FEDERAL COURT OF AUSTRALIA Xie v Minister For Immigration & Multicultural Affairs [2000] FCA 69 IMMIGRATION – interlocutory relief - application for declarations relating to entitlement to permanent residence – whether valid jurisdictional objections – whether serious question to be tried that ministerial announcement constituted creation of a right; pre-exercise of a discretion or exercise of a particular discretion – whether balance of convenience favours relief Judiciary Act 1906 (Cth) s 39B Federal Court of Australia Act 1976 (Cth) s 21 Migration Reform (Transitional Provisions) Regulations 1994 reg 10 United States Immigration and Naturalisation Service v Hibi 414 US 5 (1973) Brickworks Limited v Warringah Shire Council (1963) 108 CLR 658 Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 Port of Melbourne Authority v Anshun (1981) 147 CLR 589 Henderson v Henderson (1843) 3 Hare 100; 67 E.R. 313 XIE WEI MING v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS WG 144 of 1999 R D NICHOLSON J 10 FEBRUARY 2000 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 144 OF 1999 BETWEEN: XIE WEI MING Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: R D NICHOLSON J DATE OF ORDER: 10 FEBRUARY 2000 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application for interlocutory relief be dismissed. 2. The applicant pay the respondent's cost of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WG 144 OF 1999 BETWEEN: XIE WEI MING Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: R D NICHOLSON J DATE: 10 FEBRUARY 2000 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant seeks by way of interlocutory relief an order that, until further order of this Court, the respondent be enjoined from removing the applicant from Australia. Final Relief Sought 2 The application is brought by way of amended minute in reliance upon s 39B of the Judiciary Act 1906 (Cth). The applicant claims: "1. A declaration that in all the circumstances including public announcements by the Government in the form of media releases to the effect that permanent residence will be made available to nationals of the PRC who were in Australia on 20 June 1989 and that those people received a clear commitment that none would be returned against their will to the PRC, and in the circumstances of the Applicant's clearly expressed desire to remain in Australia permanently, the Applicant had a reasonable expectation that the Department would supply him with the forms applicable to an application for permanent residency within Australia, rather than temporary residency, and was thereby denied natural justice alternatively not accorded procedural fairness. 2. A declaration that the Applicant was denied natural justice, alternatively procedural fairness when the Department provided the Applicant with forms applicable to an application for a temporary entry permit rather than an application for permanent residence in or about July 1993, in circumstances in which had the Applicant applied for a permanent entry permit he would have been entitled as of right, and not by virtue of any ministerial discretion, to the grant of a permanent entry. 3. [WITHDRAWN] 4. Declarations that: (1) On or about 1 November 1993, the then Minister for Immigration and Ethnic Affairs relevantly decided that nationals of the People's Republic of China who were in Australia on 20 June 1989 and who satisfied health and character checks were entitled to remain in Australia with rights of permanent residence and would not be removed from Australia against their will; (2) The Minister's decision was made in the exercise of the powers vested in him by the Migration Act; (3) As at the date that the Minister's decision was made the Applicant satisfied the criteria upon which the right to remain in Australia was based; (4) By reason of the matters in subparagraphs (1), (2) and (3) above the Applicant is entitled to remain in Australia with rights of permanent residency and can not be removed from Australia against his will; (e) Further or alternatively by reasons of the matters in subparagraphs (1), (2) and (3) above the Respondent is estopped from resiling from the decision made to grant permanent residence to the Applicant." Grounds 3 The grounds on which these declarations are sought are: (a) The grounds appearing in the reasons for decision delivered by Carr J on 29 October 1999; (b) The grounds appearing in the affidavit of Michael Alan Cain sworn 8 October 1999; and (c) The grounds appearing in the affidavit of Michael John Hawkins sworn 19 November 1999. 