FEDERAL COURT OF AUSTRALIA

Hocine v Minister for Immigration & Multicultural Affairs [2000] FCA778

MIGRATION  - protection visa – refusal by Refugee Review Tribunal – application for judicial review – application out of time – nature of time limitation – defining jurisdiction – whether defeats application – whether in excess of legislative power of Commonwealth

CONSTITUTIONAL LAW – judicial power – jurisdiction of courts – time limitation on remedies – whether defining rights – whether in excess of legislative power – whether intrusion on judicial power – prohibition on court extending time – whether of any legal effect – whether constitutionally valid.

Migration Act 1958 (Cth) s 417 s 48B, s 485, s 430, s 478, s 486

Minister for Immigration and Multicultural Affairs v Ozmanian  (1996) 71 FCR 1 discussed

Abebe v The Commonwealth  (1999) 162 ALR 1 discussed

Nirmalan v Minister for Immigration and Multicultural Affairs (Unrep, Fed Court 14 May 1998) followed

Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 cited

Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 cited

Australian Iron & Steel Limited v Hoogland (1962) 108 CLR 471 cited

David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 followed

Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 discussed

Rudolphy v Lightfoot (1999) 167 ALR 105 cited

KACINE HOCINE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W119 OF 1999

MECIT UZUM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W132 OF 1999

RASHEED ADEL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W147 OF 1999

FRENCH J

9 JUNE 2000

PERTH

THE COURT ORDERS THAT:

1.         The Objection as to Competency is allowed.

2.         The application is dismissed.

3.         The Applicant is to pay the Respondent’s costs of the application.

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

THE COURT ORDERS THAT:

1.         The Objection as to Competency is allowed.

2.         The application is dismissed.

3.         The Applicant is to pay the Respondent’s costs of the application.

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

THE COURT ORDERS THAT:

1.         The Objection as to Competency is allowed.

2.         The application is dismissed.

3.         The Applicant is to pay the Respondent’s costs of the application.

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

REASONS FOR JUDGMENT ON OBJECTION TO COMPETENCY

Introduction

1                     Two Algerian citizens and a Turkish citizen of Kurdish ethnicity have made applications in this Court to review decisions of the Refugee Review Tribunal.  By the decisions which they challenge, the Refugee Review Tribunal had affirmed earlier decisions of delegates of the Minister for Immigration and Multicultural Affairs to refuse the issue of protection visas to them. 

2                     The Minister has filed Objections to the Competency of each application on the basis that it is out of time and that the Court has no jurisdiction to entertain it.  Counsel for the applicants, however, argue that the provisions of the Migration Act 1958 (Cth) by which the time for bringing such applications is limited are in excess of the legislative power of the Commonwealth and involve an invalid intrusion into the judicial power reserved to courts exercising federal jurisdiction under Chapter III of the Constitution.

3                     The arguments as to the competency of the applications and the constitutional validity of s 478 of the Migration Act were heard together for all three applications.

History of Proceedings - Hocine

4                     Kaci Hocine is an Algerian national, born on 1 February 1969.  He arrived at the Port of Fremantle as a stowaway on the Encounter Bay on 14 September 1998.  He was placed in immigration detention and, on 28 October 1998, made an application for a protection visa. On 22 January 1999 an officer of the Department of Immigration and Multicultural Affairs rejected the application on the basis of his finding that Hocine was not a person to whom Australia had protection obligations under the Refugees Convention.  Mr Hocine then made an application to the Refugee Review Tribunal (“the Tribunal”) for review of the officer's decision.  That application was made on 25 January 1999.  On 26 March 1999 the Tribunal affirmed the decision not to grant a protection visa.  It published written reasons for so doing.   Hocine was given a copy of the Tribunal’s decision on 29 March 1999. 

5                     On 26 October 1999 Hocine filed an application in this Court entitled “Application for and (sic) Order of Review”.  The grounds of review were expressed thus:

“1.       To review the decision of the Refugee Review Tribunal.

2.         To review other decision (sic) made under this Act, or the regulations, relating to visas.”

His application proceeded on the basis that it was an application to review the Tribunal decision.

The Tribunal’s Decision - Hocine

6                     The Tribunal found that Hocine left his parental home in 1992 following an extortion attempt by criminals directed at his father because of his father’s wealth as a businessman.  He reported the threat to police who provided a guard for his father for twenty four hours but could not maintain it thereafter as their resources were stretched.  One of the criminal gang was arrested.  Hocine said he was assaulted by other members of the gang by way of retribution.  His father suggested he leave the town where they lived, which he did, and fled to the port city of Bejaia.  He did not report the assault on him to the police nor did he ask for police protection.  There was no suggestion that it would not have been forthcoming had he applied.

