Success Australia Group Pty Ltd v Minister for Immigration
[2014] FCCA 327
•28 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SUCCESS AUSTRALIA GROUP PTY LTD v MINISTER FOR IMMIGRATION | [2014] FCCA 327 |
| Catchwords: WORDS AND PHRASES – “migration decision” – “primary decision” – “in relation to”. |
| Legislation: Migration Litigation Reform Act 2005 (Cth) |
| Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission (2005) 224 ALR 344; [2005] FCAFC 221 C Cook, et al, Laying Down The Law (5th Edn) (Butterworths: Chatswood, 2001) |
| Applicant: | SUCCESS AUSTRALIA GROUP PTY LTD |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | PEG 48 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 21 August 2013 |
| Date of Last Submission: | 21 August 2013 |
| Delivered at: | Perth |
| Delivered on: | 28 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms L Chen |
| Solicitors for the Applicant: | Lily Chen & Associates |
| Counsel for the Respondent: | Mr P R Macliver |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the name of the respondent be amended to read “Minister for Immigration & Border Protection”.
That the applicant’s:
(a)application filed 19 March 2013 as amended by an amended application filed 9 May 2013;
(b)application in a case filed 20 May 2013, and
(c)oral application made at hearing on 21 August 2013 for further injunctive relief,
be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 48 of 2013
| SUCCESS AUSTRALIA GROUP PTY LTD |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
By an application filed on 19 March 2013, and subsequently amended by an amended application filed on 9 May 2013, the applicant, Success Australia Group Pty Ltd,[1] applies for an order that the respondent, the Minister for Immigration & Citizenship,[2] show cause why a remedy should not be granted in the exercise of the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth)[3] in respect of a migration decision.[4]
[1] “Success Australia”.
[2] Now the Minister for Immigration & Border Protection (“Minister”).
[3] “Migration Act”.
[4] “Sanction Decision”.
An application in a case was filed by Success Australia on 20 May 2013 seeking a “priority hearing” and interlocutory injunctive relief. At hearing, further injunctive relief was sought.
Orders sought and response
The orders sought in the amended application are as follows:
a)an interlocutory order in the following terms:
Interlocutory injunction preventing the Minister from refusing nomination applications and applicants’ application as a result of the sanction decision pending the decision of Migration Review Tribunal (Affected Applicants and their family are attached).
b)a final order that:
Injunction preventing the Minister from refusing nomination applications and applicants’ application as a result of the sanction decision pending the decision of Migration Review Tribunal.
The Court observes that the interlocutory and final relief sought in the amended application are the same.
The grounds of the amended application are as follows:
1.The sanction imposed by the Minister (DIAC Perth) on the Applicant was wrong as it is a biased decision.
2.It is procedurally unfair and prejudiced if the Minister continues to refuse the nomination applications and applicants’ application as consequences of the wrongful sanction without the final decision of MRT, because three nominations have already refused.
Attached to the amended application is a list of persons described as “Affected applicants (nominations and visa applications)”,[5] which lists eight persons, whose details it is not necessary to set out.
[5] “Affected Persons”.
On 20 May 2013 Success Australia filed an application in a case by which Success Australia sought orders that:
1.The Applicant seeks a priority hearing for this matter.
2.Interlocutory injunction preventing the Minister from cancelling the visas of the approved Subclass 457 visa holders as a result of the sanction decision pending the decision of Migration Review Tribunal (Affected Applicants and their family are attached).
At hearing, and in reply, Counsel for Success Australia said that the Court:
a)was not being asked to consider:
i)the Sanction Decision; and
ii)the refusals or cancelations of visas already made,
as they would be the subject of a Migration Review Tribunal[6] determination;[7]
b)was only being asked to grant a “stay” of the refusals and cancelations pending the Tribunal determination;[8] and
c)could disregard the application, amended application and application in a case, and simply consider the request for the grant of the injunction.[9]
[6] “Tribunal”.
[7] Transcript, pages 12 and 14.
[8] Transcript, pages 12 and 14.
[9] Transcript, pages 13-14.
Counsel for Success Australia conceded that the Sanction Decision, and any decision to refuse or cancel visas, were primary decisions, as were any future “migration decisions”.[10]
[10] Transcript, pages 13.
The Minister filed a response on 27 March 2013, which response is maintained, and which asserts that:
1.The Court lacks jurisdiction to hear the application pursuant to s476(2)(a) of the Migration Act 1958.
2.The decision of the respondent is not affected by jurisdictional error.
