Rahman v Minister for Immigration & Multicultural Affairs

DECISION OF THE PRIMARY JUDGE 8 The primary judge, after setting out the relevant factual background and the relevant provisions of the Act, noted a submission on behalf of the appellant that s 478(2) was beyond legislative power and was invalid. His Honour also noted contentions on behalf of the appellant that: · the proper construction of s 478(1)(b) of the Act required notification of the decision to be in a language that an applicant understands; · the Minister was estopped from contending that the appellant had not lodged an application within twenty-eight days of being notified of the decision, by reason of conduct of an officer of the Minister's department. 9 His Honour noted that the appellant had acknowledged that he had received notification from the Tribunal on 15 February 2000 and that he had been notified of the Tribunal's decision before he attended an office of the Minister's department on 23 February 2000. Accordingly, his Honour concluded that the conduct of the officer was irrelevant to the issue of notification of a judicially reviewable decision. 10 After referring to various matters touching on the construction of s 478 of the Act, and referring to a number of authorities, his Honour observed that an arguable construction of s 478(1) is that it purports to restrict judicial review by directing the Court as to the manner in which the judicial power conferred upon the Court by the Constitution is to be exercised. His Honour expressed the view that such a direction would be beyond the legislative power conferred by the Constitution on the Parliament, and would be invalid. 11 His Honour also referred to a substantial line of authority to the effect that s 478(1) creates a limited right and, therefore, that s 478(2) does not exceed legislative power. His Honour concluded that he was unable to say that the construction of s 478(1) accepted in that line of authority was untenable and that he should follow it. On the basis of that authority, the application was incompetent and had not attracted the jurisdiction of the Court. Accordingly, his Honour concluded that the objection to competency must be upheld and the application be dismissed.

RESOLUTION OF THE ISSUE ON APPEAL 12 Statutory provisions imposing time limits on actions take various forms and have different purposes. There is a distinction between statutes of limitation, properly so-called, which operate to prevent the enforcement of rights of action arising independently of statute, and limitation provisions annexed by a statute to a right newly created by it. In the latter case, the limitation does not bar an existing cause of action but imposes a condition, which is of the essence of the new right created by the statute - Australian Iron & Steel v Hoogland (1962) 108 CLR 471 at 488. 13 If the right to make an application under s 476 is conditioned upon the application being lodged within the twenty-eight day period, enlargement of that period by the Court would, in effect, create a new right. That would be beyond judicial power. On the other hand, if s 478(1)(b) is to be treated as a limitation provision, properly so-called, it would simply prevent the enforcement of the right, which exists or arises independently, albeit created by the same statute. In that case, a power might be implied to extend the time within which the application may be lodged, and the time within which the jurisdiction that arises in consequence of the lodgment, may be exercised - National Telephone Company Ltd v Postmaster General [1913] AC 546 at 552, 557 and 562. 14 Section 478(2), however, directs the Court not to exercise any such power. It might be thought that, if s 478(1)(b) were to be construed as imposing a condition that is of the essence of the right created by s 476(1), s 478(2) would have little work to do. The appellant contends that such a provision would be necessary only if it is assumed that the Court has power to extend the time and it is only because of the direction in s 478(2) that the Court would not have such a power. 15 Accordingly, the appellant contends, on its true construction, s 478(1) does not condition the right granted by s 476(1) to apply for judicial review. As a consequence, the appellant contends, s 478(2) purports to direct the Court as to the manner in which the Court exercises the judicial power conferred on it. Such a direction, it is said, is beyond the legislative power conferred upon the Parliament by the Constitution and is invalid - see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 ("Chu's Case") at 36-7 and paragraph [37] of the primary judge's reasons [2000] FCA 1844. In Chu's Case, the High Court distinguished between laws that, within the limits of Commonwealth legislative power, grant or withhold jurisdiction, and laws that purport to direct a court as to the manner and outcome of the exercise of its jurisdiction. The former laws are valid whereas the latter laws violate the principles concerning the separation of powers established by the Constitution. 16 Section 478 must be construed as a whole. It is not permissible to construe each subsection independently of the other. It may be that, upon a detailed analysis of the provisions of s 478, s 478(2) does no more than state, in express terms, the consequences of s 478(1). Even if that be so, s 478(2) is not otiose. It is designed to make absolutely clear the intention of Parliament that there is to be no review by the Federal Court of a judicially reviewable decision unless an application for such a review was lodged within twenty-eight days of the applicant's being notified of the decision. It is well recognised that a subject's right of recourse to the courts is not to be taken away except by clear words - see Hockey v Yelland (1984) 157 CLR 124 at 130. Nevertheless, it is patently clear that the Parliament intended that the Federal Court would not have any jurisdiction to entertain an application for an order of review if the application was lodged more than twenty-eight days after the applicant was notified of the decision sought to be reviewed. 17 The distinction drawn in Chu's Case does not assist the appellant in the present case. Section 478(2) is not concerned with the manner or outcome of the exercise of judicial power. An element of the right created by s 476(1) to apply to the Court for review of a judicially reviewable decision is that the right be exercised by application made within the time specified in s 478(1)(b). That provision imposes a condition that is of the essence of the new right created by s 476, being the new right to seek review by the Federal Court of a judicially reviewable decision. It is a valid exercise of the legislative power to limit the jurisdiction of the Court to entertain only those applications filed within twenty-eight days of notification of a judicially reviewable decision. Section 478(2) does no more than direct the Court to give effect to that limitation. It does not exceed the legislative power of the Commonwealth. Sections 478(1) and 478(2) do not direct the Court as to the manner and outcome of the exercise of a discretion. Together, they contribute to the definition of the jurisdiction of the Court to review judicially reviewable decisions. 18 Section 478(2) is valid. It follows that the appellant's application to the Federal Court was incompetent. Accordingly, the appeal should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: The applicant appeared in person at the hearing. Final submissions were provided by Mr G Donaldson.

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 30 May 2001 Final submissions received 11 September 2001