FEDERAL COURT OF AUSTRALIA

Weldt v Minister for Immigration and Multicultural Affairs

[2000] FCA 545

MIGRATION – review of decision of Refugee Review Tribunal – application to be filed within prescribed period – whether Court has jurisdiction to review late application

Migration Act 1958 (Cth), s 478

ERROL MARCELLINO WELDT, CORAZON BERNARDO MAPUE and EDDISON CARLOS WELDT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 11 of 2000

JUDGE:          FINKELSTEIN J

DATE:            18 MAY 2000

PLACE:          MELBOURNE

THE COURT ORDERS THAT:

1.      The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The question that must be resolved is whether the Federal Court has jurisdiction to review a decision made by the Refugee Review Tribunal when the application for review was not lodged within the prescribed period.

2                     The first applicant and the second applicant each lodged an application for a protection visa.  The third applicant was named as a family member in those applications.  A delegate of the Minister determined that neither the first applicant nor the second applicant was entitled to a protection visa.  It followed that the third applicant was also not entitled to a visa. 

3                     The applicants applied to the Tribunal to review the decisions of the delegate.  In separate reasons and decisions the Tribunal affirmed the decisions under review.  The applicants were notified of the Tribunal’s decisions on 10 December 1999.  They instituted the present proceeding by application lodged with a Registry of the Federal Court on 12 January 2000, some thirty-three days after they were notified of the Tribunal’s decisions. 

4                     Section 478 of the Migration Act 1958 (Cth) provides:

“(1)     An application under section 476 or 477 must:

            (a)        be made in such 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).”

5                     To resolve the jurisdictional issue it is necessary to determine whether, on the proper construction of s 478(1)(b), an application for review lodged beyond the prescribed period is of no effect.  This is a question that has been considered previously by the Court.  For example, in Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 Sackville J said (at 346-347):

“I should add that Pt 8 does contain stringent time limits.  An application must be lodged within 28 days of notification of the tribunal’s decision and the court has no power to extend the period:  s 478.  Thus, where an individual, whether through ignorance or mistake, or for some other reason, fails to lodge an application in time, no relief is available under Pt 8 of the Migration Act.  Whatever view is taken about the fairness of this requirement, it does not constitute a denial of jurisdiction to the court to review judicially-reviewable decisions.  It is also necessary to take into account the jurisdiction of the High Court under s 75(v) of the Constitution, which may allow aggrieved persons to seek relief outside the 28 day period.”

See also Wang v Minister for Immigration and Multicultural Affairs (1996-97) 71 FCR 386 where at 391 Merkel J said:

“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.”

6                     The same construction has been adopted in respect of s 412(1)(b) which requires an application to review an RRT-reviewable decision (as defined) to be lodged with the Tribunal within 28 days after notification of the decision:  see Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324 and the many cases there cited.

7                     The applicants contend that they made their application within time although it was lodged thirty-three days after they had been notified of the Tribunal’s decisions.  Their argument is quite simple.  According to the Federal Court Rules, the court vacation runs from the beginning of the Monday before 24 December until the first Monday in February:  O 2 r 2.  Order 3 rule 5 provides:

“In the period from the beginning of the day on which the fixed vacation begins until the end of 14 January next following, time shall not, unless the Court otherwise orders, run so as to put any party in default in respect of any act for the doing of which a time is fixed by the Rules or by any judgment or order of the Court but business may be done during that period.”

8                     The applicants point to O 54B r 1 which relevantly provides:

“Subject to this Order, the Rules of Court prescribe the manner of making of an application for review of a judicially-reviewable decision under the Migration Act 1958.”

9                     Order 54B also requires that an application to review a judicially reviewable decision under the Migration Act 1958 must indicate the date on which an applicant was notified of the decision.

10                  In consequence of these Rules the applicants say, and I quote from their submissions:

“By requiring specification of the date of notification, Order 54B incorporates the provisions of the Act in relation to the time limit for the making of an application to review a judicially-reviewable decision … The time for making such an application is therefore fixed by the operation of the Rules as well as by the Act.  Accordingly, Order 3.5 applies to applications sought to be made in the fixed vacation.”

11                  I do not accept this submission.  In the first place O 54B r 2 does not incorporate the provisions of the Migration Act in relation to the time limit for the making of an application.  More importantly however, the time for making an application is not, as the respondent says, fixed by the rules of court as well as by the Migration Act.  The respondent is correct in saying that it is only the Migration Act itself that governs the timing of applications for review under that Act.  To suggest the contrary is to ignore the plain intendment of s 478.  Even if, in some way, O 3 r 5 is adopted by s 478(1), it cannot apply to an application that must be made within a time prescribed by Parliament.  The rule only applies so as to extend the time for the performance of an act when that time is fixed by the rules or by court order.  This is not such a case.

12                  Accordingly the application must be dismissed.

Associate:

Dated:              30 May 2000