Affidavits
Success Australia filed four affidavits, being the affidavits of Chi Yue Lau, of 19 March 2013,[11] 8 May 2013,[12] 20 May 2013[13] and 28 June 2013.[14] The Minister relies on the affidavit of Richard Clive Ross, sworn 30 May 2013.[15] The affidavits were all read and admitted, subject to relevance.[16]
[11] “Ms Lau’s First Affidavit”.
[12] “Ms Lau’s Second Affidavit”.
[13] “Ms Lau’s Third Affidavit”.
[14] “Ms Lau’s Fourth Affidavit”.
[15] “Mr Ross’ Affidavit”.
[16] Transcript, page 6.
The Court has taken a broad view of the scope of relevance, excluding that which is not a representation of fact, but rather vague, speculative, argumentative, conclusionary or a submission or contention as to the law. For reasons which follow various parts of Ms Lau’s Affidavits must be struck out.
Ms Lau’s First Affidavit
In Ms Lau’s First Affidavit the following paragraphs are struck out for the following reasons:
a)paragraph 4 – speculative and conclusionary;
b)paragraph 5 (the final sentence) – contention of law;
c)paragraph 7 (the last sentence of each subparagraph) – conclusionary;
d)paragraph 8 (last sentence) – vague, and in effect meaningless; and
e)paragraph 9 (last sentence) – submission.
Ms Lau’s Second Affidavit
The following parts of Ms Lau’s Second Affidavit are struck out:
a)paragraph 3 – contention, which repeats the contentions in the amended application; and
b)paragraphs 5, 6 and 7 – assertions about, and submissions on, the law.
Ms Lau’s Third Affidavit
As with Ms Lau’s Second Affidavit, paragraphs 3, 5, 6 and 7 are struck out for the same reasons as in Ms Lau’s Second Affidavit, and paragraph 8 is struck out because it is a submission.
Ms Lau’s Fourth Affidavit
In relation to Ms Lau’s Fourth Affidavit the following paragraphs are struck out:
a)paragraph 2 – argumentative and contains assertions as to the relevance of Mr Ross’ Affidavit, and unnecessary insofar as it repeats and attaches copies of Ms Lau’s First, Second and Third Affidavits as annexures (which are also struck out as annexures);
b)paragraph 14 – submission on, and contention in relation to, the law, and argumentative;
c)paragraph 16 (final sentence) – submission on, and contention in relation to, the law, and argumentative;
d)paragraph 18 (in respect to the words “realize the error of law and” and “determined by failure to take relevant information into account”) – contention of law and conclusionary;
e)paragraph 19 (third last sentence) – submission on, and contention in relation to, the law, and argumentative; and
f)paragraph 21 – argumentative and conclusionary.
Observation on matters remaining in Ms Lau’s Affidavits
All the matters of alleged fact referred to in the Affidavits of Ms Lau are matters which are appropriate for consideration by the Tribunal on an application for review of any relevant primary decisions made by a delegate of the Minister, those matters all being relevant to assessments of fact by such a delegate.
Issue
The issue arising from the amended application, the application in a case, and Success Australia’s oral submissions at hearing, is whether the Court has jurisdiction to deal with the matters raised and grant the injunctive relief sought.
Factual background
The factual background is as follows:
a)Success Australia is an Australian proprietary company which was registered on 19 March 2007. Success Australia was initially approved by an officer of the then Department of Immigration and Multicultural Affairs[17] as a standard business sponsor on 18 December 2007;[18]
b)by application dated 18 March 2012 Success Australia lodged a further application with the Department for approval as a standard business sponsor of overseas skilled workers under the Subclass 457-Business (Long Stay) visa[19] program.[20] On 22 May 2012 Success Australia was approved by an officer of the Department, acting as a delegate of the Minister, as a standard business sponsor;[21]
c)in or about July 2012 the Department commenced monitoring Success Australia to assess its compliance with its sponsorship obligations;[22]
d)by letter dated 21 January 2013 the Department gave notice[23] to Success Australia that a delegate was considering taking action in relation to Success Australia under s.140N of the Migration Act, (which empowers the Minister to establish a process by regulation to cancel and bar a person as a sponsor under s.140M of the Migration Act) as required by reg.2.96(1) of the Migration Regulations 1994 (Cth), which provides for the giving of written notice to a person against whom the Minister is considering taking action under s.140M of the Migration Act.[24] The Notice advised that that delegate was satisfied that Success Australia had failed to satisfy one or more of the sponsorship obligations specified in regs.2.79 (obligation to ensure equivalent terms and conditions of employment), 2.82 (obligation of an approved sponsor to keep certain records) and 2.84 (obligation to provide information to the Department when certain events occur) of the Migration Regulations;
e)on 18 February 2013 Success Australia provided its response to the Notice. It suffices to observe that Success Australia disputed, with some vigour and at some length, the factual matters which formed the basis for the Delegate’s conclusions in the Notice;[25]
f)on 26 February 2013 Mr Ross, as delegate of the Minister,[26] made a decision under s.140M(1)(a) of the Migration Act to cancel the approval of Success Australia as a standard business sponsor, and made a further decision under s.140M(1)(d) of the Migration Act to bar Success Australia for a period of two years from making future applications for approval as a standard business sponsor (collectively, the Sanction Decision).[27] The Delegate notified Success Australia of the Sanction Decision by letter dated 26 February 2013, and provided reasons for the Sanction Decision;[28] and
g)on 12 March 2013, Success Australia applied to the Tribunal for review of the Sanction Decision.[29] As at the date of affirmation of Mr Ross’ Affidavit the Tribunal had not completed its review of the Sanction Decision.[30]
Consideration – Jurisdiction
[17] Subsequently the Department of Immigration and Citizenship, and now the Department of Immigration and Border Protection (“Department”).
