SZICV v Minister for Immigration and Citizenship

'(1) An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision. (2) The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if: (a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and (b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so. (3) Except as provided by subsection (2), the Federal Magistrates 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 28 day period. (4) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.' (Emphasis added) 31 The current provisions in s 477 were introduced by the Migration Litigation Reform Act 2005 (Cth) ('the Reform Act') and came into effect on 1 December 2005. 32 The actual notification to the appellant of the decision of the RRT was some years earlier than his application to the Federal Magistrates Court. However the Reform Act provided by Schedule 1 clause 42 as follows: '42 Transitional provision - migration decision made before commencement day Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day: (a) section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and …' 33 The effect was, in this case, that the appellant had an initial 28 day period commencing on 1 December 2005 to lodge his application for judicial review. After that he could still lodge the application on or before 24 February 2006 but only if he sought and obtained an order extending time. After 24 February 2006 the application was statute barred. 34 The appellant, it may be assumed, did not appreciate that an extension of time was necessary or that an application for such an extension was required by the Act. He made no request of any kind for an extension, much less a formal application. 35 The form of application for judicial review used by the applicant was a printed form for the purpose of Rule 44.05 of the Federal Magistrates Court Rules 2001. Although the application set out the grounds upon which relief was sought and the orders sought and a box was ticked indicating that the applicant required an interpreter, there were two important omissions. 36 First, the appellant did not complete the section identifying the date on which notification of the decision was received by the applicant. Secondly, the applicant did not tick either box (ie Yes or No) located under the heading 'Application for extension of time' to answer the question 'Does the applicant apply for an order that the time for making the application be extended under section 477 of the Migration Act 1958?' 37 The question and the place to make a response were followed on the form by these words: 'NOTE: An extension of time is required if the application is not made within 28 days of the actual (as opposed to deemed) notification of decision - see section 477 of the Migration Act 1958. If it is required, the applicant must file an affidavit explaining the delay and the reasons why an extension of time should be granted.' 38 If an extension of time is sought the Federal Magistrates Court must be satisfied that it is in the interests of the administration of justice to grant an extension before doing so (s 477(2)(b)). 39 When the matter first came before the Federal Magistrates Court on 15 February 2006 (before time had finally expired) the representative of the Minister indicated the Minister's intention to argue there was no jurisdiction to hear the application because an extension of time had not been sought. The significance of this, it is clear, was not apparent to the appellant, who had been produced from detention for the purpose of the hearing. It seems that it was not apparent, either, to the Federal Magistrate that it was still possible for an extension of time to be granted and that any difficulty consisted only of the absence of any request by the appellant. However, it was not completely clear at this stage when the appellant had actually received the RRT decision. 40 The following day, 16 February 2006, the Minister's representative filed a formal submission contending that there was no jurisdiction to entertain the application for judicial review because no extension of time had been sought. By this time it had become clear that the appellant had received the decision of the RRT prior to 1 December 2005. The significance of this fact is that time commenced to run under the transitional provisions from that date - i.e. 1 December 2005. There is no suggestion that the filing of the submission generated any understanding in the appellant of the issue which faced him. Neither did it cause any response within the administration of the Federal Magistrates Court. 41 No other step was taken before 24 February 2006 to request or make an application for any extension of time. Time to apply for an extension of time under s 477 expired on 24 February 2006. An application for an extension of time was first made on 27 April 2006. 42 On this appeal one question is whether the grant of power to the Federal Magistrates Court by s 476 of the Act is strictly subject to the limitations expressed in s 477. The other question is whether, in any event, the conditions in s 477 were satisfied in this case.

