FEDERAL COURT OF AUSTRALIA

Ayub v Minister for Immigration & Multicultural Affairs

[2000] FCA 1844

CONSTITUTIONAL LAW – judicial power – jurisdiction – limitation on time to apply for remedy – whether prohibition on court extending time was in excess of legislative power as intrusion on judicial power.

MIGRATION – protection visa – application for judicial review of decision of Refugee Review Tribunal – objection to competency of application – whether s 478(1) of Migration Act 1958 (Cth) defined jurisdiction by reference to time within which application for review filed.

Acts Interpretation Act 1901 (Cth) s 15A

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 8, 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9(2)(b), Sch 1

Federal Court of Australia Act 1976 (Cth) ss 21, 23

Judiciary Act 1903 (Cth) ss 38, 38(a), 38(b), 38(c), 38(d), 38(e), 39, 39B, 39B(1), 39B(1A)(c), 44, 44(1), 44(2), 44(2A), 44(3), 78B

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 3(1), 4(1), 4(4)

Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) s 3, Items 18, 56 (Sch 1)

Migration Act 1958 (Cth) Pt 8, ss 475, 475(1), 475(2), 476, 477, 478, 478(1), 478(1)(b), 478(2), 481, 482, 485, 485(1), 485(3), 486

Migration Regulations 1994(Cth) regs 4.40, 5.03

Federal Court Rules O 80

The Constitution ss 75, 75(iii), 75(v), 76, 76(ii), 77, 77(ii), 77(iii)

Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 referred to

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 referred to

Williams v Hursey (1959) 103 CLR 30 referred to

Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 referred to

“A” v Pelekanakis [1999] FCA 236 referred to

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 referred to

Bank of New South Wales v Commonwealth (1948) 76 CLR 1 referred to

Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 136 ALR 303 distinguished

Wang v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 717 referred to

Nguyen v Refugee Review Tribunal (1997) 74 FCR 311 referred to

Oguzhan v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 285 referred to

Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37 referred to

Abebe v Commonwealth of Australia (1999) 197 CLR 510 referred to

Cartledge v E Jobling & Sons Ltd [1963] AC 758 referred to

National Telephone Company Limited v His Majesty’s Postmaster-General [1913] AC 546 referred to

The Crown v McNeil (1922) 31 CLR 76 referred to

State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 referred to

Rudolphy v Lightfoot (1999) 197 CLR 500 referred to

Patterson & James v Public Service Board of New South Wales [1984] 1 NSWLR 237 referred to

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

David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 referred to

Australasian Memory Pty Ltd v Brien (2000) 74 ALJR 991 referred to

Li v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 219 referred to

Kumar v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 680 referred to

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

Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 referred to

Duwai v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 191 referred to

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

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

Bank of Western Australia Ltd v FCT (1994) 55 FCR 233 referred to

Aronson, Dyer Judicial Review of Administrative Action 2^nd ed 2000

de Smith, Woolf and Jowell Judicial Review of Administrative Action 5^th ed 1995

ABDUL RAHMAN AYUB v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 102 OF 1999

LEE J

PERTH

14 DECEMBER 2000

THE COURT ORDERS THAT:

The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant is an Indonesian citizen who arrived in Australia on 2 December 1997. On 25 February 1998 the applicant applied for a “protection visa” under the Migration Act 1958 (Cth) (“the Act”). On 26 June 1998 a delegate of the respondent (“the Minister”) decided that a grant of the visa be refused. On 23 July 1998 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for review of that decision. On 5 February 1999 the Tribunal “affirmed” the decision of the delegate. On or about 10 February 1999 the Tribunal sent to the applicant notice of the decision made by the Tribunal. On 24 September 1999 the applicant lodged an application in this Court seeking review of the Tribunal’s decision. The Minister objects to the competency of the application. The Minister submits that the Court has no jurisdiction to dispose of the application.

2                     This is yet another matter in which the Court has received substantial assistance from submissions prepared by unremunerated counsel appointed by the Court to appear on behalf of the applicant pursuant to O 80 of the Federal Court Rules which provide for pro bono representation.