[18] Mr Ross’ Affidavit, paras.3 and 4 and annexures RCR-1 and RCR-2.
[19] “457 Visa”.
[20] Mr Ross’ Affidavit, para.5 and annexure RCR-3.
[21] Mr Ross’ Affidavit, para.6 and annexure RCR-4.
[22] Mr Ross’ Affidavit, para.7.
[23] “Notice”.
[24] “Migration Regulations”; Mr Ross’ Affidavit, para.8 and annexure RCR-5.
[25] Mr Ross’ Affidavit, para.9 and annexure RCR-6.
[26] “Delegate”.
[27] Mr Ross’ Affidavit, para.10.
[28] Mr Ross’ Affidavit, para.11 and annexure RCR-7.
[29] Mr Ross’ Affidavit, para.12 and annexure RCR-8.
[30] Mr Ross’ Affidavit, para.13.
Submissions
Success Australia ultimately submitted that the Court could, and should, grant an injunction to restrain any visa refusal or cancelations in relation to the Affected Persons pending the outcome of any Tribunal determination of those cases. Success Australia submitted that the Court could grant an injunction based on the judgment of the Full Court of the Federal Court in SZQDZ & Ors v Minister for Immigration & Citizenship & Anor,[31] and judgments in SZQGA v Minister for Immigration & Citizenship & Anor,[32] Minister for Immigration & Citizenship v SZQRB[33] and SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs,[34] and should otherwise do so based on normal principles in relation to injunctive relief.[35]
[31] (2012) 200 FCR 207; [2012] FCAFC 26 (“SZQDZ”).
[32] (2012) 204 FCR 557; [2012] FCA 593 (“SZQGA”).
[33] (2013) 210 FCR 505; [2013] FCAFC 33 (“SZQRB”).
[34] [2004] FMCA 211 (“SZCTH”). In SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1528 an application for an extension of time for leave to file a notice of appeal against SZCTH wad dismissed.
[35] Citing Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 (“Beecham”); EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 105 (“EnergyAustralia”).
The Minister submitted that under s.476(2)(a) of the Migration Act the Court lacks jurisdiction to hear and determine the matters raised and to grant the injunctions sought by Success Australia.
In order to properly consider the matter it is necessary to have regard to the Court’s jurisdiction in relation to the Sanction Decision. Furthermore, in the seemingly “on the run” circumstances in which Success Australia’s Counsel indicated that it wished the Court to disregard the application, amended application and application in a case, the Court considers it prudent to deal with the subject matter of the amended application and the application in a case.
Court’s jurisdiction
This Court has jurisdiction in relation to “migration decisions”[36] but has no jurisdiction in relation to “a primary decision”.[37] A “primary decision” relevantly means a privative clause decision or purported privative clause decision that is reviewable under Part 5 of the Migration Act (whether or not it has been reviewed).
[36] Migration Act, s.476(1).
[37] Migration Act, s.476(2)(a).
The jurisdiction conferred on the Court by s.476 of the Migration Act is, therefore, conferred only in relation to “migration decisions”, but specifically excluded in relation to a “primary decision”, even if the primary decision is a migration decision.
