Ozmanian, T. v The Minister for Immigration
[1995] FCA 201
•4 APRIL 1995
CATCHWORDS
MIGRATION - notice of motion of applicant to amend application - whether a decision made under Migration Act, 1958, s 417 was a judicially reviewable decision - whether applicant could amend application to plead a case for review under the Administrative Decisions (Judicial Review) Act, or the Judiciary Act, 1903, s 39B.
Migration Act,1958, s 417
ADJR Act, 1977
Judiciary Act, 1903, s 39B
TOSN OZMANIAN v THE MINISTER FOR IMMIGRATION
VG 475/94
Olney J
Melbourne
4 April 1995.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 475 of 1994
BETWEEN:
TOSN OZMANIAN
Applicant
-and-
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
Coram: Olney J
Place: Melbourne
Date: 4 April 1995
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The applicant's motion on notice filed 28 March 1995 be dismissed.
The application be struck out as incompetent.
The applicant pay the respondent's costs of the proceeding including any 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
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No VG 475 of 1994
BETWEEN:
TOSN OZMANIAN
Applicant
-and-
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
Coram: Olney J
Place: Melbourne
Date: 4 April 1995
REASONS FOR DECISION
To gain an appreciation of the matters presently in issue before the Court, it is necessary to first refer briefly to the factual context in which they arise.
The applicant who is of Kurdish origin, was born in Echmiadzin in Armenia when it was part of the USSR. He entered Australia as a visitor on 27 June 1993 in possession of a USSR passport authenticated by the Armenian Government. He claims to be a refugee under the 1951 Convention Relating to the Status of Refugees (the Convention) as modified by the 1967 Protocol Relating to the Status of Refugees (the Protocol). He applied to the Australian authorities for a domestic protection (temporary) entry permit (DP(T)EP) but on 10 September 1993 a delegate of the respondent (the Minister) decided that he was not a refugee under the Convention and Protocol and refused to grant a DP(T)EP. The applicant then sought a review of the decision of 10 September 1993 and the matter was heard by the Refugee Review Tribunal (RRT). On 8 July 1994 the RRT affirmed the decision of the primary decision-maker that the applicant was not a refugee in terms of the Convention and the Protocol and that his application for a DP(T)EP be refused. The applicant was notified by letter of the decision of the RRT on 11 July 1994. He was at that time advised that he had the right to appeal to the Federal Court against the RRT's decision and on 14 July 1994 he instructed a solicitor to appeal. On 4 August 1994, within the prescribed time, an application for order to review was filed at the Melbourne Registry of the Federal Court (Proceeding VG 249 of 1994). That matter is still pending. There is no evidence before the Court as to what stage it has reached.
On 19 July 1994 the applicant's solicitor wrote to the Department of Immigration and Ethnic Affairs (the department) requesting production of the applicant's file. On 16 August 1994 the department substantially complied with the request. One of the documents produced by the department was a copy of a file note dated 18 July 1994 which is set out below:
File No:93/37485
Name:Ozmanian Tosn
Record Number: ...
HUMANITARIAN CONSIDERATION UNDER S166BE OF MIGRATION ACT 1958
On 08/07/1994 the Refugee Review Tribunal affirmed decisions of the Minister's delegate refusing refugee status to the above applicant.
The applicant's case has been considered under the Ministerial guidelines for stay in Australia on Humanitarian Grounds.
The case does not satisfy the requirements for consideration of the exercise of the Minister's discretion under Section 166BE(1) of the Act.
MARGARET CARLTON
Case officer (Position no 131)
Onshore Refugee Division
18 July 1994
(Section 166BE of the Migration Act has since been renumbered as s 417).