3                     The objection to competency was heard as a threshold issue.

4                     The relevant provisions of the Act are as follows:

“475(1) Subject to subsection (2), the following decisions are judicially-reviewable decisions:

(a) decisions of the Migration Review Tribunal;

(b) decisions of the Refugee Review Tribunal;

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

(2) The following decisions are not judicially-reviewable decisions:

(a) a decision in relation to a criminal justice visa or a criminal justice certificate within the meaning of Division 4 of Part 2;

(b) [repealed]

(c) an MRT-reviewable decision;

(d) an RRT-reviewable decision;

(da) a decision of the Minister not to exercise, or not to consider the exercise of, his or her power to extend the visa period of a temporary safe haven visa under subsection 37A(2);

(db) a decision of the Minister to shorten the visa period of a temporary safe haven visa under subsection 37A(3);

(e) a decision of the Minister not to exercise, or not to consider the exercise of, his or her power under section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 345, 351, 391, 417 or 454;

(f) a decision of the Principal Member of the Migration Review Tribunal or of the Principal Member of the Refugee Review Tribunal to refer a matter to the Administrative Appeals Tribunal;

(g) a decision of the President of the Administrative Appeals Tribunal to accept, or not to accept, the referral of a decision under section 382 or 444.

(3) A decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited is not a judicially-reviewable decision.

476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(b) that the person who purported to make the decision did not have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the regulations;

(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(f) that the decision was induced or affected by fraud or by actual bias;

(g) that there was no evidence or other material to justify the making of the decision.

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power; or

(e) failing to take a relevant consideration into account in the exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

…

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).

…

481(1) On an application for review of a judicially-reviewable decision, the Federal Court may, in its discretion, make all or any of the following orders:

(a) an order affirming, quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or such earlier date as the Court specifies;

(b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the Court thinks fit;

(c) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.

(2) On an application for a review in respect of a failure to make a judicially-reviewable decision, or in respect of a failure to make a decision within the period within which the decision was required to be made, the Federal Court may make any or all of the following orders:

(a) an order directing the making of the decision;

(b) an order declaring the rights of the parties in respect of any matter to which the decision relates;

(c) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the Federal Court considers necessary to do justice between the parties.

(3) The Federal Court may, at any time, of its own motion or on the application of any party, revoke, vary, or suspend the operation of, any order made by it under this section.

482(1) Subject to this section, the making of an application under section 476 to the Federal Court in relation to a judicially-reviewable decision does not:

(a) affect the operation of the decision; or

(b) prevent the taking of action to implement the decision; or

(c) prevent the taking of action in reliance on the making of the decision.

(2) If an application is made to the Federal Court under section 476 or 477 in relation to a judicially-reviewable decision, the Federal Court or a Judge of the Federal Court may make such orders of the kind referred to in subsection (3) as that Court or Judge considers appropriate for the purpose of securing the effectiveness of the hearing and determination of the appeal.

(3) The orders that may be made under subsection (2) are orders staying, or otherwise affecting the operation or implementation of the judicially-reviewable decision, or a part of that decision.

(4) The Federal Court or a Judge of that Court may, by order, vary or revoke an order in force under subsection (2) (including an order that has previously been varied under this subsection).

(5) An order in force under subsection (2):

(a) is subject to such conditions as are specified in the order; and

(b) has effect until:

(i) if a period for the operation of the order is specified in the order – the end of that period or, if a decision is given on the appeal before the end of that period, the giving of the decision; or

(ii) if no period is so specified – the giving of a decision on the appeal.

…

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.

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.”

5                     Counsel for the Minister submitted that the Court does not have jurisdiction to deal with an application for review of a “judicially-reviewable decision” if the application is not lodged within twenty-eight days of the applicant being notified of the decision.

6                     Counsel for the applicant submitted that s 478(2) was beyond legislative power and invalid. Accordingly, reasonable notice was given to Attorneys-General, as required by s 78B of the Judiciary Act 1903 (Cth), that the proceeding involved a matter arising under the Constitution. No Attorney sought to intervene. Counsel for the applicant further submitted that the proper construction of s 478(1)(b) of the Act required “notification” of a decision to be in a language that the applicant understands. Further, it was submitted that the Minister was estopped from contending that the applicant had not lodged an application within twenty-eight days of being notified of the decision, the estoppel said to be based upon conduct of an officer of the Minister’s Department which, it was said, caused the applicant not to make the application for review within the time provided by s 478(1)(b).

