CATCHWORDS ADMINISTRATIVE LAW - judicial review - immigration - dissatisfaction with written statement of decision maker - request pursuant to s13(1) of the ADJR Act for written statement made later than twenty eight days from the furnishing of a decision in writing - right of decision maker to refuse to provide a supplementary statement of reasons - application of s481 of Migration Act 1958 (Cth) - power to direct parties - Senior Member not a party to the proceedings before the Court. Migration Act 1958 (Cth) ss 135(1), 368(1), 475, 480 and 481 Migration Reform Act 1992 (Cth) s 268(1) Migration Reform (Transitional Provisions) Regulations 1994 (Cth) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13 No. SG 8 of 1995 MR RESHAM SINGH v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Branson J Adelaide 21 July 1995 IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) No. SG 8 of 1995 ) GENERAL DIVISION ) BETWEEN: MR RESHAM SINGH Applicant - and - THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent MINUTES OF ORDER CORAM: Branson J PLACE: Adelaide DATE: 21 July 1995 THE COURT ORDERS THAT: 1. The motion of the applicant brought on notice of motion filed on 4 July 1995 be dismissed. 2. The applicant pay the costs of the respondent of that motion. 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 8 of 1995 ) GENERAL DIVISION ) BETWEEN: MR RESHAM SINGH Applicant - and - THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent REASONS FOR JUDGMENT CORAM: Branson J PLACE: Adelaide DATE: 21 July 1995 By a notice of motion dated 4 July 1995 the applicant sought, amongst other orders, an order requiring the Immigration Review Tribunal, constituted by Ms M Fadjiar, Senior Member, to furnish a statement giving adequate reference to the evidence on which she based her findings of fact when affirming a decision not to grant the principle, Mrs Surinder Kaur ("Mrs Kaur"), a Class 100 (spouse) migrant visa. The other orders sought on the notice of motion are incidental to the above order and need not be separately considered. The following is a brief chronology of events in this matter:- 20 October 1990 The Principal, Mrs Kaur, applied at New Delhi, India for spouse entry permit code 100 (now known as Class 100 (spouse) migrant visa). 22 February 1991 Delegate refused application. 26 April 1991 Application for review by Migration Internal Review Office. 4 September 1991 MIRO application refused. 24 September 1991 Application to Immigration Review Tribunal. 25 May 1993 IRT application refused. 26 July 1994 Application for review filed in Federal Court of Australia. 29 August 1994 Decision of IRT set aside by consent: matter remitted for reconsideration by IRT. 27 January 1995 IRT application again refused. Reasons for decision provided to applicant. 17 February 1995 These proceedings instituted. 4 July 1995 Present notion of motion filed. An issue arose during the hearing of this motion as to the law applicable to Mrs Kaur's application for an entry permit. The Migration Act 1958 (Cth) ("the Act") was substantially amended by the Migration Reform Act 1992 (Cth) which, for present purposes, came into operation on 1 September 1994. The Migration Reform (Transitional Provisions) Regulations contain provisions as to applications unresolved on 1 September 1994 and as to the review of decisions on offshore applications for visas made on or after 19 December 1989 and before 1 September 1994 where the applications had not been finally determined as at 1 September 1994. In my view, for the purposes of the present motion, it is immaterial whether or not the Migration Reform Act has any application in respect of Mrs Kaur's application for an entry permit or any review of the refusal of her application. A decision as to the law applicable to her application will have to await another day when full argument on the question can be presented. At all material times the Act has required the Immigration Review Tribunal to record its decisions. Before and after the coming into operation of the Migration Reform Act, the Act has contained the following provision:- "Where the Tribunal makes its decision on a review, the Tribunal shall prepare a written statement that: (a) sets out the decision of the Tribunal on the review; (b) sets out the reasons for the decision; (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." (Before 1 September 1994 - s135(1) of the Act. After 1 September 1994 - s368(1) of the Act). It is argued on behalf of the applicant in this case that the reasons for decision provided by the Immigration Review Tribunal fail to satisfy the above provision. On behalf of the respondent the contrary is contended. In seeking an order from the Court requiring the Tribunal to furnish supplementary reasons, the applicant calls in aid s481 of the Act. Alternatively the applicant places reliance on s13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"). On behalf of the respondent it is contended that the applicant is not entitled in the circumstances of this case to invoke s13 of the ADJR Act. It is convenient to deal with this argument before turning to consider s481 of the Act. Section 13 of the ADJR Act, so far as is here relevant, provides as follows:- "(1) Where a person makes a decision to which this section applies, any person who is entitled to make an application to the Court under section 5 in relation to the decision may, by notice in writing given to the person who made the decision, request him to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision. (2) Where such a request is made, the person who made the