FEDERAL COURT OF AUSTRALIA

Oguzhan v Minister for Immigration & Multicultural Affairs

[2000] FCA 781

CONSTITUTIONAL LAW – judicial power of the Commonwealth – jurisdiction of Federal Court to review certain decisions under Migration Act 1958 (Cth) – provision that application for review must be made within 28 days of applicant being notified of decision – further provision that Court must not make an order allowing applicant to lodge application outside that period – whether intrusion into or usurpation of judicial power.

MIGRATION – objection to competency of application – whether application was filed more than 28 days after applicant notified of decision – notification in English language – whether applicant “notified” although unable to read English – whether Court has jurisdiction to consider grounds for failure to lodge application in time.

The Constitution (63 & 64 Vict. C.12) Ch III

Migration Act 1958 (Cth), ss 474, 475(2), 478(1)(b), 478(2), 481, 485, 486

Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 applied

Reg. v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 referred to

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

Polyukhovich v The Commonwealth (1991) 172 CLR 501 referred to

Leeth v The Commonwealth (1992) 174 CLR 455 referred to

Abebe v The Commonwealth (1999) 162 ALR 1 referred to

Kruger v The Commonwealth (1997) 190 CLR 1 referred to

Nicholas v R (1998) 151 ALR 312 referred to

Al Achrafi v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 550 referred to

Duwai v Minister for Immigration and Multicultural Affairs [1999] FCA 1309 referred to

Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672 referred to

MURAT OGUZHAN v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

W 131 of 1999

CARR J

9 JUNE 2000

PERTH

THE COURT ORDERS THAT:

1.         The respondent’s objection to competency be upheld.

2.         The application be dismissed.

3.         The applicant pay the respondent’s costs of the proceedings.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an objection to competency, notice of which was filed by the respondent on 7 December 1999.  The respondent objects to the jurisdiction of this Court to determine an application for an order of review filed by the applicant on 9 November 1999.  The respondent specifies three grounds in his notice of objection to competency.  The first is that the application, for review of a decision by the Refugee Review Tribunal on 21 May 1999, was not lodged with a Registry of this Court within 28 days of the applicant being notified of the Tribunal’s decision, as required by s 478(1)(b) of the Migration Act 1958 (“the Act”).  The second ground is that, to the extent that the applicant relies upon the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”), such jurisdiction is specifically excluded by s 485 of the Act in respect of “judicially-reviewable decisions” and that the Tribunal’s decision in this matter is a “judicially-reviewable decision” under the Act.  The third ground is that the applicant has not identified any other decision under the Act or the Migration Regulations which he seeks to have reviewed.

Factual Background

2                     The applicant is a Turkish citizen who arrived in Australia on 6 February 1999.  On 19 February 1999 he made an application for a protection visa.  On 23 March 1999 a delegate of the respondent decided to refuse the grant of a protection visa to the applicant.  On 29 March 1999 the applicant applied to the Tribunal for review of that decision. 

3                     On 21 May 1999 the Tribunal decided to affirm the decision of the Minister’s delegate. 

4                     There is some documentary evidence (see pp 4 to 7 of an affidavit sworn by Mr Timothy John Carey on 10 March 2000) that on 26 May 1999 the Tribunal sent a fax transmission to the applicant at the Immigration Detention Centre, Port Hedland.  The fax included a letter which contained the following paragraph:

“The Tribunal has decided that you are not a refugee, which means you are not entitled to a Protection Visa.”

5                     The facsimile transmission comprised 16 pages which included a request to the Manager of the Immigration Detention Centre, Port Hedland to pass “the accompanying correspondence and decision” to the applicant.  There is also some evidence in the form of a departmental note that that correspondence and a copy of the Tribunal’s decision was handed to the applicant on 26 May 1999 (see pages 19 and 20 of Mr Carey’s affidavit sworn 4 February 2000).

