Rohner, Felix Walter v Scanlan, Linda

[1997] FCA 832

FEDERAL COURT OF AUSTRALIA

MIGRATION - application to review refusal of retirement visa based on invalidity of Migration Regulation defining “spouse” as limited to person of opposite sex to the visa applicant - refusal an “internally-reviewable decision” under Migration Act1958 (Cth) - objection to competency of application - s 485 the Migration Act excludes all judicial review of decision but does not prevent court exercising jurisdiction under s 39B(1A) the Judiciary Act 1903 (Cth) to determine whether Sex Discrimination Act 1984 (Cth) and Human Rights and Equal Opportunity Commission Act 1986 (Cth) operate to invalidate Migration Regulation 1.15A(2)(a)(i).

Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 9
Australian Capital Territory (Self-Government) Act 1988 (Cth) - s 48A
Federal Court of Australia Act 1976 (Cth) - s 21
Human Rights and Equal Opportunity Commission Act 1986 (Cth) - s 47(1)
Judiciary Act 1903 (Cth) - s 39B(1A)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) - s 4(2)
Migration Act 1958 (Cth) - ss 65, 338, 341(4), 346, 476, 485
Migration Regulations - regs 1.15A(2)(a)(i), 410.222(1) and (2)
Sex Discrimination Act 1984 (Cth) - ss 5(1), 26(1), 50, 83A, 115

Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563
Kelson v Forward (1996) 39 ALD 303
Foster v Jododex Aust Pty Ltd (1972) 127 CLR 421
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322
Workers' Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642
The Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1993) 119 ALR 133
Mutual Life & Citizens' Assurance Co Ltd v A-G (Qld) (1961) 106 CLR 48

FELIX WALTER ROHNER & ANOR v LINDA SCANLAN & ANOR
QG 57 of 1997

DRUMMOND J
BRISBANE
18 AUGUST 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
QUEENSLAND DISTRICT REGISTRY	)  QG 57 of 1997
)
GENERAL DIVISION	)

BETWEEN:             

FELIX WALTER ROHNER and BRUNO ANGELO BIONDI TINEO
Applicants

  AND:  

LINDA SCANLAN
First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent

JUDGE:	DRUMMOND J
PLACE:	BRISBANE
DATED:	18 AUGUST 1997

MINUTES OF ORDER

THE COURT:

1. Orders that the respondents' objection to competency be upheld. 

2. Declares that this Court has jurisdiction to determine whether to grant the declaration sought by the applicants in paragraph 1 on page 4 of their application for review on the grounds set out in paragraphs (d) and (f) on page 3.

3. Orders that the applicants have leave to make such amendments to their application as they may be advised if they wish to pursue their claim for such a declaration.

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	)   QG 57 of 1997
)
GENERAL DIVISION	)

BETWEEN:             

FELIX WALTER ROHNER and BRUNO ANGELO BIONDI TINEO
Applicants

  AND:  

LINDA SCANLAN
First Respondent

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Second Respondent

JUDGE:	DRUMMOND J
PLACE:	BRISBANE
DATED:	18 AUGUST 1997

REASONS FOR JUDGMENT

The respondents object to the competency of the application of the applicants seeking review of a decision of the first respondent, a person authorised to exercise the powers of the Minister, the second respondent, under s 65 the Migration Act 1958 (Cth); the first respondent refused Mr Rohner's application for a Class 410 retirement visa. The application for review is in Form 56 in the First Schedule to the Federal Court Rules, ie, the form prescribed for applications for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and also for applications for review under the Migration Act.

The first respondent rejected the visa application because Mr Rohner included Mr Biondi Tineo in his application as a family member:  Mr Rohner could not, so the first respondent determined, therefore meet the criteria for this visa prescribed by reg 410.222(1) or (2), which limit the dependent family members that the visa applicant can have to a spouse.  The Migration Regulations relevantly define "spouse" as meaning the person in "either a married relationship", as defined, or "a de facto relationship", as defined, with the visa applicant.  Regulation 1.15A(2) provides:

Persons are in a de facto relationship (3) if:

(a)      they:

