SZHUJ v Minister for Immigration (No.2)
[2010] FMCA 913
•19 November 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHUJ v MINISTER FOR IMMIGRATION (No.2) | [2010] FMCA 913 |
| MIGRATION – Removal of unlawful non‑citizen from Australia – duty of officer to remove as soon as reasonably practicable – mental health considerations – non‑citizen self‑harming before removal – obligation to consider new medical evidence before removal – removals availability assessment procedures of Department of Immigration – no evidence of past failure to consider relevant material – no evidence of prospective jurisdictional error – application dismissed. |
| Constitution, s.75(v) Federal Court Rules (Cth), O.62 Federal Magistrates Court Rules 2001 (Cth), r.21.02(2)(c) Migration Act 1958 (Cth), ss.5(1), 46A, 48B, 198(6), 417, 474, 474(2), 474(3), 474(7), 476(1), 476(2)(d) |
| Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41 SZHUJ v Minister for Immigration [2010] FMCA 860 SZLJM v Minister for Immigration & Citizenship [2008] FCA 300 SZLJM v Minister for Immigration & Anor (2007) 215 FLR 115, [2007] FMCA 1945 WAJZ v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 84 ALD 655, [2004] FCA 1332 |
| Applicant: | SZHUJ |
| Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| File Number: | SYG 2362 of 2010 |
| Judgment of: | Smith FM |
| Hearing date: | 19 November 2010 |
| Delivered at: | Sydney |
| Delivered on: | 19 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Ower |
| Counsel for the Respondent: | Mr N Williams SC and Mr J Kay Hoyle |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant must pay the respondent’s costs as agreed or taxed in accordance with Federal Court Rules O.62. Pursuant to r.21.02(2)(c), refer those costs for taxation under O.62.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2362 of 2010
| SZHUJ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is a matter which came before me on an interlocutory basis on 2 November 2010. The background to the matter, the circumstances in which that hearing occurred, and my reasons for considering that there were serious issues to be tried are found in SZHUJ v Minister for Immigration [2010] FMCA 860, and I shall not repeat them.
The issues I identified concerned the relevant officers’ duty and power to remove the applicant from Australia under s.198(6) of the Migration Act 1958 (Cth), in so far as the power is conditioned by the words “as soon as reasonably practicable”. It appeared reasonably arguable that these words require the officers to take into account all the evidence available to them as to the applicant’s medical fitness to travel, and that it might be arguable that they might ignore such evidence presented in the past or which might be presented in the future before the applicant’s removal is effected.
As my judgment pointed out, the evidence on that occasion showed that a report from a psychiatrist obtained on behalf of the applicant as to her fitness for removal from Australia had been presented to the Minister and his Department on the morning of the interlocutory hearing through its legal advisers. The Minister’s representatives had understandable difficulty responding immediately to legal and factual issues as to how this report would be addressed. Their uncertainty about this was relevant to my opinion that the applicant should remain in Australia until an expedited final hearing could be held. However, there was no reason at that stage to draw any inferences or assumptions as to how the applicant’s psychiatric evidence would or would not be addressed in relation to further actions in relation to the removal of the applicant from Australia.
The matter comes back before me today for final hearing, in an evidentiary situation which has been reversed. Very recent evidence has been presented by the Minister from the officers who are responsible for making decisions under s.198(6) of the Migration Act, explaining their current opinion that it is ‘reasonably practicable’ to remove the applicant from Australia. This includes some further medical opinions which had not been seen by the applicant’s legal representatives prior to today. I admitted the evidence on the understanding that the applicant and her advisors might not accept the correctness of the medical evidence and opinions currently relied upon by the officers, and might in the future seek to challenge it with further medical reports or evidence presented to them by the applicant. However, that prospect is inherent in the background to this case, and does not prevent my addressing today the issues of judicial review which it raises.
It is necessary today for the Court to address the legal issue in the case, which is whether the applicant has made out a case on the evidence before me today for the relief she seeks on a final basis. In this respect, the issues have simplified considerably since the interlocutory hearing.