7                     In Bejaia he found it difficult to find work and found himself caught in the cross fire of a battle between the army and opposing groups.  He took no part in the battle.  It does not appear that he was associated with any group.  He went into hiding and boarded a ship bound for Italy as a stowaway in November 1993.  He entered Italy as an illegal immigrant and spent four and a half years in that country.  He had no right of residence in Italy but there was, in that country, a high level of toleration of the presence of illegal immigrants as long as they did not commit criminal offences. 

8                     Hocine contended that although originally issued with a certificate of unfitness for military service he had received a call-up notice from the Algerian military authorities in 1997 which notice was served on his parents where he used to live.  They had sent it on to him to the address of a friend of his in Italy.  The Tribunal did not accept his claim that a call-up notice was issued.  It was not produced notwithstanding that Hocine had retained many documents of a personal nature including his original exemption certificate.  The Tribunal found that his claim to refugee status relied upon his alleged non-compliance with the call-up notice.  Apart from the fact that he did not produce the document, which was seen as adverse to his credibility, he had obtained what appeared to be a permanent exemption.  Moreover he had made no claim for protection in Italy.

9                     Even if it were true that Hocine had disobeyed a recall for military service in 1997, fear of the severe penalties under Algerian law would not of itself constitute a well-founded fear of persecution under the definition of the Refugees Convention.  While Country Information indicated that a draft evader might suffer disproportionate punishment if his evasion were interpreted as motivated by sympathy for Islamists that was most unlikely in this case.  Hocine had left Algeria relatively early in the Civil War which started in 1992 and had not been back since.  There was no suggestion that he had ever been involved in politics or had supported or favoured fundamentalist Islam.  When he received the call-up notice he was already long established in Italy.  It could not be said that he left in order to evade military service.

10                  As to his claim that service in the army would be contrary to his conscience as he objected to the killing of innocent people, it would not be said that the military action in which the Algerian government was engaged was condemned by the international community.  The Tribunal found that although it involved atrocities and the killing of innocent people by both sides of the conflict, the suppression of a revolt by a government which is internationally accepted, in the course of which atrocities are committed at random by the rebels, could not of itself be regarded as condemned by the international community.  For these reasons the Tribunal was not satisfied that Hocine had a well-founded fear of persecution for a Convention reason should he return to Algeria. 

History of Proceedings – Uzum

11                  Mecit Uzum is a national of Turkey who came to Australia as an unauthorised arrival on or about 24 February 1999.  He was taken into immigration detention and on 11 March 1999 filed an application for a protection visa.  On or about 16 June 1999 a delegate of the respondent decided to refuse the grant of the protection visa.  On 23 June 1999 Uzum sought review  of that decision from the Refugee Review Tribunal.  On 6 September 1999 the Tribunal affirmed the decision not to grant a protection visa.  It published written reasons for so doing.  A copy of the Tribunal’s decision was given to Uzum on 6 September 1999.

12                  On 10 November 1999 Uzum filed an application in this Court entitled “Application for an Order of Review”.  The grounds of review, which were handwritten, were expressed thus:

“1.       To review the decision of the Refugee Review Tribunal.

2.         To review other decision made under this Act or the regulations relating to visas.”

His application also proceeded on the basis that it was an application to review the Tribunal decision.

The Tribunal’s Decision – Uzum

13                  Uzum told the Tribunal he had left Turkey because of harassment associated with his Kurdish ethnicity.  Police, he said, would often question and sometimes torture Kurds believing them to be members of the PKK, the Kurdish Workers Party.  He claimed that in 1987 police had detained him for twenty four hours and beaten him to get him to admit that he and his family were members of the PKK and owned guns. After he began running his own bakery in 1986, PKK people used to come and demand support and money which he could not refuse.  In 1989 several members of that party threatened to demolish his bakery if he did not give them more help.  Over the next few years he put them off and gave them as little as possible.  This harassment led him to close his business in 1992.  In 1996 he opened another small business, a coffee shop.  Again, he claimed that extortionists and police harassed him until he also closed that business.  At the end of 1996 he went to Cyprus for six months.  Police there accused him of being a Kurdish troublemaker.  A Kurdish association wanted him to distribute pamphlets in workplaces, so he returned to Turkey.  He claimed that in the past ten years he has been arrested and detained and bashed more than twenty five times and that he had a number of scars.  Uzum said that he attempted to find refuge in Hungary but was unsuccessful because of upsets by Kurds in that country.  He thereafter returned to Turkey.  In the end he departed Turkey illegally from Istanbul with the assistance of a smuggler.  He said that if he were returned to Turkey he would be killed by the government or the PKK.

14                  The Tribunal, accepting that there may be prejudice and discrimination against the Kurds in Turkey, identified as the relevant question – what are the circumstances in which Kurds face a real chance of persecution?  Many people of Kurdish descent, it found, blend into broader Turkish society completely “unless they make an effort to stand out by their activities or by association with known separatist groups or terrorist organisations”.  But, the Tribunal concluded, Kurds throughout Turkey are not discriminated against per se. 

