Mahboob, F B v Minister for Immigration & Ethnic Affairs

[1996] FCA 292

CATCHWORDS

Immigration - protection visas - application for review of decision of Refugee Review Tribunal - whether Court has jurisdiction - examination of impact of substantial amendments made to the Migration Act 1958 by the Migration Reform Act 1992

Practice and procedure - Minister's concession that Court has jurisdiction - whether that concession may be accepted - whether lack of jurisdiction not manifest

Statutory Interpretation - use of extrinsic material - history and context of legislation - legislative intention

Statutory Interpretation - presumption against retrospectivity - whether rights concerned are substantive or procedural

Practice & procedure - supplementary reasons for judgment - principal basis of judgment not the subject of submissions by counsel - making or orders deferred to allow further submissions

Practice & procedure - whether Court should express a view on the merits where no jurisdiction to deal with application

Costs - correspondence between parties - suggestion that the Minister enticed the applicant to discontinue proceedings in the High Court - view of Minister as to Court's jurisdiction - whether merely an offer which the applicant's advisers were well able to evaluate for themselves

Words and phrases - "review"

Migration Act 1958 s 475(2)(d), Part 2 Division 3 subdivision AB
Migration Reform Act 1992 s 39
Administrative Decisions (Judicial Review) Act 1977
Judiciary Act 1903 s 39B
Migration Reform (Transitional Provisions) Regulations 1994, r 22(7)(a)
Migration Legislation Amendment Act 1994

Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28
Yrttiaho v Public Curator of Queensland (1971) 125 CLR 228 at 241
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 386
Chen v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405 at 406
Manjit Singh v Minister for Immigration and Ethnic Affairs O'Loughlin J, 9 June 1995, unreported

2.

Wu Guo Xiong v Minister for Immigration and Ethnic Affairs Tamberlin J, 23 August 1995, unreported
Muralidharan v Minister for Immigration and Ethnic Affairs Full Court, 22 March 1996, unreported

FUAD BIN MAHBOOB v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ANOR.
NG 412 of 1995

CORAM:Lehane J

PLACE:Sydney

DATE:15 April 1996

IN THE FEDERAL COURT OF AUSTRALIA              )
NEW SOUTH WALES DISTRICT REGISTRY             )
GENERAL DIVISION  )     No. NG 412 of 1995

BETWEEN:FUAD BIN MAHBOOB  Applicant

AND:MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS             First Respondent

DR K CHAN

constituting the Refugee Review Tribunal

Second Respondent

CORAM:Lehane J

PLACE:Sydney

DATE:15 April 1996

MINUTE OF ORDERS

THE COURT ORDERS:

1. THAT the application be dismissed.

1. THAT there be no order as to costs.

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             )
GENERAL DIVISION  )     No. NG 412 of 1995

BETWEEN:FUAD BIN MAHBOOB  Applicant

AND:MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS             First Respondent

DR K CHAN

constituting the Refugee Review Tribunal

Second Respondent

CORAM:Lehane J

PLACE:Sydney

DATE:15 April 1996

REASONS FOR JUDGMENT
LEHANE J:

Background

On 15 March 1996 I delivered a judgment to the effect that this application for review of a decision of the Refugee Review Tribunal should fail.  I reached that conclusion on the grounds that amendments made to the Migration Act 1958 by the Migration Reform Act 1992 deprived the Court of jurisdiction to grant the review sought under the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act) or s 39B of the Judiciary Act 1903 and that the time within which an application might be made for judicial review under the Migration Act itself, a time which the Court is expressly forbidden to extend, had already long since expired when these proceedings were commenced.  Although the question of jurisdiction had been the subject of
helpful argument, the principal basis on which I reached my conclusion had not been dealt with by counsel, except in passing.  I therefore deferred making orders disposing of the proceedings so that counsel for the parties (who had joined in submitting that I had jurisdiction to deal with the application) might make further submissions if they wished to do so.

Further submissions

That invitation was accepted, and senior counsel on behalf of the Minister made submissions, in writing and orally, to the effect that on the proper construction of the Migration Act I was not deprived of jurisdiction, or at least that any lack of jurisdiction was not manifest, so that I could properly, and should, accept the Minister's concession that I had jurisdiction.  Counsel for the applicant supported those submissions but did not make any separate submissions of her own.

The circumstances and the relevant statutory provisions are set out in my reasons for judgment of 15 March 1996 and nothing is to be gained by repeating them: these reasons may be treated as supplementary to those.

Two principal grounds were advanced by senior counsel in support of his submissions.  They related to the history and context of the legislation and the presumption against retrospectivity.

