FEDERAL COURT OF AUSTRALIA

Fahme v Minister for Home Affairs [2019] FCAFC 41

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from a decision of the Federal Circuit Court seeking Constitutional writ relief in respect of the decision of the Administrative Appeals Tribunal that it had no jurisdiction to entertain an application for review under Pt 5 of the Migration Act 1958 (Cth) of a decision of a delegate of the Minister dated 22 August 2017: Fahme v Minister for Immigration [2018] FCCA 1180.

Background

2    The circumstances in which the Tribunal found it had no jurisdiction to entertain the application for review were common ground. The application was given to the Tribunal on 13 September 2017, being the 22nd day after the decision of the delegate had been emailed to the appellant. However, reg 4.10(1)(a) of the Migration Regulations 1994 (Cth) prescribed a period of 21 days after the day on which notice of the delegate’s decision was received in which a person could file a valid application for review of a Part 5-reviewable decision.

3    The appellant was unrepresented before the trial judge, but his appeal has been ably presented and refined by senior counsel who accepted a pro bono brief on short notice. That has enabled us to get to the heart of the way in which the appellant contends that the Tribunal, in fact, erred in finding it had no jurisdiction.

The legislative context

4    The statutory scheme for the review of decisions under Pt 5 of the Act is as follows. First, s 338(2) defined “a Part 5-reviewable decision” as being, relevantly, one in which there has been a refusal to grant a non-citizen a visa where the visa could have been granted while the non-citizen was in the migration zone, he or she made the application for the visa while in the migration zone, and the decision was not made while the non-citizen was in immigration clearance or had been refused immigration clearance and had not subsequently been immigration cleared. It is common ground that the delegate’s refusal to grant the appellant a visa fell within s 338(2). Secondly, s 347, which commences Div 3 of Pt 5, provided relevantly as follows:

347    Application for review of Part 5-reviewable decisions

(1)    An application for review of a Part 5-reviewable decision must:

(a)    be made in the approved form; and

(b)    be given to the Tribunal within the prescribed period, being a period ending not later than:

(i)        if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) — 28 days after the notification of the decision; or

(ii)    if the Part 5-reviewable decision is covered by subsection 338(5), (6), (7) or (8) — 70 days after the notification of the decision; or

(iii)    if the Part 5-reviewable decision is covered by subsection 338(9) — the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

(c)    be accompanied by the prescribed fee (if any).

…

(5)    Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of Part 5-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

…

(emphasis added)

5    Thirdly, s 348(1) provided that, relevantly, “if an application is properly made under section 347 for review of a Part 5-reviewable decision”, the Tribunal had an obligation to review it.

The appellant’s submissions

6    In essence, the appellant’s argument fixed on the circumstance that s 347(1)(b)(i) provided that a valid application for review had to be lodged with the Tribunal during a period of 28 days after the notification of a Part 5-reviewable decision under, relevantly, as here, s 338(2), while reg 4.10(1)(a) shortened that period to 21 days. The appellant contended that, because his application had been filed within the 28 day period prescribed by the Parliament in the Act itself, it could still be treated by the Tribunal as a valid application, albeit that it was not immediately apparently reviewable because it had been filed outside the 21 day period prescribed in the regulation made under the Act. The appellant propounded that Pt 5 of the Act impliedly conferred a power on the Tribunal to entertain a Part 5-reviewable decision that was filed within the time period specified in s 347(1) for the giving of an application for review to the Tribunal, even though a regulation made under the Act prescribed a shorter period for the same category of applications for review.

Consideration

7    The construction of s 347(1) was authoritatively determined by Spender, Kiefel and Dowsett JJ in Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 at [4]-[5]. They noted that even a reasonably careful reader might (wrongly) conclude that an application must be filed with 28 days from the notification of the decision if one simply read s 347(1)(b)(i) as applying to the application for review. However, they explained that:

…the word ‘prescribed’ in the phrase ‘within the prescribed period’ is of critical importance. Pursuant to s 5 ‘prescribed’ means ‘prescribed by the regulations’. Subs 347(5) offers some explanation of the statutory intention. It provides:

‘Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of MRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).’

