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.