NAFZ v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This case raises the question as to whether a decision by the Refugee Review Tribunal ("the Tribunal") that it will not entertain an application for review pursuant to Part 7 of the Migration Act 1958 (Cth) ("the Act") as it did not have jurisdiction to do so because the application was received outside the mandatory time limit imposed by s 412(1)(b) of the Act is a privative clause decision for the purposes of s 474 of the Act and, if so, the effect of s 474 in those circumstances. 2 Part 7 of the Act deals with the review of protection visa decisions. The critical provisions of Div 2 of that Part are as follows: "411 Decisions reviewable by Refugee Review Tribunal (1) Subject to subsection (2), the following decisions are RRT-reviewable decisions: (a) a decision, made before 1 September 1994, that a non-citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee); (b) a decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations); (c) a decision to refuse to grant a protection visa; (d) a decision to cancel a protection visa. (2) The following decisions are not RRT-reviewable decisions: (a) decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made; (b) decisions in relation to which the Minister has issued a conclusive certificate under subsection (3). (3) The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that: (a) it would be contrary to the national interest to change the decision; or (b) it would be contrary to the national interest for the decision to be reviewed. 412 Application for review by the Refugee Review Tribunal (1) An application for review of an RRT-reviewable decision must: (a) be made in the approved form; and (b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and (c) be accompanied by the prescribed fee (if any). (2) An application for review may only be made by the non-citizen who is the subject of the primary decision. (3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made. (4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place). … 414 Refugee Review Tribunal must review decisions (1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision. (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3). 415 Powers of Refugee Review Tribunal (1) The Tribunal may, for the purposes of the review of an RRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister. (4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations." 3 Section 412(1)(b) refers to notification of the decision, namely the primary decision. This is dealt with by s 66(1) which is as follows: "(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way." 4 Regulation 2.16 of the Migration Regulations 1994 (Cth) provides that for the purposes of s 66(1) of the Act the Minister must notify applicants of a decision to refuse to grant a visa by one of the methods specified in s 494B of the Act. Section 494B, so far as it is relevant to this case, is as follows: "494BMethods by which Minister gives documents to a person Coverage of section (1) For the purposes of provisions of this Act or the regulations that: (a) require or permit the Minister to give a document to a person (the recipient); and (b) state that the Minister must do so by one of the methods specified in this section; the methods are as follows. … Dispatch by prepaid post or by other prepaid means (4) Another method consists of the Minister dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or (ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents." 5 In the present case the notice of the decision of the delegate of the Minister was dated 30 November 2001. The application to the Tribunal was lodged on 8 February 2002. The Tribunal formed the preliminary view that it did not have jurisdiction because the review application was received outside the prescribed time limit and further submissions were invited on the issue. What was called the Reasons for Decision of the Tribunal included the following: "The Department's file records indicate…that the decision was sent on 30 November 2001 by registered mail to the applicant to the last residential address provided to the Minister by the applicant. The Tribunal finds that the decision notice was sent to the applicant in accordance with s 494B(4) of the Act. Therefore, the applicant is taken to have received the notice on 11 December 2001. Therefore the 28 day period within which the review application must be lodged ended on 8 January 2002. The application for review was not received by the Tribunal until 8 February 2002 after the prescribed period had expired. … As the review application was received by the Tribunal outside the mandatory time, it is not a valid application and the Tribunal has no jurisdiction to review the delegate's decision." 6 The decision was said to be : "The Tribunal does not have jurisdiction to review the decision refusing to grant the applicant a protection visa." 7 The application to the Court was filed by the applicant in person. It was alleged that the applicant did not receive the letter of notification from the delegate of the Minister, that he did not learn of the refusal until he called an officer of the Department and that he applied to the Tribunal within 28 days after receiving that advice. There was no formal claim for an order in the nature of mandamus. The facts alleged in the application were confirmed and somewhat fleshed out by the applicant in an affidavit. When the matter came on for hearing the applicant was still unrepresented. Counsel for the Minister sought to tender evidence of posting of the notification which I rejected as there was no admissible proof of system such as would enable secondary documentary evidence to be tendered. Counsel for the Minister indicated that his primary position was that the decision by the Tribunal not to exercise jurisdiction was a privative clause decision within the meaning of s 474 and so protected from any review in this Court by reason of s 474. 8 "Privative clause decision" is defined by s 474(2) and extended by s 474(3) which are as follows: "(2) In this section: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). (3) A reference in this section to a decision includes a reference to the following: (a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination; (b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa); (c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument; (d) imposing, or refusing to remove, a condition or restriction; (e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement; (f) retaining, or refusing to deliver up, an article; (g) doing or refusing to do any other act or thing; (h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation; (i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act; (j) a failure or refusal to make a decision." 9 If the decision was a privative clause decision s 474(1) would apply, the terms of which are: "(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." 10 I adjourned the proceeding in order, firstly, that the applicant could seek legal advice (a referral pursuant to O 80 of the Rules of Court having been made) and, secondly, that counsel for the Minister could obtain instructions as to whether it was desired to lead further evidence as to posting. When the matter came back on for hearing the applicant was represented by counsel. Counsel for the Minister did not seek to tender further evidence of posting. This involved taking a stand on the legal position. The matter was argued as if the application were for relief pursuant to s 39B of the Judiciary Act 1903 (Cth). 