On 4 October 1994 the applicant's solicitor wrote to the Minister on the applicant's behalf requesting the Minister exercise his discretion under s 417(1) and grant the applicant a visa on humanitarian grounds. The letter was long and detailed and was supported by a large number of testimonials. On 5 December 1994 the applicant's solicitor received a reply to his letter which was dated 29 November 1994 and which was written over the signature of Ms Bronwyn McNaughton, a senior adviser to the Minister. The full text of the letter follows:
Mr Erskine H Rodan 29 November 1994
Erskine H Rodan
Barristers and Solicitors
PO Box 41
NORTH MELBOURNE VIC 3051
Dear Mr Rodan
Thank you for your letter of 4 October 1994 to the Minister for Immigration and Ethnic Affairs, Senator the Hon Nick Bolkus, on behalf of Mr Tosn Ozmanian. Senator Bolkus has asked me to reply on his behalf.
You have asked that the Minister exercise his discretion under section 417 of the Migration Act 1958 and grant Mr Ozmanian a visa on humanitarian grounds.
Under section 417 of the Act, the Minister may substitute for a decision of the Refugee Review Tribunal (RRT) a decision more favourable to the applicant where he considers it is in the public
interest to do so. However, this power is discretionary and the Minister is under no obligation to consider a case.
When documents relating to a decided review case are returned to the Department from the RRT, the applicant's claims are examined against the Ministerial Guidelines for Stay in Australia on Humanitarian Grounds as to whether the case is one which the Minister may wish to consider under subsection 417(1) of the Act.
As Mr Ozmanian's case does not fall within the scope of these guidelines, it has not been referred to the Minister for his consideration.
You have also raised concerns about the enquiries made by Australian Embassy officials during their visit to Yerevan. I am advised that these enquiries were in relation to the treatment of Kurds in Armenia generally. They did not relate to Mr Ozmanian specifically and would not in any way have identified or have been linked to him.
Thank you for raising this matter with us.
Yours sincerely
BRONWYN McNAUGHTON
Senior Adviser
The present proceeding was commenced on 23 December 1994. The application purports to be an application under Part 8 of the Migration Act to review a judicially reviewable decision of the Minister by his delegate being:
Decision of officers of the respondent made between 4 October 1994 and 29 November 1994 not to refer to the respondent the request on behalf of the applicant of 4 October 1994 that the respondent exercise the powers given to him under s.417 of the Migration Act in the applicant's favour.
The principal relief claimed in the application is:
An order that the request made by the applicant through his solicitors of 4 October 1994 for the exercise in the applicant's favour of the discretion given to the respondent by s.417(1) Migration Act be submitted to the respondent for his consideration.
On 31 January 1995 the Minister filed an objection to the jurisdiction of this Court on the ground that the "decision" sought to be reviewed is not a "judicially reviewable"
decision within the meaning of that expression in s 475 of the Migration Act. On 3 March 1995 the Minister filed notice of a motion seeking an order that the whole of the application of 23 December 1994 be struck out pursuant to Order 20 Rule 2 and Order 54B Rule 5.
The applicant filed a notice of motion on 28 March 1995 seeking the following orders:
That the time for service of this Notice of Motion be abridged.
That the applicant have leave to amend the within application in the form which is Exhibit "MJC-1" to the Affidavit of Michael John Clothier sworn the 28th day of March 1995.
That the application as amended be deemed to have been filed on 23 December 1994.
Alternatively, that the time for the applicant to bring proceedings under the Administrative Decisions (Judicial Review) Act be extended to the date on which leave to file an amended application is granted.
Such further or other relief as the Court may deem appropriate.
Costs.
At the hearing of both notices of motion on 30 March 1995 counsel appearing for the applicant indicated that the applicant no longer wished to amend the application in the form previously proposed in the exhibit referred to above but rather seeks:
a)to abandon his claim for review under Part 8 of the Migration Act;
b)to add Bronwyn McNaughton as a second respondent;
c)to review the conduct of officers of the Minister between 4 October 1994 and 29 November 1994 whereby the request on behalf of the applicant of 4 October 1994 that the Minister exercise the powers given to him under s 417 of the Migration Act in the applicant's favour was not referred to the Minister.
d)A writ of mandamus, or prohibition or an injunction against Ms McNaughton requiring her to refer to the Minister the request under s 417(1) Migration Act contained in the letter of the applicant's solicitors of 4 October 1994.