7                     Before considering the proper construction of s 478(1) and the validity of s 478(2) it is necessary to look at the distribution of federal jurisdiction that is exercisable with respect to a matter to which s 478 applies.

8                     Pursuant to s 39B(1A)(c) of the Judiciary Act and ss 77 and 76(ii) of the Constitution, the Court has jurisdiction in any matter arising under laws made by the Parliament and, subject to s 485 of the Act, would have jurisdiction in a matter constituted by a controversy as to whether a decision made by the Tribunal, or other decision made under the Act relating to visas, involved the lawful exercise of a decision-making power under the Act. The exercise of that jurisdiction may involve the application of principles of judicial review established by the common law. (See: Aronson, Dyer Judicial Review of Administrative Action 2^nd ed 2000 at p 90.)

9                     Pursuant to s 39 of the Judiciary Act and ss 76(ii) and 77(iii) of the Constitution, subject to the extent to which the jurisdiction of any federal court is defined as exclusive under s 77(ii) of the Constitution, jurisdiction in any matter arising under laws made by the Parliament is also invested in, inter alia, a Supreme Court of a State.

10                  Under s 39B(1) of the Judiciary Act the Court has jurisdiction with respect to any matter in which a writ of prohibition or mandamus, or an injunction is sought against an officer of the Commonwealth. That is a jurisdiction under which the exercise of a decision-making power by an administrative officer may be judicially reviewed by the grant of a writ of prohibition or mandamus, or by an order of injunction. In appropriate matters, exercise of the jurisdiction may also involve judicial review by grant of a writ of certiorari or like order. (See: Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 per Gaudron and Gummow JJ at [13], per Kirby J at [144]-[149], per Hayne J at [155]-[156].) Section 75(v) of the Constitution provides that such jurisdiction is part of the original jurisdiction of the High Court. Section 38(e) of the Judiciary Act makes that jurisdiction of the High Court exclusive of the jurisdiction of a Supreme Court in so far as it relates to a matter in which a writ of prohibition or mandamus is sought. Pursuant to ss 75(v) and 77(iii) of the Constitution, ss 38 and 39 of the Judiciary Act invest jurisdiction in a Supreme Court with respect to a matter in which an injunction is sought against an officer of the Commonwealth. A Supreme Court, of course, may make a declaratory order in the exercise of that jurisdiction. Even a jurisdiction to conduct judicial review limited to orders by way of injunction or declaration may be significant. (See: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [16]-[23].)However, s 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (“the Cross-Vesting Act”) invests in a Supreme Court jurisdiction conferred upon this Court that a Supreme Court would not have but for that provision of the Cross-Vesting Act. Therefore, a Supreme Court is invested with the jurisdiction that the Court has but a Supreme Court does not, with respect to any matter in which a writ of prohibition or mandamus is sought against an officer of the Commonwealth. Thus the Cross-Vesting Act has modified the exclusive jurisdiction of the High Court set out in s 38(e) of the Judiciary Act. Paragraph (e) of the definition of “special federal matter” in s 3(1) of the Cross-Vesting Act and the “Note” inserted at the end of s 38 of the Judiciary Act by s 3 and Item 56 of Sch 1 of the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) confirm that conclusion. The “Note” reads as follows:

“Note: Under the Jurisdiction of Courts (Cross-vesting) Act 1987, State Supreme Courts are, with some exceptions and limitations, invested with the same civil jurisdiction as the Federal Court has, including jurisdiction under section 39B of this Act.”