6                     There is evidence that the applicant, in his application to the Tribunal for review, nominated as his adviser a Mr Sipho Khoza of the Catholic Migrant Centre in Perth.  There is also evidence that on 26 May 1999 the Tribunal sent a fax to the Catholic Migrant Centre for the attention of Mr Sipho Khoza.  That too was a 16 page transmission. 

7                     The applicant does not dispute that he was notified of the Tribunal’s decision on or about 26 May 1999.  In fact, in a written submission dated 31 January 2000 to the Court, the applicant acknowledged that his application to this Court was not lodged within 28 days of being so notified.  In that submission the applicant asked the Court to extend the 28 day time limit.  Furthermore, at the hearing of the motion the applicant conceded that he was advised of the Tribunal’s decision in “… either the fifth or the six month, the 26^th of that month”.

8                     In those circumstances I am prepared to infer, and I do infer, that, subject to the significance or otherwise of the fact that the applicant cannot read English, the applicant was notified of the Tribunal’s decision on or about 26 May 1999.  The application to this Court for review was, as I have mentioned, filed on 9 November 1999.  It appears that after the Tribunal’s decision, the applicant made representations to the Minister.  That may be the reason why he decided not to institute the application for judicial review.

9                     During the hearing of the objection to competency, the applicant (who was unrepresented) submitted that because the documents by which he was notified of the Tribunal’s decision were in English and because he does not read English, he was not properly notified of the Tribunal’s decision. 

10                  In response, counsel for the Minister relied upon the decision of a Full Court of this Court in Nguyen v Refugee Review Tribunal (1997) 74 FCR 311.  In that case the appellant argued that there had not been notification of a primary decision, within the meaning of s 166BA(1)(b) of the Act (now re-numbered as s 412) because the decision-maker was obliged to ensure that such notice was translated into Vietnamese, which was his language.  The Full Court unanimously rejected that argument – see Tamberlin J at 320-321, Sundberg J at 324-327 and Marshall J at 331-332.

11                  I accept that Nguyen was concerned with notification of a primary decision and that there is some minor difference in the wording between what is now s 412(1)(b) of the Act and s 478(1)(b).  However, I do not regard those differences as being an appropriate basis for distinguishing Nguyen.  In my opinion, the applicant’s submission, based on the fact that he could not read English must be rejected, and I do so. 

A Constitutional Issue

12                  Counsel for the respondent informed me, at the hearing of this objection to competency, that in recent similar proceedings pending before French J an issue had arisen as to the constitutional validity of s 478(1)(b) and (2) of the Act and notices had been given under s 78B of the Judiciary Act 1903 (Cth) to the Attorneys for the Commonwealth, the States and the Territories.  I identify those three proceedings by the names of the applicants, Hocine, Uzum and Adel.  In each of those cases the respondent is the Minister.

13                  Section 478 of the Act provides as follows:

“478  Application for review by Federal Court

      (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).”

14                  I directed the respondent to serve further notices under s 78B in this matter.  Notices have been given in accordance with s 78B of the Judiciary Act.  None of the Attorneys has sought to intervene.  I also made directions for the filing of written submissions so that if none of the Attorneys sought to intervene, the constitutional point could be decided on the papers.

15                  Counsel for the respondent passed up to me copies of the applicants’ outline of submissions in the proceedings before French J in relation to the constitutional point in each of those matters, and the respondent’s submissions on that point in those matters. 

16                  As the applicant in this matter was unrepresented and obviously unable to assist the Court in relation to the constitutional point, I took the course (with the consent of the applicant and with there being no objection from the respondent) of treating the submissions of the applicants in the other matters as being the submissions of the applicant in this matter.  The respondent was content for his written submissions on the constitutional point in the other matters to stand as the submissions on the point in this matter.

17                  I indicated that I would reserve this judgment until French J gave judgment and published his reasons in the earlier matters.  As events have transpired, I prepared these reasons in draft form just over a month ago.  This morning I had the advantage of reading in draft form French J’s reasons in those earlier matters which are to be published later today.  They are substantially in accordance with these reasons.  Nothing in his Honour’s draft reasons in those matters has caused me to change anything in my draft reasons.

