The applicant and Mr Tabet had together purchased a shop at 140-142 Port Road, Alberton, and moved from the Campbelltown address to a house attached to the shop premises on about 17 October 1996. The applicant did not notify the respondent of her change of address. She did not in fact receive the letter dated 5 December 1996 notifying her of the decision to refuse the application until 10 January 1997 when it was given to her by Mr Tabet. She then on 13 January 1997 applied for the visa refusal decision to be internally reviewed under the Act, and paid the fee prescribed.
The reason for the delay in delivery of the registered mail is also clear. On about 27 October 1996, Mr Tabet attended at the Campbelltown post office and arranged for any mail directed to himself or to the applicant to be redirected to the address at 140-142 Port Road, Alberton. He paid the fee. Redirection of mail seemed to routinely occur. The critical letter, for reasons which are unexplained but on the evidence clearly the responsibility of Australia Post, was sent to the Newton Post Office where it was received on 9 December 1996 and held there for no apparent reason for about a month, then sent to Campbelltown Post Office where it was received on 8 January 1997 and then properly redirected as arranged. Mr Tabet was permitted to accept and sign for the letter on 9 January 1997. He then showed it to the applicant.
The respondent, having first accepted the application for review of the visa refusal decision, on 16 January 1997
rejected it as having been received outside the twenty eight day time limit prescribed, being twenty eight days after the date that she was deemed to have received the letter of 5 December 1996. That period expired on 9 January 1997.
The issues on this application
The respondent appeared in this matter on 18 February 1997. The first directions hearing took place on 24 February 1997, when I gave leave to the applicant within fourteen days to amend her application as she might be advised, including any amendment in the light of the respondent's informal notice of a proposed objection to competency, and I gave leave to the respondent to file and serve any notice of objection to competency either within seven days of receipt of any amended application or, if no amended application was filed and served, within twenty one days. No amended application was filed, so that time expired on 17 March 1997. On 17 March 1997 the respondent filed and served a notice of objection to competency objecting to the jurisdiction of the Court to hear and determine the application on the following grounds:
1. the visa refusal decision was internally reviewable, and so not judicially reviewable: s475(2)(b) of the Act, and
2. the application with respect to the review refusal decision was incompetent because the application for internal review of the visa refusal decision was not
made within the prescribed period: ss53, 66(1) and 339(1)(b)(i) of the Act and regs4.02(2)(a), 2.16(1)(c) and 5.03(1)(a) of the Migration Regulations ("the regulations").
I fixed a hearing date for that notice of objection to competency.
Perhaps perceiving that the notice of objection to competency was not necessarily the appropriate vehicle to determine both the issues identified by it, the respondent by notice of motion dated 21 March 1997 applied to dismiss the application on the grounds that the review refusal decision of 16 January 1997, although itself judicially reviewable under s475(1)(c) of the Act, could not be sustained in any event. That notice of motion thus invoked O20 r2 of the Federal Court Rules ("the Rules"). By agreement it was heard at the same time.
Finally, the applicant by notice of objection to competency dated 21 March 1997 objected to the jurisdiction of the Court to hear and determine the respondent's notice of objection to competency of 17 March 1997 on the ground that it was itself out of time, not having been filed and served within fourteen days after service of the application as required by O54B r3 of the Rules. Affidavit evidence asserted that the application was served on 3 February 1997, but it is not clear that it was then a sealed copy of the application. It is acknowledged that a sealed copy of the application was served
on 12 February 1997. The procedure adopted reflects a similar process, in more complex circumstances, in Bryant v Commonwealth Bank of Australia (1994) 123 ALR 642.
The applicant's objection to competency
I do not accede to this objection for a number of reasons, all of which are founded upon the sensible and pragmatic approach to similar issues illustrated by the decision of Northrop J in Dwyer v Huxtable (1989) 18 ALD 252 at 253. It would be inappropriate to allow such a procedure to result in the Court declining to rule upon whether it has jurisdiction to consider a particular issue, and perhaps even thereby proceeding to consider that issue when it did not have jurisdiction to do so. Rules such as O54B r3, to the extent that they require prompt identification of issues as to the competency of a particular application, serve an obviously useful purpose. But where the issue as to competency is as to the jurisdiction of the Court to hear and entertain a particular application at all, the failure to comply with them precisely cannot create jurisdiction where it does not exist.
Thus, if it were necessary to do so, I would extend the time within which the respondent could file and serve the objection to competency to 17 March 1997, exercising the power available to me under O3 r3 of the Rules. Any delay is short, and no prejudice to the applicant is put forward: Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257. There is an explanation for the delay (if delay there be) in the directions given on 24 February 1997, as it was then contemplated that the applicant might wish to amend her application to express it in a way which would or might meet in some way the declared intent of the respondent to object to the competency of the application in its then form: cf. Bishop v R (1982) 58 FLR 233 at 235 per Deane J.
However, in my view, the necessary extension to 17 March 1997 was granted, without opposition, for that very reason by the directions given on 24 February 1997.
In addition, as indicated, I am not presently satisfied that the sealed copy of the application was served on 3 February 1997. That is required: O7 r1(2). It may well have been served at that time, rather than on 12 February 1997 as the respondent acknowledges. Further evidence might clarify that issue, but for reasons given above, I do not think it matters. The power to extend time under O3 r3(2) may be exercised after the time otherwise fixed by the Rules has expired. The circumstances are such that the extension granted on 24 February 1997 would have been given whether proper service was effected on 3 or 12 February 1997.
Finally, I note that it is not suggested that the respondent's notice of motion is itself incompetent or out of time, or that its timing is relevant in the particular circumstances to the manner of its disposition. It raises the review refusal decision, that is the decision about which the Court's
jurisdiction is not in issue, so that question can be determined by that vehicle in any event. Thus, there is no real gain to the applicant by its notice of objection to competency in relation to that decision. The parties were in fact content for the status of the application in respect of the review refusal decision to be determined on that motion.
The visa refusal decision
In my view, it is plain that the Court does not have the jurisdiction to review the visa refusal decision.
Part 8 of the Act expressly provides those decisions which are reviewable by the Court. Section 486 of the Act gives the Court extensive jurisdiction with respect to "judicially- reviewable decisions", and s485(1) makes it clear that its jurisdiction is limited only to jurisdiction given by that part of the Act or by s44 of the Judiciary Act 1903. It was not suggested that s44 of the Judiciary Act 1903 is relevant for present purposes.
Those decisions which are judicially reviewable are set out in s475 which relevantly provides:
"(1)Subject to subsection (2), the following decisions are judicially-reviewable decisions:
(a) decisions of the Immigration Review Tribunal;
(b) decisions of the Refugee Review Tribunal;
(c) other decisions made under this Act, or the regulations, relating to visas.