History and context

I was referred, first, to two passages in the then Minister's Second Reading speech on what was then the Migration Reform Bill 1992, reported in Hansard for 4 November 1992, commencing on page 2,620.  The first passage emphasised in the submissions is on p 2,621.  The Minister said:

Under the reforms, decision making procedures will be codified.  This will provide a fair and certain process with which both applicant and decision maker can be confident.  Decision makers will be able to focus on the merits of each case knowing precisely what procedural requirements are to be followed.  These procedures will replace the somewhat open‑ended doctrines of natural justice and unreasonableness.

The reference is, no doubt, to the so‑called code of procedure for dealing fairly, efficiently and quickly with visa applications. I discussed that code in my judgment of 15 March, and it is now to be found in Part 2, Division 3, subdivision AB of the Migration Act.  It applies to the treatment of applications for protection visas, the category of visa granted to a person who makes good a claim to be a refugee.  The second passage is at p 2,623.  There, the Minister said:

As I have indicated, the Government wishes to make the application of the legal concepts of migration decision making predictable.  Judicial review rights for decisions on the grant or cancellation of a visa will be set out in the Migration Act.  Judicial review will only be possible after the applicant has pursued all merits review rights or where merits review is not available.  Grounds for review will include failure to follow the codified decision making procedures set out in the Act.  As the codified procedures would allow an applicant a fair opportunity to present his or her claims, failure to
observe the rules of natural justice and unreasonableness will not be grounds for review.

Counsel submitted that those two passages indicate a clear legislative intention to provide a "trade‑off".  Applicants for visas were to be deprived of a right to have decisions judicially reviewed on the grounds of failure to comply with the rules of natural justice and unreasonableness.  In return, they were to have the right to have their initial applications dealt with in a way which would give them a reasonable opportunity to put to the Minister matters they might consider relevant to their applications, to have the Minister consider those matters and to be provided by the Minister with notice of grounds which, in the opinion of the Minister, might lead to refusal of their applications.

It was submitted that that legislative purpose should lead to a construction which deprived an applicant of the right to judicial review on grounds relating to natural justice or unreasonableness only where that applicant obtained the benefit of the code of procedure.  Because it is only one who applies for a visa on or after 1 September 1994 who has the benefit of that code (Migration Reform (Transitional Provisions) Regulations 1994, r 22(7)(a)) it is only such an applicant, it was submitted, who should be held to be deprived of judicial review on those grounds. It was put to me that a construction of s 39 of the Migration Reform Act, as originally enacted, which produced any other result would not have been sustainable.

I pause at this point only to comment that the position is perhaps not quite as clear as was suggested.  The Minister's general remarks cover, of course, applications for visas of many classes, of which protection visas are only one.  In relation to protection visas, however, it is not right, I think, to say that the Migration Reform Act gave a disappointed applicant a right to judicial review on the ground that the code of procedure had not been followed.  That is so, it seems to me, because the refusal to grant a protection visa is an RRT‑reviewable decision and is not itself, therefore, a judicially‑reviewable decision: Migration Act, s 475(2)(d). The relevant judicially‑reviewable decision is that of the Tribunal; it is the decision of the initial decision‑maker, not that of the Tribunal, to which the code of procedure applies.

Next, I was referred to the explanatory memorandum and second reading speech in relation to the Migration Legislation Amendment Bill 1994, as they dealt with, or included comments which might be applicable to, the enactment of the new version of s 39 of the Migration Reform Act.  The explanatory memorandum said this:

180.  This clause omits and substitutes s 39.  The substituted section provides for outstanding applications for refugee status to become applications for protection visas on 1 September 1994.  Similarly, unfinalised applications for Domestic Protection (Temporary) Entry Permits and Permanent Protection Entry Permits will convert into protection visa applications as of 1 September 1994.  The protection visa applications will be determined in accordance with the amended legislation, i.e. the criteria for grant are those applying to the protection visa, and not those applying to the precursor application.

181.  A further purpose of the substituted section is to ensure that an application is translated at whatever stage has been reached in processing the application, e.g. so that applications which have been refused by a
primary decision‑maker and are at the review stage are translated to an application at the review stage.

That was said to indicate two things, one that no substantial change was intended and the other that the example in par 181 uses the term "review" in a context where apparently "merits" review alone is referred to.

The second reading speech (Hansard, 24 March 1994 p 2,166) includes the following passage (at 2,167) relating to the deferral of the main commencement date of the Migration Reform Act to 1 September 1994:

A major reason for seeking deferment was to allow for the making of a number of amendments, mainly of a technical nature, to ensure that the legislation operates smoothly.  The bill now before the House contains the amendments which the Minister ... foreshadowed last year.