The initiating substantive application which was filed on 29 October 2010 raised a variety of issues. It made suggestions that the Court itself could address the merits of the officers’ decisions as to the applicant’s medical fitness to be removed. It also raised issues concerning actions taken within the Minister’s Department referrable to the Minister’s discretions under s.48B and s.417 of the Migration Act in response to efforts by the applicant and her helpers to invoke those powers, and contended that these matters were relevant to the officers’ exercise of power under s.198(6).
Both of those areas of the original application have now been abandoned, properly, in my opinion. The latter area faced substantial difficulties due to the specific exclusions from this Court’s jurisdiction of the review of administrative actions and decisions taken under s.48B and s.417 (see s.476(2)(d) and my judgment in SZLJM v Minister for Immigration & Anor (2007) 215 FLR 115, [2007] FMCA 1945, upheld by Flick J in SZLJM v Minister for Immigration & Citizenship [2008] FCA 300). These exclusions appear to remain effective, notwithstanding a possible need to revisit previous jurisprudence on administrative processes concerning ‘non‑compellable’ powers, in the light of Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia [2010] HCA 41. I observe, however, that the exclusions under s.476(2)(d) by reference to s.474(7) do not include the Minister’s non‑compellable power under s.46A, which was addressed by the High Court.
The previous suggestion that the Court itself could address the merits of decisions about medical fitness to be removed has also been abandoned. It is now conceded that under authorities binding on me, including the authorities I cited in my first decision, questions of ‘reasonable practicability’ are not issues for decision by a Court in Australia as ‘jurisdictional fact’. The Court is confined to reviewing only the legality of the opinions formed or likely to be formed on that issue by officers when exercising the power to remove under s.198(6).
The amended application which is before me today accepts the limited role of the Court. It seeks the following orders based on two grounds, a third ground not being pressed.
Final orders sought by applicant
1.An injunction restraining the respondent’s officers from removing the applicant from Australia pursuant to the decision made under s.198 (6) of the Migration Act, 1958.
2.An order in the nature of mandamus compelling the respondent to consider the opinion of the applicant’s psychiatrist, Dr. Cohen before deciding upon the applicant’s fitness to be removed from Australia to China.
3.A declaration that the decision made by the respondent pursuant to s.198 (6) of the Migration Act, 1958 was contrary to law.
4.An order in the nature of certiorari setting aside the respondent’s decision.
5.Costs.
Grounds of application
1.The respondent’s delegate made a jurisdictional error in deciding that it was reasonably practicable to remove the applicant from Australia.
Particulars
a)There was no medical evidence to support the view that the applicant was mentally fit to travel without her family and, accordingly, reasonably practicable to remove her from Australia.
b)The respondent ignored relevant expert evidence and accepted irrelevant evidence when arriving at his decision about the applicant’s mental fitness.
2.By not considering the opinion of Dr. Cohen the respondent has failed to discharge his ongoing obligation pursuant to s.198(6) to ensure that the removal of the applicant from Australia was reasonably practicable.
The reference to the ‘opinion’ of Dr Cohen is to her report dated 1 November 2010, which was based on an examination of the applicant on 1 November 2010, and was also informed by an earlier examination and report of Dr Cohen dated 22 August 2010.
This Court’s jurisdiction in relation to migration matters is conferred and confined by s.476(1) of the Migration Act, which requires identification of a ‘migration decision’. The Court is given “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution” (emphasis added). A ‘migration decision’ is defined in s.5(1) as including ‘a privative clause decision’, ‘a purported privative clause decision’ and ‘a non‑privative clause decision’. The definitions of these terms lead back to an extended concept of a ‘decision’ provided in s.474(2) and (3):
(2)In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3)A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
Counsel for the applicant accepted that when administrative action which has been taken referable to s.198(6), or is proposed to be taken by reference to that section, is analysed in terms of s.474(2) and (3), a reviewable ‘migration decision’ is best regarded as being constituted by a course of administrative action which is ‘conduct preparatory’ to the ‘doing’ of ‘any other act or thing’, being the act of removal of a person from Australia. The action mandated and authorised by s.198(6) may require a series of administrative ‘decisions’ in the sense of formulated opinions and intentions, but the making of those decisions is not the ultimate manifestation of the s.198(6) power. They are necessary administrative steps towards effecting an act or outcome, being the removal of a person from Australia.