11                  In addition to the above, jurisdiction to “hear and determine” applications for “orders of review” with respect to a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”)applies, or with respect to conduct engaged in for the purpose of making such a decision, is conferred upon the Court by s 8 of the ADJR Act. Section 9 of the ADJR Act states that a Supreme Court, inter alia, does not have “jurisdiction to review” a decision or conduct to which the ADJR Act applies. In addition, s 9 provides that a Supreme Court does not have “jurisdiction to review” a decision or conduct that is excluded from the jurisdiction conferred upon this Court by Sch 1 of the ADJR Act or a decision in respect of which no jurisdiction is conferred upon this Court by the ADJR Act. It is unnecessary to consider what limitation of Supreme Court jurisdiction to review is contemplated in s 9(1)(d) of the ADJR Act. (See: Aronson, Dyer at pp 66-67.) It is to be assumed that ss 9(1)(a), (b), (c), (d) and 9(2)(b) of the ADJR Act are intended to be a law made pursuant to s 77(iii) of the Constitution having the effect of amending the operation of s 39 of the Judiciary Act by qualifying the degree to which federal jurisdiction is invested in a court of a State. The paragraphs would not be a law that satisfies the requirements of s 77(ii) of the Constitution as a law defining the exclusivity of jurisdiction of a federal court. (See: Williams v Hursey (1959) 103 CLR 30 per Menzies J at 113.)

12                  Section 4(1) of the Cross-Vesting Act, an ambulatory provision, invests a Supreme Court with the jurisdiction conferred upon this Court by the ADJR Act. Although subsection 9(1) of the ADJR Act commences “Notwithstanding anything contained in any Act other than this Act, a court of a State does not have the jurisdiction to review…”, it is apparent in the definition of a “special federal matter” in subs 3(1) of the Cross-Vesting Act that the jurisdiction of the Court conferred by s 8 of the ADJR Act, and made exclusive by s 9 of that Act, is invested in a Supreme Court by s 4(1) of the Cross-Vesting Act. That conclusion is reinforced by a recent amendment to s 9 of the ADJR Act, effected by s 3 and Item 18 of Sch 1 of the Jurisdiction of Courts Legislation Amendment Act, which amended s 9(1) by adding the following “Note” at the end of the subsection:

“Note: This subsection has effect subject to the Jurisdiction of Courts (Cross-Vesting) Act 1987 and to subsection 51(2A) of the Corporations Act 1989.”

13                  Under s 486 of the Act, jurisdiction is conferred upon the Court with respect to “judicially-reviewable decisions”. The jurisdiction is said to be exclusive of the jurisdiction of “all other courts” save for the jurisdiction of the High Court. It follows that s 4(1) of the Cross-Vesting Act invests that jurisdiction in a Supreme Court. Matters to which s 4(1) of the Cross-Vesting Act does not apply are set out in s 4(4) of that Act. No amendment has been made to that subsection to include in it matters that comprise the jurisdiction conferred upon the Court by s 486 of the Act.

14                  Subject to the comments made below, s 485(1) of the Act purports to remove, expressly, jurisdiction conferred upon the Court by s 39B of the Judiciary Act and, implicitly, jurisdiction conferred by the ADJR Act with respect to “judicially-reviewable decisions”, and decisions that are not “judicially-reviewable decisions” by reason of the provisions of s 475(2). Where jurisdiction conferred upon the Court by s 39B(1) of the Judiciary Act is removed by s 485(1), and s 4(1) of the Cross-Vesting Act made inapplicable thereto, s 38(e) of the Judiciary Act applies and the jurisdiction of the High Court in any matter involving a “judicially-reviewable decision” in which a writ of prohibition or mandamus is sought is exclusive of the jurisdiction of a Supreme Court. Of course, under ss 38 and 39 of the Judiciary Act a Supreme Court remains invested with jurisdiction in a matter involving a “judicially-reviewable decision” in which an injunction is sought against an officer of the Commonwealth. With regard to the ADJR Act, the effect of s 485(1) of the Act is that a “judicially-reviewable decision” is not a “decision” in respect of which jurisdiction is conferred upon the Court by the ADJR Act. Removal of that jurisdiction from the Court negates the operation of s 4(1) of the Cross-Vesting Act. By operation of s 9 of the ADJR Act, the removed jurisdiction remains excluded from the jurisdiction invested in a Supreme Court. It is unnecessary to consider whether the Court retains jurisdiction under the ADJR Act to review “conduct” engaged in for the purpose of making a “judicially-reviewable decision” but if that were so, the jurisdiction would also be invested in a Supreme Court by s 4(1) of the Cross-Vesting Act.