Are the time limits strict? 43 The appellant's contention on the first question is, in essence, that the grant of power in s 476 of the Act evinces an intention that the Federal Magistrates Court have the same jurisdiction as the High Court under s 75(v) of the Constitution, subject only to the limitations contained in s 476(2). 44 Counsel for the appellant drew attention to the words 'Subject to this section' in s 476(1) which introduce the grant of jurisdiction. They submit that although the limitations in subs (2) are therefore obviously to be taken into account, the grant of power in subs (1) is otherwise explicitly of equal amplitude with the original jurisdiction of the High Court to grant prerogative and injunctive relief against officers of the Commonwealth. Upon this reasoning the time limits expressed in s 477 of the Act are ineffective because, it is argued, the original jurisdiction of the High Court under the Constitution cannot be cut down by legislation. 45 It might be noted that s 486A of the Act purports to limit the exercise of the original jurisdiction of the High Court in the same way as s 477 limits the jurisdiction of the Federal Magistrates Court and s 477A limits the jurisdiction of this Court. A challenge to the validity of s 486A is before the High Court: Bodruddaza v Minister for Immigration and Multicultural Affairs (S241 of 2006). Had the issue for decision in this appeal been the same as the issue pending before the High Court it may have been appropriate to await the decision in that matter before finally determining the appeal. 46 However, in my view, the argument fails at the threshold. It is competent for Federal Parliament to impose limitations upon the jurisdiction of the Federal Magistrates Court, whether at the same time and in the same provision as jurisdiction is granted or at some other time and by some other provision. In my view the imposition of such a limitation is the intention and effect of s 477. The relevant provisions must be read conformably and in a way which gives them appropriate work to do as an harmonious legislative scheme. 47 The opening grant of jurisdiction in s 476(1) - viz 'the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution' is a statutory, not a constitutional, grant of power. It does not prevail over limitations expressed in the same statute unless that results from a proper construction of the provisions as a whole. Clearly it does not prevail over the exclusions in s 476(2) to which the grant of jurisdiction is expressed to be subject. Neither, in my view does it prevail, as a matter of statutory construction, over the limitations expressed in s 477. 48 Whatever might be said about the potential clash between s 486A and the reservation of authority to the High Court under s 75(v) of the Constitution I do not accept that Parliament intended that the operation of s 477 should be limited in the way suggested in argument. Indeed, it seems clear that Parliament intended to limit the jurisdiction of each of the High Court, the Federal Court and the Federal Magistrates Court by time limits on applications to each court. Should this legislative intention be held to have failed, in the case of the High Court, by reason of the operation of the Constitution, that will not signify that the intention remains unrealised in relation to s 477. 49 Counsel for the appellant relied on a number of related submissions to build their case on this issue but, in my opinion, they must each be rejected. 50 It was submitted that s 477 was a privative clause. I confess that I found the proposition elusive. Normally, the term 'privative clause' refers to a provision which purports to validate, or render immune from review, acts or decisions which transgress statutory limitations. Privative clauses contemplate jurisdictional excess. They have no work to do unless an act or decision would, in the absence of the privative clause, be invalid or at least reviewable for suggested invalidity. That is not the function or purpose of s 477. In my view it is inapt to characterise it as a privative provision. However, the label does not ultimately matter because the operation of privative clauses is judged by conventional means. 51 Although privative clauses are construed strictly, as counsel for the appellant contends (see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [72]), the reconciliation between the provisions of a privative clause and other provisions in a statute is a task of statutory construction, unless constitutional issues are involved. 52 A privative clause cannot oust the jurisdiction of the High Court given by the Constitution (see O'Toole v Charles David Pty Ltd (1990) 171 CLR 232; Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602; Plaintiff S157/2002 per Gleeson CJ at [5] and per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [73]). Section 477, however, relates only to applications before the Federal Magistrates Court. The Federal Magistrates Court is established and invested with power by Parliament, not by the Constitution. This constitutional principle therefore has no application in the present case. 53 Apart from cases where constitutional protections are involved, the presence in a statute of a privative clause, and the internal conflict which is, to all appearances, generated calls for a process of statutory reconciliation. In R v Coldham; ex parte Australian Workers' Union (1983) 153 CLR 415 Mason ACJ and Brennan J said (at 418): 'As Dixon J. explained in Murray [(1949) 77 CLR at pp 398-399], and in other cases, it is a matter of reconciling the prima facie inconsistency between one statutory provision which seems to limit the powers of the Tribunal and another provision, the privative clause, which seems to contemplate that the Tribunal's order shall operate free from any restriction. The inconsistency is resolved by reading the two provisions together and giving effect to each. The privative clause is taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which the prohibition lies. 54 Brennan J described the operation of privative clauses in Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 in these terms (at 194): 'The privative clause treats an impugned act as if it were valid. In so far as the privative clause withdraws jurisdiction to challenge a purported exercise of power by the repository, the validity of acts done by the repository is expanded [O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 275].' 