15                  The Tribunal formed an adverse view of Uzum’s credibility.  The manner in which significant new claims or incidents emerged at each step in the claims process was said to have “…added to the Tribunal’s difficulties in reconciling the various accounts provided by the Applicant of his arrests or detentions and his treatment at them”.  Thus in his original interview he had referred only to having been arrested or detained on one particular occasion in 1987 when he said he was questioned and accused about himself or his family having guns.  In his subsequent application and statement he referred to more than twenty five incidents.  The Tribunal reached what it described as “the firm view” that Uzum’s narrative of the frequency, nature and reasons for the claimed detentions and mistreatment was elaborated and embellished from account to account and even within the hearing before the Tribunal.  It did not find plausible that after his return from Cyprus he was regarded as a political escapee or a person guilty of political offences.  Had that been the case he would not have been detained on one occasion and then released late in 1997.  The Tribunal was not satisfied with what it described as Uzum’s “successively-expanded claims about long periods of time in which he claimed to have been in hiding and avoiding the police”.  It pointed out that he was married with a family established at one address in Gaziantup from 1989 onwards and with his father and extended family based in a particular village where he was born and where he owned property.

16                  The Tribunal accepted that Uzum’s unsuccessful business ventures were hampered by repeated petty extortion deriving from Kurdish groups, extortionists and other criminals and perhaps even on occasion corrupt local police.  It did not accept that this extortion or harassment was directed against him for any Convention reason including his ethnicity or imputed political opinion.  It accepted that on one or more occasions, most likely in the late 1980’s, he was among young men at a coffee shop who were taken to the police station and obliged to identify and account for themselves but not that he had been the target of any concerted and ongoing campaign by police believing or accusing him of being a PKK supporter guilty of political offences, and causing him serious injury.  The Tribunal was satisfied that he did not fall into the categories of persons engaged actively in pro-separatist or pro-PKK political activities or who are believed to be PKK members or active supporters.  Moreover there was no evidence before the Tribunal that Kurds returning to Turkey after failing to obtain asylum in Australia are for that reason persecuted.  The Tribunal also held that it was reasonably open to Uzum, if he had encountered particular problems with local police where he lives or the local PKK to avoid this by moving elsewhere in Turkey, for example to Istanbul.   It noted that he is economically well off with an income from his village property, particular skill as a baker and the background of having operated his own businesses for a number of years and that he speaks, reads and writes Turkish.  The Tribunal was satisfied that Uzum was not a person to whom Australia had protection obligations under the Refugees Convention.

History of Proceedings – Rasheed

17                  Adel Rasheed is an Algerian citizen who came to Australia as an unauthorised boat arrival on 4 September 1997.  He was taken into immigration detention and on 25 September 1997 he filed an application for a protection visa.  On 29 October 1997, a delegate of the respondent refused to grant him a protection visa.  On 5 November 1997, Rasheed sought review of that decision from the Refugee Review Tribunal and on 8 December 1997 the Tribunal affirmed the decision not to grant a protection visa.  On 18 March 1998, the Minister declined a request by Rasheed that he exercise power under s 417 of the Migration Act 1958 (Cth) to substitute for the decision of the Refugee Review Tribunal a decision more favourable to Rasheed in the public interest.

18                  On 22 April 1998, Rasheed wrote to the Manager of the Immigration Detention Centre at Port Hedland stating his wish to make a fresh application for a protection visa on the basis of new circumstances.  The new circumstances were that he had heard from his family in Algeria that in January in the city from which he came his family were arrested, interrogated and tortured because the Algerian government discovered that he was in Australia and seeking refuge.  They had tried to obtain from his family information about him.  On 19 May, the Minister decided, pursuant to s 48B of the Migration Act, that it was in the public interest to allow him to make a further application for a protection visa.  On 20 May 1998, Rasheed lodged Part A of a further application for a protection visa.  Parts B and C, dated 4 June 1998, were lodged subsequently.  On 8 July 1998 a delegate of the Minister again refused the grant of a protection visa and on 13 July 1998 Rasheed applied to the Tribunal for review of that decision.  On 18 November 1998 the Tribunal affirmed the decision not to grant him a protection visa.  A copy of the decision was given to Rasheed on 19 November. On 26 November 1998, an officer of the Department again considered  Rasheed’s case under ministerial guidelines for stay in Australia on humanitarian grounds and decided that it did not satisfy the requirements for consideration of the exercise of the Minister’s discretion under s 417 of the Act.  Rasheed again wrote to the Minister on 23 November requesting the grant of a protection visa pursuant to s 417 of the Act and this request was declined on 15 August 1999. 