(i)        are of opposite sexes; and

(ii)       …

Mr Rohner and Mr Tineo seek review of the first respondent's decision not to grant the visa sought on the ground that reg 1.15A(2)(a)(i) is invalid, for two reasons: firstly, because it is inconsistent with ss 5(1) and 26(1) the Sex Discrimination Act 1984 (Cth) and, secondly, because the definition of de facto spouse in this regulation is not a valid exercise of the regulation-making powers under ss 40, 504(1) or 505 the Migration Act in that it conflicts with Articles 2 and 26 of the International Covenant on Civil and Political Rights, which covenant is said to have been declared, pursuant to s 47(1) the Human Rights and Equal Opportunities Commission Act 1986 (Cth), to be an instrument for the purposes of the Act.  It is unnecessary to express any opinion now on the strength of these contentions or to determine what would be the consequence of this regulation being held invalid.  It can be assumed that Mr Rohner and Mr Tineo have such a relationship with each other as would enable Mr Rohner to satisfy all the relevant criteria imposed by reg 410.222(1) for the grant of the visa, if the limitation of the term "spouse" to a person of the opposite sex to the visa applicant, imposed by reg 1.15A(2)(a)(i), is struck down:  the argument no doubt will be that, in that event, the term "spouse" should be interpreted to apply to a person in a long-term relationship with another of the same sex, as well as to a person in such a relationship with a member of the opposite sex.

By an amended notice of objection to competency, the respondents object to the jurisdiction of the Court to determine the applicants' challenge to the visa refusal decision either under the ADJR Act or under s 39B the Judiciary Act 1903 (Cth) or under the Migration Act, on the grounds that:

(a)s 485 the Migration Act expressly excludes the Court's jurisdiction to deal with the matter under the ADJR Act or under the Judiciary Act; and

(b)the decision is not one judicially-reviewable under the Migration Act because it is an "internally-reviewable exercise" within s 338 and, as such, is declared not to be a "judicially-reviewable decision" under that Act by s 475(2) the Migration Act.

The respondents submit that s 485(1) the Migration Act prevents the review by this Court of internally-reviewable decisions under the Migration Act and that there exists in this Court no other jurisdiction to review the decision in question or otherwise interfere with it. It is common ground that the decision in question is an internally-reviewable decision within s 338 the Migration Act; the respondents accept that any decision on internal review of it would itself be reviewable by the Immigration Review Tribunal under s 346 and that any decision of that Tribunal in respect of Mr Rohner's visa application would, in turn, be judicially-reviewable under s 475(1) and s 476. The respondents do not dispute that ultimately, the applicants can seek a determination from this Court on the one point of the validity of reg 1.15A(2)(a)(i) which they wish to raise. But they say the applicants must first go through the two preliminary levels of review prescribed by the Migration Act before they can achieve that (unless they opt to go direct to the High Court). The respondents also accept that the applicants must fail to obtain the determination on the validity of the regulation which they seek at both these levels of preliminary review: counsel for the respondents said that it was "not in contention" that counsel for the applicants was correct in submitting that the validity of the regulation cannot be determined on an internal review or on review by the Immigration Review Tribunal: s 341(4) the Migration Act provides:

(4)To avoid doubt, a review officer must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

The Immigration Review Tribunal's powers of review are similarly circumscribed:  see s 349(4).  The practicalities are that both the internal review officer and the Immigration Review Tribunal will be confronted with a submission from both parties that the validity of the regulation is an issue neither can determine.  The respondents' position is the unattractive one that access to justice here requires the applicants to take two futile, and no doubt costly, preliminary steps.  But that does not disentitle them to a ruling on their objection to the competency of the application.  It has substance.

I do not accept the applicants' argument that the decision in question, if based on an invalid regulation, is a nullity and therefore cannot be a "decision" within the meaning of that term in s 338, 346 or 475 the Migration Act, with the result that it must be a "decision" within the meaning of that term in s 5 the ADJR Act and reviewable accordingly: s 476(1)(b) and (c) show that "decisions" of the Immigration Review Tribunal reviewable by the Court under s 475(1) include decisions which the applicants would characterise as nullities. It is not, I think, possible to read s 486 as inapplicable to decisions of the kind here in question, for one reason or another, if they are nullities.

Nor can I accept the applicants' argument that the Court can determine the question of the validity of the regulation, in the exercise of its power under s 21 the Federal Court of Australia Act 1976 (Cth) to give declaratory judgments: that power can only be exercised "in relation to a matter in which [the Court] has original jurisdiction". I do not accept that the making of an application for review pursuant to the ADJR Act necessarily invokes the Court's original jurisdiction where there is a statutory provision like s 485 the Migration Act expressly denying that jurisdiction to the Court.  In such circumstances, the bringing of an application under the ADJR Act cannot be regarded as a bona fide invocation of the jurisdiction of the Court.  Cases such as Post Office Agents Association Ltd v Australian Postal Commission (1988) 84 ALR 563 are therefore of no assistance to the applicants.

