Nada Knezevic v Minister for Immigration & Ethnic Affairs

[1981] FCA 245

Re: MARGARITA BORKOVIC and NADA KNEZEVIC
And: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Nos. G134-135 and 183-184 of 1981
Immigration

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Fox J.

CATCHWORDS

Immigration - Deportation - Applications made under Administrative Decisions (Judicial Review) Act, 1977 - "Improper exercise of power" discussed - s.6A Migration Act considered.

Administrative Decisions (Judicial Review) Act, 1977 (Cth) ss. 3, 5, 6, 7, 13, 16

Migration Act, 1968 (Cth) s.6A

HEARING

SYDNEY

#DATE 16:12:1981

ORDER

1. The applications be dismissed with costs.

JUDGE1

I am dealing with the two applications under the Administrative Decisions (Judicial Review) Act, 1977. They raise the same point and have been heard together by agreement. The situation broadly is that the applicants came to Australia in late 1980 as visitors and were granted temporary entry permits in accordance with the Migration Act 1958. These permits expired on 10 March 1981.

On 25 February 1981 applications were made in both cases for entry permits of indefinite duration or alternatively an extension of the temporary entry permits. The fact is that the applicants have not been granted any entry permit temporary or otherwise since the expiry on 10 March 1981 of the original permits they were respectively granted.

It appears that their applications made on 25 February 1981 were examined in the department during March and April. The applicants were individually informed by letters dated 28 April - Mrs. Borkovic - and 30 April - Mrs. Knezevic - that as they did not satisfy the terms of s.6A(1) of the Migration Act, no further grant could be made. There is some confusion about the situation that arose then and subsequently but except as I will now mention it is not material to the matter which I have to decide.

Section 6A(1) of the Migration Act, which was inserted in 1980, provides that an entry permit is not to be granted to an immigrant after his entry into Australia unless one or more of the stipulated conditions is fulfilled. The particular condition which has been regarded as applicable to the present applicants is s.6A(1)(e) which is in the following terms:

"he is the holder of a temporary entry permit which is in force and there are strong compassionate or humanitarian grounds for the grant of an entry permit to him."

Sub-section 8 of s.6A provides that in that section a reference to an entry permit shall be read as a reference to an entry permit other than a temporary entry permit.

The situation was therefore that in April 1981 the applicants could not succeed in the grant to them of a permit of indefinite duration, sometimes referred to as a permanent residency permit, because they were not then the holders of temporary entry permits then in force. They could, it would seem, have succeeded so far as concerns legal considerations, in obtaining further temporary entry permits and this might then have put them in the position of having their case considered under s.6A(1)(e).

No further entry permit having been granted, they became prohibited immigrants after 10 March 1981. Early this month the Minister acted on this basis and made deportation orders in respect of them. According to the papers before me, it was submitted to him that the evidence was not sufficient to justify the grant of permanent residence on the basis of "strong compassionate or humanitarian grounds" and that he, the Minister, should therefore sign the deportation orders. As I understand, he could not have done so because of s.6A(1), but the submission may have meant that even if temporary permits were first granted, the applications for permanent residency should be refused.

Procedurally the matter seems to have taken an irregular course but it is agreed on both sides that the question I should now consider is the submission on behalf of the applicants that under the Administrative Decisions (Judicial Review) Act this court has power to enter into a consideration of the merits of the factual matters giving rise to the refusal of the grant of the permanent residency permit. More shortly, the question is whether this court has power to and should for itself examine the facts which go to the question of whether strong compassionate or humanitarian grounds exist or existed for the grant of an entry permit to the applicants.

I do not think I do any injustice to the submission on behalf of the applicants when I leave the matter in that form, although it has been put in a number of ways by counsel of their behalf. It has been said for example that in order to examine the matter under s.5(1)(e) of the Administrative Decisions (Judicial Review) Act, to take the particular paragraph relied upon, it is necessary for this Court to look at the "objective facts" and to see whether they were correctly decided or assessed or otherwise.

