WAFE of 2002 v Minister for Immigration &Multicultural & Indigenous Affairs

The Notice of Objection to Competency 9 On 22 June 2001 the respondent filed a notice of objection to competency. The sole ground of objection was that the application to the Court was out of time. The application was made under s 476 of the Act, the opening words of which provided as follows in sub-section (1) thereof: "Subject to sub-section (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds …" 10 Section 478(1)(b) of the Act relevantly provided that: "An application under section 476 or 477 must: … (b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision." 11 Section 478(2) of the Act provided that: "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)."

The Primary Judge's Reasoning 12 The primary judge upheld the objection to competency. He considered that he was bound to do so having regard to the judgment of the Full Court in Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672. He referred to a passage from the judgment of Beaumont J (with whom Branson and Emmett JJ agreed) where his Honour said at p 2: "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." 13 Counsel submitted before the primary judge that the appellant had a right at common law to unfettered access to the Court. He also submitted that the appellant had done all that was within his power to comply with the statutory time limit, but had been thwarted in his attempt to lodge his application within time by the conduct of the respondent or his officers. Moreover, he contended that the respondent owed a fiduciary duty to act in good faith towards the appellant, and had failed in that duty. 14 His Honour held that s 478(2) of the Act applied and said at [30]: "(2) … 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 giving effect to that view."

15 Further at [30] his Honour said: "(5) … 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." 16 The primary Judge then considered the provisions of s 256 of the Act which states that: "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."

17 His Honour dealt with the submission that s 256 provided an answer to s 478(2) by adopting a passage from the judgment in Kucuk v Minister for Immigration and Multicultural Affairs [2001] FCA 535 where Hely J observed at [20]: "… 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 RRT's decision in terms of s 476(1)(a). Section 256 has nothing to do with RRT. The case cannot otherwise be brought within Part 8 of the Act, and the only jurisdiction which this Court has in relation to RRT's decision is that conferred by Part 8."

The Notice of Appeal 18 In his notice of appeal, the appellant originally raised three grounds, two of which had no bearing upon anything decided at first instance. The only relevant ground was as follows: "I could not apply for Federal Court for lack of DIMA and ACM for sending my application form in time, so because of that delay I am applying for Full Court of Federal Court." 19 By an amended notice of appeal the appellant substituted two grounds which were in the following terms: "(a) His Honour erred in law in that he misinterpreted s 478(2) of the Migration Act 1958 (Cth) Particulars (i) His Honour found that s 478(2) enjoined the Court from making any order whatsoever whereby the Court would hold jurisdiction. (b) His Honour made an error of law in failing to find that the Court has jurisdiction to deem compliance by the Appellant with s 478(1) Migration Act 1958 (Cth) Particulars (i) In finding that s 478(2) operates as outlined in ground (1) His Honour failed to make any finding relevant to s 478(i)."

The appellant's submissions on the appeal 20 In his written submissions, Mr Rynne, pro bono counsel for the appellant contended that s 478(2) does not enjoin the Court from deeming compliance with s 478(1)(b). He then submitted that the Court should deem the appellant to have complied with the requirements as to lodgement, upon the facts of this case. The reasons put forward were that s 478(2) does not apply, in its terms, where the application is lodged by a person or persons other than the applicant. In this case the application had been lodged by DIMA, and the sub-section was therefore inapplicable. 21 Mr Rynne expanded upon these submissions in his oral argument. He said that Nirmalan, and three other Full Court authorities to which we will refer below, did not deal with the situation where an applicant had done all that he or she could to comply with s 478(1)(b). He relied on two English authorities: Wills & Sons v McSherry [1913] 1 KB 20 and Mayer v Harding (1867) LR 2 QB 410. He also relied on the finding made by the primary judge that the appellant had done all that he could to comply with the section.