I also reject the applicants' argument that this Court has jurisdiction under s 4(2) the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) to review the first respondent's decision. Section 9 the ADJR Act, as Finn J observed in Kelson v Forward (1996) 39 ALD 303 at 321, excludes State courts from judicial review of "Commonwealth administration", an exclusion which does not, however, apply to the Supreme Court of the Australian Capital Territory. But s 48A the Australian Capital Territory (Self-Government) Act 1988 only confers on the ACT Supreme Court such jurisdiction as is "necessary for the administration of justice in the Territory" and it is only that jurisdiction of the Supreme Court that is conferred on this Court by s 4(2) of the Commonwealth Cross-Vesting Act. Neither the first respondent's decision nor these proceedings has, as a matter of fact, any link with the Australian Capital Territory. It is therefore not open to the applicants to contend that, because the ACT Supreme Court might, in different factual circumstances, have jurisdiction to review a decision of the kind here in question, this Court has jurisdiction to do that by force of s 4(2) the Commonwealth cross-vesting legislation.

The respondents objection to the jurisdiction of this Court "to try this application for an order for review" under the ADJR Act or under the Migration Act is well-founded; so is their objection to jurisdiction, in so far as it is based on s 39B(1) the Judiciary Act.

However, s 39B(1A) the Judiciary Act, which came into effect on 17 April last, declares that the original jurisdiction of this Court includes jurisdiction in any matter arising under any laws made by the Parliament.

The applicants' substantial point is that ss 5(1) and 26(1) the Sex Discrimination Act 1984 operate to invalidate Migration Regulation 1.15A(2)(a)(i).  The further argument is that s 47 the Human Rights and Equal Opportunities Commission Act 1986 (Cth), in so far as it makes provision for the Minister to declare an international instrument to be an international instrument for the purposes of that Act, operates in consequence of the declaration of the International Covenant on Civil and Political Rights to make the migration regulation in question invalid.  This question as to the validity of the migration regulation can, in my view, be characterised as a matter arising under both the Sex Discrimination Act and the Human Rights and Equal Opportunities Commission Act and therefore a matter within the original jurisdiction of this Court, by force of s 39B(1A) the Judiciary Act. There can be no question as to the applicants' standing to seek a declaration under s 21 the Federal Court of Australia Act in relation to that matter: the decision of the first respondent denying the applicants the right to settle in Australia was, in terms, based upon that very regulation. The only barrier to the applicants' entitlement to a declaration by the Court that will resolve the question of the validity of the regulation is s 485(1) the Migration Act. Section 485(1) provides:

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 sub-section 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

The reference here to "section 39B of the Judiciary Act 1903" must, I think, be read as referring to the section as recently amended to include s 39B(1A), even though s 485(1) the Migration Act antedated that amendment:  see s 10 the Acts Interpretation Act 1901 (Cth).

While the declaratory jurisdiction can be ousted by statute, "the right of a subject to apply to the Court for a determination of his rights will not be held to be excluded except by clear words": Foster v Jododex Aust Pty Ltd (1972) 127 CLR 421 at 435-436. This principle is as much applicable to this Court's power to make declarations in matters within its jurisdiction as it is to the powers of courts of plenary jurisdiction to make declarations of rights. Section 485 "has a wide operation": Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 at 334. But s 485(1) the Migration Act, in terms, only deprives this Court of jurisdiction it would otherwise have "in respect of judicially-reviewable decisions or decisions covered by s 475(2)". The phrase "in respect of" in the sub-section no doubt connotes a very wide connection or relation between the two subject matters to which the phrase refers. But there are boundaries to the range of subject matters the phrase can link which are set by the particular context in which it is used: see Workers' Compensation Board (Qld) v Technical Products Pty Ltd (1988) 165 CLR 642 at 646-647. The object of s 485(1) is to ensure that this Court conducts judicial review of decisions as to the entitlement of persons to enter or remain in Australia made under the Migration Act only within the multi-tiered review framework established by that Act:  cf Ozmanian, at 346. There is thus no justification for reading it as a charter for denying this Court's entitlement to exercise the jurisdiction conferred on it by other statutes of the Parliament, including s 39B(1A) the Judiciary Act, to resolve disputes between parties, just because, in doing that, the Court may determine a question that touches directly or indirectly on the propriety of administrative decisions made under the Migration Act, but which cannot be said to constitute a judicial review of such a decision. In my opinion, the wording of s 485(1) is not apt to deprive this Court of the jurisdiction it has under s 39B(1A) the Judiciary Act and s 21 the Federal Court of Australia Act to make declarations as to the operation of the Sex Discrimination Act and the Human Rights and Equal Opportunities Commission Act merely because the exercise of that jurisdiction in a particular case might result in a determination that touches on a "judicially-reviewable decision" made under the Migration Act. To have such a result, s 485(1) would have to be interpreted as meaning, eg, if a question arose as to the operation of a Commonwealth statute and would otherwise properly be one within the jurisdiction of this Court under s 39B(1A) the Judiciary Act, if it could be seen to have some connection with a "judicially-reviewable decision" under the Migration Act, then this Court would be deprived by s 485 of that jurisdiction to determine the operation of the other statute, no matter how irrelevant such a determination might be to the validity or propriety of the "judicially-reviewable decision" under the Migration Act.

