Abidin v Minister for Immigration & Multicultural Affairs

Decision below 5 The appellant's principal case did not directly challenge the considerable line of authority, including the decision of the Full Court in Nirmalan v Minister for Immigration & Multicultural Affairs [1998] FCA 672, which establishes that the Court has no jurisdiction to extend time, irrespective of the merits of the application for extension in circumstances such as the present, but sought to outflank it by concentrating on the issue of lodgment. 6 Contrary to the case of the appellant, it was held by the primary judge that the application had not been lodged with the Registry of the Federal Court within twenty eight days of the applicant being notified of the decision, as required by s 478(1)(b), applying the decision in Hong Ye v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 468 ("Hong Ye"), particularly at 471. Reference was also made to Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535. It was also argued that if s 478(1)(b) was to be construed as his Honour construed it then it was invalid. This argument was also rejected by reference to an existing line of authority. This point is not pursued as such on appeal, but the substance of it is used in relation to construction. As the arguments presented below are repeated on appeal (with an additional argument), it is convenient to deal with those arguments as we deal with the merits of the appeal.

ordinary construction of section 478(1)(b) 7 It is submitted for the appellant that he "lodged" his application when he had done all that he was able to do to achieve substantial compliance with the stipulated requirements within the relevant period or, to put it another way, his action in putting the application in the DIMA box on 30 November 2000 should be deemed to be a constructive lodging of his application with the Registry of the Federal Court. It is submitted that Parliament should be taken to have understood that s 478(1)(b) would operate in circumstances where some applicants are likely to be in detention, without direct access to a Registry of the Federal Court and, so, reliant upon officers of the executive government to effect dispatch and that the provision should be construed in a liberal fashion, consonant with commonsense and justice, given that the issues of the liberty and personal safety of applicants may depend on a favourable review of a decision. It was submitted that, at least where the appropriate steps available to the individual in detention are taken, it should be held that the document has been lodged, to avoid an unfair and arbitrary conclusion. Counsel referred to Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, per Gibbs CJ at 305; Coco v The Queen (1994) 179 CLR 427 at 436-437; and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 390-391. In support of the argument for liberal interpretation, it was put that the words are "lodged with" and not "lodged at". The latter would imply physical receipt of the application at the relevant site. The former is capable of a rational construction which would have regard to the relevant act of an applicant rather than the occasion of receipt. 8 It was submitted for the appellant that the decision in Hong Ye should be distinguished on the basis that that case concerned only the issue of whether lodgment occurred upon receipt or upon filing. Logically, it was sufficient to dispose of the question by preferring the former meaning. It was not necessary for the Court to address the issue raised in this case, namely, whether the requirement for lodging could be satisfied by the actions of the appellant. It was also submitted that the decision of Hely J in Kucuk should not be followed, as submissions of the kind presently being considered were not made by the unrepresented applicant in that instance. 9 The respondent submits that the primary judge was correct in holding that an application is only lodged, for present purposes, when it comes into the possession of a Registry or the Registry staff, referring to Hong Ye (and the authorities referred to in that decision) and in not holding that an application is lodged or is deemed to be lodged by reason of an applicant having taken all possible or appropriate steps to cause it to be lodged, citing a number of decisions of the Court in support of the decision below. It was submitted that the construction contended for by the appellant does not involve preferring a purposive construction over a literal construction, but rather seeks to give the word "lodged" a special meaning in a limited class of circumstances. It was put that this amounts to rewriting the provision and goes beyond legitimate statutory construction, particularly in a situation where there is no evidence to suggest the construction contended for was intended or preferred by Parliament and, indeed, much to suggest the contrary. 10 In our opinion, the primary judge was clearly correct in his conclusion upon this issue. In Hong Ye the Full Court said (at 471): "What will suffice to satisfy that requirement that a document be "lodged" with a registry? The word "lodge" appears to us to have no special or technical meaning. It is then to be given its ordinary meaning. A reference to the Oxford English Dictionary shows that the word has a number of meanings but two appear apposite. They are: "c Deposit in a specified place of custody or security e Deposit in court or with an official a formal statement of (a complaint, objection, etc); bring forward, allege, (an objection etc)." In accordance with these meanings an application to review will be "lodged" when it comes into the possession of a Registry or the staff of a Registry. The means by which possession is obtained does not matter. It could come about when an application is delivered into the hands of the Registry staff or, if the application is posted, when it is received by the Registry. When an application to review is sent by facsimile transmission to a facsimile machine that is located in the Registry the application will be in the possession of the Registry when the transmission is complete ..." (emphasis added) 11 In our opinion, an application is not lodged until it comes into the possession of a Registry or the staff of a Registry. This is the inevitable result of the ordinary meaning of the words of the provision (Francis v City of Ringwood (1978) 54 LGRA 323). There is no such concept as constructive lodgment although, as Hong Ye shows, there may be room for debate as to whether in particular circumstances in which a document comes to a Registry it is "lodged" (see also Angus Fryer Armour Australia Pty Ltd v Corrective Customs (NSW) (1988) 19 FCR 477; Talbot v NRMA Holdings Ltd (1996) 68 FCR 590; and Ghomrawi v Minister for Immigration & Multicultural Affairs [2000] FCA 724). We do not see any relevant difference between "lodgment with" and "lodgment at" a Registry. 12 It is correct that the precise point at issue here did not arise for decision in Hong Ye. Indeed, that decision was very favourable to applicants in construing "lodged" as a sui generis concept, different from the filing of an application to commence proceedings. Nonetheless, the substratum of that decision was that lodgment involved at least receipt at the Registry and this was in accord both with the authorities referred to in Hong Ye and with the numerous later decisions of single judges to which the respondent referred.

