Montero, F. v Minister for Immigration, Local Government & Ethnic Affairs

[1991] FCA 445

Re: FERNANDO MONTERO
And: MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS and JAMES
WILLIAM McLOUGHLAN
No. D G4 of 1991
FED No. 445
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

DARWIN REGISTRY
Olney J.(1)

CATCHWORDS

Immigration - order to remit matter to Minister's delegate for furth er consideration - no further discretion for delegate to exercise - variation of order to remit

Administrative Decisions (Judicial Review) Act (1977), s. 16(4)

Migration Act, ss. 18, 26

HEARING

MELBOURNE

#DATE 4:7:1991

Counsel for the applicant : Mr C. McDonald

Solicitors for the applicant : Loftus and Cameron

Counsel for the respondents : Mr S. Ridgeway

Solicitors for the respondents: Australian Government Solicitor

ORDER

That the order made herein on 3 May 1991 be varied by deleting the order remitting the matter to the second respondent for further consideration according to law.

That the applicant's costs of the proceedings including the costs of the application filed 13 June 1991 and including any reserved costs other than the costs reserved by order made 22 March 1991 be taxed and paid by the respondents.

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

JUDGE1

At the time my decision in this matter was handed down on 3 May 1991, I made orders setting aside the decision of the second respondent to refuse the applicant entry to Australian and to cancel his visa and remitted the matter to the original decision maker to be dealt with according to law. I also reserved liberty to the parties to apply on the question of costs and any other orders that may be sought.

1. Pursuant to the liberty reserved on 3 May 1991, the applicant made application on 13 June 1991 for orders:
   

1. That the respondent re-issue a visa and grant a temporary entry permit to the applicant.

2. That the visa be valid for 6 months from the day of this order.

3. That the respondents pay the applicant's costs of the proceedings.

1. The application came before me by way of telephone hearing on 19 June 1991. Counsel for the applicant advised that he sought to amend paragraph 2 of the application by deleting the words "from the date of this order" and substituting "from the date of arrival in Australia".

2. The costs order sought was in terms that the respondents pay the applicant's taxed costs of the proceedings including any reserved costs other than the costs of the interlocutory application for the release of the applicant from custody. The reason for excluding the costs in relation to the interlocutory application is that that matter is presently subject to appeal to the Full Court and it is appropriate that the Full Court should deal with any consequential orders when it gives its decision. Counsel for the respondents raised no argument in opposition to the proposed order and accordingly there will be an order in those terms.

3. In support of the first paragraph of the application counsel for the applicant submitted that in the circumstances of the case, as there remains no residual discretion in the second respondent, the appropriate order is for me to order that the applicant's passport be returned to him and that he be given a temporary entry permit. Counsel confirmed in response to a request from the respondent's counsel, that the application as filed was not being pursued but rather the applicant sought merely a temporary entry permit valid for 6 months from the date of his entry, 10 March 1991.

4. The thrust of the argument advanced on behalf of the applicant is that, the decision to cancel the visa having been set aside, and the applicant having entered Australia, he should be entitled to an entry permit. However, as counsel for the respondent pointed out, assuming that by virtue of my decision setting aside its cancellation that a current entry visa exists and accepting (as the respondents do) that the applicant has in fact entered Australia, it would follow, by operation of section 18 of the Migration Act, that the visa has effect for all purposes as if it were an entry permit granted subject to any conditions and limitations as to the time the holder is authorised to remain in Australia, that are specified in the visa. In those circumstances, but for my order remitting the matter to the second respondent, the applicant would appear to have all he needs.

5. The respondent's counsel nevertheless sought to maintain the order for remission and this for the reason that on his understanding of my reasons of 3 May 1991, there remained a residual discretion in the decision maker. It is unnecessary to canvass the argument in detail but sufficient to say that the reasons of 3 May 1991 suggested to the respondents that I had not positively found that the activities that the applicant intended to engage in were not work, and hence my order remitting the matter for further consideration.

6. After hearing argument I indicated to the parties that the reason I remitted the matter was not that I had not made a positive finding that the applicant had no intention to work in Australia but rather because the Minister has by virtue of section 26 of the Act an absolute discretion at any time to cancel a valid visa I thought it appropriate to allow him the opportunity to exercise that discretion if he thought fit. In the penultimate paragraph of my decision I specifically refrained from making any comment upon the question of what (if any) restraints apply to the exercise of that discretion. That issue had not been argued and did not arise for consideration. It was conceivable that the Minister (or his delegate) may seek to exercise that discretion upon some basis other than that upon which it had originally been exercised.

7. Upon this explanation of my previous decision having been advanced, counsel for the respondents indicated that the Minister's position was that there were no other matters which at the time were to be taken into account and that the matter dealt with previously (that is the question of the applicant's intended activities in Australia) was the predominant basis for the cancellation. In those circumstances the Minister would have no objection to the matter not being remitted for reconsideration.

8. In the course of argument counsel for the respondents conceded that there was no legal basis upon which the respondents retained possession of the applicant's passport and undertook to see to its return. Counsel also gave undertakings on behalf of the Minister that will facilitate (if still appropriate after determination of the appeal presently pending in relation to my decision of 3 May 1991) the removal from the passport of reference to the cancellation of the visa. Counsel for the applicant accepted both undertakings and seeks no other relief.

9. In the light of the foregoing, it appears to me appropriate that I exercise my power under section 16(4) of the ADJR Act to vary the order made on 3 May 1991 by deleting the order remitting the matter for further consideration.

10. The applicant's costs of this application should be paid by the respondents. The costs order referred to above will be expanded to include reference to the costs of this application.