Ozmanian, Tosn v Minister for Immigration, Local Government and Ethnic Affairs & Anor [1996] FCA 354

CATCHWORDS Immigration - Decision of the Minister not to consider the exercise of power to grant a protection visa on humanitarian grounds - whether a decision under the Migration Act 1958 - consideration of the "Carltona principle" - whether implied authority under the Act for such decisions to be made by authorized ministerial officers on behalf of the Minister - the decision must be made by the Minister personally or by his delegate. Courts and Judges - jurisdiction of Federal Court to review decisions made under Migration Act 1958 - consideration of rules of construction applicable to a statutory limitation on jurisdiction of a superior court - limitation of jurisdiction is in respect of decisions but not of conduct for the purpose of making a decision. Administrative Law - Judicial review of a decision of the Minister under an enactment - whether decision made under the authority of or in purported reliance upon the enactment is made under the enactment - whether a decision made by an authorized officer on behalf of the Minister is a decision of the Minister - consideration of the "Carltona principle" - whether the "Carltona principle" applies where a power of delegation exists - no implied power in Minister to authorise others to act on his behalf - decision of ministerial officer on behalf of the Minister invalid. Administrative Law - Immigration - Natural justice - Consideration of applicability and content of rules of natural justice to a decision not to consider whether to exercise a power - conclusions, views and opinions of departmental officers in respect of applicant's case not disclosed - no breach of the rules of natural justice - substance or gravamen of information adverse to applicants case not disclosed - breach of the rules of natural justice. Administrative Law - Judicial Review - no jurisdiction to review the decision - jurisdiction to review conduct for the purpose of making a decision - whether review may be made of conduct of persons other than the decision maker - whether review may be made of conduct for the purpose of making a decision after the decision is made. Courts - Practice and Procedure - declaration - consideration of discretionary principles applicable to grant of declaratory relief - relief may have consequences for the parties - declaration appropriate even if no other substantive relief can be granted. Statute - Consideration of rules of construction of statute modifying fundamental rights or principles - clear and unambiguous words necessary to deprive superior court of jurisdiction to review unlawful exercise of statutory power.