effect of constitutional considerations upon the construction of s 478(1)(b) 13 As we have noted, it was argued at first instance that s 478(1)(b), construed as it was, was invalid. That argument was rejected and there is no appeal against that rejection. However, the appellant seeks to argue that if the question as to whether an application has been "lodged" within the meaning of s 478(1)(b) depends on actions by officers of the executive government, the provision takes on a meaning which would be in excess of the legislative power of the Commonwealth under the Commonwealth Constitution and should be read down by virtue of s 15A of the Acts Interpretation Act 1901 (Cth) which provides: "Construction of Acts to be subject to Constitution 15A Every Act shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would, but for this section, have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power." 14 Counsel for the appellant developed various arguments the end point of which was that if s 478(1)(b) is not read down so as to be capable of sufficient compliance when a detainee has done all that he or she can do, then it is invalid and s 15A of the Acts Interpretation Act should be invoked to lead to the construction favoured by the appellant. 15 Counsel for the respondent both contests the arguments for constitutional invalidity and submits that, in any event, s 15A of the Acts Interpretation Act would not have the result contended for by the appellant. It should be noted that no argument that the appellant should be estopped from relying upon the submissions as to invalidity by reason of the judgment below on that point was addressed. It is convenient to deal with the argument as to the effect of s 15A first, since if the submission for the respondent is correct, the constitutional arguments arising under this heading are ultimately irrelevant. 16 Counsel for the respondent submits that, even if the constitutional argument is correct, s 15A would provide no basis for reading "lodged" in s 478(1)(b) in any special way. Counsel for the appellant has limited his argument to invalidity in relation to those who are in detention and who are entirely dependent upon the executive for communication to the Court. This was inevitable, because of the lack of any semblance of a constitutional argument in relation to the myriad of situations where persons miss deadlines for all manner of reasons. Counsel for the appellant has not cited any authority for the proposition that s 15A can be utilised to read one word in a statutory provision differently according to the different factual situations to which it may relate. In our opinion, that proposition is unsound. Counsel for the respondent then submits that there can be no editing of s 478(1)(b) to remove those parts of it which are said to be beyond power. Counsel for the appellant did not suggest how this could be done. The submission for the respondent is plainly correct. 17 The only way in which s 478(1)(b) can be read so as to avoid the kind of invalidity which was argued in the case would be to find that it did not apply at all to persons in detention who have to rely upon the executive to communicate with the Court. This would leave that class of persons with no mandatory limit, compared with all other persons who might be caught by the provision. This, in our opinion, is not a result which s 15A contemplates. On no view is there any general constitutional inhibition upon having a mandatory time limit for commencement of proceedings by persons in detention. The argument which is put here would have no basis, for example, if the Court established a branch registry, or other special lodgment facilities, at Port Hedland, or even if detainees were afforded personal access to a facsimile machine or an Australia Post mailbox. 18 We thus conclude that s 15A does not avail the appellant. This conclusion makes it unnecessary to consider the constitutional arguments as to the validity of s 478(1)(b). As the appellant does not argue invalidity, it is not appropriate to consider the question when it is moot. However, these arguments overlap to some extent with those to be considered under the next heading.