This becomes an important point where, in a case such as the present, such decisions are identified and their legality is examined before a person has been removed from Australia. Necessarily in my opinion, decisions assessing whether a future removal is considered to be ‘reasonably practicable’ will never be final or conclusive prior to the effecting of that removal. The Migration Act raises a continuing obligation on an officer with a duty to exercise a s.198 removal power, to consider reasonable practicality in relation to whatever actions by way of removal are contemplated from time to time. It must be intended by the Act that such an officer, or a team or hierarchy of officers if more than one are involved in the removal process, will consider questions of reasonable practicality in the light of relevant circumstance which present themselves to the officers from time to time, up until the time when they have effected the removal.
The Minister did not dispute that such an implication should be found in s.198(6), as I understood the submissions made to me today. That implication would reflect the well‑known proposition of Mason J in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 45:
… there may be found in the subject‑matter scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision‑maker.
The possible legal controversy which I noted in my earlier judgment has not, therefore, emerged in the submissions to me today. It was not submitted by the Minister that s.198(6) empowered a relevant officer to make one decision on ‘reasonable practicability’, and then to treat that decision as final or irrevocable notwithstanding the presentation of further relevant evidence bearing on fitness to travel which became available prior to an intended removal being effected.
The debate today focussed upon the information which has been in the past, and currently is, before the relevant officers concerning the present applicant’s fitness to travel. It addressed the extent to which the officers had taken medical information into account in the past, and to which they might in the future take into account more up‑to‑date evidence concerning her fitness to travel.
The concern raised by the applicant at the interlocutory hearing was whether there was a prospect that officers involved in making future assessments of reasonable practicality of removing the applicant from Australia, would overlook or exclude from their consideration medical evidence which had in the past been put in front of them and remains on their files with possible relevance, or would do so in relation to any future medical or other evidence presented to them prior to exercising the power of removal. The applicant’s counsel maintained today that the evidence showed a real risk that this would occur, contrary to the effect of the legislation which I have described above. He submitted that the risk was sufficient to found the giving of relief by way of declaratory relief and an injunction.
Essentially, counsel argued that this concern was established by considering the evidence of the past assessments made by the relevant officers. However, my consideration of the evidence of past assessments, and particularly the most recent assessment of the applicant’s fitness to travel, does not satisfy me that any basis for the giving of relief has been established.
It is now clear that somewhere in the files of the relevant officers were a series of medical reports presented to the Department by the applicant or by Sister Sealey or other persons who have assisted the applicant.
These included the first opinion of Dr Cohen dated 22 August 2010. She reported on the mental condition of the applicant and her husband at that time, and expressed an opinion that the applicant “is suffering from a Major Depressive Disorder” for which an antidepressant had been prescribed. In her mental state examination at that time, Dr Cohen noted that the applicant had “suicidal ideation. Exploration of this issue revealed no current suicidal intent but in my opinion there is a real risk of suicide if [the applicant] returns to China”.
