Singh, Baldev v Minister for Immigration & Ethnic Affairs

[1997] FCA 472

CATCHWORDS

IMMIGRATION - application under Administrative Decisions (Judicial Review) Act 1977 and s 39B of Judiciary Act 1903 in respect of conduct of officers of Minister, as a result of which application to Minister for exercise of his discretion under s 351 of Migration Act 1958 not referred to him - respondents’ motion for summary dismissal on basis of decision of Full Court in Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 141 ALR 322 (FCA/FC)

Migration Act 1958 ss 351, 417, 475(2)(e), 476(1), 485(1)

Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 141 ALR 322 (FCA/FC)

BALDEV SINGH v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ANOR

No VG 395 of 1996

Lindgren J
Sydney
30 May 1997

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )        No VG 395 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:     BALDEV SINGH

Applicant

AND:     THE MINISTER FOR IMMIGRATION AND
  ETHNIC AFFAIRS

First Respondent

BRONWYN McNAUGHTON (in her

capacity as Senior Adviser to the

firstnamed respondent)

Second Respondent

CORAM:LINDGREN J

PLACE:SYDNEY

DATE:30 May 1997

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the respondents’ costs of the proceeding.

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

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )        No VG 395 of 1996
  )
GENERAL DIVISION                 )

BETWEEN:     BALDEV SINGH

Applicant

AND:     THE MINISTER FOR IMMIGRATION AND
  ETHNIC AFFAIRS

First Respondent

BRONWYN McNAUGHTON (in her

capacity as Senior Adviser to the

firstnamed respondent)

Second Respondent

CORAM:LINDGREN J

PLACE:SYDNEY

DATE:30 May 1997

REASONS FOR JUDGMENT

(ex tempore)

INTRODUCTION
There is before the Court a motion, brought by the respondents by notice of motion filed on 14 February 1997, seeking an order that the application  be struck out pursuant to O 20 r 2 and O 54B r 5 of the Federal Court Rules. The ground is that no reasonable basis for the application is disclosed because the Court lacks jurisdiction to entertain it.

BACKGROUND
The applicant (“Mr Singh”) is an Indian citizen who arrived in Australia on 7 August 1993. He had been issued an entry visa in Amman, Jordan on 15 April 1993. Upon his arrival, following an inspection of his luggage and an interview with an officer of the first respondent (“the Minister”), his visa was cancelled and he was transferred to the Villawood Detention Centre, where he remains in detention.

Mr Singh applied for refugee status on 13 August 1993. That application was refused on 31 August 1993. On 9 September 1993 he applied to the Refugee Review Tribunal (“RRT”) for review of that decision. On 4 February 1994, the RRT affirmed that decision. Mr Singh was deemed also to have applied for a class 784 “Domestic Protection (Temporary) Visa” (before entry), and a “Domestic Protection (Temporary) Entry Permit” (before entry). These were refused on 30 March 1994. On 12 April 1994, Mr Singh applied to the RRT for review of that decision. On 24 June 1994, the RRT affirmed it.

Mr Singh lodged a further application for refugee status and an application for a “Protection (Permanent) Entry Permit”. Both applications were refused on 23 August 1994. On 1 September 1994 Mr Singh applied to the RRT for review of these decisions. On 18 January 1995, the RRT affirmed these decisions. On the same date, Mr Singh applied to this Court for review of that decision of the RRT. On 21 June 1996, Moore J dismissed that application.

On 10 May 1995 Mr Singh applied for a “bridging visa Class E.” On 12 May 1995, a delegate of the Minister refused the application. On 15 May 1995, Mr Singh applied to the Immigration Review Tribunal (“IRT”) for review of that decision. On 24 May 1995, the IRT affirmed the decision of the delegate.

On 7 July 1995, Mr Singh’s then solicitor, Mr Michael Rose, wrote to the Minister, requesting that he exercise the discretion given to him by s 351 of the Migration Act 1958 (“the Act”) to “substitute a more favourable decision than that of the Tribunal” and grant him a bridging visa Class E on compassionate and humanitarian grounds and in the public interest. Sub-sections 351 (1) and (3) of the Act are as follows:

“351.(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 349 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)The power under subsection (1) may only be exercised by the Minister personally.”

The second respondent, who was Senior Adviser to the Minister (“the Senior Adviser”), replied to Mr Rose by letter dated 25 July 1995 in the following terms:

“Thank you for your letters of 7 July 1995 and 8 July 1995 to Senator the Hon Nick Bolkus, Minister for Immigration and Ethnic Affairs concerning Mr Baldev Singh. I am replying on behalf of the Minister.

You have requested that the Minister intervene in Mr Singh’s application for a Bridging Visa (General) which was refused at the Department’s Rockdale Office on 12 May 1995. That decision was affirmed by the Immigration Review Tribunal (IRT) on 24 May 1995.

The Minister’s power to intervene under migration legislation is limited and was not intended as an additional tier of merits review, nor does it operate as such.

The merits of Mr Singh’s application have been fully considered by the Minister’s delegate at the primary decision making stage, and by the IRT. This review body brings to notice those cases where the Act and Regulations have apparently failed to deal adequately with the merits of any individual case.