decision shall, subject to this section, as soon as practicable, and in any event within 28 days, after receiving the request, prepare the statement and furnish it to the person who made the request. . . . . . . . . . . (5) A person to whom a request for a statement in relation to a decision is made under subsection (1) may refuse to prepare and furnish the statement if: (a) in the case of a decision the terms of which were recorded in writing and set out in a document that was furnished to the person who made the request - the request was not made on or before the twenty-eighth day after the day on which that document was so furnished; or (b) in any other case - the request was not made within a reasonable time after the decision was made; and in any such case the person to whom the request was made shall give to the person who made the request, within 14 days after receiving the request, notice in writing stating that the statement will not be furnished to him and giving the reason why the statement will not be so furnished. . . . . . . . . . . (7) If the Court, upon application for an order under this subsection made to it by a person to whom a statement has been furnished in pursuance of a request under subsection (1), considers that the statement does not contain adequate particulars of findings on material questions of fact, an adequate reference to the evidence or other material on which those findings were based or adequate particulars of the reasons for the decision, the Court may order the person who furnished the statement to furnish to the person who made the request for the statement, within such time as is specified in the order, an additional statement or additional statements containing further and better particulars in relation to matters specified in the order with respect to those findings, that evidence or other material or those reasons. . . . . . . . . . . (11) In this section, "decision to which this section applies" means a decision that is a decision to which this Act applies, but does not include: (a) a decision in relation to which section 28 of the Administrative Appeals Tribunal Act 1975 applies; (b) a decision that includes, or is accompanied by a statement setting out, findings of facts, a reference to the evidence or other material on which those findings were based and the reasons for the decision; or (c) a decision included in any of the classes of decision set out in Schedule 2." In this case a notice in writing pursuant to s13(1) of the ADJR Act was given to Ms Fadjiar on 9 June 1995. However, by reason of s13(5)(a) Ms Fadjiar was entitled to refuse to prepare and furnish the statement sought as the request was made more than twenty eight days after the day on which a document which recorded the terms of her decision was furnished to the applicant. She did so refuse. The ADJR Act gives the Court no power to detract from this right of refusal. Since the applicant is not a person to whom a statement has been furnished pursuant to s13(1), he is not a person entitled to invoke the jurisdiction of the Court pursuant to s13(7) of the ADJR Act. I conclude that the applicant is not entitled in the circumstances of this case to invoke s13 of the ADJR Act. The refusal of Ms Fadjiar to prepare and furnish the statement sought by the applicant pursuant to s13(1) of the ADJR Act is not, in my view, itself a judicially-reviewable decision within the meaning of s475 of the Act. The refusal was, I consider, a decision of the Senior Member and not a decision of the Tribunal. Judicially-reviewable decisions of the Immigration Review Tribunal, in my view, are limited to decisions of the Tribunal made under the Act. I did not understand either counsel to suggest the contrary. The decision of the Immigration Tribunal to affirm the decision by a delegate of the Minister not to grant to Mrs Kaur a Class 100 (spouse) migrant visa is a judicially-reviewable decision under the Act (s475 of the Act). The powers of the Court on a review of a judicially-reviewable decision are set out in s481 of the Act. The only power sought to be called in aid on this application is that contained in s481(1)(d). Section 481(1)(d) provides that on an application for review of a judicially-reviewable decision the court may, in its discretion, make an order "directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties." Section 480 of the Act defines the parties to a review of a judicially-reviewable decision. It is in the following terms:- "The parties to the review of a judicially-reviewable decision are the Minister and: (a) if the judicially-reviewable decision is covered by paragraph 475 (1)(a) or (b) - the applicant in the review by the relevant Tribunal; or (b) if the judicially-reviewable decision is covered by paragraph 475(1)(c) - the person who is the subject of the decision." Ms Fadjiar is not a party to this review application. Section 485 of the Act makes it plain that, in the circumstances of this case, the Court has no jurisdiction other than that provided by Part 5 of the Act. I conclude that s481(1)(d) does not give to the Court jurisdiction to direct Ms Fadjiar to furnish the supplementary statement sought by the applicant. The motion of the applicant brought on notice of motion filed on 4 July 1995 will be dismissed with costs. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice Branson. Associate: Dated: Counsel for the Applicant : Mr G Patel Solicitors for the Applicant: Patel & Co Counsel for the Respondent : Ms J Nunan Solicitors for the Respondent : Australian Government Solicitor Hearing Date : 14 July 1995