Ngu v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT ON APPLICATION FOR EXTENSION OF TIME TO APPEAL 1 On 13 August 2002, RD Nicholson J dismissed an application filed by Hung The Ngu on 2 November 2001, seeking to set aside a decision of the Administrative Appeals Tribunal ("AAT") given on 11 August 1999. The AAT had affirmed a decision made on 12 June 1998 by a delegate of the Minister for Immigration and Multicultural Affairs to deport the applicant from Australia pursuant to ss 200 and 201 of the Migration Act 1958 (Cth). 2 The applicant is a citizen of Vietnam who was born on 11 January 1974. He arrived in Australia on 10 June 1992 as a dependant of his mother who was granted approval to come to Australia to marry. He was granted a permanent resident visa on 21 July 1992. On 25 October 1996, he was convicted in the Supreme Court of Western Australia of two counts of unlawful wounding with intent and one count of unlawfully doing grievous bodily harm. He was imprisoned for a total of eight years with eligibility for parole. His application to set aside the AAT decision was not filed until 2 November 2001. 3 The application was dismissed on the basis of a notice of objection to its competency which was filed by the Minister. The objection was based upon the fact that the application to review the AAT decision was out of time and that an extension of time was not permitted by the Migration Act. The time limit was said to be governed by s 477 of the Migration Act notwithstanding that, in the form relied upon, it did not come into effect until 2 October 2001. His Honour found that the applicant had been notified of the AAT decision "sometime prior to a letter sent to him dated 21 June 2000". The Minister contended that s 477, as it now stands, requires that the application for review of the AAT decision should have been made within twenty eight days of the notification. Moreover, the only jurisdiction of the Court to entertain review of the AAT's determination arose under s 39B of the Judiciary Act 1903 (Cth). 4 It is desirable to consider the sources of the Court's jurisdiction to review decisions of the AAT before turning to the particular case of AAT decisions relating to matters arising under the Migration Act. General Jurisdiction with Respect to AAT Decisions 5 A primary source of the Court's jurisdiction to review decisions of the AAT is found in the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") itself. Section 44 provides, inter alia: "44(1) A party to a proceeding before the Tribunal may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal in that proceeding." The Federal Court of Australia is given jurisdiction by s 44(3) to hear and determine appeals under subs 44(1). Notwithstanding the reference to "appeals" that jurisdiction is original jurisdiction. The Federal Court also has jurisdiction conferred by s 8 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") to hear and determine applications under that Act. Such applications relate, inter alia, to decisions of an administrative character made under an enactment, which category includes Commonwealth statutes (s 5 and relevant definitions in s 3). AAT decisions fall into that category. 6 The Court also has original judicial review and other relevant jurisdiction under s 39B of the Judiciary Act 1903 (Cth) which, in the material parts, provides: "39B(1) Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter." 7 The AAT Act prescribes a time limit of twenty-eight days, after notification of the AAT decision to the applicant, within which the applicant can appeal to the Federal Court. That time may be extended by the Court (AAT Act s 44(2A)). The ADJR Act prescribes a time limit for applications of twenty-eight days after a document setting out the terms of the relevant decision is provided to the applicant (s 11(3)). The time may be extended by the Court (s 11(1)(c)). Neither the Judiciary Act nor the Federal Court Rules prescribes any time limit for bringing an application under s 39B. The Federal Court Rules in this respect contrast with those of the High Court governing applications for prerogative relief which do provide time limits in particular cases (O 55 r 17(1) - certiorari; O 55 r 30 - mandamus). The latter also make provision for applications for orders nisi, a procedure which is not available under the Federal Court Rules as they presently stand. The Reviewability of AAT Decisions under the Pre-Amendment Migration Act 8 The AAT in this case was dealing with a deportation decision made under the provisions of the Migration Act as it stood prior to 2 October 2001 when the Migration Legislation Amendment (Judicial Review) Act 2001 came into effect. The pre-amendment Act is referred to here as the "Old Act". The application lodged on behalf of the applicant to challenge the AAT decision did not indicate whether it was invoking the AAT Act or the ADJR Act or s 39B of the Judiciary Act or the judicial review provisions of Pt 8 of the Migration Act as it then stood. There was