Ngu v Minister for Immigration and Multicultural and Indigenous Affairs

THE COURT REASONS FOR JUDGMENT 1 The issue arising on the present appeal is whether an objection to competency in reliance upon the 28 day time limit imposed by s 477 of the Migration Act 1958 (Cth) ("the Act") can only be upheld if the Court is satisfied that the decision under review does not involve jurisdictional error. 2 The relevant facts can be briefly stated. In June 1998 a delegate of the respondent made an order pursuant to the powers conferred by ss 200 and 201 of the Act that the appellant, who is not an Australian citizen, be deported from Australia because of certain criminal convictions. The appellant applied for review of the order by the Administrative Appeals Tribunal ("the AAT") which affirmed the delegate's decision. The appellant was notified of the decision of the AAT by, at the latest, 21 June 2000. An application to the Federal Court for the review of the decision was not filed by the appellant until 2 November 2001. The respondent filed a notice of objection to competency pursuant to O 54B r 3 of the Federal Court of Australia Rules 1979 (Cth) on the ground that the application to the Court for review of the decision of the AAT pursuant to s 39B of the Judiciary Act 1903 (Cth) was not made within 28 days as required by s 477 of the Act. 3 Relevantly, s 477 provides: (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 …must be made to the Federal Court within 28 days of the notification of the decision. … (2) The Federal 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) … outside the period specified in that subsection. A privative clause decision is defined in s 474(2) of the Act as "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". 4 The primary judge allowed the objection to competency and ordered that the application of the respondent be dismissed with costs. His Honour stated at [23]: "There is nothing in the applicant's submissions which places any doubt upon the respondent's submission that the application is incompetent. It is incompetent because any application to the Court for review of the decision of the Tribunal had to be made within 28 days of the applicant being notified of the decision of the Tribunal (s 477(1) of the Act). The application was not made within time and pursuant to s 477(2) of the Act, the Court cannot allow the applicant to lodge an application outside the time limit specified in s 477(1) of the Act. The application to the Court is incompetent and must be dismissed." The appellant appealed to the Full Court against the orders of the primary judge. 5 Section 477 only imposes a time limit in respect of a privative clause decision. Section 474(2) of the Act provides that a privative clause decision means "a decision … made, or required to be made, as the case may be, under this Act". After the decision of the primary judge the High Court handed down its decision in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 ("Plaintiff S157") in which Gaudron, McHugh, Gummow, Kirby, and Hayne JJ stated at 45 [76] that: "the expression 'decision[s] … made under this Act' must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act." 6 Plaintiff S157 concerned, inter alia, s 486A of the Act which provides: (1) An application to the High Court for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of a privative clause decision must be made to the High Court within 35 days of the actual (as opposed to deemed) notification of the decision. (2) The High Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 35 day period. 7 In determining the applicability of s 486A in that case, their Honours concluded at 48 [87] that s 486A would not apply to a decision where there has been jurisdictional error as that decision would not be a decision "made under [the] Act". Their Honours stated at 48 [88]: "If the decision did involve jurisdictional error s 486A would not apply; if it did not, s 474 would prevent the grant of relief." 8 Sections 486A and 477 only operate in respect of a "privative clause decision". Thus, if a decision involves jurisdictional error of the kind discussed in Plaintiff S157 it is not a decision made under the Act and is therefore not a privative clause decision. It must follow that an objection to competency based on a failure to comply with the requirements of s 477 cannot be upheld unless there has been a determination that the decision to be reviewed is a privative clause decision, as that term has been explained in Plaintiff S157. The determination of whether the decision in respect of which review is sought is a privative clause decision will therefore require consideration of whether there has been jurisdictional error. Counsel for the Minister conceded, correctly in our view, that the primary judge did not address either of those questions. 9 Although counsel for the Minister formally opposed those omissions on the part of the primary judge being raised as a ground of appeal, he accepted that it was difficult for him to resist that course as the ground raises a question of law based on Plaintiff S157 which was decided after the decision of the primary judge. 10 The ground of appeal raises a question of law which only arises as a result of a decision of the High Court made since the decision of the primary judge; the appellant has had scant legal assistance in this matter; the matter concerns whether the appellant is to be deported from Australia where he has resided since 1992; and the raising of the ground cannot unfairly prejudice the Minister. In those circumstances we have concluded that the appellant should be permitted to rely on the omission of the primary judge to consider whether the decision was a privative clause decision, as that term has been explained in Plaintiff S157,as a ground of appeal. 11 Counsel for the Minister accepted that as the primary judge failed to correctly address the issues he was required to address under s 477 he erred in law and that it fell to the Full Court to determine whether it would address those issues or remit the matter back to the primary judge to do so. Counsel submitted that because the AAT's reasons disclosed no error by it and there was no other material to support a contention that the AAT erred in any way, it would be futile to remit the matter to the primary judge. 12 It is now clear that one of the claims of the appellant is that, because of his lack of legal representation; his inability to communicate with the AAT in English; and his failure to understand the issues he was required to address, he did not receive a fair hearing before the AAT. Thus, it appears the appellant is seeking to raise a jurisdictional ground of review, namely that the AAT failed to accord procedural fairness to him. 13 We have considered whether we should endeavour to ascertain whether there was jurisdictional error. However, for a number of reasons we have decided it would be inappropriate for us to do so in the present case. First the appellant, whose application for review does not state the grounds of review, is self represented and could not reasonably be expected to deal with that question before the Full Court. Second, jurisdictional error does not appear to have been raised as an issue before the primary judge and, in the particular circumstances of the present case, it is inappropriate for the Full Court to embark on a consideration, for the first time, as to whether there has been jurisdictional error: cf NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 19 at [4]. Third, the Minister's incompetency case was based and decided solely on the ground, which we have found to be erroneous, that the application was out of time. Thus, the failure of the primary judge to address jurisdictional error was, in part, caused by the Minister's failure to address that issue as part of his incompetency case. In these circumstances there is no unfairness to the Minister in remitting the matter. Finally, we are not satisfied that a remission would be futile as, on the material before us, we are unable to conclude that the appellant has no prospect of succeeding on his unfairness ground. 14 In the circumstances, the appropriate course is to allow the appeal, set aside the orders of the primary judge and remit the matter back to his Honour. We would observe that in the light of Plaintiff S157 we doubt that the issues to be decided on an objection to competency can be severed from the merits of any jurisdictional challenge to the Tribunal's decision. That, however, is a matter for the primary judge. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Merkel and Hely.