4 In his reasons published on 29 October 1999, Carr J stated that the applicant sought a declaration that he held as at 16 April 1998 (when he was taken into detention at his request by the respondent) and continues to hold, a Bridging Visa Sub-Class C ("the Bridging Visa"), in particular by the operation of reg 10 of the Migration Reform (Transitional Provisions) Regulations 1994 ("the Transitional Regulations"). That regulation relevantly provided that a non-citizen in Australia who was in Australia immediately before 1 September 1994 and had applied for an entry permit on or after 19 December 1989 and before 1 September 1994, the application had "not been finally determined", was taken to have been granted a Bridging Visa of one or other of the classes identified in that regulation. The applicant's case was that he had applied for three entry permits on 18 January 1990 and a further entry permit on 8 July 1993 and that none of them had been finally determined before 1 September 1994. His application was lodged without legal assistance. 5 Carr J found the factual background and legislative framework relevant to the applicant's application before him was as follows: " The applicant is a citizen of the People's Republic of China. Until the events which I am about to describe, he was a seaman employed by the China Ocean Going Shipping Company. On 5 November 1985 he deserted the vessel "Tian Ling", at Port Hedland. The ship left port on 5 November 1985. The applicant thereby became a "prohibited non-citizen" – see ss 6(1), 8(1)(d) and 8(3)(c)(i) of the Migration Act 1958 (Cth) ("the Act") as applicable on 6 November 1985. The applicant disappeared in the Australian community. On 18 November 1988 a delegate of the Minister, acting under s 18 of the Act, signed an order that the applicant be deported from Australia. Under the provisions of s 6(2)(a) of the Migration Legislation Amendment Act (No. 59 of 1989), which came into force on 19 December 1989, the applicant, being a prohibited non-citizen immediately before the commencement of that section, became "an illegal entrant". On 18 January 1990 the applicant applied for a Class 434 PRC citizen entry permit being an entry permit for certain persons who were illegal entrants in Australia on 20 June 1989. I shall refer to that entry permit as a "Class 434 entry permit". The applicant contends that he applied for other entry permits as well on 18 January 1990 – a subject to which I return below. The Class 434 entry permit was added to the Migration (1989) Regulations by the Migration Regulations (Amendment) Regulations (Statutory Rules 1990 No. 1 dated 12 January 1990). Regulation 18 of those amending regulations inserted regulations which included a new Regulation 119E, which in sub-regulation 199E(1) specified the following criteria as being prescribed in relation to what was described in that sub-regulations as a "PRC citizen entry permit", namely: "(a) the applicant is a citizen of the People's Republic of China; (b) the applicant was present in Australia on 20 June 1989 and was, on that day, an illegal entrant; and (c) the applicant applied in Australia for the entry permit not later than 31 March 1990." The applicant satisfied these criteria and was thus entitled to be granted a Class 434 entry permit. Sub-regulation 119E(2) further provided that a PRC citizen entry permit was not to be granted except as a temporary entry permit, and except in respect of a period ending not later than 31 January 1991. As at 31 January 1991, the applicant's application for a Class 434 entry permit had been neither granted nor refused. On 19 May 1993 and again on 15 June 1993 the respondent's State Director for Western Australia sent to the applicant a "Form 889". That form was an application for a Class 437 PRC (temporary) entry permit. I shall refer to that as a Class 437 entry permit. On 16 June 1993 the applicant lodged an application for a Class 437 entry permit. This class of permit was created by the Migration Regulations (Amendment) Regulations (Statutory Rules 1990 No 237 dated 11 July 1990). Regulation 22 of those amending regulations repealed Regulation 119E of the Migration (1989) Regulations. Regulation 23 inserted a new Regulation 119H which prescribed the criteria in relation to the new PRC (temporary) entry permit. Regulation 38 amended Schedule 3 to the Migration (1989) Regulations to include this new category of entry permit as Class 437. Regulation 23 commenced on 1 August 1990 (see Regulation 1(7) of Statutory Rules 1990 No. 237). Regulation 22 (repealing Regulation 119E) came into effect when notified in the Commonwealth of Australia Gazette on 12 July 1990. On 8 July 1993 the deportation order issued against the applicant on 18 November 1988 was revoked. It is part of the respondent's case that, on the same date, the applicant was granted a Class 437 entry permit which permitted him to stay in Australia until 30 June 1994. The applicant denies this and says that his application was never determined. Regulation 119H(3) provided that a PRC (temporary) entry permit was not to be granted except as a temporary entry permit, and for a period ending on 30 June 1994. It would have been open for the applicant until that date to have applied for a PRC (permanent) entry permit. Part 815.512 of the Migration (1993) Regulations relevantly provide that an application for a PRC (permanent) entry permit (also known as a "Class 815 entry permit") had to be