That opinion no doubt provided background evidence of the applicant’s psychiatric state, but did not directly impinge upon the practicality of removing her from Australia at the dates relevant to the matter before me. Dr Cohen’s report did not include an opinion on fitness to travel, in the sense of reasonable practicality of effecting that travel. Dr Cohen’s concern about the applicant’s mental state after removal to China might have been relevant to other powers of the Minister under the Migration Act, but was not relevant to an issue under s.198(6). On the opinion of French J in WAJZ v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 84 ALD 655, [2004] FCA 1332, although physical and mental health issues bearing on the process of removal from Australia are relevant for assessment by an officer considering removal, any adverse effects of that removal process and other circumstances facing the removed person back in their own country are not of relevance to the removal officer. His Honour followed the opinions of the Full Court in this respect:
[79]In NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; 80 ALD 799; [2003] FCAFC 292, the Full Court heard four appeals together which raised the construction of the words “as soon as reasonably practicable” in s 198(6). The issue in those appeals was whether death, torture, persecution or other mistreatment of an unlawful non‑citizen which was likely or even almost certain to occur after that person’s removal from Australia to another country was to be taken into account for the purpose of determining whether it was “reasonably practicable” to remove him or her from Australia. The court decided that those matters were not to be taken into account for that purpose.
…
[82]It follows that if an officer is not required to take into account, under the rubric of “reasonable practicability”, the likelihood of persecution or death in the country of destination it can hardly be contended that he or she must take into account the possibility that removal would lead to the deterioration of a person’s mental disease or disorder.
On the Department’s file in relation to the present applicant was also a psychiatric report from Professor Tennant dated 17 September 2009. He referred to having interviewed the applicant, and recorded his opinion at that time that she:
… is clearly suffering from a major depression with some melancholic features. This disorder is made worse by the fact that she has a very serious and invasive cervical cancer. She is awaiting specialist treatment for this condition. I believe were she to return to China she will receive poor medical treatment for this disorder which could prove fatal and she too will suffer through the possible discrimination and persecution of her husband. …
As I have explained above, Professor Tennant’s opinions about the availability of medical treatments in China were not relevant to questions of reasonable practicality of removal. His opinion about her suffering from a major depressive condition did not directly address that issue.
The Department also had a report from the applicant’s general practitioner dated 16 October 2010.
As I had noted, in the course of the Court proceedings on 2 November 2010, a further report from Dr Cohen dated 1 November 2010 came into the possession of the Minister’s officers. This did contain an opinion expressly bearing on reasonable practicality of removal:
[The applicant] is suffering from a Major Depressive Disorder with psychotic features. She is currently suicidal. There is a strong risk that she will attempt suicide if she is deported back to China. She is not fit to travel.
Plainly, that report had not been available to the officers who had assessed the applicant’s fitness to travel prior to that time. The fact that it had not been taken into account in earlier assessments is not probative of a past failure to take into account relevant information contrary to obligations under s.198(6), nor does it point to a likelihood that relevant information would in the future be ignored by officers when addressing their power to remove the applicant.
The applicant’s counsel made submissions that a ‘Removals Availability Assessment’ which was tendered on 2 November 2010, and is now exhibit E before me (“the first RAA”), pointed towards the overlooking, even ignoring, of relevant medical evidence, in particular the earlier reports of Dr Cohen and Professor Tennant which were available to the relevant officers before they announced an intention to remove her on 29 October 2010.
On the evidence before me, it is not easy for me to form any inferences whether those particular reports were or were not consciously considered by the officers concerned in deciding prior to 29 October 2010 whether it was reasonably practicable to remove the applicant. This is because the first RAA is an electronic working document which was printed out on 1 November 2010, and parts of it show amendments made subsequent to 29 October 2010.
It shows that it was electronically signed on 28 October 2010 by the senior officer responsible for supervising the officers with immediate carriage of the case. He recorded an opinion as at that date that it was practical to remove the applicant. However, this was before her self‑harm episode which, in fact, led to the deferral of her removal previously intended for 29 October 2010.
Some of the annexures to the first RRA were then modified with up‑dating information, including by noting the litigation which had commenced on 29 October 2010. The version tendered also includes an updated ‘Health Discharge Assessment for Person in Immigration Detention’ prepared on 2 November 2010. This health discharge assessment refers to the “attempted self harm prior to this morning’s attempted removal. She was treated and reviewed by a psychiatrist at the hospital and deemed to have no evidence of mental illness and found fit to travel”.