19                  On 19 November 1999, Rasheed filed an application in this Court entitled “Application for an Order for Review pursuant to Section 476 of the Migration Act 1958”.  The grounds of review, which were in standard form typical of applications made out of the Port Hedland Detention Centre, were thus:

“(a)     The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both.

(b)       The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it.”

The Tribunal’s Decision – Rasheed

20                  The Tribunal proceeded upon the basis, pursuant to s 416 of the Act, that it could and would have regard to and take to be correct the previous Tribunal decision.  It sought to establish whether there was additional evidence relevant to claims previously made.  Rasheed was also asked if he had any submissions or comments on the first decision.  He said he had no comment.  The Tribunal turned to the basis of the new claim which related primarily to treatment said to have been meted out to his family, in particular to his father, since January 1998.  In a Departmental interview prior to the second hearing Rasheed had said that after his hearing before the first Tribunal, he established contact with a friend in Spain who had visited Algeria and who informed him that secret police were looking for him on suspicion of his participation in violent demonstrations which took place in Algeria during Ramadan in January 1997.  The police were said to have gone to his home in Algeria in July 1997 and sought to arrest him on a charge of involvement in violence during the June 1997 elections.  They had interrogated his family who did not disclose that he had left the country. 

21                  He further claimed that police had continued to visit his home until January 1998.  They believed that he had gone into hiding with a terrorist group in the mountains. His family members were said to have disclosed under torture that he had left the country.  The police informed his family that they had dropped the second charge against him in relation to violence during the Ramadan period, but they accused his father of inciting him to violence during the elections.  In evidence to the Tribunal on the second hearing, Rasheed reiterated these claims.  It was said that his father was being detained by police because they believed him to be harbouring Rasheed.  His father has disappeared.  His mother and sister were released by police and he does not know their whereabouts.  Asked by the Tribunal why authorities would not know that he had departed Algeria, given that he departed legally under a passport issued in his own name, he said they thought he had gone to the mountains with armed rebels.  He had left through the airport in the capital city rather than in his home city.  He had had no contact with his family since arriving in Australia and had only received information about his family through the friend in Spain.

22                  The Tribunal referred to the previous Tribunal decision and the findings that he had fabricated evidence in an attempt to obtain refugee status.  The first Tribunal had found that he did not have the political profile in Algeria which he claimed, had not been detained in the past and was at no real risk from the police.  Rasheed had offered no comment on the findings of the first Tribunal despite the opportunity to do so.  As to his claims before the Tribunal on the second hearing, it found the assertion that his father was being held in detention to be lacking in credibility.  It did not accept that Rasheed was wanted by Algerian authorities and formed the view that his evidence had been generally inconsistent and seemed to have been designed to embellish his claim for refugee status.  Different and contradictory claims to support his application had been submitted.  The Tribunal found implausible his argument that authorities would not know he had departed the country because he left through the capital rather than his home city.  It referred to recent country information on returning asylum seekers and found nothing that would lead to a different conclusion.  The United Nations High Commission on Refugees did not raise any objection to the return of rejected Algerian asylum seekers to their country of origin.  The UNHCR was not of the view that the mere fact of applying for asylum abroad would create the basis for a claim to be refugee sur place.  The UNHCR was not aware of any instance of persecution on the mere ground of applying for asylum.  The Tribunal was satisfied that Rasheed did not have a well-founded fear of being persecuted by Algerian authorities on account of his application for refugee status.  On the whole of the evidence, the Tribunal was not satisfied that Rasheed was a person to whom Australia had protection obligations under the Refugees Convention.

The Proceedings in this Court

23                  On 1 December 1999 Notices of Objection to Competency were filed by the Minister respect of each of the applications.  By directions given on 21 December 1999 the applications were set down for hearing on 18 February 2000.  The objections to competency were to be heard first and, unless the Court otherwise ordered, argument on the substantive applications was then to be heard.   The applicants were each represented on the hearing of the objection to competency by Mr M Barker QC and Mr Cuerden acting pro bono.  They represented themselves in respect of the argument as to the merits.  At the close of argument the following orders were made on each application:

“1.       Judgment be reserved on the competency objection and, subject to the outcome of the objection, on the application.

2.         The respondent within 14 days to advise the Court and the applicant’s counsel on the competency objection of the mode of notification of the Tribunal’s reasons and whether any translation or interpreter service was available in respect of those to the applicant.

3.         The applicant and the respondent have liberty within twenty one days to make any further written submissions as to the effect of provision of English language statements of reasons to non-English reading applicants on the discharge of the notification obligation.

4.         There be liberty to apply.”

24                  Supplementary submissions were received on 16 March 2000 together with copies of an additional affidavit.  By a fax dated 23 March 2000 the solicitors for the applicants in relation to the objection as to competency sought an extension until 10 April to file and serve any submissions in reply.  In the event the Court was advised on 11 April 2000 by the applicants’ lawyers that they would not be filing any further submissions in reply.

