NACO of 2002 v Minister for Immigration & Indigenous Affairs

BEAUMONT J: 1 In this matter, the respondent, the Minister for Immigration and Indigenous Affairs ("the Minister"), by his notice of objection to competency dated 5 April 2002, has objected to the jurisdiction of the Court to try the application which is purportedly brought under s 39B of the Judiciary Act 1903. The grounds of the objection are stated to be that the application to this Court was not filed within the time required by s 477(1) of the Migration Act 1958 (Cth) ("the Act"). 2 The essential facts, for present purposes, are that the Refugee Review Tribunal ("the Tribunal") gave an oral decision on 14 January 2002 at the conclusion of the hearing before it. At the conclusion of the hearing the Tribunal member said: "The fact finding and evidence give[n] in this hearing is now concluded. I've decided that you are not entitled to a protection visa. A copy of my decision and reasons will be sent to you within 14 days." 3 The Tribunal member went on to summarise the Tribunal's reasoning but nothing turns on this for present purposes. 4 By letter dated 14 January 2002, a Deputy Registrar of the Tribunal wrote to the applicant stating: "The Tribunal has decided that you are not entitled to a Protection visa. A copy of the Tribunal's decision and reasons will be sent to you within fourteen days. You are deemed to be notified from the date of this letter. A copy of the decision will also be given to the Department of Immigration and Multicultural and Indigenous Affairs. You may have a limited right to seek review of this decision by the Federal Court, Federal Magistrates Court and/or the High Court. There are strict time limits within which an application for review by the courts must be filed. I strongly advise you to promptly seek legal advice if you wish to seek review by the courts." 5 By letter dated 25 January 2002, a Deputy Registrar of the Tribunal wrote to the applicant stating: "At your hearing on Monday, 14 January 2002 the Tribunal gave its decision on your case and advised that a copy of its decision and reasons would be sent to you within 14 days. I enclose a copy of the Tribunal's decision and reasons. A copy of the decision has also been given to the Department of Immigration and Multicultural and Indigenous Affairs ('DIMIA'). The Tribunal's file on your case is now closed. As previously advised, you may have a limited right to seek review of this decision by the Federal Court, Federal Magistrates Court and/or the High Court. There are strict time limits within which an application for review by the Courts must be filed. I strongly advise you to promptly seek legal advice if you wish to seek review by the courts. 6 Section 477 of the Act provides: "477. Time limits on applications for judicial review (1) An application to the Federal Court under section 39B of the Judiciary Act 1903 for: (a) a writ of mandamus, prohibition or certiorari; or (b) an injunction or a declaration; in respect of a privative clause decision in relation to which the jurisdiction of the Federal Court is not excluded by section 476 must be made to the Federal Court within 28 days of the notification of the decision. (1A) An application to the Federal Magistrates Court under section 483A for: (a) a writ of mandamus, prohibition or certiorari; or (b) an injunction or a declaration; in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision. (2) The Federal Court or the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) or (1A) outside the period specified in that subsection. (3) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section." 7 It will be seen that s 477(1) stipulates that an application of the present kind must be made to the Court "within 28 days of the notification of the decision". It will further be seen that by s 477(2) it is provided that the Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subs (1) outside the period specified in that section. 8 The Act draws a clear distinction between the giving by the Tribunal of an oral decision on an application for review on the one hand, and the giving of reasons for that decision, on the other hand. The giving of reasons, that is to say, a written statement of reasons is dealt by s 430(1) of the Act which provides: "430. Refugee Review Tribunal to record its decisions etc. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d refers to the evidence or any other material on which the findings of fact were based." 9 Section 430D(1) provides: "430D.Tribunal must notify parties (parties not invited to handing down of decision) (1) If the Tribunal gives an oral decision on an application for review, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made. The applicant is taken to be notified of the decision on the day on which the decision is made." 10 It will be seen then that not only does the Act distinguish between the Tribunal's oral decision on an application for review on the one hand, and the giving of a written statement of its reasons on the other, the Act specifically provides in s 430D(1) that the applicant "is taken to be notified of the decision on the day on which the decision is made". Applying the provisions of the Act to which reference has been made in the present context, it appears that the applicant's application for review was not filed within the twenty-eight day stipulated period, that is to say, twenty-eight days from 14 January 2002. As has been noted, the application was not filed until 22 February 2002, some eleven days after the stipulated period of twenty-eight days had expired. The Act is explicit, as has been seen, that the twenty-eight day statutory time period cannot be extended by the Court (see s 477(2)). 11 A similar factual context was dealt with by Lehane J in Tan v MIMA (2000) FCA 815 where his Honour, dealing with legislation in all relevant respects in the same terms as the present statutory scheme, held that the Minister's objection to competency must succeed and that the application for an order of review must be dismissed for want of competency. In my opinion, the reasoning in that case, with which, with respect, I agree, should be followed and applied in the present case. 12 I should add for completeness that, on behalf of the applicant, there was sought to be tendered an affidavit, of her migration agent, which described the course of events subsequent to his instruction in the matter on 19 February 2002. As I have already noted, the prescribed twenty-eight day period expired some eight days before the date of instruction of the migration agent. In those circumstances, the recitation of events in the agent's affidavit is irrelevant and not admissible. 13 For those reasons, therefore, I uphold the objection to competency and I order that the application be dismissed as incompetent.