In addition, when requests such as yours are received, the case is scrutinised to identify, and bring to notice, the presence of any unintended consequences, or deficiencies in the process of merits review.

In respect of Mr Singh’s application, it is clear that the merits review process has operated as intended, and has dealt adequately with the individual circumstances of the case. Therefore, it would not be appropriate for the Minister to consider intervening.” (underlining supplied)

The letter was signed by the Senior Adviser. It is this letter that has given rise to the present proceeding.

On 27 July 1995, Mr Ted Mack, MP, Federal Member for North Sydney, wrote to the Minister on behalf of his constituent, Mr Rose. The Minister replied on 5 September 1995 in a letter which included the following paragraph:

“You have also asked whether I have a discretion to grant Mr Singh a bridging visa. I do have a power to intervene in this case. However, my power is limited and I may only intervene in a case if it is in the public interest to do so. In a letter to Mr Rose dated 25 July 1995, my Senior Adviser advised that it would not be appropriate for me to consider intervening in this case.” (underlining supplied)

That letter was signed by the Minister. Mr Singh later issued, in the Supreme court of New South Wales, a summons for a writ of habeas corpus against the Minister. Sperling J dismissed the summons on 28 December 1995. Mr Singh also sought to have the Minister exercise the discretion granted by s 417 of the Act to substitute for the decision of the RRT, a decision more favourable to Mr Singh. Sub-sections 417 (1) and (3), are in identical terms to sub-ss 351 (1) and (3), set out earlier except for the fact that the former relates to decisions of the RRT under s 415 whereas the latter relates to decisions of the IRT under s 349.

In a document dated 7 November 1996 headed “EXERCISE OF MINISTERIAL DISCRETION UNDER SECTION 417 OF THE MIGRATION ACT 1958” the Minister stated in relation to Mr Singh:

“The applicant’s case has been referred to me and I have considered whether to exercise my power under subsection 417(1) of the Migration Act 1958. However, I have decided not to exercise my power in this case.”

On 19 December 1996, the Australian Government Solicitor wrote to Mr Singh’s then solicitors, a letter which included the following:

“I now enclose correspondence relating to the Minister’s non-compellable discretion under section 351 of the Migration Act 1958, which I had not previously seen. The correspondence is a letter from Ted Mack, Member for North Sydney to the Minister for Immigration and Ethnic Affairs dated 27 July 1995 and the Minister’s response to that letter, dated 5 September 1995. The correspondence indicates that the then Minister, Senator Bolkus had personal knowledge of your client’s S351 request and did not choose to consider whether or not to exercise his discretion.

This is quite a separate matter from the issue of whether the Federal Court even has jurisdiction to entertain the application. It shows that the applicant has already received the relief he seeks in the application, and to continue the proceeding is futile and an abuse of process.

I would therefore again ask that you seek urgent instructions to discontinue the Federal Court application and advise me of your client’s intentions without further delay.” (underlining supplied)

THE PRESENT APPLICATION
The present application was filed on 9 July 1996 and is headed “APPLICATION TO REVIEW CONDUCT RELATED TO THE MAKING OF A DECISION AND APPLICATION UNDER s.39B OF THE JUDICIARY ACT”. It was filed in the Victorian District Registry of the Court and was later transferred to the New South Wales District Registry. It seeks review of the conduct of officers of the Minister between 7 July 1995 and 25 July 1995 whereby Mr Singh’s request that the Minister exercise the power pursuant to s 351 of the Act was not referred to the Minister. The application seeks review pursuant to s 6 of the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”), and s 39B of the Judiciary Act 1903. The grounds of application under the ADJR Act are all grounds identified in various paragraphs of s 6 of that Act. Pursuant to s 39B of the Judiciary Act, Mr Singh seeks a writ of mandamus or prohibition or an injunction against the Senior Adviser requiring her to refer to the Minister, Mr Singh’s request dated 7 July 1995.

The grounds relied on by Mr Singh are very similar to those which were relied on by the applicant in Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 141 ALR 322 (“Ozmanian”). The Victorian solicitors who represented the applicant for refugee status in that case (the respondent to the appeal - “Mr Ozmanian”) were the solicitors who prepared Mr Singh’s application by which the present proceeding was commenced. Both applications were filed in the Victorian District Registry, despite the fact that Mr Singh has been in immigration detention in Villawood, New South Wales, ever since his arrival in Australia (in Sydney). In Ozmanian it was noted that the case was regarded as a “test case”, and that approximately 40 or so similar applications were pending. It seems likely that Mr Singh’s application is one of those cases.

REASONING
The respondents submit that this Court lacks jurisdiction in respect of Mr Singh’s application, and rely on the judgment of the Full Court in Ozmanian. They observe that in neither his application nor submissions, does Mr Singh point to a statutory source of the Court’s jurisdiction to entertain his application.

