W231/01A v Minister for Immigration & Multicultural Affairs

Statutory provision 12 The statutory provision in the Act imposing the time limit relevant to consideration of the applicant's present case is s 478. That sections reads: "478 (1) An application under section 476 or 477 must: (a) be made in such a manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and (b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified 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 outside the period specified in paragraph (1)(b)." 13 The Court has comprehensively considered the meaning of the s 478(1). In Nirmalan v Minister for Immigration & Multicultural Affairs [1998] FCA 672, Beaumont J, with whom Branson and Emmett JJ agreed said: "The terms of s 478(1)(b) of the Act are specific. They provide that an application of the present kind must be lodged within 28 days of the applicant being notified of the decision. Moreover, s 478(2) of the Act provides in terms that the Court must not make an order extending time. There is now a considerable line of authority in this Court which establishes that the Court has no jurisdiction to extend time irrespective of the merits of an application for extension." In Hong v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 469 a Full Court found: "there is no difficulty with the conclusions that the document has been lodged when it is physically deposited with a court or tribunal or when it has come into the possession of the court or tribunal by some other means such as by post or facsimile transmission.

Respondent's submissions 14 The respondent submits the Court has no power to extend the time for lodging an application under s 476 irrespective of the merits of any application to allow lodgment outside the statutory period. The jurisdiction of the Court is limited by s 478(2) of the Act: see Nirmalan; Oguzhan v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 285 at 291 - 293; Kucuk v Minister for Immigration & Multicultural Affairs [2001] FCA 535 at [16] - [21]; Abidin v Minister for Immigration & Multicultural Affairs [2001] FCA 842 at [11] - [12] and [22]; and Salehi v Minister for Immigration & Multicultural Affairs [2001] FCA 995 at [50] - [52]. 15 It is therefore said the respondent's objection to competency should be upheld and the application dismissed. 16 In considering the respondent's objection to competency it is relevant to point in a little greater detail to the strength of judicial opinion presently existing among single judges (in addition to the Full Court in Nirmalan) on the proper construction and application of s 478. In Oguzhan, Carr J said, at 291: "…the Parliament has defined the Court's jurisdiction as being limited to applications made within 28 days of notification of the judicially-reviewable decision in question. That s 478(1) creates a jurisdictional bar was recognised in cases such as Al Achrafi v Minister for Immigration & Multicultural Affairs (1997) 46 ALD 550 at 553 (Beaumont J) and Duwai v Minister for Immigration & Multicultural Affairs [1999] FCA 1309 at [21] (Sackville J)" In Kucuk at par 17, Hely J said: "The terms of the statute and a line of authority establish that I have no power to grant an extension of time irrespective of the justice of doing so in the circumstances of the particular case." In Abidin, Heerey J said at par [22]: "It is clear that s 478 defined the jurisdiction of the Federal Court. The prohibition in s 478(2) makes clear that the requirement in s 478(1)(b) of the Act that an application for review be lodged within 28 days stipulates an "essential condition or jurisdictional requirement… [it] does not give rise merely to a defence of non-compliance, which may be waived by a respondent"" Rudolphy v Lightfoot (1999) 197 CLR 500, at [10]" In Salehi, Mansfield J said at par [52]: "It follows that I conclude that the words of s 478(1)(b) are plain, and that I should give effect to the legislative intention that each of these applications is out of time, irrespective of the particular circumstances which I have found in each case. There is no scope for implying some qualification into s 478(1)(b) to accommodate the individual circumstances of any of the applicants." 17 Not only must the applicant's arguments persuade me that the above body of strong single judge opinion was in error, but also that I am not bound to follow the decision of the Full Court in Nirmalan.