SZQDZ
Both parties referred to SZQDZ. In SZQDZ the Federal Court was dealing with five applications for leave to appeal decisions of the Federal Magistrates Court of Australia.[38] Before the FM Court the applicants in each of the matters for which leave to appeal was sought had raised an argument that an extension of time under s.477(2) of the Migration Act was not required because the time limit imposed by s.477(1) of the Migration Act did not apply to their applications. The Full Court of the Federal Court went on to observe that:
The short point here is that the only decision in respect of which the applicants seek a remedy is one which has not yet occurred. On that footing, as it emerged in argument, the applicants submit that s 477 [of the Migration Act] does not stand in the way of their applications for an injunction.[39]
[38] “FM Court”.
[39] SZQDZ FCR at 212 per Keane CJ, Rares and Perram JJ; FCAFC at para.16 per Keane CJ, Rares and Perram JJ.
In SZQDZ in relation to whether the claim for an injunction of the quia timet variety was made in relation to a migration decision the Full Court of the Federal Court observed that:
a)the Minister had not yet made a decision of any kind in relation to the visa applications;
b)each independent merits review recommendation[40] in issue was not a decision upon an application for a visa;
c)each IMR Recommendation was not a step required by the Migration Act in the Minister’s decision-making process under s.46A of the Migration Act;
d)if the Minister were to make a decision or decisions that it would only be that decision or those decisions that would have legal effect under the Migration Act;
e)each IMR Recommendation is not a decision apt to be replaced by the Minister’s decision;
f)no relief was sought in any of the applications to this Court for the Minister to make a decision in lieu of any of the IMR Recommendations; and
g)the applicants sought an order that the Minister refrain from making a decision which takes the IMR Recommendation into account.[41]
[40] “IMR Recommendation”.
[41] SZQDZ FCR at 215 per Keane CJ, Rares and Perram JJ; FCAFC at para.29 per Keane CJ, Rares and Perram JJ.
With respect to whether the IMR Recommendations were decisions of an administrative character the Full Court of the Federal Court said that:
The reviewer’s assessment and recommendation was not a “migration decision” to which the 35 day time bar applied because it was not a “decision” for the purposes of the Act at all.[42]
[42] SZQDZ FCR at 216 per Keane CJ, Rares and Perram JJ; FCAFC at para.31 per Keane CJ, Rares and Perram JJ.
The Full Court of the Federal Court went on in SZQDZ to observe that the IMR Recommendations had no statutory or legal force and that the Minister was not bound to act on the IMR Recommendations, or take them into account, or make a decision if any IMR Recommendation was favourable to the applicants.[43] As such, an IMR Recommendation was not a decision capable of characterisation as “a decision of an administrative character made or proposed to be made … under [the] Act” within the meaning of s.474(2) of the Migration Act.[44] Nor was an IMR Recommendation a privative clause decision for the purposes of s.474(3)(h) of the Migration Act, because to be a privative clause decision it was still required to have the character in s.474(2) of the Migration Act of a decision of an administrative character made or proposed to be made under the Migration Act.[45]
[43] SZQDZ FCR at 218 per Keane CJ, Rares and Perram JJ; FCAFC at para.39 per Keane CJ, Rares and Perram JJ.
[44] SZQDZ FCR at 218 per Keane CJ, Rares and Perram JJ; FCAFC at para.39 per Keane CJ, Rares and Perram JJ.
[45] SZQDZ FCR at 218 and 219 per Keane CJ, Rares and Perram JJ; FCAFC at paras.39-40 and 43 per Keane CJ, Rares and Perram JJ.
Despite concluding that the Minister was able to “ignore entirely” an IMR Recommendation,[46] the Full Court of the Federal Court went on to observe, by reference to the High Court judgment in Plaintiff M61/2010E & Anor v Commonwealth of Australia,[47] that:
… declaratory relief and, perhaps, an injunction would be an appropriate remedy to ensure that the Minister understands that a assessment or recommendation is affected by demonstrable error if he or she were otherwise minded to act upon them. In this regard, to say that the assessment and recommendation of the review was not an administrative decision is not to say that the review process was not required to be fairly and lawfully conducted.[48]
[46] SZQDZ FCR at 219-220 per Keane CJ, Rares and Perram JJ; FCAFC at para.44 per Keane CJ, Rares and Perram JJ.
[47] (2010) 243 CLR 319; [2010] HCA 41 (“Plaintiff M61”).