All the changes provided for in the bill are consistent with the principles and scheme of the Migration Reform Act, as enunciated by the former minister.  Most are of a technical nature, correcting drafting errors, ensuring consistency of language or, in some instances, rewriting provisions to achieve the same outcome with greater clarity.  The remainder of the amendments will ensure that particular migration matters are administered in a way consistent with the scheme of the Migration Reform Act previously passed by parliament.

The Minister also said at 2,168:

The bill ensures that particular decisions that are currently reviewable on their merits remain amenable to review after 1 September 1994.

Again, two relevant matters appear.  One is that the amendments were said not to be intended to effect changes of substance.  The other is that in his reference to the preservation of the possibility of review of certain decisions made before 1 September 1994, the Minister is referring to "merits" review.

I do not think the explanatory memorandum is particularly helpful on the present question. The example given is, after all, no more than that and to say of an application which has been refused by a primary decision‑maker that it is at "the review stage" is not, I think, to say anything that is of much significance to the meaning of the word "review" as used in the amended s 39. As for the second reading speech, certainly it is significant in that it indicates an intention not to make major changes of substance. The reference to particular decisions that are currently reviewable on their "merits" is not, however, very revealing - particularly because the Minister goes on to give a series of examples none of which relate to protection visa applications. In short, I think the strength of the argument about history and context is in the initial proposition that the legislation should not be given a construction which attributes to Parliament the intention of depriving an applicant of judicial review on grounds relating to natural justice or unreasonableness without at the same time giving the applicant the benefit of the code of procedure. The strength of that argument, however, is not perhaps as great as might at first sight appear once it is realised that under the new regime a failure by the initial decision‑maker to observe the code is not itself a ground of judicial review.

Presumption against retrospective operation

That brings me to the argument concerning the presumption against retrospectivity.  Counsel referred to Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28 and Yrttiaho v Public Curator of Queensland (1971) 125 CLR 228, particularly at 241 in support of the proposition that the rights with which this case is concerned are to be regarded as substantive rather than merely procedural rights. I accept that that is so. The question remains, however, whether the provisions for judicial review, introduced into the Migration Act by the Migration Reform Act, expressly or by necessary implication apply to an applicant whose application for recognition as a refugee was refused and who, before 1 September 1994, applied to the Refugee Review Tribunal for review of that decision.  In the end, I adhere to the view which I expressed in my judgment of 15 March that the provisions are applicable.  It is, of course, impossible to apply generally to applications for recognition as a refugee any presumption against the retrospective operation of the Migration Reform Act. First, before 1 September 1994 the provisions for review by the Refugee Review Tribunal were already in force. Secondly, s 39, as amended, provides that on and after 1 September 1994 an application, not yet finally determined, for recognition as a refugee is to be dealt with on the footing that the provisions of the Migration Act, as in force from 1 September 1994, apply to it as if it were an application for a protection visa. That makes applicable to such an application the statutory criteria for protection visas. It also, clearly, makes applicable to it the provisions now appearing in division 3 of Part 2 of the Migration Act other than subdivision AB dealing with the code of procedure: it is worth observing, however, that subdivision AB would have applied equally (though, as I suggested in my earlier judgment, probably with administratively inconvenient results) were it not for r 22(7)(a) of the Migration Reform (Transitional Provisions) Regulations 1994, a regulation made well after the Minister made his second reading speech in relation to the Migration Reform Act and well after that Act received the Royal Assent. Quite apart from the words in parenthesis in the amended s 39, I find it difficult to see any sensible basis on which one could say that despite the general statement that the provisions of the Principal Act apply, certain of those provisions (viz those only which deal with judicial review) do not. Contrary to counsel's submission, I think (for the reasons I gave on 15 March) that the same result might well have followed under the previous version of s 39. Additionally, again for the reasons which I gave on 15 March, it seems to me that the expression "provisions relating to review of decisions" includes, given the terms in which they are expressed and the context in which they appear, the provisions relating to judicial review. For protection visa decisions the Migration Act provides only for two categories of review: merits review by the Refugee Review Tribunal, and judicial review (of a decision of the Tribunal). It is not easy to accept, that being so, that the general term "review" was used where the intention was to refer to only one of the two.

In other words, the argument against retrospective operation, in relation to the provisions for judicial review, is weakened by the fact that the amended Act undoubtedly applies retrospectively in a number of ways to applications for refugee status not finally determined when the amendments took effect.  Indeed, it is not easy to think of any other provision of the Act relevant to protection visas (apart from the provisions relating to the code of procedure, as to which there is a specific regulation) which would not apply.  Given those matters, I do not think it is possible to adopt a construction which excludes the operation, in relation to the application now before me, of the Migration Act provisions for judicial review: including, of course, the removal of the possibility of a review under the AD(JR) Act.

Absence of "manifest" lack of jurisdiction?