Applicant's submissions Factual foundations 18 The applicant's submissions raise the need for factual findings. These are: (1) The applicant did all that he could do to comply with s 478 of the Act. That is an inference open to be drawn and I find accordingly. (2) It is also open to inference and I find that the applicant had no independent access to modes of communication. (3) Additionally, it is open to the inference, which I draw, that the applicant was totally reliant on the respondent making appropriate arrangements for lodgment of his application for review. Right of access to the common law 19 The submissions for the applicant start from the proposition that while the applicant is an alien whose status, rights and immunities differ from citizens in a variety of respects the applicant has the benefit of the common law: Victorian Council for Civil Liberties Incorporated v Minister for Immigration & Multicultural Affairs (2001) 182 ALR 617 at pars 51 and 52 (at first instance). 20 Reliance is then placed on the proposition that: "…when a statute is silent as to procedures which are to be followed or basic rights are observed, the assumption is made, and enforced by the Courts, that the statutes are intended to operate alongside and in harmony with the common law" Minister for Lands and Forests v McPherson (1991) 22 NSWLR 687 at 699. Common law right of access to the Court 21 Reliance is then placed in the applicant's submissions on the principle that the common law recognises a citizen's right to unimpeded access to the courts: Raymond v Honey [1982] 1 All ER 756 at 762; Chester v Bateson [1920] 1 QB 829; R & W Paul Ltd v Wheat Commission [1936] 2 All ER 1243, [1937] AC 139 and in Re Boaler [1915] 1 KB 21 at 36. 22 However, it is accepted on behalf of the applicant that that common law right may be taken away by express enactment. In Re Boaler (supra) it was said "but the language of any such statute should be jealously watched by the Courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension." Extension of right of access to means of communication 23 Next, the submissions for the applicant contend that it has been recognised that the common law right of access include a prisoner inmate's right of access to a solicitor for the purposes of obtaining advice and assistance with a view to instituting proceedings: Reg v Secretary of State for the Home Department, ex parte Anderson [1984] QB 778 at 794. This right of private communication was recognised in Leech v Secretary of State for Scotland [1991] SLT 910. In Reg v Secretary of State for the Home Department, ex parte Leech [1994] QB 198 at 216 it was accepted that it was part of the ratio decidendi of Anderson's case that unimpeded access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts, forms an inseparable part of the prisoners right of access the courts themselves. 24 In the Anderson's case it was held that r 33(3) of the Rules of 1964 giving a right to censor a prisoner's correspondence created a substantial impediment to the exercise of basic rights and was ultra vires so far as it purported to apply to correspondence between prisoners and their legal advisors. 25 For the applicant it is contended that the applicant's right of access to the Court includes the right, by an analogy with that of communications between a prisoner and his solicitor, not to have his correspondence arbitrarily or unlawfully interfered with. This argument is supported by reference to Art 17 of the International Covenant on Civil and Political Rights providing that "no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence" and by the statement by Brennan J in Mabo & Ors v Queensland (No 2) (1992) 175 CLR 1 to the effect that the common law has upon it the powerful influence of the International Covenant. Impossibility of performance 26 The applicant's case additionally relies on the decisions in Wills & Sons v McSherry [1913] 1 KB 20 and Keir v Morris (1963) 4 FLR 230. In Wills it was held that notwithstanding want of service of a notice in writing of an appeal as required by s 2 of the Summary Jurisdiction Act 1857, the court in the circumstances had jurisdiction to hear the appeal. In the course of his reasons for judgment, Lord Alverstone CJ said: "The statute gives this Court jurisdiction to hear appeals from justices by way of case stated subject to certain conditions. The law applicable to the point is clearly stated in Maxwell on the Interpretation of Statutes (5th ed.) at p. 621: "Enactments which impose duties on conditions are, when there are not conditions precedent to the exercise of a jurisdiction, subject to the maxim that lex non cogit ad impossibilia aut inutilia. They are understood as dispensing with the performance of what is prescribed, when performance is idle or impossible.…. In such cases, the provision or condition is dispensed with, when compliance is impossible in the nature of things. It would seem to be sometimes equally so where compliance was, though no impossible in this sense, yet impracticable, without any default on the part of the person on whom the duty was thrown"…Where, however, the act or thing required by the statute is a condition precedent to the jurisdiction of the tribunal, compliance cannot be dispensed with; and if it be impossible, the jurisdiction fails." In Keir Joske J said at 231: "There is authority to the effect that failure to serve notice of appeal in exact accordance with statutory provisions may deprive the appellate court of jurisdiction to hear the appeal and Dawe v. Norhwood [1951] S.A.S.R. 73 was cited to that effect. Other authorities are Pritchard v. Federation of New South Wales Police Citizens Boys' Clubs (1959)77 W.N. (N.S.W) 729; Foss v. Best [1906] 2 K.B. 105; Ray v Justices of Melbourne (1891) 17 V.I.R. 186; McPherson v. Burke (1909) 26 W.N. (N.S.W.) 150". At 232 he added: "The matter may be approached in a somewhat different way and that is if service of notice of appeal is impossible, it is not required - Wills & Sons v. McSherry [1913] 1 K.B. 20, which cites the authorities and which was followed by the Full Court of New South Wales in Mitchell v. Berry (1922) 22 S.R. (N.S.W.) 363." 27 It is submitted having regard to these authorities particularly Wills, that where an applicant had done all that could be done by the applicant to comply with the condition required for lodgement of a notice of an application for review, compliance should not be required in a situation where it would offend the fundamental liberty of access to the courts. Interpretation of s 478 28 Additionally it is contended that a close reading of s 478 shows that it is not caste in a form so as to exclude the fundamental freedom of right of access to the court including communication from a person in detention to the court system. Parliament would be required to have expressed the matter with more irresistible clearness, it is submitted, for the fundamental freedoms to be abrogated: cf Bropho v Western Australia [1990] 171 CLR 1; Potter v Minahan [1908] 7 CLR 277. Fiduciary obligations 29 Further, it is contended that the respondent is a fiduciary of the applicant with a duty of good faith that requires the respondent not to engage in a conflict of interest: Clay v Clay (2001) 202 CLR 410. It is said a conflict arises in that the respondent has interposed himself between the Court and the applicant in respect of the applicant's filing of a review application against the respondent: cf Cubillo v Commonwealth (2000) 174 ALR 97, PD Finn, Fiduciary Obligations (Law Book Company, 1977) ch 15 and ch 21.