[48] SZQDZ FCR at 219-220 per Keane CJ, Rares and Perram JJ; FCAFC at para.44 per Keane CJ, Rares and Perram JJ, referring to Plaintiff M61 CLR at 358-360 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.99-104 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
In this regard the Full Court of the Federal Court in SZQDZ quoted what the High Court said in Plaintiff M61 as follows:
78 The Minister having decided to consider the exercise of power under either or both of ss 46A and 195A, the steps that are taken to inform that consideration are steps towards the exercise of those statutory powers. That the steps taken to inform the consideration of exercise of power may lead at some point to the result that further consideration of exercise of the power is stopped does not deny that the steps that were taken were taken towards the possible exercise of those powers. Nor does it deny that taking the steps that were taken directly affected the claimant's liberty. There being no exclusion by plain words of necessary intendment, the statutory conferral of the powers given by ss 46A and 195A, including the power to decide to consider the exercise of power, is to be understood as "conditioned on the observance of the principles of natural justice". Consideration of the exercise of the power must be procedurally fair to the persons in respect of whom that consideration is being given. And likewise, the consideration must proceed by reference to correct legal principles, correctly applied.[49]
[49] SZQDZ FCR at 219-220 per Keane CJ, Rares and Perram JJ; FCAFC at para.44 per Keane CJ, Rares and Perram JJ, citing Plaintiff M61 CLR at 353-354 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; HCA at paras.77-78 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
The Full Court of the Federal Court in SZQDZ concluded that:
Because a reviewer’s recommendation is not a migration decision within the meaning of the Act, s 477 does not apply to it.[50]
[50] SZQDZ FCR at 221 per Keane CJ, Rares and Perram JJ; FCAFC at para.49 per Keane CJ, Rares and Perram JJ.
In SZQDZ the Full Court of the Federal Court therefore determined that an IMR Recommendation was not a migration decision. Therefore, time did not run, for the purpose of extending time from the time an IMR Recommendation was made, when making a judicial review application to this Court to review an IMR Recommendation.
SZQDZ and subsequent authorities establish that this Court has jurisdiction in relation to an application for an injunction in relation to a proposed future decision under the Migration Act which was not a migration decision or a primary decision.[51]
[51] SZQGA v Minister for Immigration & Citizenship & Anor (2012) 204 FCR 557 at 575-576 per Barker J; [2012] FCA 593 at paras.72-74 per Barker J (“SZQGA”). See also WZAPN & Ors v Minister for Immigration & Citizenship & Ors (2012) 261 FLR 284 at 292-293 per Lucev FM; [2012] FMCA 235 at paras.22-26 per Lucev FM, and DZABS v Minister for Immigration & Citizenship & Anor (2012) 261 FLR 447 at 455-457 per Lindsay FM; [2012] FMCA 297 at paras.52-63 per Lindsay FM.
SZQDZ is distinguishable from the present application. First, and foremost, SZQDZ was not a matter related to either a migration decision or a primary decision. Because it was not related to a primary decision the statutory exclusion under s.476(2)(a) of the Migration Act in relation to this Court’s jurisdiction did not apply. That statutory exclusion of jurisdiction does apply to the present proceedings, and must be given effect to. Valid legislation is paramount, and cannot be ignored by the Court, as was suggested by the applicant’s Counsel in the course of submissions when it was submitted that the Court could create a precedent which would prevail over the relevant legislative provisions, in this case, s.476(2)(a) of the Migration Act.[52] Subject only to a challenge to the constitutional validity of a legislative provision, and there is no such challenge here, the sovereignty of the Commonwealth Parliament to make law is unlimited, and no person or body, including a court, can make a decision which purports to override or set aside validly enacted legislation. That an admitted legal practitioner could make a submission to the contrary is a matter of some concern. The matter is put thus in a text familiar to first year law students:
The precedence given to legislation when the two conflict was the outcome of a constitutional struggle between the Stuarts and the House of Commons in England in the 17th Century: … the outcome of that struggle led to the doctrine of parliamentary supremacy over the courts, a fundamental constitutional rule applying in all common law countries …
The subordination of the courts is not absolute, however, since courts have the task of resolving disputes about the meaning of words in legislation. Moreover, it falls to the courts to ensure that legislation is made only on topics within constitutional power.[53]
[52] Transcript, page 5.
[53] C Cook, et al, Laying Down The Law (5th Edn) (Butterworths: Chatswood, 2001) at page 150. See also L Waller, Derham, Maher and Waller, An Introduction to Law (7th Edn) (North Ryde: LBC Information Services, 1995) at page 25.