Notices of Objection to Competency

25                  In each of the cases of Hocine and Uzum, the first ground of objection to competency was that:

“The Court has no jurisdiction under the Migration Act to review the decision made by the Refugee Review Tribunal…as the application for review was not lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the Tribunal decision as required by section 478(1)(b) of the Migration Act.”

The Hocine and Uzum notices went on to assert that this Court’s jurisdiction to review the Tribunal decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth)is specifically excluded by s 485 of the Migration Act.  The applicants in those two cases had not identified any other decision under the Migration Act which was sought to be reviewed.

26                  The first paragraph of the Rasheed notice also alleged that his application was out of time.  The second paragraph went on:

“Pursuant to s 478(2) of the Migration Act the 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 section 478(1)(b).”

Notification of the Tribunal’s Decision

27                  A factual question was raised at the hearing by the Court about the way in which the Tribunal’s decision in each case was notified to the applicants.  Affidavits were filed after the hearing concluded describing the notification processes applied in each case.  These were not contested.  Each of the affidavits was sworn by Richard Konarski, an officer of the Department of Immigration and Multicultural Affairs, who has occupied the position of Business Manager at the Port Hedland Immigration Reception and Processing Centre (IRPC) since 9 August 1999.  He previously acted in that position for about six weeks from 5 March 1999.

28                  During his employment at the Port Hedland IRPC the standard procedure for notifying detainees of the decisions of the Refugee Review Tribunal was for the Business Manager to personally hand to the detainee the letter from the Tribunal notifying the applicant of the decision together with the Tribunal’s decision and reasons for decision.  The documents are usually received from the Tribunal by facsimile transmission addressed to the Manager of the IRPC with a request to deliver them to the detainee immediately.  At all times it has been Mr Konarski’s standard practice when advising detainees of adverse Tribunal decisions to inform them that the Tribunal has decided that they are not entitled to a protection visa, that they have the right to have the decision reviewed by the Federal Court and that any application for review must be lodged with the Court within twenty eight days.

29                  In the event that the detainee does not understand the English language, Mr Konarski uses the services of an interpreter from the Translating and Interpreting Service (TIS) to interpret via telephone what he says to the applicant when he delivers the Tribunal’s decision.  It has not been his practice to ask the interpreter to translate the Tribunal’s reasons for decision to a non-English speaking detainee and it is not the practice of either the Department or the Tribunal to provide a written translation of the decision and reasons for decision to a non-English speaking detainee.

30                  Legal service providers are engaged by the Department to provide detainees with free legal advice and assistance in applying for protection visas, both at the primary stage and upon review by the Tribunal.  It is Mr Konarski’s understanding that the Tribunal provides the detainee’s legal advisor with a copy of its decision and reasons for decision and that it is the advisor’s obligation under its Immigration Advice and Application Assistance Scheme contract with the Department to explain the decision to the detainee.  The applicant’s legal advisor is permitted access to the detainee and can organise the use of an interpreter from the TIS if required. 

31                  In each case, Mr Konarski remembers giving the decision documents to each applicant but not the specific time and date of doing so.  However departmental records indicate that on 19 November 1998 the Tribunal decision in the matter of Rasheed was handed to Rasheed at 10am by the then Acting Business Manager of the IRPC, Mr Peter Mitchell.  Copies of departmental records in relation to the notification of the Tribunal decision were annexed to the affidavit.  In the case of Hocine, departmental records indicate that Mr Konarski had contacted TIS to arrange an interpreter and that he handed Hocine the Tribunal decision on 29 March 1999.  Similar records indicate that he did likewise for Uzum on 6 September 1999. 

32                  In each of the cases the affidavit not being contested, I find that the applicant was provided with a copy of the Tribunal’s decision and the reasons therefore, albeit expressed in the English language, on the date indicated and that in the case of Hocine and Uzum, TIS was contacted to arrange an interpreter at the time the negative Tribunal decision was provided.  I accept also the balance of the affidavit evidence to which I have referred.

Statutory Framework

33                  Part 7 of the Migration Act  deals with the review of protection visa decisions by the Refugee Review Tribunal.  Certain classes of decision are defined as “RRT-reviewable decisions” and include a decision to refuse to grant a protection visa (s 411(1)(c)).  Where a valid application is made under s 412 for review of an RRT-reviewable decision, the Tribunal must review the decision (s 414).  The powers of the Tribunal which include affirmation or variation of the decision, remitter of the matter for reconsideration or the setting aside of the decision and substitution of a new one, are set out in s 415.  The Tribunal is required, in carrying out its functions under the Act, to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420). 

34                  There are a number of provisions covering procedural fairness providing for disclosure to the applicant of information which may be relied upon by the Tribunal, affording the applicant the opportunity to give additional information or comments and inviting the applicant to appear (s 424A – 425A).