made on or before 30 June 1994. That was an entry permit which had effect without limitation as to time (see Part 815.521). If, as the respondent contends, the applicant was issued a Class 437 entry permit, he would have satisfied the criteria for that entry permit, [see 815.721(1) and (2)(a)]. He would also have satisfied those criteria because he was a citizen of the People's Republic of China, had been recorded as having entered Australia before 20 June 1989 and was in Australia on 20 June 1989 [see 815.721(3)]. However, there is no evidence that the applicant applied for a Class 815 entry permit, and it seems to be common ground that he did not do so. Had he so applied, then the period of any Class 437 entry permit issued to him would have extended until a decision was made on that application and he had been notified [see Part 437.52 of the Migration (1993) Regulations]. In any other case, the period of a Class 437 entry permit was until 30 June 1994. Subject to the matter of whether the applicant was granted a Bridging Visa Sub-Class C on 1 September 1994, the applicant ceased to have a valid entry permit as at 30 June 1994 and thus became an "illegal entrant" under s 6(3) [subsequently re-numbered as s 14(3)] of the Act." 6 In his reasons Carr J decided a number of issues, namely: · The applicant had made a relevant application by 18 January 1990 for a Class 434 entry permit. · As at 1 September 1994 that application had been finally determined so that it was not an application which had "not been finally determined" within the meaning of subreg 10(1)(a) of the Transitional Regulations. · The respondent issued a Class 437 entry permit to the applicant on or about 8 July 1993. · Consequently, the applicant's application for that entry permit had been finally determined as at 1 September 1994. It also was not therefore an application which had not been determined within the meaning of reg 19(1)(a) of the Transitional Regulations. · Consequently, the applicant was never entitled to a Bridging Visa under reg 10(1)(a). 7 Accordingly Carr J dismissed the application with costs. 8 However, Carr J added a postscript in the following terms, which deserves repetition in full: " So much for the law. The applicant, Mr Xie, has been in Australia for almost fourteen years. Throughout that period he has been self-supporting. Mr Xie is an able seaman, a cook and a handyman. There is no evidence of any anti-social behaviour on his part. It would seem that the respondent is obliged by s 198 of the Act to remove the applicant from Australia because he is "an unlawful non-citizen". That label, while legally accurate, tells less than half the story. If, at any time between 8 July 1993 and 30 June 1994 (during which period he was lawfully in Australia as the holder of a Class 437 entry permit) Mr Xie had applied for a permanent entry permit (the Class 815 entry permit to which I have referred earlier in these reasons), he would have been legally entitled, i.e. as of right, not by virtue of any ministerial discretion, to the grant of such a permit. That permit would have entitled him to remain in Australia indefinitely. He did not make such an application. Perhaps it might be said that that was his fault. But Mr Xie's education, limited as it was, took place in China. When it was time for him to apply for the Class 437 temporary entry permit (in May 1993) the respondent's Department sent him the necessary forms under a covering letter. When the letter was returned undelivered, the Department (in my view, commendably) made enquiries as to his whereabouts and, on 9 June 1993, two Department officers visited him at his new address. As a result Mr Xie immediately attended the two required medical examinations (which he passed), and lodged his application for a temporary entry permit which was granted soon afterwards. It seems very likely that Mr Xie assumed, mistakenly, that he had done all that was required of him in order to remain in Australia. On 10 August 1998 the Minister for Immigration and Multicultural Affairs decided not to exercise his discretion under s 417 to substitute a more favourable decision than that made by the Refugee Review Tribunal on 26 June 1998 that Mr Xie was not a refugee. But that was, obviously, an entirely different issue. If there are any administrative or regulatory means whereby the consequences of Mr Xie's failure to complete the necessary paperwork, namely removal from Australia to China, can be averted, then the case seems overwhelmingly strong for putting such administrative procedures or regulations to work." 9 The affidavit of Mr Cain was before Carr J and its contents are reflected in the findings made by Carr J. The affidavit of Mr Hawkins annexed certain press releases and announcements by or on behalf of the respondent. 10 I accept the submission made for the respondent that when the minute of amended application places reliance on the grounds appearing in the reasons for decision of Carr J the applicant is seeking to rely upon the factual background there set out rather than the findings made by his Honour. 