Guendouz v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant seeks to review a decision of the Refugee Review Tribunal ("the Tribunal") and to review other decisions made under the Migration Act 1958 (Cth) ("the Act") or the Migration Regulations so far as they relate to visas. The decision of the Tribunal was given on 26 March 1999. Its effect was to affirm a decision of the delegate of the respondent not to grant a protection visa to the applicant. The application does not itself specify the grounds on which it relies other than as previously described. However, given the provisions of s 476 of the Act, I approach the matter on the basis that it is either arguable that the grounds presently relied upon and specified fall in some way within s 476(1) or, alternatively, that if the application proceeded to hearing it would be supported by grounds identifiably falling within that subsection. 2 The respondent brings a notice of objection to competency. The notice contends this Court has no jurisdiction to review the decision of the Tribunal because the application for review was not lodged with a registry of the Federal Court within twenty-eight days of the applicant being notified of the Tribunal decision, as required by s 478(1)(b) of the Act. Furthermore, it is contended that the Court's jurisdiction to review the Tribunal decision is otherwise specifically excluded by s 485 of the Act in respect of judicially-reviewable decisions, of which it is said the Tribunal decision is one. 3 Section 478 of the Act provides that an application under s 476 must be lodged with a registry of the Federal Court within twenty-eight days of the applicant being notified of the decision: s 478(1)(b). Subsection 478(2) provides: "The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)." The circumstances of this matter are, save in one respect, not in dispute. The applicant is an Algerian citizen who arrived in Australia on 14 September 1998. On 28 October of that year he made an application for a protection visa. The delegate of the respondent refused the application on 22 January 1999. As has been stated, the Tribunal from which the applicant then sought review affirmed the decision of the delegate on 26 March 1999. 4 The applicant acknowledges that he received a copy of the decision of the Tribunal on 29 March 1999. However, he says that he was not informed of the avenues for appeal as he did not speak English or have any knowledge of the Federal Court. 5 There is evidence on behalf of the respondent that, in accordance with standard procedure, the applicant would have been provided with an explanation of the Tribunal's decision and notified of the twenty-eight day time period for lodgment of any application to review the decision to the Federal Court. 6 In my view, it is unnecessary to make specific findings on that evidence. The critical evidence is that the applicant accepts that he received a copy of the decision of the Tribunal on 29 March 1999. On the face of it, that fact is sufficient to attract the application of the commencement of the period of twenty-eight days referred to in s 478(1)(b). The applicant's application was in fact dated 26 October 1999 and was lodged the day after he claims he was notified by other inmates of the Port Hedland Detention Centre of his rights of seeking review from this Court. 7 This is not, therefore, a case where the applicant disputes having received the Tribunal decision on a date close to when the Tribunal decision was given. However, the case for the applicant contends that the statutory provision in s 478 should be interpreted in a way so as to give effect to the rights of the applicant "in natural justice" and to reflect logic and commonsense in matters of statutory construction: see Collector of Customs v Agfa-Gevaert Ltd (1996) 141 ALR 59 at 68-9. The essence of the submissions is that the legislature could not have intended the Act to operate in ways which did not have regard to either of those factors. 8 The provision in s 478 is a provision which is, on its face, seeking to address the jurisdiction of this Court and the right of a party to seek review from it. It is not, therefore, a provision which describes the setting in which an administrative decision is to be made. Nevertheless, the rules of natural justice have been honed in relation to administrative decision-making and the High Court of Australia has described them in that setting. Perhaps the classic statement is formulated by Mason J in Kioa v West (1985) 159 CLR 550. At 582 his Honour said: "It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it." At 584 he continued by saying: "Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on construction of the statute." At 585 he said: "When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?" Taking guidance from those principles describing the content of the rules of natural justice, it seems to me that Parliament has made patently clear by enacting subs 478(2) the application and content of the doctrine - namely, that consideration of it is excluded. Parliament has not only said that the Federal Court must not make an order allowing the lodgment of an application outside the time limit. Parliament has gone further and said the Court must not even make an order having the effect of allowing such extension. This is reflected in the reasons for judgment of the Full Court in Nirmalan v the Minister for Immigration & Multicultural Affairs, unreported, Full Court (Beaumont, Branson and Emmett JJ) Sydney, 14 May 1998. It was there accepted by the Full Court that: "There is now a considerable line of authority in this court which establishes that the court has no jurisdiction to extend time irrespective of the merits of an application for extension." 9 Turning to the second aspect of the contentions for the applicant, those relating to logic and commonsense, it again appears to me that, by the explicit language which it has chosen in s 478, Parliament has left no room for any conclusion other than that it intends that the provision which it has enacted should override any common law considerations and be given effect to precisely in terms of the words chosen. The bringing of logic and commonsense to the reading of those words adds no other room for the arguments contended for on behalf of the applicant. 10 It remains to note that s 478 applies to an application under s 476. As I have said, I am understanding the application brought by the applicant so far as it goes beyond reviewing the decision of the Tribunal to nevertheless be one which seeks to be an application pursuant to s 476. The whole of the application is therefore picked up by s 478 and subjected to the time limit. 11 In my view, the effect of the law is that, even if it were not the case that the applicant had been advised of his rights of appeal at the time at which he was handed the Tribunal decision, that circumstance cannot save him from the application of the time limit from the date at which he was handed that decision. 12 Parliament has mandated the application of the time limit by the provisions of s 478. It has mandated it in the use of the word "must" which has been accepted in the line of authority referred to by the Full Court in Nirmalan. Parliament has negated by that provision the possibility of either of the contentions contended for on behalf of the applicant occasioning any different application of s 478 than that which its express terms require. 13 For these reasons, I consider that the Court does not have jurisdiction to consider the application brought by the applicant, which accordingly must be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.