15                  The limitation set out in s 485(3) is a limitation of power not of jurisdiction. The powers the Court may exercise on the hearing of an application for review of a “judicially-reviewable decision” made under s 478 of the Act are set out in s 481. The orders that may be made thereunder are similar in effect to those that may be made in a matter in which judicial review is sought by the grant of the remedies of writs of prohibition, certiorari or mandamus, or orders of injunction or declaration. The jurisdiction conferred upon the Court by s 39B(1) of the Judiciary Act is of the same nature as that exercisable by the High Court, albeit subject to defeasance unlike that conferred upon the High Court by s 75(v) of the Constitution. Section 485(3) does not affect the jurisdiction of the Court to hear matters in which writs of prohibition or mandamus, or an injunction, are sought but limits the powers that are exercisable under s 21 or s 23 of the Federal Court of Australia Act 1976 (Cth), or the common law, to those described in s 481. (See: Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 per Mason CJ at 181; Re Refugee Review Tribunal; Ex parte Aala per Kirby J at [139], per Hayne J at [154]-[156]; “A” v Pelekanakis [1999] FCA 236 at [69]-[74].) The jurisdiction convened on the High Court by s 75(v) of the Constitution is a grant of jurisdiction that recognises the principles of general law according to which the jurisdiction to grant the remedies mentioned therein, or necessary or analogous remedies, is exercised. (See: DCT v Walter per Mason CJ at 178; Re Refugee Tribunal; Ex parte Aala per Gaudron and Gummow JJ at [13], per Kirby J at [144]-[149], per Hayne J at [155]-[156].)

16                  The terms of s 485(3) of the Act suggest that Parliament intended that the Court retain jurisdiction to deal with a matter remitted to the Court by the High Court under s 44(1) of the Judiciary Act in which a writ of prohibition or mandamus, or an injunction is sought against an officer of the Commonwealth. Section 485(1) states that the Court has no jurisdiction other than the jurisdiction “provided by this Part or by s 44 of the Judiciary Act 1903”. Section 44 of the Judiciary Act does not “provide” jurisdiction with respect to a matter remitted pursuant to s 44(1), under which a matter may be remitted only if the remittee court has jurisdiction with respect to the “subject-matter and the parties”. The “jurisdiction with respect to judicially-reviewable decisions” conferred upon the Court by s 486 of the Act is not limited to hearing and determining applications made under s 476 for review of such decisions. As set out in s 477, the Court has jurisdiction to deal with applications for orders in respect of the failure to make such a decision. Furthermore, subject to s 485(1), the Court has concurrent jurisdiction to review a “judicially-reviewable decision” by the grant of writs of prohibition or mandamus or by injunction. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [154]-[156].) It may be concluded that whilst the intention of Parliament reflected in s 485(1) is that the jurisdiction conferred upon the Court by s 39B(1) of the Judiciary Act is removed in respect of an application for judicial review by the grant of constitutional writs (see Re Refugee Review Tribunal; Ex parte Aala per Gaudron and Gummow JJ at [18]-[20], per Kirby J at [136]-[138], [143]) or an injunction, sought to be commenced in the Court in respect of a “judicially-reviewable decision”, the words “jurisdiction provided by this Part or by section 44 of the Judiciary Act” carry the implication that the Court has a jurisdiction in terms of that conferred by s 39B(1) when a matter before the High Court in which judicial review is sought is remitted to the Court by the High Court pursuant to s 44(1) of the Judiciary Act. In construing s 485(1), it is to be noted that a Supreme Court is invested with jurisdiction with respect to a matter involving a “judicially-reviewable decision” in which an injunction is sought against an officer of the Commonwealth and to that extent is a court to which a matter, or part thereof, may be remitted by the High Court under s 44(1).

