Hein Pieterse & Anor v The Minister for Immigration & Ethnic Affairs [1997] FCA 84 (14 February 1997)

CATCHWORDS

MIGRATION - application to review cancellation of visas - application to review refusal of visa as applicant ineligible - objections to competency - no application to dismiss application under Order 20 - whether decisions are judicially reviewable.

Migration Act 1958 ss 47(3), 48(b), 116, 140(1), 475 and 478

Federal Court Rules O 20 r 2, O 54B and O 54B r 3

Dwyer v Huxtable (1989) 18 ALD 252

Douglas v Tickner (1994) 49 FCR 507

General Steel Industries Inc v Commissioner for Railways (NSW)

[1964] HCA 69; (1964) 112 CLR 125

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

No SG 26 of 1995

HEIN PIETERSE AND TILANE PIETERSE v THE MINISTER FOR

IMMIGRATION AND ETHNIC AFFAIRS

Mansfield J

Adelaide

14 February 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 26 of 1995

)

GENERAL DIVISION )

BETWEEN:

HEIN PIETERSE and

TILANE PIETERSE

Applicants

- and -

THE MINISTER FOR

IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

MINUTES OF ORDER

CORAM: Mansfield J

PLACE: Adelaide

DATE: 14 February 1997

THE COURT ORDERS THAT:

1. The objection to competency is upheld in so far as the application seeks to complain of the decision made on 1 December 1994.

2. The objection to competency is upheld in so far as the application seeks to complain of the decision or asserted decision made on 13 December 1994.

3. The objection to competency is upheld in so far as the application seeks to invoke the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision made on 7 April 1995.

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

IN THE FEDERAL COURT OF AUSTRALIA )

)

SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 26 of 1995

)

GENERAL DIVISION )

BETWEEN:

HEIN PIETERSE and

TILANE PIETERSE

Applicants

- and -

THE MINISTER FOR

IMMIGRATION AND

ETHNIC AFFAIRS

Respondent

REASONS FOR DECISION

CORAM: Mansfield J

PLACE: Adelaide

DATE: 14 February 1997

This decision is the determination of an objection to the competency of the application for review made in respect of various decisions made under the Migration Act 1958 ("the Act").

Hein Pieterse ("Mr Pieterse") and Tilane Pieterse ("Mrs Pieterse") together with their son Clinton Pieterse, now aged nineteen, arrived in Australia from South Africa on 30 April 1994. Mr Pieterse had been approached to undertake, and had agreed to undertake, the work of "scoring" the sound tracks for a number of documentaries on Africa being produced by a Mr Alby Mangels, or by a company associated with him. In the case of Mr Pieterse, his entry was permitted under a visa granted as a Class 414 - Specialist visa as a temporary resident. In the case of Mrs Pieterse and their son, they were granted a corresponding visa as the spouse dependent and family of Mr Pieterse. In each case the visa was valid to 15 April 1995.

Mr Pieterse's visa was subject to conditions as to his employer and as to the occupation he could follow whilst in Australia. It appears on material provided to me, although I make no final judgment on this matter, that the anticipated work was not immediately available to Mr Pieterse upon his arrival in Australia. What is clear is that Mr Pieterse changed both employer and occupation during 1994 without permission in writing of the Secretary. On 1 December 1994, his visa was cancelled under s116(1)(b) of the Act and Schedule 8 regulation 8107 of the Migration Regulations because he had not complied with a condition of his visa. That decision was notified to him on that date.

Under the Act, he thereby became an unlawful non-citizen. He was on that date notified of his possible eligibility to apply for a bridging visa, and to apply for review of the decision to the Immigration Review Tribunal, and of the time within which that application could be made. He was also informed that, under s48 of the Act, the classes of visa for which he could apply were limited because his visa had been cancelled.

He did not apply to the Immigration Review Tribunal for a review of the decision within the time permitted. Again, there is material before me which would explain that circumstance as involving no fault on his part, but for the purposes of this objection to competency it is unnecessary to go into that material. The application is either competent or it is not. On 13 December 1994 he sought to lodge an application for review of the decision with the Immigration Review Tribunal, but that application was not accepted as it was out of time.