Applicant’s Submissions

18                  The applicant (on the basis mentioned above) submitted as follows:

·          notwithstanding that s 478(1)(b) purported to condition this Court’s jurisdiction to review, that sub-paragraph and s 478(2) (which I shall refer to as the “Challenged Provisions”) usurped the judicial power conferred upon the Court, was beyond legislative power and should be severed from the Act;

·          the Challenged Provisions were constitutionally invalid because they required the Court to exercise the judicial power of the Commonwealth in a manner which was inconsistent with the essential requirements of a court or with the nature of the judicial power;

·          the concept of judicial power incorporated, as fundamental, the notion of equality before the law; that is, the Court’s duty is to extend to the parties before it equal justice i.e. to treat them fairly and impartially as equals before the law;

·          equal justice required the like treatment of like persons in like circumstances, but also required that genuine differences be treated as such;

·          the ability of the Court to exercise the judicial power conferred upon it (in this case the duty to accord natural justice and to enable a party to be heard) must be real and not illusory.  Otherwise, the Court would be denied in substance the ability to carry out that which is essential to the judicial power, namely the resolution of disputes between the parties who come before it;

·          the Challenged Provisions failed to ensure that access to review by this Court of decisions of the Tribunal was real and not illusory, in that they purported 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 s 478(1)(b);

·          the Challenged Provisions thus constituted an intrusion upon the judicial power conferred on the Court which was beyond the power of the Parliament.

Respondent’s Submissions

19                  The respondent’s submissions, in summary, were as follows:

·          the Challenged Provisions are laws defining the jurisdiction of the Federal Court;

·          that jurisdiction depended wholly on statute;

·          there was no constitutional barrier to the conferral of jurisdiction subject to an absolute time limit;

·          the imposition of a “jurisdictional” time limit did not interfere with the exercise of jurisdiction by the Court and was not therefore contrary to Chapter 3 of the Constitution;

·          alternatively if the time limit is to be regarded as a qualification on the exercise of judicial power to which Chapter 3 applied, it was not an impermissible interference with the exercise of the judicial power.

My Reasoning on the Constitutional Point

20                  Section 76 of the Constitution relevantly provides that the Parliament may make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament.  Section 77 of the Constitution provides that with respect to any of the matters mentioned in ss 75 and 76, the Parliament may make laws defining the jurisdiction of any federal court other than the High Court.

21                  Section 486 of the Act provides as follows:

“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.”

22                  Section 474 of the Act provides that the term “judicially-reviewable decision” has the meaning given by s 475.

23                  Section 475 gives meaning to the term “judicially-reviewable decision” by a process of inclusion and exclusion.  Section 475(1) provides that the following decisions are judicially-reviewable decisions:

(a)        decisions of the Immigration Review Tribunal;

(b)        decisions of the Refugee Review Tribunal; and

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

24                  Section 475(2), by means of a list, provides that decisions so listed are not judicially-reviewable decisions.

25                  Section 476 of the Act provides that application may be made for review by the Federal Court of a judicially-reviewable decision on certain specified grounds and not on certain, other, specified grounds.

26                  Section 485(1) of the Act provides that, in spite of any other law, including s 39B of the Judiciary Act 1903 (Cth), the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by s 475(2), other than the jurisdiction provided by Part 8 of the Act (in which Part all of the sections referred to in these reasons are to be found) or by s 44 of the Judiciary Act.  Section 44 of the Judiciary Act provides for remittal of matters by the High Court to other courts.

27                  It has long been recognised that the doctrine of the separation of judicial from executive and legislative powers is fundamental to the Constitution.  So far as may be relevant to this case, that doctrine includes the principle that the Parliament cannot usurp the judicial power of the Commonwealth by itself purporting to exercise judicial power in the form of legislation: Reg. v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 270; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 26; Polyukhovich v The Commonwealth (1991) 172 CLR 501; Leeth v The Commonwealth (1992) 174 CLR 455 at 469.