17                  Section 44(3) of the Judiciary Act provides that where the High Court remits a matter under ss 44(2) or 44(2A), the remittee court has jurisdiction. A matter remitted under s 44(2) is one to which ss 38(a), (b), (c) or (d) applies, each being a matter in which the jurisdiction of the High Court is exclusive of that of a Supreme Court. Therefore, in respect of a matter remitted to a Supreme Court under s 44(2), it can be seen that s 44(3) is necessary to invest a Supreme Court with the jurisdiction that is otherwise denied. In respect of jurisdiction not already conferred upon this Court by other enactments in respect of matters to which ss 38(a), (b), (c) or (d) applies, s 44(3) fills any gap that may exist.

18                  A matter remitted under s 44(2A) may be remitted to this Court only. A matter to which the subsection applies is one within the original jurisdiction of the High Court as defined by s 75(iii) of the Constitution. It includes matters to which ss 38(c) and (d) of the Judiciary Act refer and, therefore, in those matters s 44(2) may apply in the alternative to s 44(2A). Section 44(3) ensures that in respect of a matter remitted under s 44(2A), the Federal Court has jurisdiction if jurisdiction has not been conferred by s 39B of the Judiciary Act or other statute.

19                  Although it has been contended that a matter to which s 75(v) of the Constitution refers is also a matter within s 75(iii) of the Constitution, a better view may be that s 75(iii) confers original jurisdiction on the High Court in matters involving causes of action by or against the Commonwealth, and agencies or emanations of the Commonwealth in whom such causes of action are vested, or against whom they lie, and s 75(v) confers additional jurisdiction in matters in which the grant of a remedy is necessary to restrain officers of the Commonwealth from exceeding federal power. (See: Bank of New South Wales v Commonwealth (1948) 76 CLR 1 per Dixon J at 362-363; DCT v Walter per Mason CJ at 178-179; Re Refugee Review Tribunal; Ex parte Aala per Hayne J at [154].) If, however, s 75(iii) does include a matter to which s 75(v) refers, then the Court would be “provided” with jurisdiction by s 44(3) of the Judiciary Act upon remittal under s 44(2A) of a matter in which the grant of a writ of prohibition or mandamus, or an injunction, is sought. Jurisdiction would be conferred upon the Court by operation of s 44(3) of the Judiciary Act and Pt 8 of the Act.

20                  In respect of a matter in which the grant of a constitutional writ or an injunction is sought, remitted to the Court by the High Court, s 485(3) does not control the principles of law according to which the jurisdiction conferred upon the Court is exercised by the grant of remedies of judicial review. If the remedies that may be granted to effect judicial review are restricted to those set out in s 481, that constraint does not affect the grounds or principles on which such orders may be made in exercise of the jurisdiction in a matter remitted under s 44 of the Judiciary Act. (See: DCT v Walter per Mason CJ at 178.)

21                  I turn now to the arguments submitted.

Notification

22                  It was submitted that Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 136 ALR 303 (per Jenkinson J at 303, per Beazley J at 317) provided authority for the conclusion that “notification” had to be in a language the applicant could understand. Certainly, in that case, their Honours were satisfied as to a question of fact that the applicants had been notified of the Tribunal’s decision when the terms of a letter addressed to the applicants had been interpreted to them in a Chinese dialect the applicants understood, but their Honours did not say that the proper construction of s 478(1)(b) required notification of the decision to be in writing in a language understood by the applicant or that such notification could not occur until the statutory notice had been so interpreted to the applicant. It was sufficient that an applicant become aware of the outcome of the application to the Tribunal. (See: Wang v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 717 at 720.) It was not necessary that the notice to the applicant from the Tribunal be in the Indonesian language nor was it necessary that the notice be interpreted to the applicant in Indonesian before “notification” could occur. (See: Nguyen v Refugee Review Tribunal (1997) 74 FCR 311; Oguzhan v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 285.)

23                  In the applicant’s case he understood by 23 February 2000 at the latest, that the Tribunal had “rejected” his application for a protection visa and, therefore, for the purpose of s 478(1)(b) the applicant was “notified of the decision” no later than that date.

