is no variation in conditions."

Despite the apparent approval, it does not appear that any time was given or that any further visa issued. 

Mr Ma then lodged an application for review with the Immigration Review Tribunal.  That was responded to on 2 June 1995 by a Deputy Registrar who said that:

"A decision on bridging visa Class E, where the person is not in immigration detention can only be reviewed by the Tribunal after the decision has been internally reviewed by a review officer within the Migration Internal Review Office (MIRO) of the Department of Immigration, and Ethnic Affairs.

Further, a review of bridging visa Class E can only be considered by the Tribunal if that bridging visa has not been approved.

I am arranging for the $300 application fee to be refunded and you should receive a cheque within the next few weeks.  I can be contacted on 289 0237 if you have any enquiries."

A further letter of the Deputy Registrar read:-

"I am replying to your letter of 14 June 1995 about Mr Hip Kwok Ma's bridging visas.

Our view, as expressed in our letter of 2 June 1995, remains unchanged.  If Mr Ma was not in immigration detention on 1 June 1995, the date on which the application was lodged to the Tribunal, the decision on his bridging visa (if it was a reviewable decision) must first be subject to an internal review before the jurisdiction of the Tribunal arises.  I note that your letter fails to deal with this issue.

As an aside, I understand that it is the Department's view that the only way to change visa conditions is for another visa to be granted with different conditions (which then replaces the previous visa) and that is what the Minister's delegate appeared to do in this case.

If you wish to discuss this matter, please ring me on 289-0222.  We remain willing to consider the matter further on receipt of submissions that are relevant to the issues."

An application was then made to the Minister for a decision more favourable to the applicant than that made by the Immigration Review Tribunal.  The response by a senior adviser of the Minister on 5 July 1995 was in these terms:-

"Thank  you for your letters of 14 and 22 June 1995 to the Minister for Immigration and Ethnic Affairs, Senator the Hon Nick Bolkus, on behalf of Mr Hip Kwok Ma concerning conditions attached to his bridging visa.  Senator Bolkus has asked me to reply on his behalf.

The Immigration Review Tribunal (IRT) is only able to review a decision to refuse an applicant a bridging visa.  The IRT has no jurisdiction to review the conditions which an Officer of the Department of Immigration and Ethnic Affairs may attach to a bridging visa.

The Minister's power to intervene under migration legislation is limited to those cases which have been reviewed by bodies such as MIRO and the IRT.  As this matter cannot be reviewed the Minister has no power to consider the case.

Thank you for drawing this matter to attention."

Part 5 of the Migration Act 1958 (Cth) provides for the review of decisions. Section 337 contains a definition of "Part 5 reviewable decision".

Many of the paragraphs of that definition refer to decisions "to refuse to grant" a visa, or "to cancel a visa". Division 2 of Part 5 provides for the internal review of decisions. Division 3 provides for review of decisions by the Immigration Review Tribunal. Section 346 defines "IRT-reviewable decisions" to include:

"(a)decisions made by a review officer under s.341;"

Section 341 deals with the powers of an internal review officer in respect of a decision to confirm, vary or remit the matter for reconsideration.  Other relevant provisions of the Migration Act are:-

"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.

(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 345, 351, 391, 417 or 454

...";

and

"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.

..." 

In my opinion the application which was made on 29 May 1995 was not an application for review but was in effect an application for a new visa on quite different conditions.  It was expressed to be an application for the variation of the conditions of the existing bridging visa which had been granted.  But the existing bridging visa was almost at the expiry of its term and had been granted on the basis that arrangements had been made to depart Australia by the end of 30 May 1995.

The application that was made on 29 May 1995 was, I think, not an application to vary that visa but an application to obtain a visa on quite different terms.  The application was in effect dismissed as the officer who considered the matter on 31 May 1995 looked at the possible categories under subclass 050.  It was thought that the only appropriate matter which had been raised was that which appeared in subclause 050.212(8) which requires that the Minister be satisfied that the applicant has a compelling need to work.  The officer was not satisfied that there was any such compelling need to work.

In my opinion, the decision of 31 May 1995 was not a decision which reviewed the earlier decision to grant the visa.  I have already mentioned that "Part V reviewable decisions" are for the most part defined as decisions to refuse to grant a non-citizen or to cancel a visa in certain conditions.  The grant of the Bridging Visa as sought on 26 May 1995 was not a refusal and there could have been no internal review of that decision. 

The limitation of appeal rights to refusals is seen in other statutes and regulations.  Examples of cases where applications to vary conditions were thought not to amount to refusals are Re Dennis and Secretary, Department of Transport (1979) 2 ALD 255 and in Re Hewitt and Secretary, Department of Transport (1982) 4 ALD 547.

In my opinion, the original grant of the visa on 26 May 1995 in no way amounted to a refusal of the visa because it amounted to the grant of a visa as sought.  The application which was made to vary the conditions, even if it really was an application seeking a variation, would have been an application to vary during the term of the visa and would not have amounted to a decision refusing to grant a visa. 

In my opinion, what occurred on 29 May was that there was a new decision taken with what was, in effect, a new application for a visa. That was an original decision and not a decision by an officer in the course of internal review. It was a primary decision. It follows from that that the Deputy Registrar of the Immigration Review Tribunal was correct in advising that the Immigration Review Tribunal did not have jurisdiction to consider the matter. The Tribunal's jurisdiction was founded on there having been a decision which had been the subject of internal review. It further followed that there was no power in the Minister to act under s.351 as there had not been a decision of the Immigration Review Tribunal. In my opinion, the letter from the Minister's office correctly set out that the Minister had no power to act under s.351 of the Migration Act. 

I need not deal with the very nice question which might arise were I to come to the view that there had been some error in the interpretation of the Act and that the Minister in truth had power to act under s.351.

Mr A. Markus, who appeared for the Minister, argued that ss.475 and 485 together exclude from judicial review decisions of the Minister not to exercise or not to consider the exercise of his or her power under s.351. But had the position been that the Minister declined to make a decision because of a mistaken idea that he did not have power, I think it would have been very a very nice and perhaps very difficult question as to whether the Court would exercise jurisdiction in some way so as at least to declare that the power to make a decision existed.

I do not decide this question. It seems to me that the letter that was sent was correct. The Minister did not have power to act under s.351.

For those reasons the application must be dismissed.  The applicant should pay the respondent's costs of the application.

I certify that this and the 7 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:     13 October 1995

Counsel for the applicant:  Mr D. de Pinna

Appearing for the respondent:  Mr A. Markus

Solicitor for the respondent:  Australian Government Solicitor

Date of hearing:  13 October 1995

Date of judgment:  13 October 1995