Whilst the above finding is probably sufficient to conclude the issue as to why SZQDZ is distinguishable, the Court also notes that:
a)whilst the IMR Recommendation in SZQDZ was not a step required by the Migration Act in the decision-making process so as to facilitate the making of a decision by the Minister, the Sanction Decision, and any future nomination refusal decision, or future decision to refuse the grant of a visa, to any of the Affected Persons, by a delegate of the Minister will be an essential step in the decision-making process leading to the grant or otherwise of a visa under s.65 of the Migration Act;
b)the decisions of a delegate, unlike the IMR Recommendations in SZQDZ, have legal effect under the Migration Act, subject to merits review by the Tribunal, and judicial review by this Court, an appeal to the Federal Court, and the grant of special leave to appeal from a judgment of the Federal Court by the High Court of Australia;
c)subject to merits review, judicial review, appeal and special leave to appeal, the decision of a delegate is the decision of the Minister, unlike the IMR Recommendation which is not a decision for the purposes of the Migration Act at all according to SZQDZ; and
d)there is an independent right to make an application for merits review of a decision of the Delegate, and any merits review by the Tribunal is a fresh decision on the merits of an applicant’s case, whereas in SZQDZ the IMR Recommendation was not the subject of any merits review.
Although SZQDZ is distinguishable, a question still arises as to whether the amended application is an application “in relation to migration decisions” for the purposes of s.476(1) of the Migration Act.
In O’Grady v The Northern Queensland Company Limited[54] the High Court of Australia dealt with the phrase “in relation to” and found that it requires “no more than a relationship, whether direct or indirect, between two subject matters”.[55]
[54] (1990) 169 CLR 356 (“O’Grady”).
[55] O’Grady at 376 per McHugh J, and at 374 per Toohey and Gaudron JJ.
In O’Grady it was said that:
The words “in relation to”, read out of context, are wide enough to cover every conceivable connexion. But those words should not be read out of context, which in this case is provided by the … Act …. What is required is a relevant relationship, having regard to the scope of the Act. Where jurisdiction is dependent upon a relation with some matter or thing, something more than a coincidental or mere connexion – something in the nature of a relevant relationship – is necessary ….[56]
[56] O’Grady at 367 per Dawson J.
The only reason that a “direct connection” was found to be required in O’Grady was because the phrase had to be read, in context, and the relevant legislation required the jurisdiction of the Queensland Wardens Court to be exercised in all actions “arising in relation to mining”. It was the word “arising” which gave rise to the requirement of a “direct connection” in O’Grady.[57] O’Grady, read as a whole, supports a broad meaning whereby a relationship between two subject matters, whether direct or indirect, is sufficient to be “in relation to”.[58]
[57] O’Grady at 374 per Toohey and Gaudron JJ: “Although ‘in relation to’ is an expression of broad import, in context with ‘arising’ it presupposes a direct connexion …”.
[58] See also Birch v Wesco Electrics (1966) Pty Ltd (2012) 257 FLR 237 at 257-260 per Lucev FM; [2012] FMCA 5 at paras.66-74 per Lucev FM, and the additional authorities there cited.
In Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission[59] the Full Court of the Federal Court held that in determining whether a matter was “in relation to” another matter, “the question is whether there is a relevant, sufficient or material connection or relationship, rather than merely a causal connection or relationship.”[60] In Australian Communications Network the Full Court of the Federal Court said that the approach set out above in O’Grady emphasised “the need for attention to the legislative context and purpose” and was “an example of the primacy of context”.[61]
[59] (2005) 224 ALR 344; [2005] FCAFC 221 (“Australian Communications Network”).
[60] Australian Communications Network ALR at 351 per Heerey, Merkel and Siopis JJ; FCAFC at para.29 per Heerey, Merkel and Siopis JJ.
[61] Australian Communications Network ALR at 350 per Heerey, Merkel and Siopis JJ; FCAFC at para.26 per Heerey, Merkel and Siopis JJ.
The principal majority judgment in Travelex Ltd v Commissioner of Taxation of the Commonwealth of Australia[62] observed that:
It may readily be accepted that "in relation to" is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that "the subject matter of the inquiry, the legislative history, and the facts of the case" are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply "in relation to" rights.[63]
and further that:
What the Act requires is that there be a supply "in relation to" rights; the operation of the Act does not call for attention to be given to the particular content of the rights.[64]
[62] (2010) 241 CLR 510; [2010] HCA 33 (“Travelex”).
[63] Travelex CLR at 519-520 per French CJ and Hayne J; HCA at para.25 per French CJ and Hayne J.
[64] Travelex CLR at 521 per French CJ and Hayne J; HCA at para.32 per French CJ and Hayne J.
It is clear from the High Court and Federal Court cases cited above that the phrase “in relation to” is not limited to a relationship of “direct connection”.
The amended application is an application “in relation to”:
a)future decisions under s.140GB of the Migration Act or reg.5.19 of the Migration Regulations in relation to nomination applications;
b)in relation to future visa application decisions under s.65 of the Migration Act, that would be made having regard to the Sanction Decision; and
c)the Sanction Decision, being a migration decision made pursuant to specific provisions of the Migration Act.