Subsection 347(1) fixes the maximum period within which applications may be made but authorizes the making of regulations prescribing shorter periods. Relevantly, reg 4.10(1)(a) prescribes a period of 21 days ‘after the date on which the notice is received’. This is in contrast to par 347(1)(b)(i) of the Migration Act which refers to a period of time ‘after notification of the decision’. Nothing turns on this inconsistency. (original italics)

8    It follows that, as their Honours held, the Parliament was entitled to set an outer limit in which a valid application for a Part 5-reviewable decision could be made, but could leave to the Executive Government the making of a regulation that could shorten that period of time. In such a case, the regulation fixed and made certain, once and for all, the period within which an application for review of such a decision could be given to the Tribunal.

9    In Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163, Dowsett, Stone and Bennett JJ rejected a challenge to the correctness of Xie [2005] FCAFC 172, finding that that decision was not wrong and did not produce unintended or irrational consequences. They said (183 FCR at 167 [19]):

…The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received…(emphasis added)

10    In that case the issue was the day on which the Tribunal should be deemed (under s 494C(4)) to have received the document. Here, the issue is whether an application for review that is given to the Tribunal in the period between the shorter prescribed time in reg 4.10(1)(a) and the longer time fixed in s 347(1)(b)(i) as the maximum time in which a valid application for review may be given can nonetheless be treated by the Tribunal as valid. Nothing of substance turns on the distinction between the facts in Tay 183 FCR 163 and this case. The question is simply whether a time has been fixed once and for all in reg 4.10(1)(a) to limit the period in which a valid application for review of a Part 5-reviewable decision may be given to the Tribunal. The appellant’s argument asserted that while s 348(1) created an obligation for the Tribunal to review an application that is properly made, it did not refer expressly to the Tribunal not having any discretion to entertain one that is not properly made within the time fixed in the regulation but that was made within the 28 days referred to in s 347(1)(b)(i).

11    The authorities and the text of the Act make clear that the Parliament intended to fix time limits within which applications may be validly made, either by a default provision in the Act (such as s 347(1)(b)(i)), or by allowing the Executive Government to exercise the regulation making power pursuant to s 347(5) (such as in reg 4.10(1)(a)), as explained in Xie [2005] FCAFC 172, to prescribe a shorter period than set out in s 347(1)(b) that had to be complied with in order for the application to be valid.

12    The appellant filed his application one day outside the maximum period of 21 days allowed under reg 4.10(1)(a). Therefore, he gave the Tribunal his application for review at a time too late for it to be valid. Accordingly, the Tribunal had no power to entertain the application because it was not validly given to the Tribunal within the time fixed in reg 4.10(1)(a).

Conclusion

13    For these reasons, and those of Perram J, no jurisdictional error occurred when the Tribunal found that it did not have jurisdiction. Accordingly, the appeal should be dismissed with costs.

Associate:

Dated:    11 March 2019

PERRAM J:

14    The question in this appeal is whether the Administrative Appeals Tribunal may receive an application for review of a decision made by a delegate of the Minister under Pt 5 of the Migration Act 1958 (Cth) (the Act) outside the 21 day time limit specified in reg 4.10 of the Migration Regulations 1994 (Cth) (the Regulations). The answer is that it cannot. The conclusion of the Federal Circuit Court to that effect was correct. The appeal must therefore be dismissed with costs.

15    Part 5 of the Act governs the grant of most classes of visa other than protection visas, which are regulated by Pts 7 and 7AA. The Appellant had applied for a medical protection visa and that application was refused by a delegate of the Minister on 22 August 2017. It is not in dispute that such a decision is a ‘Part 5-reviewable decision’ within the meaning of s 338. Part 5 provides for a merits review of a Part 5-reviewable decision by the Tribunal. By s 348(1), if an application is ‘properly made under section 347 for a review of a Part 5-reviewable decision, the Tribunal must review the decision’.

16    Two issues arise: whether the Appellant’s application for a review was properly made under s 347 and, if not, whether the fact that the Tribunal must determine properly made applications for review entails that it must not entertain applications for review which are not properly made. There is an additional issue as to whether s 347(1)(b) itself confers a discretion to extend time.