I was referred to the observations of Mason CJ in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 386:

In the absence of full argument I would not wish to express a concluded view on the question whether the Federal Court had jurisdiction in the circumstances of this case.  Suffice to say that absence of jurisdiction was not manifest; indeed, there is prima facie a strong case for holding that the Federal Court had jurisdiction.  In this situation, we would not be justified in going behind the Minister's concession that Keely J had jurisdiction to hear and to determine Mr Chan's application for judicial review of the two decisions.

It was submitted that I should, relying on the principles expressed in that passage, proceed on the basis of the Minister's concession that I had jurisdiction, lack of jurisdiction not being "manifest".  I do not think, however, that I can act on that basis where, despite the concession, the question of jurisdiction has been fully argued and I have reached a clear conclusion on it.  In support of his submission in relation to Mason CJ's observations, counsel relied on three particular matters.  They were as follows:

1.The Full Court has accepted jurisdiction in cases where an AD(JR) Act application was heard after 1 September 1994, albeit in respect of decisions of the Refugee Review Tribunal made before that date.  The point was expressly acknowledged in Chen v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 405 at 406.  See also Muralidharan v Minister for Immigration and Ethnic Affairs unreported 22 March 1996.

That is undoubtedly true, but equally that is not this case: where the decision of the Tribunal was made before 1 September 1994 it may be that the Court, at least arguably, retains jurisdiction to review it under the AD(JR) Act. In any event, the point seems not to have been raised in any of the cases.

2.Single judges have determined applications under the AD(JR) Act in relation to decisions of the Refugee Review Tribunal made after 1 September 1994: Manjit Singh v Minister for Immigration and Ethnic Affairs, O'Loughlin J, 9 June 1995, unreported; Wu Guo Xiong v Minister for Immigration and Ethnic Affairs, Tamberlin J, 23 August 1995, unreported.

Again, that appears to be true.  However, in the former of those decisions the issue was not raised and the application was, in any event, dismissed.  It is not clear from the judgment in the latter case whether the application was made under the Migration Act or the AD(JR) Act; it appears, however, that the application was made and decided on a ground available as much under the Migration Act as under the AD(JR) Act. Certainly, once again, the issue was not raised.

3.The approach taken in the judgment delivered on 15 March creates a different (and unfavourable) regime for applicants for refugee status, as compared with other applicants.

Again, that may be right, but it is to be remembered that the Act in a number of respects treats applicants for refugee status differently from other applicants.  In any event, it is ultimately a matter of construing the statute.

Conclusion

For those reasons I adhere to my view that the application should be dismissed.

Other matters

1. The merits

There remain two matters to be dealt with.  One is that substantial argument as to the question of jurisdiction took place only after I had already heard argument on the merits of the application.  I asked counsel whether they wished to submit either that I should, or that I should not, indicate a view on the merits of the application even if I adhered to my view on jurisdiction.  Both counsel indicated that they had no particular submissions to make; counsel for the applicant expressed a slight preference that I should not enter upon a discussion of the merits and counsel for the Minister expressed a slight contrary preference.  There are obvious disadvantages in a course which will mean, should a Court on appeal from this decision take a different view about jurisdiction, that the matter will have to be remitted for a decision on the merits with the possibility, then, of further appeals.  On the other hand, as I have decided that I do not have jurisdiction to deal with the application, it is perhaps not entirely appropriate for me to embark upon a consideration of its merits.  Additionally, the question of jurisdiction is a significant point of principle which, I believe, may affect a number of other cases.  It is therefore desirable that I should not delay in dealing with it.  In the circumstances, I think it is better that I do not attempt to deal with the merits of the application at this stage.

1. Costs

The other remaining matter is costs. Counsel for the applicant submitted that I should order that the Minister pay the applicant's costs. In support of that submission she tendered evidence of negotiations between the parties which resulted in the discontinuance of proceedings in the High Court on the footing that the Minister would consent to the applicant making in this Court, out of time, an application for review under the AD(JR) Act and that the Minister took the view that this Court had jurisdiction to deal with such an application. Counsel suggested that thereby the respondent "enticed the applicant to discontinue his proceedings in the High Court at pain of losing a short window
of opportunity during which the Australian Government Solicitor would not object to an application for extension of time under the AD(JR) Act". The Minister submitted, on the other hand, that there was no "enticement" but merely the statement of a view and an offer, each of which the applicant's advisers were well able to evaluate for themselves. I think that is right, and that it is appropriate that there be no order as to costs.

I certify that this and the preceding 13 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:  15 April 1996

Heard:  3 April 1996

Place:  Sydney

Decision:  15 April 1996

Appearances:  Ms L McCallum of counsel instructed by Parish Patience appeared for the applicant.

Messrs J Basten QC and R T Beech‑Jones of counsel instructed by the Australian Government Solicitor appeared for the respondent.