The injunctions sought by the applicant are in relation to “migration decisions”, under s.476(1) of the Migration Act. But s.476(1) of the Migration Act is “subject to” the remainder of s.476 of the Migration Act, including s.476(2)(a) of the Migration Act, which provides that the Court has no jurisdiction in relation to a primary decision, even where, as here, those primary decisions are also migration decisions, and each primary decision is “in relation to” a migration decision.
Section 476(4) of the Migration Act provides that a “primary decision” includes a privative clause decision or purported privative clause decision that is reviewable under Part 5 of the Migration Act (whether or not it has been reviewed). Part 5 of the Migration Act deals with the review of decisions by the Tribunal. Section 338 of the Migration Act (which is in Part 5 of the Migration Act) lists various categories of decisions which are reviewable by the Tribunal, including those decisions “prescribed for the purposes of” s.338(9) of the Migration Act.
Decisions made under s.140M of the Migration Act “to take 1 or more actions to cancel a sponsor’s approval or to bar a sponsor” are prescribed under reg.4.02(4)(h) of the Migration Regulations for the purposes of s.338(9) of the Migration Act. The Sanction Decision is therefore a primary decision. Success Australia has sought its review by the Tribunal. The Court, therefore, has no jurisdiction in relation to the Sanction Decision.[65]
[65] Migration Act, s.476(2)(a).
The amended application seeks injunctive relief preventing the Minister from refusing nomination applications and the Affected Persons’ related visa applications as a result of the Sanction Decision. The amended application is, therefore, in relation to a primary decision. The Court, therefore, has no jurisdiction in relation to the amended application.[66]
[66] Migration Act, s.476(2)(a).
Success Australia’s application in a case seeks an interlocutory injunction to prevent the Minister from cancelling the visas of approved 457 Visa holders as a result of the Sanction Decision. Any such cancellation decision would be an MRT-reviewable decision pursuant to s.338(3) of the Migration Act. Section 338(3) of the Migration Act provides that a decision to cancel a visa held by a non-citizen who is in the migration zone at the time of cancellation is an MRT-reviewable decision (subject to three exceptions not presently relevant). To the extent that the application in a case is seeking an injunction against future 457 Visa cancellation decisions, it is in relation to a primary decision, and the Court therefore has no jurisdiction to deal with it.[67]
[67] Migration Act, s.476(2)(a).
Future nomination refusal decisions under either s.140GB(2) of the Migration Act or reg.5.19 of the Migration Regulations are primary decisions because s.338(9) of the Migration Act prescribes them as MRT-reviewable decisions, being decisions “to refuse to approve a nomination”[68] and “to refuse an application for approval of the nomination of a position” respectively.[69]
[68] Migration Regulations, reg.4.02(4)(d).
[69] Migration Regulations, reg.4.02(4)(e).
Future decisions to refuse any of the Affected Persons a Subclass 119 Regional Sponsored Migration Scheme visa[70] will be primary decisions, because they will be MRT-reviewable decisions under s.338(5) of the Migration Act. Section 338(5) of the Migration Act provides that a decision to refuse to grant a visa is an MRT-reviewable decision if the visa could not be granted while the non-citizen is in the migration zone.[71] An applicant must be outside Australia when the 119 Visa is granted.
[70] “119 Visa”.
[71] Migration Regulations, Schedule 2, cl.119.411.
Future decisions to refuse to grant a Subclass 857 Regional Sponsored Migration Scheme visa[72] will be primary decisions, because the refusal decisions will be MRT-reviewable decisions under s.338(2) of the Migration Act. Section 338(2) of the Migration Act provides that a decision to refuse to grant a visa is an MRT-reviewable decision if the visa could be granted while the non-citizen is in the migration zone.[73] An applicant must be in Australia when the 857 Visa is granted, except for an applicant who was the holder of a Subclass 495 visa[74] (or a member of the family unit of a person who held such a visa), in which case an applicant may be in or outside Australia.[75] Here, none of the Affected Persons is the holder of a 495 Visa.
[72] “857 Visa”.
[73] Migration Regulations, Schedule 2, cl.857.412.
[74] “495 Visa”.
[75] Migration Regulations, Schedule 2, cl.857.412.
The future nomination refusal decisions and future visa refusal decisions in respect of which injunctive relief is sought, are all primary decisions, so that the amended application is an application in relation to one or more primary decisions.