Reasoning 30 My reasoning on these matters is as follows: (1) I am bound by the decision of the Full Court in Nirmalan and nothing in the above submissions for the applicant are directed to persuading me that I am not so bound. (2) Parliament has, in s 478(2), used language of irresistible clearness. In particular, Parliament has said that the Federal Court must only not make an order allowing an applicant to lodge an application outside a period specified but also make an order "which has the effect" of so allowing. Even if the applicant can succeed in relation to one or all of his arguments, the Court is enjoined by Parliament from making any order to give effect to that view. (3) For the same reason, even if there could be deemed compliance, no order could be made to give effect to it. (4) In relation to the argument directed to fiduciary obligations, it is not the respondent who has been involved in the alleged conflict of interest. If there was an arbitrary interference with the applicant's right of communication to the Court it was that of DIMA not the respondent. (5) In Keir at 231, Joske J after referring to the various authorities supporting the deprivation of appellate jurisdiction upon failure to serve a notice of appeal, stated that "nevertheless the statute which has this effect frequently contains some form of escape clause enabling the appellate court to enter upon and decide the appeal…". What is missing in the case of s 478 is any discretion in the Court to ameliorate the condition of the application of s 478 in appropriate circumstances. There is no escape clause. The wording of s 478 is in the strongest possible terms and evinces the parliamentary intention to deprive an applicant of a right of appeal save upon the condition of strict compliance with the section. As unjust as that may be in circumstances where DIMA is responsible for the non-compliance, the language chosen by Parliament is determinative.

Effect of statutory provision 31 The Act deals in part of the obligations of the person responsible for immigration detention. Section 256 of the Act provides: "Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention ... afford to him or her all reasonable facilities ... for taking legal proceedings in relation to his or her immigration detention." Section 256 was, as s 41, one of the original sections of the Act. Portions of the second reading speech of 1 May 1958 are quoted by Sheppard J in Le v Minister for Immigration & Ethnic Affairs (1994) 53 FCR 27 at 33. It may be open to doubt whether the present proceedings are in relation to the applicant's immigration detention - as the proceedings do not seek to challenge that detention. The applicant was not legally represented, and the point was not argued. I prefer not to decide the point without the benefit argument brings, even though counsel for the Minister very fairly attempted both to set up as well as to knock down arguments that might be put in support of the applicant's case. 32 Assuming that the proceedings can be so characterised, there are two further problems in the applicant's path. First, the evidence is that ACM did provide a facility for transmitting Applications for Review to the Federal Court. The fact that a mistake was made, or an error occurred in the operation of the facility does not of itself lead to a conclusion that there has been a failure to comply with s 256. Second, and more importantly, even assuming a failure on the part of the Minister to comply with s 256, s 478 nonetheless operates in accordance with its terms. Particularly given the history of the legislation, there is no room for an implication that the operation of s 478 is in some way conditional upon compliance with s 256. Nor is s 256 aptly described as a procedure required by the Act to be observed in connection with the making of the Tribunal's decision in terms of s 476(1)(a). Section 256 has nothing to do with the Tribunal. The case cannot otherwise be brought within Part 8 of the Act, and the only jurisdiction which this Court has in relation to the Tribunal's decision is that conferred by Part 8.

Conclusion 33 For these reasons I consider that the notice of objection to competency should be allowed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 14 December 2001

Date of Judgment: 12 February 2002