11 Furthermore, the affidavits likewise provide evidence of facts rather than a statement of grounds. Appeal from decision of Carr J 12 The applicant has lodged an appeal from the decision of Carr J. The whole of the judgment is appealed against and the applicant as appellant seeks that the judgment be set aside and the application be remitted to trial according to law. The appeal is to be heard by the Full Court on 2 March 2000. 13 The relevance of the listing of the appeal to this present application is that if the Full Court allows the appeal in whole or part, the grounds appearing in the reasons of Carr J may not then be grounds relevant to the application for final relief in this matter. 14 The respondent has at the hearing of this application for interlocutory relief given an undertaking to the Court that the applicant would not be removed pending the decision of the Court on the application for such interlocutory relief. However, in the event that the Court decides to defer making a decision in relation to that application pending the hearing and determination of the applicant's appeal from the decision of Carr J, the respondent seeks to be released from the undertaking on the ground that there was no request by Counsel for the applicant at the hearing of the application for interlocutory relief that the Court's decision in relation to that application should be deferred pending the hearing and determination of the applicant's appeal. There is now no such application. 15 In setting down the applicant's appeal from the decision of Carr J for hearing, French J directed "the appellant is not to be removed from Australia without 7 days notice". It follows that in the event that either the applicant's present application did not justify interlocutory relief or the respondent should be discharged from his undertaking, it would not be possible for the applicant to be removed from Australia without the 7 days notice being given by the respondent. Such notice would provide the opportunity for any application to be made to the Court necessary to protect the jurisdiction of the Full Court in relation to the hearing of the appeal. 16 It is relevant also that the applicant has not sought any interim order preventing his removal from Australia from the Full Court. Opportunity to do that either upon 7 days notice being given or otherwise means that there is no reason to defer a decision on the application for interlocutory relief because of the lodgement and listing of the appeal. Jurisdictional objections 17 For the respondent it is contended that the declarations sought in terms of pars 1 and 2 of the minute of amended application do not give rise to jurisdiction in this Court. This submission is supported with reference to the provisions of s 39B of the Judiciary Act pursuant to which these declarations are sought. It is submitted the only relevant provision is s 39B(1A)(c) which provides that the original jurisdiction of the Federal Court includes any matter: "(a) Arising under any laws made by the Parliament other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter". 18 The submissions for the respondent run as follows: "The declarations sought in paragraphs 1 and 2 of the Minute of Amended Application do not concern "matters arising under any laws made by the Parliament" within the meaning of s.39B(1A)(c). The declaration sought by paragraph 1 involves a claim that in the particular circumstances the Applicant had a reasonable expectation that the Department of Immigration and Multicultural Affairs ("the Department") would supply him with forms applicable to an application for permanent residency rather than temporary residency, and that he was thereby denied natural justice/procedural fairness. The claim for such a declaration is not a matter arising under a law made by the Parliament. It does not seek a declaration in respect of any right of the Applicant pursuant to the Migration Act 1958 ("the Migration Act") and/or the Migration Regulations. The declaration sought by paragraph 2 of the Minute of Amended Application is that the Applicant was denied natural justice/procedural fairness when the Department provided him with forms applicable to an application for a temporary entry permit in or about July 1993 rather than an application for permanent residence, in circumstances in which it is claimed that had the Applicant applied for a permanent entry permit he would have been entitled as of right to the grant of such permanent entry permit. The claim for such a declaration equally is not a matter arising under a law made by the Parliament. It is simply seeking a declaration as to a claimed denial of natural justice/procedural fairness because of particular circumstances, and does not seek a declaration in respect of any right of the Applicant pursuant to the Migration Act and/or Regulations. Accordingly, the Court has no jurisdiction under s.39B of the Judiciary Act in relation to the declarations sought in paragraphs 1 and 2 of the Minute of Amended Application." 