Our Reasoning 22 We consider that his Honour was correct in holding that he had no power to extend the time within which the appellant could apply to the Court to review the decision of the RRT. We agree with his Honour that "the language chosen by Parliament is determinative". 23 His Honour was bound, as a single judge, to apply Nirmalan. We would only depart from the reasoning in that case if we considered that the judgment was "clearly erroneous"; see Transurban City Link v Allan (1999) 95 FCR 553 at 560, [1999] FCA 1723 at [29]. 24 We are not persuaded that the reasoning in Nirmalan is clearly erroneous. Indeed, Mr Rynne did not submit that it was incorrectly decided. Nirmalan was followed by a Full Court comprising Hill, Tamberlin and Emmett JJ in Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 5 where the following observations appear at [16]-[17]: "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. 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." 25 That view was recently endorsed by a Full Court in Sahak v Minister for Immigration and Multicultural Affairs [2002] FCAFC 215, where Goldberg and Hely JJ said at [32]: "The appellants initially focused their submissions on the effect of s 478(2) but ultimately accepted that the weight of authority is that s 478(1) of the Act is a provision which defines the jurisdiction of the Federal Court and the right to apply to the Court to review a judicially‑reviewable decision …" 26 Moreover, there is a further Full Court authority to the same effect. In Abidin v Minister for Immigration and Multicultural Affairs [2002] FCA 236 Branson, North and Gyles JJ rejected a submission that a detainee had "lodged" his application "with" the Court when he had done all that he was able to do to achieve compliance with the time limitation. The effect of the submission was that the appellant's action of putting the application in the DIMA box should be deemed to be a constructive lodging of the application with the registry of the Court: par [7]. Their Honours held, at par [11] that an application is not lodged until it comes into the possession of the registry. They also referred to Rahman which they noted as being consistent with the conclusion to which they came. 27 In addition to these Full Court authorities, and the decision at first instance of Hely J in Kucuk (supra), there is a comprehensive analysis of the construction of s 478 of the Act in Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995. In that case Mansfield J considered one of seventeen partly related applications to the Court in which each applicant, at the time of the application to the Court, was held in immigration detention. Each of the applications had been made outside the twenty-eight day period allowed by s 478(1)(b) after each of the applicants was notified of the decision of the RRT affirming a refusal to grant the particular applicant a protection visa. In each matter the respondent had objected to the competency of the application to the Court for that reason. 28 Mansfield J heard evidence regarding the circumstances in which each applicant had failed to lodge his or her application with the Court within the requisite period. He found that in each case the cause of the belated application was the conduct of an officer of the respondent. He also found that in the case of Mr Salehi, he did all that he could reasonably have been expected to do, in his circumstances, to have his application completed and lodged with the Court within time. He failed only because the necessary forms could not be provided to him, despite his requests for them, in time to enable his application to be lodged within the twenty-eight day period. 29 His Honour noted that none of the applicants spoke English. None had had the benefit of legal advice, and some were illiterate. 30 Mansfield J observed at par [35] that s 478(2) had been held to be constitutionally valid: Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 at 282 per French J and Oguzhan v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 285 at 291 per Carr J. He referred specifically to Nirmalan (supra) and to several other Full Court authorities which established that, as a matter of construction of s 478(1)(b), the lodging of an application with the Federal Court within twenty-eight days of the applicant being notified of the decision of the RRT is a condition of the Court having jurisdiction to entertain the application. He also referred at par [36] to a number of cases where, in circumstances where an application to review the decision of the RRT had been made outside the twenty-eight day period, the Court had upheld an objection to competency and dismissed the application. 31 His Honour observed at par [38] that there was no basis upon which the respondent could be estopped from asserting that an application for review was out of time, so that the Court had no jurisdiction to entertain it. There was clear authority that estoppel could not operate to confer jurisdiction on the Court which it did not otherwise have. 32 The only remaining consideration so far as his Honour was concerned was whether, as a matter of construction, ss 478(1)(b) and (2) should be understood as operating subject to some form of qualification. After careful consideration, he concluded that the language of these provisions led intractably to the conclusion that they should not be so construed. 33 Mansfield J expressly noted that he had not found that the respondent, through his officers, had set out deliberately to prevent the applicant from exercising his right to seek review of the RRT's decision. Whether or not that would lead to a different outcome was an issue to be determined at another time. 34 We agree with respect with his Honour's analysis of the relevant principles. There is now a well-established line of authority in this Court which makes it clear that the plain and explicit words of ss 478(1)(b) and (2) can only be construed in the manner for which the respondent contends. 35 The English authorities to which Mr Rynne referred do not assist the appellant because the legislation was in different terms. In particular, it would appear that the English legislation did not include a provision which contained the clear statutory direction set out in s 478(2) of the Act. In our view, the appeal turns purely upon the construction of s 478 of the Act and the submissions put to us by counsel are at odds with the four Full Court authorities to which we have referred. 36 It follows that the appeal in this matter must be dismissed. However, we cannot forebear from expressing our strong disquiet at the result. The construction of ss 478(1)(b) and (2) which we are constrained to adopt is manifestly unjust, and reflects what Mansfield J described as an "irrational intent on the part of the legislature". Section 478(1)(b) may operate fairly once notification of an RRT decision is given to a person who is not in immigration detention. It has the potential to visit gross injustice upon persons who are in immigration detention, and has done so in the present case. 37 In Barzideh v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 337 at 341 Hill J observed that he was "constrained by the legislature to sit idly by while injustice is done". Mansfield J adopted that observation as apposite to the circumstances in Salehi, and it is equally apposite to this case. Provisions such as ss 478(1)(b) and (2) (now replicated by ss 486A(1) and (2) of the Act in relation to applications to the High Court for judicial review in respect of privative clause decisions) are capable of operating so unjustly that they may erode confidence in the rule of law. The fact that the appellant in the present case, which is not caught by the privative clause provisions, might apply in the High Court's original jurisdiction under s 75(v) of the Constitution for Constitutional Writs, or for judicial review (relying upon s 39B of the Judiciary Act 1903 (Cth)), demonstrates still further, if any further demonstration is required, how absurd and irrational are provisions expressed in terms such as those under consideration in this case. 38 Given the circumstances, there should be no order for costs of the appeal in favour of the respondent. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Weinberg and Jacobson.

Counsel for the Appellant: Mr M Rynne appeared as pro bono counsel.

Solicitor for the Respondent: Australian Government Solicitor