In my opinion, the Human Rights and Equal Opportunities Commission, in performing its functions under s 48(1)(f) the Sex Discrimination Act, could have standing to seek a declaration from this Court, in the exercise of the jurisdiction conferred by s 39B(1A) in matters arising under the Sex Discrimination Act as to whether reg 1.15A(2)(a)(i) the Migration Regulations was inconsistent with the objects of the Sex Discrimination Act, if that had become a contentious issue.  In The Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1993) 119 ALR 133, a proceeding brought under the ADJR Act for the review of a determination made by the Human Rights and Equal Opportunities Commission under s 81 the Sex Discrimination Act, Lockhart J, at 143-144, suggested that the validity of delegated legislation made under the Defence Act 1903 (Cth) may be open to challenge for conflict with the provisions of Part 2 the Sex Discrimination Act, notwithstanding s 40 of that Act. It may thus be arguable that a person in Mr Tineo's position could complain under s 50 the Sex Discrimination Act of this regulation being relied on to deny him entry to Australia. This Court could well have jurisdiction, pursuant to s 115 the Sex Discrimination Act, to make a declaration on the validity of a regulation challenged for conflict with the Sex Discrimination Act while proceedings initiated by a complaint under s 50 before the Commission were on foot; if such a complaint was successful, this Court's jurisdiction to deal under s 83A the Sex Discrimination Act with the question of the validity of such a regulation raised by that complaint would appear to be clear.

Section 485(1) the Migration Act could not deprive this Court of jurisdiction to deal with such matters, merely because the Court's decision would have a direct impact on decisions made and to be made in the future by the second respondent with respect to visa applications.  And if the jurisdiction exists, the fact that the Migration Act establishes a special and exclusive procedure for the making and review of decisions under that Act does not prevent the Court exercising that jurisdiction, even where it is invoked for the purpose of circumventing the special procedure.  Cf Foster v Jododex Aust Pty Ltd, at 437, citing Mutual Life & Citizens' Assurance Co Ltd v A-G (Qld) (1961) 106 CLR 48.

The only issue which, in my opinion, is raised by s 485(1) when the Court is, in the exercise of jurisdiction it has apart from the Migration Act, asked to make a declaration as to the effect of another statute which declaration will have an impact upon the propriety or validity of a "judicially-reviewable decision" under the Migration Act, is whether the Court's jurisdiction to make such a declaration should, as a matter of discretion, be exercised in the particular case.  Guidance on this question is provided by the comments of Walsh J in Foster v Jododex Aust Pty Ltd at 427:

…when a special tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, then as a general rule and in the absence of some special reason for intervention, the special procedures laid down by the statute should be allowed to take their course and should not be displaced by the making of declaratory orders concerning the respective rights of the parties under the statute.

Here, there is, in the admitted incapacity of the first two levels of review of the first respondent's decision that are provided for by the Migration Act to determine the only point in issue between the applicants and the respondents, the clearest of reasons why this Court should now exercise the declaratory jurisdiction which it has. The applicants have apparently instituted proceedings for the internal review of the first respondent's decision pursuant to s 338 the Migration Act out of concern that the respondents' objection to the competency of their application for review may prevail.  Given that the respondents' position is that the internal review officer (and the Immigration Review Tribunal, after that officer has made his or her determination) will be precluded from determining the only point which the applicants wish to raise, there is, in my opinion, every justification for this Court to deal with the point and make a declaration that will resolve it, to facilitate the first level of internal review presently under way serving the purpose Parliament intended it to serve of providing a meaningful reconsideration of Mr Rohner's visa application.

The respondents' objection to competency must be upheld.  However, for the reasons given, this Court has jurisdiction to decide whether to grant the declaration sought by the applicants in paragraph 1 on page 4 of the application on the grounds set out in paragraphs (d) and (f) on page 3 and it should exercise that jurisdiction.  I will not therefore strike out the proceeding, but give leave to the applicants to make such amendments as they may be advised to pursue their claim for that declaration.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond

Associate:

Dated:            18 August 1997

Counsel for the Applicant:	P Bickford
Solicitor for the Applicant:	MacDonnells
Counsel for the Respondent:	CE Holmes
Solicitor for the Respondent:	Australian Government Solicitor
Dates of Hearing:	9 July 1997