a question about the extent to which the Court, while the Old Act was in force, had jurisdiction to grant relief under the ADJR Act or the Judiciary Act in respect of a decision of the AAT. The jurisdiction of the Court under the ADJR Act and under s 39B of the Judiciary Act was excluded by the Old Act in respect of "judicially-reviewable decisions" (Old Act s 485(1)). Judicially-reviewable decisions were defined by reference to decisions of the Immigration Review Tribunal, the Refugee Review Tribunal and "other decisions made under this Act, or the regulations relating to visas" (Old Act s 475(1)(c)). On the basis that decisions of the AAT on deportation matters were made under s 43 of the AAT Act and not under the Migration Act such decisions were not judicially-reviewable decisions for the purposes of s 475(1). No relevant category of AAT decisions was covered in the class of decisions under the Old Act described as "not judicially-reviewable decisions" - Powell v Administrative Appeals Tribunal (1998) 89 FCR 1 at 11-12 (French J) applied in W275/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 773 at [4] - [6] (RD Nicholson J) and approved by the Full Court in Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220 at [68]. See also Sajntop v Gerber (1992) 23 ATR 403 (Hill J) and Daher v Minister for Immigration and Ethnic Affairs (1992) 70 FCR 585 at 587 (North J). Subsection 485(2), however, preserved appeals to this Court under s 44 of the AAT Act. 9 Notwithstanding the provisions of the Old Act, the ADJR Act, the AAT Act and s 39B of the Judiciary Act were available for review of decisions of the AAT which were not caught up in the definition of "judicially-reviewable decision" or "not judicially-reviewable decision" in s 485. Indeed the general jurisdiction of the Court under s 39B(1A), in respect of matters arising under the laws of the Commonwealth, would also seem not to have been excluded by the Old Act in respect of AAT decisions. It follows that if the provisions of the Old Act still applied to the applicant's challenge to the decision of the AAT when he lodged it, it may have been able to be characterised as an invocation of one or other of those jurisdictions. Were it an application under the ADJR Act or the AAT Act it would have required an extension of time by the Court but the fact that it was out of time would not have excluded the jurisdiction of the Court given that it could extend time under those Acts. Reviewability of Pre-amendment AAT Decisions under the Post-amendment Migration Act 10 The provisions of the Migration Act relating to the jurisdiction of the Court and the time limits for applications for review of decisions under the Act and related decisions were comprehensively amended by the Migration Legislation Amendment (Judicial Review) Act 2001 which came into effect on 2 October 2001. The application of the amendments to pre-amendment decisions, was governed by Item 8 of Schedule 1. 11 Item 8 of Schedule 1 of the Judicial Review Act provides: "8(1) If an application for judicial review of a decision under the Migration Act 1958 is lodged before the commencement of this Schedule, the Migration Act 1958, the Administrative Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977, as in force immediately before that commencement, apply in respect of the application, and in respect of the review, as if this Schedule had not been enacted. (2) The Migration Act 1958 and the Administrative Decisions (Judicial Review) Act 1977, as amended by this Schedule, apply in respect of judicial review of a decision under the Migration Act 1958 if: (a) the decision was made on or after the commencement of this Schedule; or (b) the decision: (i) was made before the commencement of this Schedule; and (ii) as at that commencement, an application for judicial review of the decision had not been lodged. (emphasis added) (3) A reference in subitem (1) or (2) to an application for judicial review of a decision is a reference to: (a) an application for review of the decision under: (i) section 44 of the Administrative Appeals Tribunal Act 1975; or (ii) Part 8 of the Migration Act 1958; or (iii) the Administrative Decisions (Judicial Review) Act 1977; or (b) an application for a writ of mandamus, prohibition or certiorari or an injunction or a declaration in respect of the decision under: (i) section 75 of the Constitution; or (ii) section 39B or 67C of the Judiciary Act 1903." Subitems (4) and (5) are not relevant for present purposes. 