28                  In form, s 478(2) is expressed as a direction to the Federal Court not to make an order allowing or having the effect of allowing an applicant to lodge an application outside the period of 28 days from notification of the decision.  But it is well-established that the Constitution’s concern (and in particular the concern of Chapter III) is “… with substance and not mere form”: Chu at 27; Polyukhovich at 607; Leeth at 486-487.

29                  The substance of s 478, when read as a whole, is to impose an absolute time limit on the making of an application for review, of 28 days from the date of notification of the decision.

30                  In Chu, Brennan, Deane and Dawson JJ said this (at 27):

“Nor do those grants of legislative power [the grants of legislative power contained in s 51 of the Constitution] extend to the making of a law which requires or authorizes the courts in which the judicial power of the Commonwealth is exclusively vested to exercise judicial power in a manner which is inconsistent with the essential character of a court or with the nature of judicial power.” 

31                  And this (at 36-37):

“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 vests exclusively in the courts which it designates.”

32                  It can be seen from the above that s 485 of the Act, when read with s 476, confers original jurisdiction on the Federal Court with respect to a limited number of matters arising under the Act.  As their Honours Gleeson CJ and McHugh J observed in Abebe v The Commonwealth (1999) 162 ALR 1 (at para 21), this jurisdiction is narrower in some respects than the scope for review of administrative decisions at common law, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Judiciary Act.  As their Honours also observed, in the same paragraph, the jurisdiction of this Court to review decisions under the Act has been “severely truncated”. 

33                  At para 30 their Honours pointed out that a “matter” does not exist independently of any court or its procedure.  At para 37 their Honours said:

“… when parliament enacts a law under s 77 and gives a court authority to grant some legal remedy in aid of a right or the enforcement of a duty or liability falling within any of the classes in the numbered paragraphs of ss 75 and 76, it defines the jurisdiction of that court with respect to a “matter”.  The fact that parliament has elected not to give the court all the remedies that might be available to resolve the controversy or has conferred jurisdiction to deal with only part of the subject matter of the controversy cannot alter the fact that parliament has defined the jurisdiction of the court with respect to a “matter”.”

34                  In my view, the above process of reasoning applies equally to the issue raised in this case.  Just as, for example, s 481 of the Act (which sets out the extent of the Court’s powers) defines its jurisdiction, so also do the provisions of s 478 define its jurisdiction by making it very clear that the Court has no jurisdiction to entertain an application not made within 28 days of an applicant being notified of the decision.  Expressed slightly differently, the Parliament has defined the Court’s jurisdiction as being limited to applications made within 28 days of notification of the judicially-reviewable decision in question.  That s 478(1) creates a jurisdictional bar was recognised in cases such as Al Achrafi v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 550 at 553 (Beaumont J) and Duwai v Minister for Immigration and Multicultural Affairs [1999] FCA 1309 at para 21 (Sackville J).

35                  Accordingly, in my opinion, the Challenged Provisions are constitutionally valid because they simply play a role in defining the jurisdiction of the Federal Court and do not direct the Court as to the manner and outcome of the exercise of the Court’s jurisdiction. 

36                  If I am wrong in that view, then I consider that by imposing an absolute time limit, without discrimination upon all would-be applicants, the Parliament has not intruded impermissibly upon the judicial power vested by the Act in the Court.  I accept the respondent’s submission that the Challenged Provisions are not “inconsistent with the essential character of a court or with the nature of judicial power” – see Chu at 27.  I also accept the respondent’s submission that cases such as Chu and Polyukhovich are distinguishable on the basis that they were concerned with legislative intrusions on the power of a court to give effect to substantive rights properly raised in a matter before it. 