He has in the meantime apparently been granted bridging visas from time to time.

On 31 January 1995 Mr Pieterse again applied for a Cultural/Social (Temporary) (Class TE) Visa of which one subclass was the 414 - Specialist category visa, to extend then to 1 February 1996. On 7 April 1995 that application was refused. It was refused because, in the judgment of the Immigration Officer considering it, Mr Pieterse was not able to validly apply for such a visa. Section 48(b)(ii) of the Act states that a non-citizen in the migration zone who does not hold a substantive visa and who held a visa that was cancelled under s116 may, subject to the regulations, apply for a visa of a class prescribed for the purpose of the section but not for a visa of any other class. Regulation 2.12 of the Migration Regulations prescribed the classes of visas for the purposes of s48 of the Act. A Cultural/Social (Temporary) Visa was not included within those prescriptions.

He was notified of that decision by letter of 10 April 1995. He was also informed that, as the application was not a valid visa application, he did not have the right of review through the Migration Internal Review Office. He was provided with a leaflet containing information about review processes.

On 4 May 1995 he (and Mrs Pieterse) instituted this application for review. By leave, that application was amended on 25 October 1995, such proposed amendment having been foreshadowed at material times. That application for review was said to refer to:

"the decision of the Respondent not to grant the Applicants a Cultural/Social Temporary Resident visa which was notified to the Applicants on 10 April 1995, to cancel the Applicants' 414 Temporary Resident visa, and not permit the Applicants to lodge an appeal with the Immigration Review Tribunal (I.R.T.)"

which, it is asserted in the amended application, "all form part of the same decision."

The respondent then lodged a Notice of Objection to Competency pursuant to Order 54B rule 3 of the Federal Court Rules ("the Rules"). On its terms it is confined to the application of Mr Pieterse as, at the time, the application for review by Mrs Pieterse had been adjourned to a date to be fixed in the circumstances set out below. The amended application however did encompass her position.

It is the course of events relating to the status of Mrs Pieterse and her son which provides the explanation as to why Mr Pieterse's application to this Court has, without opposition from the Minister until recently, been adjourned from time to time. Upon the cancellation of Mr Pieterse's visa under s116(1)(b) of the Act, s140(1) of the Act in the circumstances operated of its own force to cancel the visa of Mrs Pieterse and her son. She was notified on 1 December 1994 of that cancellation. She thereby became an unlawful non-citizen. She too sought to apply for review of that decision by the Immigration Review Tribunal on 13 December 1994, but her application was also rejected as being out of time. She and Clinton were part of the joint application for a Cultural/Social (Temporary) Visa made on 31 January 1995. The restrictions imposed by s48 of the Act on the range of visas for which Mr Pieterse could apply following cancellation of his visa under s116(1)(b) of the Act did not apply to Mrs Pieterse. Her visa was cancelled under s140(1) of the Act. She was eligible to apply for that visa. On 7 April 1995 her application for a Cultural/Social (Temporary) Visa was rejected. That decision was an internally reviewable decision: ss338 and 341 of the Act. On 8 May 1995, she applied for such a review of that decision. On 17 June 1995 a migration internal review officer affirmed the initial decision of the migration officer. That decision itself was reviewable by the Immigration Review Tribunal. An appropriate application was brought on 20 July 1995. On 29 December 1995 the Immigration Review Tribunal set aside the decision under review and substituted a decision that Mrs Pieterse and Clinton Pieterse had satisfied the prescribed criteria for the grant of a Cultural/Social (Temporary) Visa Sub-Class 414 (Specialist) for a period of twelve months. That status expired therefore on 28 December 1996. I am informed that, since then, Mrs Pieterse and their son have also each held bridging visas for short terms. It was during the processes of determining Mrs Pieterse's status that the application for review generally was adjourned from time to time.

Contrary to the assertion in the amended application, there are clearly at least two separate decisions made in relation to Mr Pieterse's status, namely the decision of 1 December 1994 to cancel his initial visa, and the decision of 7 April 1995 to reject his application for a new visa. It is not clear that the rejection of his application for review of the decision of 1 December 1994, sought to be lodged with the Immigration Review Tribunal, is itself a reviewable decision but for the purposes of this objection I shall assume that it is.