35                  Division 5 deals with decisions of the Refugee Review Tribunal.  Section 430 requires that where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

“(a)     sets out the decision of the Tribunal on the review; and

(b)       sets out the reasons for the decision; and

(c)        sets out the findings on any material questions of fact; and

(d)       refers to the evidence or any other material on which the findings of fact were based.” 

Except in the case of a decision to be given orally or on the application of a person in immigration detention, the Tribunal must invite the applicant and the Secretary to be present when the decision is handed down (s 430A).  Section 430D(2) provides:

“430D(2)  If the applicant is in immigration detention, the Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection 430(1) within 14 days after the decision concerned is made.”

36                  Part 8 of the Migration Act deals with the review of decisions by the Federal Court.  Section 475(1) defines as “judicially-reviewable decisions” the following:

“(a)     decisions of the Immigration Review Tribunal

(b)       decisions of the Refugee Review Tribunal;

(c)        other decisions made under this Act, or the Regulations, relating to visas.”

Decisions which are not “judicially-reviewable decisions” are defined in s 475(2) and include RRT-reviewable decisions.  Applications may be made for review by the Federal Court of judicially-reviewable decisions on any one or more of the grounds set out in s 476(1) of the Act.  Section 478 provides:

“478(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).”

The jurisdiction of the Federal Court to deal with judicially-reviewable decisions is conferred by s 486:

“The Federal Court has jurisdiction with respect to judicially-reviewable decisions and that jurisdiction is exclusive of the jurisdiction of all other courts other than the jurisdiction of the High Court under section 75 of the Constitution.”

That jurisdiction is intended to be exhaustive in respect of judicially-reviewable decisions as  appears from s 485 which provides:

“485(1)  In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2) or (3), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903.

    (2)  Subsection (1) does not affect the jurisdiction of the Federal Court in relation to appeals under section 44 of the Administrative Appeals Tribunal Act 1975.

    (3)  If a matter relating to a judicially-reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.”  

The Jurisdiction of the Federal Court under Part 8 of the Migration Act 1958

37                  The jurisdiction of the Federal Court under Pt 8 of the Migration Act is defined by reference to “judicially reviewable decisions” (s 486).  Section 485 in terms excludes jurisdiction from any source in respect of such decisions other than that conferred by Pt 8 or by s 44 of the Judiciary Act which applies to matters remitted from the High Court of Australia – Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 25.  Even in the latter case, the Federal Court is not to have powers in relation to the matter remitted other than the powers it would have if the matter had been as a result of an application made under Pt 8.  The grounds of review of judicially reviewable decisions under Pt 8 are limited to those referred to in s 476.  A challenge to the constitutional validity of these limitations upon the jurisdiction of the Court failed in Abebe v The Commonwealth (1999) 162 ALR 1.  In describing their general effect of the provisions Gleeson CJ and McHugh J said in their joint judgment at 7:

“The combined effect of ss 476 and 485 of the Act, therefore, is that the jurisdiction of the Federal Court to review decisions under the Act is narrower in some respects than the jurisdiction conferred on this court by s 75(v) of the Constitution, is narrower in some respects than the scope for review of administrative decisions at common law and is narrower than the scope for review of administrative decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Judiciary Act.  In other respects, however, the jurisdiction is arguably wider than the jurisdiction of this Court under s 75(v) and the jurisdiction at common law.  Nevertheless, it is clear that in important respects the jurisdiction of the Federal Court to review decisions under the Act has been severely truncated.”

38                  At 64, Kirby J described the general provisions of Pt 8 thus:

“Those provisions grant certain jurisdiction to the Federal Court.  They also withhold jurisdiction from the Federal Court.  Specifically, they withhold jurisdiction although, by the Constitution, jurisdiction of a similar kind is granted to this court and cannot be withdrawn from it by any law made by the parliament.  Yet within the jurisdiction so granted to the Federal Court, the parliament has made no attempt whatever to dictate to it “the manner and outcome” of the exercise of that court’s jurisdiction.  It remains wholly independent.  It performs functions proper to a federal court.”

39                  Abebe was concerned with the question whether the parliament could so limit the jurisdiction of the court, that while having jurisdiction over some aspects of a controversy between subjects or between a subject and the Crown, it lacked authority to decide every legal right, duty, liability or obligation inherent in that controversy.  That question was answered in the affirmative.  The question of the time limitations imposed in respect of the lodging of applications for review under Pt 8 was not before the  High Court. 

40                  In the present case, the Minister’s Objection as to Competency relies upon s 478(1)(b) which requires that an application under s 476 or 477 must be lodged with the Registry of the Federal Court within twenty eight days of the applicant being notified of the decision.  There is no provision for extension of that time.  Section 478(2), which is expressed as a prohibition against the Federal Court making an order allowing or having the effect of allowing an applicant to lodge an application outside the period specified in s 478(1)(b), is said to make clear that the time limitation is an essential conditional jurisdictional requirement and does not give rise merely to a defence of non-compliance which may be waived by a respondent.