Sub-section 476(1) of the Act provides that application may be made for review by the Court of a “judicially-reviewable decision”. Paragraph 475(2)(e) provides that a decision of the Minister not to exercise, or not to consider the exercise of, his or her power under, inter alia, s 351 or s 417 is not such a decision. Sub-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 operation of para 475(2)(e), sub-s 476(1) and sub-s 485(1) in relation to sub-s 417(1) was considered in Ozmanian. As noted earlier, there is no relevant difference between sub-s 351(1) and sub-s 417(1).

I am, of course, bound to follow Ozmanian in respect of that for which it is authority. In Ozmanian, a request was made on Mr Ozmanian’s behalf by his solicitor seeking exercise of the Minister’s discretion under s 417 to substitute for a decision of the RRT a decision more favourable to Mr Ozmanian. The same Senior Adviser wrote to the solicitor a letter which, like her letter dated 25 July 1995 to the solicitor in the present case, advised that the request had not been referred to the Minister for his consideration and gave reasons why it had not been. At the trial, the presiding Judge found that the Senior Adviser had been authorised by the Minister to make and communicate such a decision. In the present case, there has been no trial. However, the letter dated 5 September 1995 signed by the Minister to which I have referred coupled with the statement in the Senior Adviser’s letter dated 25 July 1995 that she was replying “on behalf of the Minister”, makes it clear, beyond argument, that the Senior Adviser had possessed that authority in relation to Mr Singh’s request.

In Ozmanian the Full Court held that sub-s 485(1) had the effect of depriving the Court of the jurisdiction which it would otherwise have had under ss 6 and 8 of the ADJR Act or under s 39B of the Judiciary Act 1903 to review the conduct of the Minister’s officers, engaged in for the purpose of a decision made by them on behalf of the Minister of a kind referred to in para 475(2)(e).

Like Mr Ozmanian, Mr Singh seeks to attack the conduct of officers of the Minister by which his request was not referred to the Minister. In my opinion, I am bound by the Full Court decision in Ozmanian to allow the respondents’ motion, because the facts are, relevantly, on all fours with those in Ozmanian.

But even if I had taken the view that the decision of the officers on or about 25 July 1995 was not shown to have been made within authority given by the Minister, Mr Singh’s application would not succeed. The reason is that the Minister’s subsequent letter dated 5 September 1995 shows, beyond question, that it would be futile to remit the matter because the Minister’s view was that he should not consider exercising his discretion under s 351 in Mr Singh’s case. An alternative way of regarding the matter is to consider the Minister’s letter dated 5 September 1995 as establishing that Mr Singh has had, in substance, the benefit of the relief which he seeks in his application, namely, the bringing of his request to the attention of the Minister.

In his written submissions dated 7 May 1997, which do not appear to have been prepared by, or with the assistance of, a legal practitioner, Mr Singh seeks to distinguish his case from Ozmanian in the following terms:

“Under the Act, the Minister may delegate functions or powers, except where expressly prohibited, however, such delegation does not empower the delegate to act inconsistent with the Act (S. 499(1) & (2)).

Therefore, the conduct of both the Minister and the delegate, must be consistent with the Act. In the Ozmanian Case, it was argued that the delegation of power was inconsistent with the Act and there was no claim that any action of the Minister or the delegate was inconsistent with any other part of the Act.

Herein lays the difference in the matter of Baldev Singh.”

Apparently Mr Singh intends to submit that any delegation by the Minister of authority to decide that his power under s 351 should not be exercised, or that consideration should not be given to its exercise, would have been inconsistent with the Act. There is not the slightest evidence to support any suggestion that, as a matter of fact, there had been no allegation. Even if there had not been, the existence of the letter dated 5 September 1995 signed by the Minister would lead me to refuse relief. Of course, we are not concerned here with delegation of authority to exercise the power granted by sub-s 351(1): sub-s 351(3) provides expressly that that power may be exercised only by the Minister personally.

Mr Singh made many other submissions. I have read them all carefully but do not find it necessary to deal with them, due to the clear view which I have formed on the principal question referred to earlier.

Mr Singh requests that bail be granted “as this would allow him a better chance to obtain proper legal advice”. The Court cannot grant relief of the kind sought. Apart from any other consideration, s 196 of the Act provides:

“(1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until he or she is:

(aremoved from Australia under section 198 or 199; or

(b)deported under section 200; or

(c)  granted a visa.

(2)To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen.

(3)To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.”(underlining supplied)

Mr Singh has referred to the desirability of his obtaining “proper legal advice”. But his written submissions include a statement that he has had legal advice to the effect that “it does not seem that Baldev Singh will succeed in this matter”. In any event, where, as here, it is clear beyond argument that the Court lacks jurisdiction, it would not be appropriate to grant a further adjournment for the purpose mentioned. It should be noted that the respondents’ motion was returnable on 24 February 1997 and was adjourned to 20 March, 17 April and 23 April, in part in order to allow Mr Singh the opportunity to obtain legal advice.

CONCLUSION
The application will be dismissed with costs.

I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:3 June 1997

Heard:       23 April 1997

Last written
submission
received:     13 May 1997

Place:       Sydney

Decision:     30 May 1997

Appearances:  The applicant appeared in person.

Ms L J Doust, solicitor, of The Australian Government Solicitor appeared for the respondents.