Section 475 provides for those decisions under the Act which are reviewable by the Court. It is specifically provided that certain decisions, including an internally reviewable decision and a decision reviewable by the Immigration Review Tribunal are not judicially reviewable decisions: subs(2). Section 338 describes those decisions which are internally reviewable to include 'Part 5 reviewable decisions', including by definition a decision to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation, subject to certain exceptions which are not relevant. One of the exceptions to the categories of internally reviewable decisions are decisions prescribed to be "an IRT - reviewable decision", and s346(1) identifies such decisions to include both decisions made by a review officer under s341 and other decisions prescribed to be IRT reviewable decisions. Regulation 4.09(d) of the Migration Regulations prescribes a decision to cancel a visa as within that description.

Accordingly, in my view, the decision of 1 December 1994 to cancel the visa of Mr Pieterse was reviewable by the Immigration Review Tribunal and not itself reviewable by the Court. The objection to competency in respect of that decision is upheld.

The "decision" of 13 December 1994 not to accept out of time his application to the Immigration Review Tribunal to review that decision may, assuming it is a "decision" of the Immigration Review Tribunal, constitute a judicially reviewable decision as decisions of the Immigration Review Tribunal are generally judicially reviewable and it does not fall within the specific exceptions in s475(2) of the Act. However, s478(1)(b) and s478(2) require any application for the review of such a decision to be made within twenty eight days of being notified of that decision, namely in this instance within twenty eight days of 13 December 1994 when Mr Pieterse was told the application for review was not accepted. The application filed in this Court on 4 May 1995 is clearly out of time. Consequently in my view the Court has no jurisdiction to entertain the application in respect of that "decision". See Dwyer v Huxtable (1989) 18 ALD 252. I note that the Tribunal is not a party to this application: s480(a) of the Act, although I do not base my decision on that point.

The decision of 7 April 1995 to reject the application of Mr Pieterse for a fresh visa was not a 'Part 5 reviewable decision' because, under the decision, it was not a decision to grant a non-citizen a visa which could have been granted to Mr Pieterse whilst he was in Australia: s337, definition clause (a) of the Act; none of the other subclauses of the definition could apply. Section 48(b)(ii) limited the classes of visa for which Mr Pieterse, in the circumstances, might apply and the visa sought was not within those classes. Section 47(3) makes it clear that the Minister is not to consider an application that is not a valid application. Thus, that decision was not internally reviewable. Nor was it reviewable by the Immigration Review Tribunal, or otherwise within the exceptions in s475(2) of the Act. Section 475(1) makes judicially reviewable decisions of the Immigration Review Tribunal, the Refugee Review Tribunal and "other decisions made under this Act ... relating to visas". In my view, the decision falls into that description.

Consequently I consider that the decision of 7 April 1995 advised on 10 April 1995 is a judicially reviewable decision. The amended application seeks also to invoke the Court's general jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 but s485(1) of the Act makes it plain that it cannot do so. The decision, although reviewable, is not reviewable on that basis.

The respondent submits that the grounds of review in the amended application are demonstrably unsustainable. It is unclear whether that is properly an objection to jurisdiction or an invitation to the Court to dismiss the application under O20 r2 of the Rules, which, as amended by O54B r5, entitles the Court to summarily dismiss an application where there is "no reasonable basis for the application" disclosed. Carr J in Douglas v Tickner (1994) 49 FCR 507 at 519-521 has discussed and brought together the relevant principles concerning an application under O20 r2 of the Rules derived from the decisions of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129, Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91, and Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 602- 603. The power is only to be exercised with "exceptional caution" and "never ... unless it is clear that there is no real question to be tried". In Webster, Mason CJ, Deane and Dawson JJ at 603 commented:

"Nowhere is that need for exceptional caution more important than in a case where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact. In such a case, it is essential that "great care ... be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his [or her] case by the appointed tribunal"."