19 The case made for the applicant provides no answer to these submissions save to refer to the power of this Court to grant declaratory relief pursuant to s 21 of the Federal Court of Australia Act 1976 (Cth). That section, however, refers to a power and does not vest original jurisdiction. Furthermore, the minute of amended application is clearly reliant upon s 39B of the Judiciary Act in its terms. 20 I would therefore uphold the jurisdictional objections made by the respondent to the declarations sought in paragraphs 1 and 2 of that amended application. 21 There are also jurisdictional objections to the declarations sought in grounds 4(1) and (2). I accept the submission for the respondent that, as the former Minister's statement made on 1 November 1993 was not a decision made in the exercise of any power pursuant to the Migration Act or Regulations, it follows the Court has no jurisdiction in relation to the claims for the first two declarations sought in par 4 of the Minute of Amended Application. This is because those claims are not matters arising under any laws made by the Parliament within s 39B(1A)(c). 22 The declarations sought in subpars (3), (4) and (e) of par 4 are dependant upon the making of the first two declarations sought in par 4. The failure of jurisdiction in relation to those paragraphs has the consequence that no serious issue to be tried can arise in relation to them, their foundations being beyond jurisdiction. 23 On the case for the applicants – subsequently found not to raise a serious issue – it is contended certain ministerial announcements constituted a decision to create rights. The announcements relied upon are: · by the Prime Minister dated 16 June 1989 · by the Prime Minister dated 27 June 1990 · by the Minister dated 14 October 1993 · by the Minister dated 1 November 1993 The effect of these announcements it is said was that a right to permanent residence in Australia was created in the applicant. 24 If in some way it is open to argument that these announcements do in fact constitute a decision under the Migration Act relating to visas – and therefore a judicially-reviewable decision within s 475(1) of that Act – it is necessary to consider the effect of s 485(1) of the same Act. There it is provided: "(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have jurisdiction in respect of judicially-reviewable decisions … other than the jurisdiction provided by this Part …" Section 476(2) in the Part provides that a breach of rules of natural justice said to occur in connection with the making of a judicially-reviewable decision is not a ground on which the Court has jurisdiction to review. It lies at the core of declarations 1 and 2. 25 Additionally, if the applicant seeks review of the Minister's decision on a request by the applicant to him to substitute the Minister's decision for that of the Tribunal, the decision is not reviewable: s475(2)(e); s 485. Whether serious issue to be tried 26 Although it is not strictly necessary to do so because the jurisdictional objections are sound, I nevertheless proceed to consider further aspects of the interlocutory application. 27 The two central issues which the case for the applicant require to be determined in the final resolution of the amended application are: (1) Whether or not the ministerial announcement of 23 November 1993 was the announcement of a decision to confer permanent residence status or merely the announcement of a policy. I accept the respondent's submission that it is beyond doubt that in the light of the scheme of the Migration Act as in force at 1 November 1993, the announcement by the former Minister on 1 November 1993 was a statement of policy and a future Government intention to amend the Migration Regulations by introducing a new class of permanent entry permit for PRC nationals in Australia before 20 June 1989, and is not a decision made pursuant to any provision of the Migration Act. In my view, for the purpose of an application for interlocutory relief, the applicant's case does not show that to be open to serious argument. The reference in the case for the applicant to Brickworks Limited v Warringah Shire Council (1963) 108 CLR 658 at 577 does not support a finding of seriousness in the issue because it relates to the exercise of a discretion, in which category a policy announcement cannot seriously be argued as being characterised. Furthermore, there was no application by the applicant which was a necessary precondition to characterising the public announcement as the exercise of a discretion referrable to him. There is an entire absence of any juridical act on which to attach either the second or third effects contended for on behalf of the applicant in relation to the announcement. (2) Whether estoppel may lie against the respondent in respect of a policy announcement, even if it is the case that the press releases referred