55 Gleeson CJ, in Plaintiff S157/2002 said (at [19]): 'Giving effect to the whole of a statute which confers powers or jurisdiction, or imposes duties, or regulates conduct, and which also contains a privative provision, involves a process of statutory construction described as reconciliation. The outcome of that process may be that an impugned act is to be treated as if it were valid.' 56 An essential part of this process of statutory reconciliation, where it is required, involves a search for ultimate parliamentary intent. But the process is only necessary in the case of inconsistency or conflict. A qualification upon the exercise of a power is not a privative clause. No occasion arises in such a case to contemplate validation of an otherwise invalid act or decision. 57 Another aspect of the appellants' argument suggested that the time limits in s 477 were not to be regarded as strict. 58 None of the authorities relied upon by counsel for the appellant assist this argument and a number of them, which they very fairly and properly drew to the Court's attention, are fatal to it. 59 Counsel referred to a series of cases in which breach of various requirements had been held not to result in a jurisdictional bar. They are distinguishable. The limitations in those cases were procedural. None of them involved time limits. None of them were expressed in the mandatory language which characterise s 477 and the cases discussed hereunder. 60 By contrast, the cases identified by counsel which involved time limits uniformly took a different approach. 61 In David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 the High Court considered the operation of s 459G of the Corporations Law which appeared in a new Part 5.4 headed 'Winding Up in Insolvency' inserted by s 57 of the Corporate Law Reform Act 1992 (Cth). Section 459G(2) provided that an application for an order setting aside a statutory demand served on a company 'may only be made within 21 days after the demand is so served'. There were elsewhere conventional provisions available ensuring against invalidity on account of procedural irregularity and allowing a court to extend a period for doing acts or things whether the period concerned had ended or not. 62 Gummow J, who delivered the leading judgment, said (at 270): 'The provisions of the new Pt 5.4 constitute a legislative scheme for quick resolution of the issue of solvency and the determination of whether the company should be wound up without the interposition of disputes about debts, unless they are raised promptly.' 63 Gummow J held (at 276-277): 'In providing that an application to the court for an order setting aside a statutory demand "may only" be made within the twenty-one day period there specified and that an application is made in accordance with s 459G only if, within those twenty-one days, a supporting affidavit is filed and a copy thereof and of the applications are served, sub-ss (2) and (3) of s 459G attach a limitation or condition upon the authority of the court to set aside the demand. In this setting, the use in s 459G(2) of the term "may" does not give rise to the considerations which apply where legislation confers upon a decision-maker an authority of a discretionary kind and the issue is whether "may" is used in a facultative and permissive sense or an imperative sense. Here, the phrase "[a]n application may only be made within 21 days" should be read as a whole. The force of the term "may only" is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown vMcNeil,it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect. The same is true of sub-s (3). This consideration gives added force to the proposition which has been accepted in some of the authorities that it is impossible to identify the function or utility of the word "only" in s 459G(2) if it does not mean what it says, which is that the application is to be made within twenty-one days of service of the demand, and not at some time thereafter and that to treat s 1322 as authorising the court to extend the period of twenty-one days specified in s 459G would deprive the word "only" of effect. Further, it is significant that the scheme established by the new Pt 5.4 itself contains specific provisions conferring upon the court an express power to extend time.' (Emphasis added and citations omitted) 64 The provisions under consideration in the present appeal (s 477 of the Act) have some structural parallels with those dealt with by Gummow J. The imposition of the time limit accompanies a grant of jurisdiction. The new scheme 'itself contains specific provisions conferring upon the Court an express power to extend time'. Section 477 uses emphatic language which may be seen 'to define the jurisdiction of the Court by imposing a requirement as to time as an essential condition of the new right'. 65 Prior to the introduction of ss 476 and 477 into the Act a different regime of time limits applied. One of the sections earlier operating restricted the jurisdiction of the Federal Court to entertain applications for judicial review (s 478). Section 478 (as then appearing in the Act) also contained emphatic language. In Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 Merkel J said of s 478 (at 391): 'In my view the use of the word "must" in s 478(1)(b) and (2), in relation to the 28 day time limit, is not merely directory but "is a word of absolute obligation": see Posner v Collector for Inter-state Destitute Persons (Vic) (1946) 74 CLR 461 at 490 per Williams J and Kosovich v Mancini (1982) 31 SASR 272 at 275-276 per Millhouse J. Such an interpretation also accords with the principle that enactments requiring that a specified procedure be followed in courts are usually mandatory and not merely directory: see D C Pearce and R S Geddes, Statutory Interpretation in Australia, (4th ed, 1996), p 278 and Public Prosecutor v. Oie Hee Koi [1968] AC 829 at 852. Long and the unreported decisions of the Court, to which I have referred to in relation to ss 412 and 478 have all regarded the time limit as mandatory. Accordingly, the Court has no jurisdiction to review a decision which is reviewable under ss.475 and 476 unless the application for review is lodged within 28 days of the applicant being "notified" of the decision as enunciated in Long.' 66 The operation of s 478 (as it earlier appeared in the Act) was also considered by the High Court in WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94 (WACB). Although the validity of s 478 was not directly in issue the observations made by the Court upon it are relevant. In their joint judgment Gleeson CJ, McHugh, Gummow and Hayden JJ said (at [31] to [32]): '[31] As remarked earlier in these reasons, Pt 8, which includes s 