The visa granted to Mrs Pieterse and her son following the decision of the Immigration Review Tribunal has expired and both Mr and Mrs Pieterse are now on short term bridging visas. They have indicated presently that they propose to leave Australia by the end of April 1997. The Minister's solicitors have nevertheless requested that I deal with the objection to competency, and it is desirable I think that I should express my views on this aspect of the submissions put to me so that all parties can determine whether, and if so how, the application for review should proceed. I note, however, that the notice of objection to competency appears to object only to the decision of 7 April 1995 being reviewable under the Administrative Decisions (Judicial Review) Act 1977; it does not appear to object to that decision being reviewable under the Act. I have accepted that the application, in so far as it seeks to invoke the Administrative Decisions (Judicial Review) Act 1977 is not competent.

The only grounds for review of that decision set out in the amended application do not focus at all on the correctness of the particular decision concerning the absence of Mr Pieterse's status to make such an application. They focus on the merits of the decision, assuming that the application was properly brought. Those merits were reviewed by the Immigration Review Tribunal in favour of Mrs Pieterse and their son. Mr Pieterse was found not to have had an entitlement to have his application considered at all on the merits. Order 54B of the Rules prescribes the procedure for instituting an application for review by the Court under the Act. It requires grounds to be set out: Form 56. In respect of the particular decision available for review, the grounds are clearly inapposite. They would clearly lead to his application being struck out, subject to the opportunity to amend those grounds if appropriate, under O20 r2 of the Rules.

My tentative view is that an application under O20 r2 is the appropriate vehicle to determine this issue. If it were the objection to competency so as to deprive the Court of jurisdiction, or more correctly so as to disclose that the jurisdiction of the Court cannot or has not been properly invoked, then the Court might be in a position where it could not - even in cases of clear and remediable oversight to include in an application the allegation of a necessary jurisdictional fact - provide an opportunity to amend the application. Other proceedings in the Court may be instituted by application accompanied by either an affidavit or a statement of claim: O4 of the Rules. The absence of detailed facts to support the availability of the jurisdiction in the application itself does not render the proceedings nugatory. Perceived defects in the application or supporting material are generally dealt with by amendment if appropriate or by an application under O20 of the Rules.

I have not heard full argument as to the appropriateness of the objection to competency as the vehicle to determine that matter. I propose therefore to indicate that:

1) the objection to competency is upheld in so far as the application seeks to complain of the decision made on 1 December 1994;

2) the objection to competency is upheld in so far as the application seeks to complain of the decision or asserted decision made on 13 December 1994; and

3) the objection to competency is upheld in so far as the application seeks to invoke the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision made on 7 April 1995.

I then propose to adjourn the objection to competency to enable the parties to consider these reasons. I will then give directions as to how it will be further dealt with, and with respect to any further applications made or proposed by any party.

The respondent's notice of objection to competency did not, for reasons which the history of Mrs Pieterse's visa status discloses, include issues relating to her application and the objection. It was made clear that, following the elapse of her visa granted by decision of the Immigration Review Tribunal, similar submissions would be made. In her case, for the reasons which appear above, but of course subject to any submissions she may wish to make, I would similarly hold the application concerning the status of the application complaining of the decision on 13 December 1994 as incompetent. The cancellation of her visa on 1 December 1994 was by operation of law. Subject to any argument to the contrary, my view at present is that that is therefore simply not a reviewable decision; it is a consequence by operation of the Act of a decision made in relation to Mr Pieterse's visa which I have found not to be judicially reviewable in the circumstances. The decision refusing her second visa application, made on 7 April 1995, has been reviewed in her favour by the Immigration Review Tribunal; there is therefore nothing to review on that score.

As the notice of objection to competency did not relate to her and, at the time, her application had been adjourned and in a practical sense has only recently been revived, it is appropriate for both her and the Minister to consider these reasons to determine whether any application to amend the objection to competency will be made or a further objection to competency filed and served (I would be inclined, subject to any submissions to the contrary, to extend time as necessary to enable that to be done) or other motion pursued or whether, for her part, she wishes to pursue the application either as presently expressed or to seek leave to amend it to pursue it in some other form.

I certify that this and the preceding pages are a true copy of the Reasons for Decision of the Honourable Justice Mansfield.

Associate:

Dated:

No appearance by or on behalf

of the Applicants

Counsel for the Respondent : Ms S Maharaj with

Mr G Gretsas

Solicitors for the Respondent : Australian Government

Solicitor

Hearing Date : 12 December 1996