17    An application for review under s 348 will be properly made under s 347 only if it is made in accordance with the requirements of s 347. There are a large number of such requirements, only one of which is presently relevant. Section 347(1)(b) provides:

Application for review of Part 5-reviewable decisions

(1)    An application for review of a Part 5-reviewable decision must:

…

(b)    be given to the Tribunal within the prescribed period, being a period ending not later than:

(i)    if the Part 5-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)--28 days after the notification of the decision; or

(ii)    if the Part 5-reviewable decision is covered by subsection 338(5), (6), (7) or (8)--70 days after the notification of the decision; or

(iii)    if the Part 5-reviewable decision is covered by subsection 338(9)--the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision …

18    In this case the delegate’s decision was governed by s 338(2) so it was s 347(1)(b)(i) which prescribed the relevant time in which an application for review could be made. It permitted a regulation to be made prescribing the time in which a review could be made, not exceeding 28 days from the date of a notification of the decision. However, reg 4.10(1)(a) of the Regulations prescribes a period of 21 days from the date of notification of the decision in the case of decisions to which s 338(2) applies. The operation and the interrelation of those provisions was explained by the Full Court in Xie v Minister for Immigration and Multicultural Affairs [2005] FCAFC 172 at [4] per Spender, Kiefel and Dowsett JJ.

19    There is no dispute that the Appellant was notified of the decision on 21 August 2017. Consequently s 347(1)(b)(i) required his review application to be made within 21 days, ie, by 12 September 2017. He lodged his application on 13 September 2017. Consequently, there can be no doubt the application was not lodged in compliance with s 347(1)(b)(i). That being so, there can also be no doubt that it was not ‘properly made under section 347’ within the meaning of s 348. The mandatory duty which s 348(1) casts upon the Tribunal to conduct a review where an application has properly been made under s 347 therefore did not arise.

20    The question then is whether the Tribunal has a power to entertain a review application which has been made, but not in accordance with s 347(1)(b). The answer to that question must be no. Various attempts over the years to discover a power in the Tribunal to act in that way have been uniformly rejected. The authorities were collected by the Full Court of the Federal Court in Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; 97 FCR 407 at 17-19 [42]-[49].

21    Another way of looking at the matter is that the Tribunal is an inferior tribunal whose powers are limited to those set out in its enabling legislation. As has often enough been pointed out in the case of such an inferior tribunal, ‘[i]f the power does not flow from the Act as properly construed, it cannot exist’: Ex parte Currie; Re Dempsey (1969) 70 SR (NSW) 443 at 447; 91 WN (NSW) 34 at 38; [1970] 1 NSWR 617 at 620 per Herron CJ, Wallace P and Manning JA (applied in Palmer v Clarke (1989) 19 NSWLR 158 at 166); see also John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476 per McHugh JA. Part 5 does not confer any power on the Tribunal to hear a review application other than that which appears in s 348. Consequently Pt 5 conferred no jurisdiction on the Tribunal to entertain the Appellant’s application.

22    The second way the matter may be looked at concerns the general power in s 29 of the Administrative Appeals Tribunal Act 1975 (Cth) to extend the time in which a review application may be brought. However, it has been held that s 29 does not apply to review applications under Pt 5: see Beni v Minister [2018] FCAFC 228 at [60]-[84] per McKerracher, Reeves and Thawley JJ. There is no reason for this Court to depart from the Full Court’s conclusions in that case.

23    Finally, the Appellant submitted that there was to be discovered within the interstices of s 347(1)(b)(i) a power of a discretionary nature to extend time between the period identified in the regulation and the outer limit identified in the statute. I would reject the existence of such a power. It is certainly not express and nor do I think it could be said to arise as a matter of necessary implication.

24    I agree with the reasons given by Justice Rares that the appeal must be dismissed with costs.

Associate:

Dated:    11 March 2019

FARRELL J:

25    I also would dismiss the appeal with costs for the reasons given by Justices Rares and Perram.

Associate:

Dated:    11 March 2019