The oral application made by the applicant at hearing for an injunction staying existing refusals of nominations and visas, and cancelation of visas, are also, for reasons set out above in relation to one or more primary decisions. Once again, the Court, therefore, has no jurisdiction to deal with the application or grant the relief sought.[76]
[76] Migration Act, s.476(2)(a).
The applicant also adverted to SZQGA in written submissions as authority for the proposition that this Court has jurisdiction to issue an injunction in relation to prospective decisions of the Minister under the Migration Act. The applicant’s written submission did not elaborate further. SZQGA was a case which was no different in principle to SZQDZ, which for reasons outlined above is distinguishable and not, with respect, of further assistance to the resolution of the present proceedings.
The applicant also made a submission that by “analogy” the judgment of the Full Court of the Federal Court in SZQRB was relevant to the present proceedings. Other than by saying that it was by way of analogy, no other submissions, either written or oral, of any substance were made to the Court. In SZQRB an Afghan asylum seeker was facing removal from Australia under s.198 of the Migration Act. The Minister had determined that Australia did not owe any international obligations under a particular treaty to the asylum seeker. The Minister also declined to exercise personal non-compellable powers to allow the asylum seeker to lodge a visa application or to grant him a visa, and the Minister had indicated that he would not further consider exercising those non-compellable powers in the asylum seeker’s case irrespective of whether the treaty obligations decision was wrong and whether the asylum seeker was actually entitled to complementary protection under s.36(2) of the Migration Act, or not. Because the treaty obligations decision had been made with reference to material, including independent country information, that was published after the asylum seeker’s written submissions had been received, the Full Court of the Federal Court determined that the asylum seeker had been denied procedural fairness because there was a failure to bring to his attention information that might be relied upon for concluding that he did not breach Australia’s non-refoulement obligations. There was an intention to remove the asylum seeker from Australia without first obtaining a treaty obligation determination conducted procedurally fairly and in which the law would be correctly applied. Hence, the Minister threatened to remove the asylum seeker even if he was a person to whom Australia owed protection obligations, and to do so in contravention of Australia’s international treaty obligations.[77]
[77] SZQRB FCR at 553-555 per Lander and Gordon JJ; FCAFC at paras.262-272 per Lander and Gordon JJ; FCR at 557-558 per Besanko and Jagot JJ; FCAFC at para.297 per Besanko and Jagot JJ; FCR at 565 per Flick J; FCAFC at para.342 per Flick J.
SZQRB did not involve a decision of a delegate, reviewable on the merits by the Tribunal, and judicially reviewable by this Court, and on appeal and by way of special leave by the Federal Court and High Court respectively. In that regard, SZQRB is distinguishable because it involved a final decision, or a potentially final decision, by the Minister, made on procedurally flawed grounds, and not, as here, a partially completed reviewable process. Furthermore, SZQRB did not involve a primary decision expressly said not to be reviewable under the provisions of the Migration Act. For these reasons, SZQRB is not of assistance in the disposition of this matter.
The judgment of the FM Court in SZCTH is also distinguishable because the definition of “primary decision” did not at the time SZCTH was delivered include a “purported privative clause decision”, now included in s.476(4) of the Migration Act, by reason of the passage of the Migration Litigation Reform Act 2005 (Cth) amending the definition of “migration decision” in s.5(1) of the Migration Act and the definition of “primary decision” in s.476(4) of the Migration Act. Those amendments make it clear that the Court has no jurisdiction to deal with a primary decision, or future primary decision, and SZCTH is, therefore, distinguishable.
The effect of the above considerations is that the Court does not have jurisdiction to make orders or grant an injunction as sought by the applicant’s amended application, application in a case and further injunctive relief sought at hearing. It follows, therefore, that the application must be dismissed.
Other matters
The Court having concluded that it lacks jurisdiction to grant the orders and injunctive relief sought in the amended application, application in a case and further injunctive relief sought at hearing, it is unnecessary to deal with the issues of:
a)injunctive relief; and
b)the grounds for judicial review in relation to alleged bias by the Delegate, and alleged procedural unfairness and prejudice in relation to refusal of nomination applications and visa applications based on the Sanction Decision.
Conclusions and orders
The Court has concluded that all of the matters about which the applicant complains, are or will be, or involve, primary decisions which this Court has no jurisdiction to hear by reason of s.476(2)(a) of the Migration Act, and it follows, therefore, that the application as amended by the amended application, application in a case and further injunctive relief sought at hearing by the applicant must all be dismissed.
There will also be an order amending the name of the Minister to “Minister for Immigration & Border Protection”.
The Court will hear the parties as to costs of the application, amended application, application in a case and further application at hearing for injunctive relief.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 28 February 2014
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