41                  It is well established by a number of decisions in this Court that s 478 limits the jurisdiction of the Court to applications lodged within the twenty eight day period prescribed by s 478(1)(b).  In Nirmalan v Minister for Immigration and Multicultural Affairs (Fed Court 14 May 1998) 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.”

The effect of s 478 was also considered in passing by Sackville J in Ozmanian at 28 where his Honour said:

“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: Migration Act, 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.”

The observation may be regarded as strictly obiter but Jenkinson and Kiefel JJ, who published shorter separate reasons, each agreed generally with the reasons of Sackville J.

42                 The word “must” used in s 478(1) and (2) has been described as “not merely directory” but “a word of absolute obligation” – Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 at 389 (Merkel J).  There also his Honour held the Court has no jurisdiction to review a judicially reviewable decision unless the application is lodged within twenty eight days of the applicant being “notified” of the decision.  Notification requires that the substance or outcome of the decision is actually communicated to the person adversely affected by it – Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 at 167 (Jenkinson J) and 178 (Beazley J).

43                  The attack upon the constitutional validity of s 478 was premised upon the rigidity of the time limit which it imposed.  The attack rested upon that very rigidity as inconsistent with the nature of judicial power and its confinement by Chapter III of the Constitution to courts in which that power was reposed either by the Constitution or by the parliament.  The propositions relied upon may be summarised thus:

1.         The legislative power of the Commonwealth does not extend to the making of a law which requires or authorises the courts in which the judicial power of the Commonwealth is vested to exercise judicial power in a manner inconsistent with the essential character of a court or with the nature of that power.

2.         Any attempt on the part of the legislature to cause a court to act in a manner contrary to natural justice would impose a non-judicial requirement inconsistent with the exercise of judicial power.

3.         Concepts of equality before the law and due process and natural justice require that the ability of the court to exercise the judicial power must be real and not illusory.  Otherwise the court is denied in substance the ability to carry out that which is essential to the judicial power, namely the resolution of disputes between the parties that come before it.

4.         Paragraph 478(1)(b) and subsection 478(2) of the Act fail to ensure that access to review by the Federal Court of decisions of the Refugee Review Tribunal is real and not illusory in that they purport to apply arbitrarily to all applicants without regard to their individual circumstances, the merits of their case and their ability, in practical terms, to lodge an application within the time limit prescribed by pars 478(1)(b) of the Act.

5.         Paragraph 478(1)(b) and subsection 478(2) of the Act together constitute an intrusion upon the judicial power conferred on the Federal Court which is beyond the power of the Federal Parliament.  Those provisions should be severed from the Act.

44                  The objections raised by the applicants to the time limitations in s 478 would seem to apply, if accepted, to all statutory time limits on the availability of remedies where the statute bars any extension of the time limited before commencing action.  They would apply even to the case of such limitations upon causes of action where the limitation may be waived or a party estopped from raising it as a defence.  For waiver and estoppel in such cases arise from the conduct of the parties and not by virtue of a judicial decision. 

45                  It has long been recognised that statutory time limits may be imposed upon the enforcement of rights independently existing or may be annexed by a statute to rights newly created by it.  In the second case the limitation is part of the definition of the new right – “a condition which is of the essence of a new right” – Australian Iron & Steel Limited v Hoogland (1962) 108 CLR 471 at 488 (Windeyer J), see also at 476 (Dixon CJ) and 480 (Kitto J).   By way of example of the second category,  an application under the Corporations Law for an order setting aside a statutory demand “may only” be made within a specified twenty one day period.  The term “may only” defines the jurisdiction of the Court by making the requirement as to time an essential condition of the new rights created by the statute:

“An integer or element of the right created…is its exercise by application made within the time specified.” – David Grant & Co Pty Limited (Receiver Appointed) v Westpac Banking Corporation (1995) 184 CLR 265 at 277 (Gummow J, Brennan CJ, Dawson Gaudron and McHugh JJ agreeing). 

See also Rudolphy v Lightfoot (1999) 167 ALR 105 at 107 where the same character was given to the forty day requirement for the filing of a petition under the Commonwealth Electoral Act 1918 in the Court of Disputed Returns.  It is to be noted that the characterisation of a time limitation as defining a right, rather than barring its enjoyment, is not necessarily dependent upon the presence or absence of a power to extend time.  According to its character the extension may be a lifting of the bar or an enlargement of the right otherwise limited.