12 Subitem (2) is confined, in its application, to judicial review of decisions "under the Migration Act 1958". A decision of the AAT affirming a decision of a delegate is, as pointed out earlier, a decision made under s 43 of the AAT Act and not under the Migration Act. Subitem (3)(a) seems to assume that a decision of the AAT under the AAT Act, and previously amenable to review under s 44 of that Act, falls within the class of decisions referred to in subitem (2) as "a decision under the Migration Act 1958". On the other hand, no such assumption is implicit in subitem (3)(b) which simply speaks of "the decision" being a reference back to "a decision under the Migration Act 1958". The constructional point which arises here was not argued before me (as the applicant was unrepresented) and I express no concluded view on it. However it is arguable that Item 8 of Schedule 1 does not apply the jurisdictional limitations (including limitations as to time) created by the Amending Act, to applications for review of AAT decisions pursuant to s 75 of the Constitution or ss 39B or 67C of the Judiciary Act. In that event, it is arguable that the Acts Interpretation Act 1901 (Cth) preserves whatever pre-amendment rights of judicial review were applicable to the AAT decision. 13 His Honour found that the Schedule did apply and that the time limits imposed by s 477 as it now stands and which are jurisdictional in character would not permit him to grant any application for an extension of time. Whether an Extension of Time Should be Granted 14 In this case the applicant did not have the benefit of any competent legal representation. The documents which the practitioner representing the applicant filed on his behalf are ample demonstration of that proposition. The practitioner who appeared before RD Nicholson J at the hearing on 28 March 2002 was suspended from practice on 2 July 2002. 15 The question before me is whether or not there should be an extension of time to file and serve a notice of appeal against the decision of RD Nicholson J upholding the objection as to competency. That decision was given on 13 August 2002. In his affidavit in support of the extension, the applicant says that he had to represent himself before the AAT. He was left unrepresented prior to the handing down of judgment on the objection to competency. He said he is unable to read English. In his application he says: "I appologise (sic) for not appealing within the 21 days. The judgement handed down did not have in writing how long I had to appeal and as my last appeal said that I had 28 days I thought that the same applied to this appeal." He also said in his application: "I have now got an opportunity for a lawyer to take my case and if so I am sure he will follow correct court procedures." 16 The application was opposed by the respondent who noted that even if the applicant believed he had twenty-eight days within which to file an appeal from the judgment of Nicholson J, he failed to do so. That explanation, which was set out in his application for extension, was not referred to in his affidavit in support of it. This simply made assertions about the difficulties he was having with legal representation and claimed that it was "impossible to get a fair hearing" through the AAT or the Federal Court. It was then argued that there was no merit in the appeal on the basis that s 477 of the Act as amended applied to prevent an application being lodged outside the twenty-eight day specified in that subsection. 17 This matter is not without some legal difficulty. There may be an argument that Item 8 in Schedule 1 of the amending legislation does not apply in respect of applications under s 39B relating to AAT decisions made prior to the amendments. The applicant has not had the benefit of competent legal advice. The practitioner who was representing him before RD Nicholson J has been suspended from practice prior to the delivery of judgment. The applicant does not have a command of the English language and, indeed, represented himself before me through an interpreter. 18 I accept that of course there has been a significant delay between the date of notification of the AAT decision and the filing of the application for review. It may be that that delay is fatal, as a matter of discretion, to the award of relief under s 39B if it is open to the applicant to invoke that section. The matter is plainly beset by difficulty. Moreover this is not a promising case on the facts. The offences of which the applicant was convicted involved what appears to have been a drive-by shooting using a repeating pistol. Two persons were shot in the head and one of the bullets ricocheted and struck a third person on the head. As the sentencing judge remarked it was little short of a miracle that at least two of the injuries were not fatal. It may well be the case, on the merits, that there is no basis for challenging the decision of the AAT. But that is not the issue here. The applicant is entitled to exercise such rights of review or appeal as the law confers upon him. The existence of those procedural rights does not depend upon his moral character or his criminal record. In the circumstances, having regard to the comparatively short period of the delay, the special circumstances affecting the applicant's ability to present, or have presented, full argument to RD Nicholson J and the lack of any apparent prejudice to the respondent, I am prepared to grant the extension of time which is sought. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.