validity of section 478(2) 19 When the appeal came on for hearing, leave was granted to the appellant to add the following ground of appeal: "The appellant further contends that s 478(2) of the Act is invalid in so far as it prevents the Federal Court making an order having the effect of extending time for lodging an application by an applicant in the circumstances of the appellant (in detention and reliant on officers of the respondent to dispatch his application to arrive at the Federal Court Registry within the prescribed time limit) because it: (i) is inconsistent with the nature of the judicial power of the Commonwealth provided in Chapter III of the Constitution; (ii) constitutes an interference with the proper exercise of that judicial power in so far as the Federal Court is inherently empowered to protect its own process against interference on the part of the executive government." 20 It was contended for the appellant that s 478(2) of the Act was invalid to the extent that in the special case of applicants in detention it prevents the Court making an order that the application should be treated as if lodged within time. A legislative direction not to allow such an order to be made in circumstances where the failure to comply with the lodgment requirement is, in a significant way, due to default on the part of the executive would be inconsistent with the judicial power of the Commonwealth, derogate from the essential character of a Chapter III court and involve an exercise of the judicial power of the Commonwealth incompatible with the standards of fairness appropriate for such a court. It would also interfere with the Court's powers to protect the integrity of its process. It would amount to directing a court as to manner and outcome of the exercise of its jurisdiction. It is a law with respect to the power of the Court, not a provision defining its jurisdiction. It should be characterised as directing the Court to disregard facts concerning executive default by prohibiting the Court from exercising its discretion so as to protect the integrity of the Court. In effect, it would allow the executive government, by inaction, to dispense with an applicant's right to have a decision of the Tribunal reviewed. Alternatively, it can be characterised as a law foreclosing the Court from remedying what would otherwise be an abuse of the judicial process. Reference was made to passages in Wilson v Minister for Aboriginal & Torres Strait Islander Affairs (1996) 189 CLR 1, Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 and Nicholas v The Queen (1998) 193 CLR 173. It was submitted that the decisions in Hocine v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 269, Oguzhan v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 285 and Ayub v Minister for Immigration & Multicultural Affairs (2000) 181 ALR 522 are either distinguishable or ought not be followed. 21 It was submitted that the invalidity of s 478(2) should be read down as limited to cases such as where an applicant in detention has done all that was necessary in normal circumstances for the receipt of the application at a Registry within time, but the application was not so received due to significant executive default or interference. It was put that the Court can, in those circumstances, make an order either to extend time or to treat the application as competent. This may be made under the Court's express power in s 23 of the Federal Court of Australia Act 1976 (Cth) or, if s 23 is to be read as excluded, under its implied powers or its inherent capacity as a court exercising the judicial power of the Commonwealth to prevent abuse of its process. 22 The submissions on behalf of the respondent may be summarised as follows. If s 478(1)(b) of the Act is a valid exercise of legislative power by reason that it limits the jurisdiction of the Court to entertain only those applications filed within twenty eight days of notification of the Tribunal's decision, then, equally, s 478(2) is a valid exercise of legislative power. It is only a command to the Court to obey the law and therefore does not exceed the Commonwealth's legislative power: see Hocine v Minister for Immigration & Multicultural Affairs at [50]. Alternatively, as Carr J concluded in Oguzhan v Minister for Immigration & Multicultural Affairs, the substance of s 478, when read as a whole, is to impose an absolute time limit on the making of an application for review. Thus his Honour considered the provisions of ss 478(1) and (2) played a role in defining the jurisdiction of the Federal Court and did not direct the Court as to the manner and outcome of the exercise of the Court's jurisdiction ([29] and [35]). 23 It was submitted, alternatively, that even if the absolute time limit is characterised as a limitation that relates to the manner of exercise of judicial power (which is denied), the requirement in s 478(2) that the Court not extend time is not an impermissible intrusion into the judicial power vested in the Court because it is not "inconsistent with the essential character of a court or with the nature of judicial power" (Chu Kheng Lim v Minister for Immigration at 27 per Brennan, Deane and Dawson JJ, Mason CJ and Gaudron J agreeing; Oguzhan at [36] to [42]). Time limits or statutory bars are a common feature of legal proceedings. In some instances, courts are given only limited power if certain grounds are made out to extend time limits that might otherwise apply. There is not always a power to extend a time limit whenever a court considers that appropriate. Cases such a Chu Kheng Lim and Polyukhovich v Commonwealth (1991) 172 CLR 501 were relevantly concerned with legislative intrusions on the power of a court to give effect to substantive rights properly raised in a matter before it (such as to release a person found by a court to be unlawfully detained or to determine the guilt of a person for past actions). They do not assist the appellant in the present proceedings. It was submitted that if s 478(1) or ss 478(1) and (2) together are held to be provisions that define the jurisdiction of the Court (as it was submitted they are), then there is no scope for Chapter III of the Constitution to operate to invalidate or lead to a need to read down s 478(2). If s 478 is not jurisdictional but procedural, then s 478(2) as a qualification on the power of the Court is not incompatible with the exercise of judicial power under Chapter III of the Constitution. The proposed restriction on the operation of the provision if read down would not relate to the manner of exercise of judicial power, but, rather, to actions antecedent to the Court being seized of the matter. Section 478(2) may remove an implied power to extend time that may otherwise exist, but this does not establish incompatibility with Chapter III. 24 In our opinion, the submissions of the respondent as to the validity of s 478(2) are plainly correct and need no further elaboration. They are a complete answer to the appellant's arguments on this point. 25 Since writing the foregoing, the decision of the Full Court in Rahman v Minister for Immigration & Multicultural Affairs [2002] FCA 83 has come to our attention and is consistent with the view to which we have come.

Conclusion 26 The appellant has not succeeded in establishing any of the grounds of appeal. The appeal is dismissed. The appellant is to pay the costs of the respondent. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson, North and Gyles.

Counsel for the Respondent: HC Burmester QC and AA Jenshel

Solicitor for the Respondent: Australian Government Solicitor