46                  The present case is one which, as a matter of the construction of s 478(1), and on the authority of decisions of this Court, requires that this Court treat the filing of an application within the time limited as a condition of its jurisdiction.  The imperative language of s 478(1) allows no other interpretation.  The definition of jurisdiction by imposition of a time limit does not of itself involve a direction to the Court about the manner and conduct of its exercise of that jurisdiction.  To that extent such limitations are of the same character as the limitations upon jurisdiction by reference to available grounds of review which were held in Abebe to be a valid exercise of legislative power.  In my opinion s 478(1) of the Migration Act is valid.  It defines the jurisdiction of the Court in relation to applications for the review of judicially reviewable decisions under Pt 8 of the Migration Act by limiting that jurisdiction to an authority to entertain only those applications filed within twenty eight days of notification of the Tribunal decision.  I should add that were the limitations not jurisdictional in character but merely limitations on the rights of the parties, it would still not constitute any impermissible intrusion into the judicial function which remains the ascertainment and enforcement of such rights as exist at law.

47                  The conclusion I have reached about s 478(1) is sufficient to dispose of the constitutional point and to uphold the objection as to competency.  For on that view s 478(2) adds nothing to the time limitation defined in s 478(1).  Nevertheless the subsection was the subject of contention in the constitutional challenge and the question must be asked what if any function it has?

48                  The subsection is in form a direction to the Court not to do something which it could not in any event do because of s 478(1).  It is redolent, in its imperative language, of s 54R of the Migration Act held to be invalid in Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1.  That section provided:

“A court is not to order the release from custody of a designated person.”

While similar in its form to s 478(2), s 54R affected substantive rights, namely the rights of persons unlawfully held in custody.  In the joint judgment of Brennan, Deane and Dawson JJ it was pointed out that s 54R could not validly impinge upon the constitutional jurisdiction of the High Court conferred by s 75(v).  Relevantly for present purposes their Honours went on at 36:

“Moreover, even to the extent that s 54R is concerned with the exercise of jurisdiction other than this Court’s directly vested constitutional jurisdiction, it is inconsistent with Ch III.  In terms, s 54R is a direction by the Parliament to the courts as to the manner in which they are to exercise their jurisdiction.  It is one thing for the Parliament, within the limits of the legislative power conferred upon it by the Constitution, to grant or withhold jurisdiction.  It is a quite different thing for the Parliament to purport to direct the courts as to the manner and outcome of the exercise of their jurisdiction.  The former falls within the legislative power which the Constitution, including Ch III itself, entrusts to the Parliament.  The latter constitutes an impermissible intrusion into the judicial power which Ch III invests exclusively in the courts which it designates.”

Gaudron J agreed with Brennan, Deane and Dawson JJ.  The joint judgment made passing reference to the possibility that s 54R might have no useful function, saying in this regard at 35:

“If it were apparent that there was no possibility that a “designated person” might be unlawfully held in custody under Div 4B, it would be arguable that s 54R did no more than spell out what would be the duty of a court of competent jurisdiction in any event.  If that were so, s 54R would be devoid of significant content.”

49                  Mason CJ, Toohey and McHugh JJ, who dissented on the validity of the provision, were of the view that it should be read as a direction to a court not to release a designated person “lawfully” detained in custody and that so construed it did not direct a court not to give effect to substantive rights.  But what the judgment of the majority hypothesised and put aside, the dissenting judges saw as the proper construction of s 54R.  Mason CJ said at 12:

 “The only argument against the interpretation of s 54R which I find compelling is that the section, so interpreted, may achieve nothing.  The section achieves nothing if it does no more than instruct the courts to act in conformity with the substantive provisions of Div 4B, that being something which the courts would be bound to do in any event.”

On this basis his Honour was of the view that s 54R was valid.   Toohey J was of the view that the section on its face directed a court not to release from custody a person whose detention in custody was unlawful.  To that extent it would clearly amount to an interference with judicial power and could not be sustained.  However, for the reasons given by Mason CJ, which his Honour adopted, s 54R was to be read down to bring it within legislative power so long as it was directed to the release from custody of a designated person lawfully in custody (at 50-51).  See also McHugh J at 67-69.

50                  Subsection 478(2), like s 54R on the hypothesis rejected by the majority in Lim and the construction adopted by the minority in that case, has no effect upon any substantive rights.  It does not direct the Court to do or refrain from doing anything which the Court might otherwise be empowered to do.  It is arguably inconsistent with that comity which ought to exist between the legislative executive and judicial branches.  It is a legislative command to the court to obey the law.  However it does nothing and, doing nothing, does not exceed the legislative power of the Commonwealth.

Conclusion

51                  For the preceding reasons, the objections as to competency are allowed in each case, the applications dismissed, and the applicants ordered to pay the respondent’s costs of the application.  I should add that had the applications been within time, on the materials presented to me, none of them would have succeeded.  In each case the Tribunal’s decision turned upon questions of fact, none of which could form a basis for any review of the Tribunal’s decisions in this Court.

Associate:

Dated:              9 June 2000