37                  The applicant’s submissions relied fairly heavily on some observations made by Deane and Toohey JJ and Gaudron J in dissent in Leeth at 487 and 502 respectively.  The applicant relied upon those observations as supporting the proposition that the concept of judicial power incorporates as fundamental the notion of equality before the law, the obligation to treat parties fairly and impartially as equals before the law, to refrain from discrimination on irrelevant or irrational grounds and to require that genuine differences be treated as such.

38                  As the respondent submits in his written submissions, those propositions are of doubtful authority by reason of the majority views expressed in Leeth and the majority of the Court in the subsequent case of Kruger v The Commonwealth (1997) 190 CLR 1, including Gaudron J’s clarification (at 112) in Kruger that:

“… there is a limited constitutional guarantee of equality before the courts, not an immunity from discriminatory laws which, in essence, is what is involved in the argument that there is an implied constitutional guarantee of equality.”

39                  In Leeth at 469-470 Mason CJ, Dawson J and McHugh J said:

“Of course, legislation may amount to a usurpation of judicial power, particularly in a criminal case, if it prejudges an issue with respect to a particular individual and requires a court to exercise its function accordingly.  It is upon this principle that bills of attainder may offend against the separation of judicial power.  But a law of general application which seeks in some respect to govern the exercise of a jurisdiction which it confers does not trespass upon the judicial function.  It may well be that 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 …”

40                  In Nicholas v R (1998) 151 ALR 312, the High Court had to consider the constitutional validity of s 15X of the Crimes Act 1914 (Cth).  That section had been introduced into Part 1AB of the Crimes Act in order to reverse the effect of the High Court’s decision in Ridgeway v R (1995) 184 CLR 19.  Section 15X provided that evidence of importation of narcotic goods obtained through a “controlled operation” that had been started before the introduction of Part 1AB was not to be rejected because of the unlawful conduct of the law enforcement officers who took an active part in the importation of the goods. 

41                  The High Court, by majority, held that s 15X was a valid law of the Commonwealth.  At 319 in Nicholas Brennan CJ made the following observations:

“A law that purports to direct the manner in which judicial power should be exercised is constitutionally invalid.  However, a law which merely prescribes a court’s practice or procedure does not direct the exercise of the judicial power in finding facts, applying law or exercising an available discretion.”

42                  The question would seem to be one of degree.  But in my view, the Challenged Provisions are not inconsistent with the exercise of judicial power.  They are laws of general application and, furthermore, they do not cause this Court to act in a manner contrary to natural justice.  They provide a reasonable time in which an application may be made to the Court and they apply equally to all would-be applicants.  The Challenged Provisions prescribe a matter of practice or procedure, i.e. whether leave may be granted to institute proceedings out of time.  I consider that they are constitutionally valid.

Whether Time May Be Extended

43                  The authorities are quite clear that this Court cannot extend the relevant time.  It is sufficient to refer to the following extract from the reasons for judgment of the Full Court in Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672 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.”

44                  The Full Court went on to observe that this was, of course, a matter for the Parliament to legislate about and that it has done so in explicit terms.  In that case the Full Court noted that the primary judge had no choice but to dismiss the application for an order of review of the Tribunal’s decision.

45                  It is quite clear that the Tribunal’s decision was a “judicially-reviewable decision” within the meaning of s 475 of the Act.  Section 485 of the Act excludes review of such a decision by this Court other than under Part 8 of the Act [in which s 478(1)(b) is to be found] or on remittal from the High Court of Australia under s 44 of the Judiciary Act 1903 (Cth).  The applicant, who was unrepresented, stated as his grounds for the application the following:

“1)      To review the dicision (sic) of the Refugee Review Tribunal.

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

46                  The applicant has not identified any decision other than that of the Tribunal, which he seeks to challenge.

47                  In those circumstances I am obliged by the express provisions of the Act to uphold the Minister’s objection to competency and dismiss the application.

Associate:

Dated:              9 June 2000