Affidavit evidence filed at the hearing establishes that on 23 March 1995 the applicant lodged in the High Court of Australia an ex parte application for orders nisi for writs of prohibition, mandamus and certiorari in respect of issues touching directly on the subject matter of the application in this proceeding. It appears that the High Court application has not progressed any further than the filing of the application.
The applicant concedes that his application in its original form was incompetent. The relevant provisions of the Migrant Act (which are contained in Part 8 of the Act) which inevitably led to this conclusion are these:
417(1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
(2)...
(3) ...
(4) ...
(5) ...
(6) ...
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.
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:
(a) ...
(b) ...
(c) ...
(d) ...(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;
(f) ...
(g) ...
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 472(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.
(2) ...
(3) If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.
In the form as originally filed, the application sought to review a decision which was neither a decision of the Immigration Review Tribunal nor of the RRT, nor is it suggested that it was a decision relating to a visa. The application specifically identifies the decision sought to be reviewed and all other questions aside, assuming what was sought to be reviewed was a decision, it was not one that was susceptible to review under Part 8 of the Migration Act.
The applicant's alternative approach to the amendment of the application is entirely consistent with the argument raised against the application by the Minister.
The Minister's response to the applicant's motion for leave to amend the application is that leave should be refused and the application be struck out as incompetent. It is said that if the applicant wishes to plead a case for review under the ADJR Act or for relief under s 39B of the Judiciary Act he should do so in a separate proceeding. The applicant on the other hand wishes to keep the present proceeding alive but concedes that if the application is amended to include an application under s 39B of the Judiciary Act it should be stayed until such time as the High Court application has been disposed of. It seems to be a logical consequence, that if there is a good reason to stay the proposed claim pursuant to s 39B of the Judiciary Act as soon as it is made, that in itself is a good reason for refusing the amendment. Accordingly, leave to amend the application to enable the applicant to claim relief under s 39B is refused.
Although there is only limited evidence presently before the Court, it appears on the face of what material has been adduced that the applicant's case for relief under the ADJR Act is based upon a misconception. The case is founded on the premise that the letter of 4 October 1994 was not drawn to the Minister's attention. The only relief the applicant seeks is for the letter to be drawn to the Minister's attention. But the evidence adduced by the applicant, notably the letter written by Ms McNaughton on 29 November 1994 indicates in the clearest terms in its opening paragraph that the letter of 4 October 1994 had been drawn to the Minister's attention and that the letter was written on the Minister's behalf and on his instructions. Whilst this view can in no way be binding upon any judge who may subsequently be called upon to make any findings of fact in other proceedings, it is nevertheless something that should be taken into account on the applicant's motion to amend. If there does not appear to be any cogent basis upon which the Court could reach a conclusion that the new cause of action is likely to be at least arguable, leave to amend should be refused. I have reached this conclusion without reference to the question of whether or not it would be appropriate to grant an extension of time to permit relief under the ADJR Act to be sought out of time. On the view I take of the material which has been adduced in support of the motion the proposed claim for review is not arguable and leave to amend the application to plead the claim for relief under the ADJR Act is refused.
For the reasons I have outlined I would dismiss the applicant's motion to amend the application and I would strike out the application as incompetent. The applicant should pay the Minister's costs of the proceeding including any reserved costs.
I certify that this and the preceding 9 pages are a
true copy of the Reasons
for Judgment of the
Honourable Justice Olney
Associate:
Dated:
Heard: 30 March 1995
Place: Melbourne
Judgment: 4 April 1995
Appearances:
Mr T. Hurley (instructed by Erskine Rodan & Associates) appeared for the applicant.
Mr Richard Tracey QC (instructed by the Australian Government Solicitor) appeared for the respondent.
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