478, is headed "Review of decisions by Federal Court". These provisions confer upon certain unsuccessful visa applicants (and in some circumstances the Minister) an entitlement, limited in scope, to seek judicial review in the Federal Court. Section 478 is facilitative of that entitlement, not destructive of it. While an applicant must lodge the application within 28 days from the date of notification and the Court may not extend that period, nevertheless the Act confers an entitlement to review, albeit one with a limited threshold. This state of affairs may be contrasted with the power given to the Federal Court by s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to extend the time limit which otherwise applies to the institution of applications for judicial review. [32] The restriction in s 478 is of a different character to that of typical statutes of limitation which operate to impose a limit of time upon an existing right of action. They operate to bar the prosecution of actions otherwise not subject to such a time limit. In that sense, statutes of limitation are preventative. However, s 478 does not "bar an existing cause of action"; rather, "[i]t imposes a condition which is of the essence of a new right". Thus, s 478(1)(b) and s 478(2) restrict what otherwise would be the conferral upon the Federal Court of jurisdiction by the Parliament under ss 76(ii) and 77(i) of the Constitution. The new jurisdiction so conferred is remedial in nature, although the remedy is confined by the time restriction upon the institution of the proceeding.' (Emphasis added) 67 Although the grant of power in s 476 is not in the same terms as the grant of power under consideration by the High Court in WACB nevertheless the statutory mechanism for imposing the time limits is relevantly indistinguishable. Those limits were found to be strict and effective. They were an essential part of the grant of jurisdiction. No different position can obtain in the present case. It follows that the first line of argument relied upon by the appellant must fail. There is no doubt about the effectiveness or validity of the restrictions upon the jurisdiction of the Federal Magistrates Court imposed by s 477 of the Act. 68 In light of these conclusions it is not necessary to await a decision from the High Court about the challenge to s 486A of the Act. Was there an application? 69 It is common ground that the appellant did not by express act or indication seek an order to extend time. If the appellant is to succeed he must rely upon an implication arising from the circumstances in which the application was filed. The potential implication arises from the following facts: (1) the application was filed outside the initial 28 day period and was incompetent if an extension of time was not granted; (2) in the application for review, when given a choice to indicate whether an extension of time was sought or not, no response was made. At least, so the reasoning goes, the appellant did not deny that an extension of time was sought. 70 In these circumstances did an implication arise, from conduct or perhaps necessity, that the appellant sought every exercise of discretion which was necessary to make his application one which conformed with the Act? Counsel for the Minister countered the suggested implication with the argument that such an approach would leave s 477(2) with no work to do. In my view the Minister's response is irresistible. Something was necessary. Inaction did not meet the statutory requirement. 71 Section 477 required, in this case, not only an order that time be further extended 'by up to 56 days' but first 'an application for that order' within 84 days of 1 December 2005 - i.e. by 24 February 2006. No application or other request was made within that period. The use, in s 477(2), of the words 'if (a) an application for that order is made …' convey the idea that a positive step is required. The Minister was prepared to concede that no particular formality was required. However, in my view some initiative from the appellant, or having his authority, was clearly necessary (cf Re Aitken; Trans Tasman Timbers Pty Ltd (1987) 17 FCR 71 at 72-73. The use of the term 'application' itself posits a definite step which can be evaluated against the statutory context (see Whitlock v Brew (1968) 118 CLR 445 per Taylor, Menzies and Owen JJ at pp 463-4). In my view there is no room for the implication suggested. 72 Counsel for the appellant also suggested that the intimation from the Minister's representative at the first hearing that an extension of time was necessary to validate the application might itself represent the necessary application on the appellant's behalf. This submission is without substance. 73 Finally, counsel contended that an addition to the application for judicial review by ticking the 'Yes' box should have been permitted by way of amendment. Such a course, in my view, is clearly precluded by s 477(3) because it would have 'the effect of allowing' that which s 477 prohibits. 74 There is, accordingly, no basis upon which to find that the appellant complied with s 477 of the Act. I agree with Smith FM that the application before him was incompetent. He had no alternative but to dismiss it.

Leave to Appeal 75 Leave to appeal is required in the present case. I would grant leave and dismiss the appeal.

Costs 76 Costs were sought by the Minister in the Federal Magistrates Court but no order for costs was made by Smith FM. He was critical of the Minister's conduct through her legal representatives. 77 I find the criticism a little hard to understand. The Minister's representative made it clear both in open court and by filing a written response to the application for judicial review that there was a jurisdictional defect confronting the appellant. Both of these disclosures were made before time for an application to extend time had expired. The Minister and her representatives had no greater obligation than the Court itself to act in the appellant's interests or to perfect his process. In truth there is no such obligation. 78 However, the Minister did not cross-appeal with respect to this issue and it need not be further discussed. The Minister did seek, and is entitled to, the costs of this appeal.

Orders 79 The orders I would make are: (1) Leave to appeal is granted; (2) The appeal is dismissed; (3) The appellant is to pay the first respondent's costs of the appeal. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate: Dated: 27 March 2007 Counsel for the Appellant: B Zipser with S Thode

Counsel for the Respondent: JD Smith with V McWilliam