Onoshita v Minister for Immigration and Multicultural Affairs

[2000] FCA 1080

FEDERAL COURT OF AUSTRALIA

Onoshita v Minister for Immigration & Multicultural Affairs [2000] FCA 1080

HIDEKI ONOSHITA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Q 2 OF 2000

DOWSETT J
26 JULY 2000
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 2 OF 2000

BETWEEN:	HIDEKI ONOSHITA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	26 JULY 2000
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q 2 OF 2000

BETWEEN:	HIDEKI ONOSHITA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	26 JULY 2000
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. On 12 January this year the applicant applied for review of a decision of the Minister for Immigration and Multicultural Affairs revoking or cancelling an electronic travel authority (visitor) visa previously issued to him. In taking that step, the Minister was obliged to comply with the provisions of ss 119 and 120 of the Migration Act 1958 (Cth) (the “Act”). For present purposes, the relevant provision is par 120(1)(c) which, when read with the balance of the section, required the Minister or his delegate to advise the applicant of information obtained from sources other than him. The applicant wishes to assert that the Minister failed to take that step and that the decision to cancel the visa was based upon information of which the applicant was not aware and upon which he had no opportunity to comment. For present purposes it may be assumed that such a complaint, if made out, would be a valid basis for attacking the decision to cancel the visa.

2. The present application appears to be made pursuant to s 475 of the Act. Pursuant to s 478, any such application must be made within twenty-eight days of notification of the decision. The decision in question was made and communicated to the applicant on 13 October 1999. The application was therefore out of time. The respondent now applies pursuant to order 3 rule 3 to extend time in which to object to competency pursuant to order 54B rule 3. The provisions relating to such an objection to competency are, of course, procedural only. If the application is incompetent, it will be incompetent whenever the question of competency is raised. The respondent is not precluded by O 54B from raising it at the substantive hearing. His failure to take the point within the prescribed time is only a bar to doing so at this stage rather than at the substantive hearing. If the application is, in any event, incompetent, no good point will be served by allowing it to go to hearing for substantive determination. For that reason, I consider it appropriate to extend time in which to raise the question of competency pursuant to order 54B rule 3. I therefore order that the time for taking objection be extended to the extent necessary to permit that course.

3. The applicant concedes that the application was not made within 28 days of the applicant's being refused entry to the country on his visa. However it is submitted on his behalf that no decision was then made for the purposes of the Act and that therefore the time limitation provisions of s 478 do not apply. The decision is said to be a nullity because of the failure to take the procedural step to which I have referred. That is a rather difficult position to advance, given that the application, on its face, purports to seek review of a decision of the Minister's delegate. Further, any application pursuant to s 475 assumes such a decision. The applicant’s argument is that although the decision was, for all purposes, a nullity, the applicant is entitled to challenge its validity in proceedings pursuant to s 475.

4. Whether or not a step purportedly taken pursuant to legislation, but in breach of some procedural requirement, is to be treated as a nullity has been recently considered by the High Court in its decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 especially at pars 91 - 93. Relevantly, as I understand it, that decision determines that the test is “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.” (par 93) The question for present purposes is whether the delegate’s decision was a nullity, having regard to the construction of the Act as a whole. The provisions of ss 475 and 476 seem clearly to indicate the contrary. Section 475 makes provision for judicial review, and s 476 prescribes the grounds for such review. Paragraph 476(1)(a) provides that one ground of review will be “that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; ... .” Clearly enough, this would include failure to comply with the conditions prescribed by s 120. If such failure is a ground for judicial review of a decision, then it follows that a decision made in breach of such conditions is a decision for the purposes of s 475 and s 476, and, indeed, for the purposes of the other provisions of Division 2. It is, in other words, a decision until such time as it has been set aside pursuant to an application for review. I do not, for present purposes, need to consider the power of the High Court to intervene.

5. In those circumstances, the procedural requirements of s 478 apply to this application.  There is no jurisdiction in the Court to entertain the application for review or to make any order which would enable such an application to be made.

6. In the course of argument, it was suggested that there might be some source of jurisdiction which could avoid the procedural limitations to which I have referred;  but even if there be such other source, the result must be the same in view of the decision in Project Blue Sky. On any interpretation of the Act, it is clear that a decision is not to be void for procedural irregularity, but is to be subject to judicial review upon that ground. In any event, s 485 of the Act and the decision of the High Court in Abebe v Commonwealth (1999) 73 ALJR 584 would seem to preclude any such alternative line of attack in this Court.

7. In the circumstances, the application will be dismissed.  I order the applicant to pay the respondent's costs of the application, including reserved costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             14 August 2000

Counsel for the Applicant:	Ms A Julian-Armitage
Solicitor for the Applicant:	Primrose Couper Cronin Rudkin
Counsel for the Respondent:	Mr A Horeman-Wren
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 July 2000
Date of Judgment:	26 July 2000