11 As I understand it, it was argued for the Minister that compliance with s 412(1) was a question committed to the Tribunal for decision because its jurisdiction depends upon there being a valid application to it, that there was now no appeal available against such a decision and there are no grounds for invoking the s 39B jurisdiction. No authority was cited. In my opinion (absent s 474) the question as to whether an application is validly made pursuant to s 412 is not committed to the Tribunal for it to make a substantive and binding decision. Of course, as a practical matter, the Tribunal may wish to satisfy itself as to whether it should proceed, but the statute does not provide that that decision is to be made by it. In my opinion, the validity of an application pursuant to s 412 is, in the event of dispute, to be decided by the Court upon admissible evidence, and the refusal of the Tribunal to exercise jurisdiction in relation to a valid application pursuant to s 414(1) of the Act can be corrected pursuant to s 39B. On the evidence before me the application was not out of time and, absent s 474, an order would be directed to the Tribunal to compel it to do its duty and hear the application. 12 Was there a privative clause decision made by the Tribunal? Counsel for the Minister draws particular attention to ss 474(3)(g) and (j) in conjunction with the words in s 474(2) "a decision of an administrative character made…under this Act". It was submitted that whether the correct analysis is that the Tribunal made a decision that the application was invalid or refused to exercise jurisdiction or declined to make any decision on the application does not matter when the extended definitions are read back into s 474(2). 13 It may be accepted for the purposes of argument that a decision was made. Further, whatever was done was plainly of an administrative character. The real question, it seems to me, is whether what was done was done "under this Act". Counsel for the Minister submitted that a wide meaning had always been given to that concept in decisions in relation to the Administrative Decisions (Judicial Review) Act (1976) (Cth) citing, by way of example, Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 404; Minister for Industry & Commerce v Tooheys Ltd (1992) 60 FLR 325 at 331 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 335-339. 14 Reference was also made to a line of authority concerning the regime which applied under the Act before the extensive 2001 amendments. In Li v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 219 ("Li") I considered a notice of objection to competency which raised that line of authority in a very similar context ([15]-[26]). That was an appeal from a decision of the Tribunal not to exercise jurisdiction on the basis that the application was out of time. The appeal was only competent if the refusal to exercise jurisdiction was a decision under the Act. For reasons which I explained it seemed to me that what was done was not done "under the Act". However, there was a line of cases in which appeals had been entertained in similar circumstances. I concluded: "26. As presently advised, I would tend to the view that the decision was not "under this Act, or the regulations". However, it seems clear that, for some years, proceedings of this type have been entertained by the various judges of the Court without any issue of jurisdiction apparently having been raised by the Minister or by the judges who heard them. The point is not easy, and views about it could legitimately differ. I cannot say that the assumption of jurisdiction has been plainly wrong. In these circumstances, it seems to me that my proper course is to follow the established practice and overrule the objection to competency." 15 A similar course was taken by Sackville J at El Edwan v Minister for Immigration & Multicultural Affairs [2001] FCA 706. In a case referred to by counsel for the Minister, the Full Court acted on a similar basis although apparently without argument (Fernando v Minister for Immigration & Multicultural Affairs (2000) 97 FCR 407 - see also Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77). 16 For reasons which sufficiently appear from Li I would be inclined to conclude that refusal to exercise jurisdiction in the present circumstances is not a decision "under the Act". The purpose of the Tribunal is to review Ministerial decisions on the merits and in my opinion it is only such decisions which are caught by s 474. There is a clearly discernable (and defensible, if controversial) policy which would support the immunisation of those decisions from court control. It is much more difficult to see that decisions of a different kind, but which have draconian consequences for individuals, should be so immunised. The present case is an excellent example. This is, perhaps, another way of saying that as the statute does not provide for the Tribunal to make a decision as to its jurisdiction, s 474 has nothing to work with. I appreciate that it might be said that s 474(4) provides support for a wider scope being given to s 474(1) than I would be inclined to find, but it is unsafe to draw conclusions from specific inclusions or exclusions in such circumstances. However, I have come to the view that, as a single judge, I should not depart from the course I took in Li. In these circumstances it is neither necessary nor appropriate that I fully express the reasons for my own contrary inclination. 17 Counsel for the applicant submits that the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 does not preclude the grant of relief because of the result in the Turcan appeal, particularly having regard to the judgment of Black CJ at [30]-[35]. I can discern no principle in those passages upon which the applicant could rely here. There is, at first sight, a stronger argument based upon the part of the decision in NAAV which relates to Wang. Counsel for the applicant pointed to the positive obligation provided by s 414 being what he described as an "imperative duty" (Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 632). There are difficulties in extracting a ratio from NAAV so far as the cases of Wang and Turcan are concerned (some of which were exposed by the analysis of Sackville J in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108). There is, however, an insuperable difficulty in the path of the applicant if it is correct that the decision here was a decision under the Act, because that would carry the implication with it that it was a kind of decision which the Act authorised the Tribunal to make. If that is the case, then it is not possible to find any lack of jurisdiction for the Tribunal to do what it did. There was simply a factual decision within jurisdiction. That would provide no foundation for a claim that the Tribunal failed to comply with an inviolable statutory condition such as to arguably give rise to the relief based upon the decision in Wang. This leads to the practical effect that the Tribunal is able to make a decision as to the validity of an application to it and, by reason of s 474, that decision cannot be challenged by the grant of mandamus or any other like relief. The application is therefore to be dismissed with costs. 18 It will be apparent from the foregoing that, in my opinion, it is time for a Full Court to give these issues proper consideration. It seems to me that a questionable practice which was favourable to the position of applicants developed in this Court and has now come back to disadvantage applicants under the new regime. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles .