Non-citizens in Australia are entitled to invoke the implied freedom of communication, particularly when they are exercising that freedom for the purpose of or pursuing an application for a visa (see per Mason CJ in Cunliffe v The Commonwealth at 298-299).
3. Mr Cockburn submitted that if the impugned provisions had prescribed a longer time limit of, say, down to one year after actual receipt of a letter notifying the applicant of the decision to refuse the visa, it would not be reasonably arguable that the provision infringed any of the implied constitutional rights relied on by the applicant. In this case, the applicant received the delegate's letter dated 18th December 2006 on 15th January 2007. As a practical matter, this left 4 days in which to take reasonably necessary steps to prepare and sign an application for review and give it to the Tribunal.
4. As to prescribed time limits, it was submitted that a question of reasonableness may be said to arise, which is a question of fact for the Court to decide. What is reasonable depends on all of the relevant facts and circumstances. Mr Cockburn referred to the decision of Starke J in Bank of NSW v The Commonwealth[19], where his Honour said at 300:
* "The ascertainment of value is not controlled by artificial rules. It is not a matter of formulas, but there must be a reasonable judgment having its basis in a proper consideration of all relevant facts" (cf. Standard Oil Co. of New Jersey v Southern Pacific Co. (6))[20].
5. Mr Cockburn submitted that the impugned restrictions impermissibly infringe the right conferred by federal law to potential applicants for review to the Tribunal by denying them reasonable, appropriate and adequate opportunity to exercise this right. The impugned provisions go beyond what is reasonably necessary for the achievement of the end sought to be obtained and involve an impermissible infringement of the implied freedom of communication in relation to government matters, unrelated to the achievement of the object or purpose of the impugned provisions: Davis v The Commonwealth[21] at 100.
6. Counsel for the Applicant submits that the impugned provisions are so lacking in reasonable proportionality that they must be characterised as having no reasonable relationship to the objective they are intended to achieve (South Australia v Tanner[22] at 165-168, 178-179). They cannot be justified as falling within the area of any permissible regulatory power. They are not proportionate to the attainment of any legitimate governmental objective (Castlemaine Tooheys Ltd v South Australia[23] at 473-474).
7. The Applicant claims that the impugned provisions are, in whole or in part, invalid by reason that they impermissibly infringe the second implied right contended for by the Applicant in relation to Chapter II of the Constitution.
8. The Applicant further claims that the impugned provisions are, in whole or in part, invalid by reason that they impermissibly infringe the third implied right relied on and contended for by the Applicant. The approach used by the High Court in relation to its holding that there exists a right of freedom of communication in relation to government and political matters is appropriate to apply, with, Mr Cockburn submits, suitable changes, in relation to the Applicant's contention that there exists the third right referred to.
9. The underlying basis of the Constitution is the rule of law, which the Constitution assumes.
10. The Applicant claims that, in whole or in part, s.347(1)(b)(i) or subsection 348(1), jointly or severally, impermissibly bar or limit the exercise of the jurisdiction of the Tribunal otherwise to review MRT-reviewable decisions referred to in s.338(2) of the Act and, jointly or severally, are, to that extent, invalid or are required, if permissible to be read down, to bring them, jointly or severally, within the implied constitutional rights or within constitutional limits or requirements.
11. The Applicant claims that the Tribunal failed to observe applicable general law.
12. The Applicant also submits that reg.4.10(1)(a) is invalid in that the impugned provisions, being invalid in whole or in part, are not within the regulation-making power or the legislative power of the Commonwealth and, as a consequence, the Tribunal's decision on reg.4.10(1)(a) involves jurisdictional error.
13. The Applicant seeks a declaration, writs of prohibition, certiorari and mandamus, as well as costs. The applicant's submission goes on to say that:
* ...In the circumstances of this particular case, the Court should indicate that upon the relevant matter being remitted to the Tribunal, that matter should be dealt with by a different Member of the Tribunal.[24]
14. Mr Cockburn raised this point at the hearing and I indicated then that I had some difficulty in making such an order even if I were to be satisfied that the matter should in fact be remitted to the Tribunal. The Full Court of the Federal Court has expressed doubt about the power of the Federal Magistrates Court to make an order about the constitution of the Tribunal when a matter is remitted in SZEPZ v Minister for Immigration and Multicultural Affairs[25].
15. In my view, it is inappropriate to make such an order. The constitution or reconstitution of the Migration Review Tribunal is a matter for the Principal Member. Subsection 354 (2) of the Migration Act provides:
* The Principal Member, or a Senior Member acting in accordance with guidelines under sub-section (3), may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.
16. Accordingly, I do not propose to make such an order.