It is plain that under the Act in question this Court does not have power to make a decision on the merits of the factual position for itself. It is plain that it is not invited or empowered under the Act to consider the facts for itself for the purpose of forming and declaring its own view thereon. Of course, in order to apply some of the provisions of the Act it is necessary to examine the facts quite closely but this is not for the purpose of the court arriving at its own decision; rather is it to see whether the case comes within one of the specific provisions of the relevant sections of the Act.

The argument submitted on behalf of the applicants is in fact covered by authoritative statements in a number of decisions of this court. Most have been cited and I do not propose to set them out. The history of the Act has been referred to sometimes when the court has been considering appeals, so called, under the Administrative Appeals Tribunal Act. It is one of three that was passed in order to enable there to be some judicial review or check on the exercise of administrative power. One is the Administrative Appeals Tribunal Act, to which I have just referred, another is the Ombudsman Act, and the third is the present Act.

As counsel for the applicants himself pointed out the short title of the Act refers to review on "questions of law of certain administrative decisions". The short title of the Act, of course, is not a sure or certain guide to its construction but I refer to the matter in particular because one has at the outset the constitutional problem to which attention was paid by the committees whose reports were relied on when the various enactments were drafted. They refer to the necessity to ensure that federal courts are only vested with the judicial power of the Commonwealth, and, on the other hand, that administrative bodies, not having the full structure of courts nor judges appointed in accordance with Chapter III of the constitution, are not left to determine in a final way questions of law. The line of demarcation has been described in responsible circles as "review on the merits", the view being taken that review on the merits was something that fell within administrative power and competence and outside judicial power.

It seems to me that the whole framework and substance of the enactment plainly supports the view submitted by counsel for the respondent and, as I have said, that view has been stated in a number of cases in this Court. I shall not endeavour to analyse all the provisions of the Act. The key sections are ss. 5, 6 and 7, and associated with them is the definition in s.3 of a "decision to which this Act applies". That is, a decision of an administrative character made, proposed to be made, or required to be made, . . . under an enactment.

Section 5, as with ss. 6 and 7, deals with decisions and the manner of their exercise and in some cases their content. The sections do not invite an examination of the issues which were the subject of the decisions. The impact of the Act is in relation to the decisions themselves, although, as I have already said, for some purposes it is necessary to go behind the decisions and into the facts.

It can be said in a general way that s.5 is concerned with acts wrong in law or contrary to law and, one might add, misuse or abuse of power. What is set out in paragraphs (a) to (j) of s.5(1) accords very closely with the type of review with which one has become accustomed under prerogative writs or other avenues of review of administrative decisions, such as by way of declaration.

There is this constant reference to the exercise of power and the making of decisions without any invitation for the court to examine for itself the issues which are involved. One can pause for the thought that an Act which is already very wide in its scope would be impossibly wide if it were to empower this Court to examine for itself the facts behind every decision which was capable of being reviewed.

Section 13 enables reasons to be given which would hardly be necessary were one to press the scope of the earlier sections to the point to which counsel invites the Court to go. Section 16, which deals with relief, indicates, too, that one is concerned with a limited nature of relief going to what should be done in relation to the decision in the circumstances.

Something was made or sought to be made in argument about the use of the word "improper" in paragraph (e) of sub-section (1) of s.5 and the elucidation of that term in the phrase "improper exercise" in sub-section (2) of s.5. "Improper", whatever its precise meaning, certainly does not mean simply wrong or incorrect. It relates more obviously to something which, for some reason known to the law, is not a proper exercise of power.

I do not think it is necessary to go further. What I have said should not be taken as any more than a brief extempore statement concerning the purview of the Act. It is sufficient to say that in my view there is no substance in the submission put forward. As I understand, that concludes the cases. I will simply order that the applications be dismissed. As costs are asked for, I will add - with costs.