In my opinion, the version of the first RAA which was tendered indicates that, notwithstanding that a senior officer had ‘signed off’ an opinion of reasonable practicability of removal on 28 October 2010, the assessment documents were subsequently reviewed and amended by the case managers, by noting and taking into account within a reasonably short time after new medical and other evidence came to hand.
At the time that the first RAA was printed and made available for tender to the Court, the only medical evidence the relevant officers had about the applicant’s self‑harm episode was by way of a brief report from the registrar in psychiatry at Liverpool hospital, under whose care she had passed following an admission following her acts of self harm on the morning of 29 October 2010 or the preceding evening. The registrar had expressed the opinion which was then noted in the health discharge summary I have quoted above.
Considering the contents and attachments to the first RAA, I am not persuaded that it evidences any disposition on the part of the relevant officers to ignore health events as they unfolded, nor to ignore any available medical evidence concerning the unfolding events. It shows that the relevant officers did not treat the RAA as having become conclusive in relation to future removals action, when it was first signed off by the senior officer.
I am also not persuaded that the first RAA provides any evidence that the earlier reports from Dr Cohen and Professor Tennant, were being overlooked or ignored by the removal officers. There is a reference at page 14 of the 79 page attachment to the first RAA, which suggests to me that, indeed, those reports had been noted in the course of the assessment of removal.
Counsel for the applicant made criticisms about the medical assessments recorded in the attachments to the first RAA, in particular, the absence of any discussion by a medical or other person reconciling the opinion of the psychiatric registrar with the earlier opinions of mental illness which had been presented to the Department. However, I am unable to see any obvious inconsistency which would make it unreasonable for the removals officers to accept the registrar’s opinion, or would require further enquiries on their part within concepts of ‘reasonableness’ in judicial review (see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611).
I am therefore not persuaded that the evidence of removal assessments occurring over the period leading up to 29 October 2010 and the first days of November reveals any misconception of power or other error of jurisdiction, upon which relief could be given under s.476 of the Migration Act.
The evidence submitted today by the Minister confirms the inferences which I have drawn from the first RAA documents. This evidence included a second RAA and set of attachments, and extracts from the Department’s procedures advice manual (“PAM”). It shows that the general policies and procedures of the Department require officers to take into account updating events and evidence bearing on reasonable practicality of a proposed removal, and that there is no evidence concerning the proposed removal of the applicant suggesting that past or future relevant evidence will be ignored.
The senior officer responsible for the two RAA processes, and for on‑going supervision of the actions of the removal officer, has given evidence in an affidavit which I accept. He refers to the procedures described in PAM in relation to removal availability assessments (“RAA”). These refer to the completion of RAA processes which are required to be signed by a senior officer in most cases. It expressly addresses the situation where there is a sudden deterioration in health or other reason for reviewing an assessment, in paragraph 20:
20Factors that may prevent removal
20.5Removee’s health prevents removal
If the HSM [Health Services Manager] has undertaken a health discharge assessment and advised that the removee is not considered to be fit for discharge, the removal may be delayed. The department and the HSM will make appropriate arrangements to support the removee’s needs for future discharge on a case by case basis.
Another part of PAM explains the ‘Discharge Health Assessment’ process in relation to the discharging of a person from immigration detention prior to removal, and requires certification that a person is fit to travel. The certification will “remain in place for 28 days or until that person is reviewed again by the health service provider, who at the time of examination will re‑certify fitness to travel”. I am satisfied that notwithstanding the prospective nature of such assessments, they are not treated as irrevocable or not requiring review in the light of subsequent deteriorations in health.