to as embodying the policy announcement were not the announcement of a decision to confer permanent residence but rather an announcement of future policy (including the manner in which the relevant discretion would be exercised). cf The Laws of Australia, Part 2.4 ch 11, Pt G, pars [190] and [194]. For the applicant it is contended there are serious questions to be tried as to whether or not estoppel is available when the Government or its officers have engaged in "affirmative misconduct" and as to whether or not statements made in the media by way of press release amount to affirmative misconduct to the effect that the applicant was entitled to permanent residence, on the basis that he satisfied the health and character checks and other criteria set forth: see United States Immigration and Naturalisation Service v Hibi 414 US 5 (1973) at 8 per Douglas, Brennan and Marshall JJ. 28 If there be merit in this second issue, it lies beyond the jurisdiction of the Court on this application to determine the issue. 29 There are other reasons why it is said the application raises serious issues to be tried, which are: (3) There are serious questions to be tried regarding the interpretation and application of ss 485, 486, 475 and 476 of the Migration Act. If Parliament intended to pass a law to the effect that the powers conferred upon the Federal Court by s 39B of the Judiciary Act do not apply at all to decisions made pursuant to the Migration Act, Parliament could have readily, clearly, and easily have so provided. However, the jurisdictional point taken for the respondent does not rely on any such imputed Parliamentary intention, only on the plain terms of s 39B of the Judiciary Act. (4) The declarations sought in par 4 of the Amended Application are not matters pertaining to decisions reviewable by the Federal Court, but are declarations as to the effect of a decision alternatively announcement made by the then Minister for Immigration. As such, ss 475, 476, 485 and 486 of the Migration Act do not apply. The jurisdictional point is not dependent on the effect of ss 475, 476, 485 and 486 of the Migration Act. Balance of convenience 30 It is submitted the balance of convenience favours interlocutory relief on the basis that without it the applicant may be removed from Australia before his application for substantive relief is heard. Due to the jurisdictional objections as well as the nature of the proposed contentions, there is no evident strength in the case to weigh in the balance. Furthermore, the 7 days notice directed by French J is protection against the applicant being removed before determination of his application from the decision of Carr J. 31 Furthermore, there is a high element of futility in each of the declarations sought. The first declaration, if made, would not gain the applicant anything because a class 815 Entry Permit was a class, a condition of which was that application be made by 30 June 1994. The second declaration likewise would lack efficacy because in or about July 1993 there was no class 815 Entry Permit for which the applicant could have made application. Declarations in terms of claim 4(1), (2) and (3) would likewise lack efficacy. None of the declarations could have any practical effect. Cf Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 3 per Kiefel J and authorities there cited. The point is not met by the contention for the applicant that somewhere in the Migration Act there may be a visa which could be applied to the applicant. 32 It is also the case that all the matters now sought to be raised could have been raised in the proceedings before Carr J. There is not a case of alleged estoppel arising from a defendant's failure to plead a defence: Port of Melbourne Authority v Anshun (1981) 147 CLR 589. While the circumstances of the applicant may make it inappropriate to exercise any discretion given recommended in Henderson v Henderson (1843) 3 Hare 100; 67 E.R. 313 (approved in Anshun) against him, the circumstance referred to is a relevant one to weigh in the balance of convenience. Conclusion 33 For these reasons I consider that the application for interlocutory relief should be dismissed. Postscript 34 I again direct attention to the postscript to the reasons of Carr J delivered on 29 October 1999. There is no evidence before me to suggest that the contents of that postscript have been considered by the respondent or why there may be reasons that the matters raised in the postscript should not weigh in the exercise of ministerial discretion. The circumstances of the case are unusual and it cannot satisfy any sense of justice that matters relating to this applicant in his particular circumstances have been left solely for determination at law. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson. Associate: Dated: 10 February 2000 Counsel for the Applicant: Mr M J Hawkins Counsel for the Respondent: Mr P R Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 19 November 1999 Date of Judgment: 10 February 2000