I also accept the senior officer’s evidence, responding to Dr Cohen’s report of 1 November 2010:
Following the execution of the RAA by me, the Applicant commenced the proceedings to which this affidavit relates. Had those proceedings not been commenced and had I been provided with a copy of Annexure C I would have done the following:
(a)considered the document. If the document indicated, expressly or by implication, that the Applicant was not fit to travel, I would have referred the document to the Applicant’s Case Manager or Director and instructed that person to refer the document to the health service provider, in this instance International Health and Medical Services (the Department’s contracted health care provider for immigration detainees), with a direction that the Applicant be reassessed for fitness to travel;
(b)if the health care provider indicated that the Applicant was not fit to travel, the Applicant would not have been removed from Australia until such time as the health service provider assessed her as being fit to travel and, as delegate, I was satisfied that it was reasonably practicable for her to be removed;
(c)if the health care provider assessed the Applicant as being fit to travel, I would have instructed the Applicant’s Case Manager or Director to determine if any additional measures ought be put in place for the Applicant’s removal. For example, providing a suitable health professional to escort the Applicant during the flight and/or setting up an appointment with an appropriate health professional at the Applicant’s destination.
The same officer received the second RAA documentation yesterday, and recorded on it that he had decided as at yesterday, that:
1.The Client is Liable for Removal and Practical
2.Under subsection 198(6) of the Act
The attached documentation, which I find that he would have read and considered, included advice from the medical director responsible for medical services at the detention centre, dated 17 November 2010. The effect of the medical report and its attachments was summarised in the second RAA:
Detention Health has advised that although not considered to have a mental illness, the client may be emotionally distressed following her removal and IHMS recommends an appointment with her GP or similar upon arrival which they have indicated [the applicant] should be able to arrange herself. IHMS has advised that specialist referral to a psychologist or psychiatrist is not clinically indicated for [the applicant].
The medical director’s report said that he had considered both of Dr Cohen’s reports and that of Professor Tennant. It also referred to a more recent review of the applicant by Dr Kipling Walker MBBS FRANZCP IHMS, a psychiatrist, on 10 November 2010. Dr Walker’s reports or clinical notes are not in evidence, but the health discharge assessment provided to the removals officers, in my opinion, summarised what were probably his clinical notes from his assessment on 10 November 2010. It records:
No overt signs of psychosis or mania. Not persistently depressed. Denies suicidal ideation. Fit for travel.
It is unlikely that she has a major depressive disorder or another psychological condition.
It is possible that the medical opinions which were yesterday before the medical director at the detention centre, and then subsequently before the removals officers, might have been open to debate, and that different psychiatric assessments might have been made by different practitioners. However, in my opinion, undoubtedly the opinions which were available to the medical director and then to the removals officers yesterday were opinions which, as a matter of law, were able to be relied upon by those persons when forming opinions whether it is ‘reasonably practicable’ to remove the applicant from Australia. The opinion formed yesterday on this by the senior officer was, in my opinion, open to him on the evidence which he was obliged to consider.
I am therefore not satisfied that the most current evidence as to the administrative processes being conducted within the Department concerning the future exercise of the s.198(6) power reveals any evidence of error of law or other defect which might provide jurisdictional error in relation to past conduct, nor evidence a likelihood of jurisdictional error affecting a future exercise of power under that section, justifying the granting of any relief from this Court.
It is not necessary in the circumstances to analyse the form that such relief might take. This Court through s.75(v) of the Constitution would probably have power to issue a quia timet injunction, restraining a threatened future unlawful exercise of power to remove somebody. However, the applicant has not been able to satisfy the onus of proof in relation to any past or prospective jurisdictional error.
In relation to order 2 sought in the amended application, it is now clear that both the opinions of Dr Cohen have been taken into account by the relevant officers in the Department and their medical advisors. There is no basis shown for me to make a compulsive order for that material to be considered afresh.
I have not been satisfied that anything amounting to a ‘migration decision’ in any of the meanings covered by s.474(2) and (3) has occurred in the past which was contrary to law, and the basis for a declaration to that effect has therefore not been made out.
I have some doubts whether certiorari is a remedy appropriately addressed at administrative decisions which are only inconclusive administrative actions occurring prior to a substantive exercise of the statutory power, and which are superseded by further administrative actions, but in any event a ground for setting aside any past decisions has not been made out on the evidence before me.
On all the evidence and submissions before me today, I am not persuaded that any relief is available to the applicant in the present matter, and I must therefore dismiss the application.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 29 November 2010
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