24                  Counsel for the applicant, in reliance upon Wang,submitted that “notification” of the decision had been “frustrated” in that a principal purpose of the notice had been negated by the erroneous advice provided by an officer of the Minister’s Department on 23 February 2000. Wang does not assist the applicant in the circumstances the applicant seeks to rely upon. In Wang the act of notification was an oral communication by an officer of the relevant Tribunal of the Tribunal’s decision and that communication included an erroneous statement that the applicant had no right to seek review of that decision. Wang held that “notification” as required by the Act had not occurred by reason of the defect in the form of communication.

25                  In the instant case the applicant acknowledged that he received notification from the Tribunal on 15 February 2000 and that when he attended the office of the Minister’s Department on 23 February 2000 he was aware of the substance of the decision, namely that his application for a visa had been refused. Therefore, he had been “notified” of that decision by the Tribunal before he attended the office of the Minister’s Department.

26                  Whether on that day conduct by an officer of the Commonwealth occurred in respect of which the Court had jurisdiction if a proceeding were commenced in respect thereof is irrelevant to the issue of notification of a “judicially-reviewable decision”.

Estoppel

27                  The applicant submitted that when the applicant attended the office of the Minister’s Department on 23 February 2000 he received incorrect advice from an officer of that Department on his right to seek review of the Tribunal’s decision under the Act. The applicant claimed that he had been advised that he may “appeal” to the Minister.

28                  That is not an agreed fact but even if it were a fact found or agreed, it could not establish that the jurisdiction conferred upon the Court by s 486 had been enlivened to permit the Court to hear an application for an order for review made under s 476. (See: Wang at 722.)

29                  On appropriate facts it may be that conduct of an officer of the Commonwealth which causes a party to act to his or her detriment, and forego rights provided by the Act, may constitute a matter in respect of which the Court has jurisdiction under s 39B(1) of the Judiciary Act, being a separate controversy from that which constitutes the subject-matter of a “judicially-reviewable decision”. In such an event orders by way of injunction or declaration may be made if the exercise of a court’s discretion in that regard is necessary to prevent improper or unconscionable exercise of a statutory power that relies upon such conduct by an officer. (See: Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee (1945) 72 CLR 37.)

Invalidity of s 478(2)

30                  Section 478 sets out the steps required to commence an application under s 476 or s 477 of the Act. As required by ss 75, 76 and 77 of the Constitution, the jurisdiction conferred upon the Court is jurisdiction in a matter. As defined by the terms of the Act, the matter is the controversy arising out of the making of, or failure to make, a decision of the type defined in s 475(1). (See: Abebe v Commonwealth of Australia (1999) 197 CLR 510.) Read with s 486, s 478(1) would appear to do no more than any other limitation provision to which the common law would apply a construction consistent with fairness and basic commonsense. (See: Cartledge v E Jobling & Sons Ltd [1963] AC 758 per Lord Reid at 771-772.) Power to extend the time within which the application may be lodged, and the jurisdiction exercised, may be implied. (See: National Telephone Company Limited v His Majesty’s Postmaster-General [1913] AC 546 per Viscount Haldane LC at 552, per Lord Shaw at 557, per Lord Parker at 562.)

31                  In so far as s 478(2) directs the Court not to make such an order, it may appear that the subsection presupposes that such a discretion could be exercised by the Court under the jurisdiction conferred unless the Court were directed in the manner provided by the subsection. If the right granted by s 478(1) to bring an application to the Court and thereby engage the jurisdiction conferred upon the Court is a right limited by the time within which the application may be commenced, enlargement of that time would, in effect, be the creation of a new right and would be beyond the judicial power. The limitation of time for commencement would be not only a bar to the exercise of the right but a pre-condition to the existence of the right. (See: The Crown v McNeil (1922) 31 CLR 76; State of Western Australia v Wardley Australia Ltd (1991) 30 FCR 245 at 259; Rudolphy v Lightfoot (1999) 197 CLR 500; Patterson & James v Public Service Board of New South Wales [1984] 1 NSWLR 237.) As explained by Windeyer J in Australian Iron & Steel Limited v Hoogland (1962) 108 CLR 471 at 488:

“Statutory provisions imposing time limits on actions take various forms and have different purposes. Some are for preventing stale claims, some for establishing possessory titles, some for the protection of public authorities, some in aid of executors and administrators. Some are incidents of rights created by statutes. Some prevent actions being brought after, some before, a lapse of time. It may be that there is a distinction between Statutes of Limitation, properly so called, which operate to prevent the enforcement of rights of action independently existing, and limitation provisions annexed by a statute to a right newly created by it. In the latter case the limitation does not bar an existing cause of action. It imposes a condition which is of the essence of a new right. The distinction was adverted to in The Crown v McNeil; and in Maxwell v Murphy (1957) 96 CLR 261; and see Gregory v Torquay Corporation (1911) 2 KB 556 at 559 and Erskine v Adeane (1873) LR 8 Ch 756 at 760.”

32                  If s 478(1) has so conditioned the right created, then s 478(2) is otiose. If Parliament intended that the right created and defined in s 478(1) be so confined, it would have been a simple matter to use words appropriate for that purpose, namely to state that an application could “only be made” within the time specified in the subsection. (See: David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 per Gummow J at 276-277; Australasian Memory Pty Ltd v Brien (2000) 74 ALJR 991 at [22].)

33                  That Parliament may have intended that the exercise of the right be subject to strict control, would not permit the Court to reconstruct the provisions enacted by Parliament by including, by implication, words appropriate for achieving a legislative purpose within legislative power. However, if words used by Parliament provide alternative constructions, the construction that does not exceed the legislative power conferred upon the Parliament by the Constitution is to be applied. (See: Acts Interpretation Act 1901 (Cth), s 15A.)

34                  In determining the proper construction of s 478(1) it is to be borne in mind that the process of judicial review that Pt 8 (in which s 478 appears) seeks to cast in statutory form, is essential for maintenance of the rule of law, and a construction consonant with that norm is to be preferred:

“In matters of public law, the role of the ordinary courts is of high constitutional importance. It is a function of the judiciary to determine the lawfulness of the acts and decisions and orders of the Executive, tribunals and other officials exercising public functions, and to afford protection to the rights of the citizen. Legislation which deprives them of these powers is inimical to the principle of the rule or supremacy of law.”

(de Smith, Woolf and Jowell Judicial Review of Administrative Action 5^th ed 1995 at par 5.016)

35                  In addition, regard must be given to the fact that a Supreme Court has a like jurisdiction “with respect to judicially-reviewable decisions” that is not so confined, including, as it does, a concurrent original jurisdiction to provide judicial review by the remedies of injunction or declaratory order.

36                  Furthermore, it may be noted that “notified” as used in s 478(1)(b) has been given an expansive meaning and that if the deeming provisions in respect of “notification” set out in regs 4.40 and 5.03 of the Migration Regulations 1994 (Cth) are relied upon, and are valid, (see Li v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 219 at 228-229) the subsection has the capacity to work substantial injustice if construed as a conditional grant of jurisdiction. (See: Kumar v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 680.)

37                  Having regard to all of the foregoing, it may be said that if the question of construction had not been determined in this Court it may have been arguable that a proper construction of s 478(1) is that it does not condition the right granted therein to apply for judicial review and that s 478(2) purports to construct that circumstance by directing the Court as to the manner in which the judicial power conferred upon the Court by the Constitution is to be exercised upon an application being made to the Court pursuant to s 478(1). Such a direction would be beyond the legislative power conferred upon the Parliament by the Constitution and s 478(2) would be invalid. (See: Chu v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ at 36-37.)

38                  The question of construction of s 478(1), however, does not stand undetermined. A substantial line of authority now exists in this Court that s 478(1) creates a limited right and, therefore, that s 478(2) does not exceed legislative power. (See: Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269; Duwai v Minister for Immigration and Multicultural Affairs (1999) 59 ALD 191; Achrafi v Minister for Immigration and Multicultural Affairs (1997) 46 ALD 550; Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672.)

39                  Unless I am of the view that the statement of the law in those decisions is clearly wrong, they are to be followed. (See: Bank of Western Australia Ltd v FCT (1994) 55 FCR 233 per Lindgren J at 255.) Even if I were of the opinion that the alternative construction discussed above was preferable, that would not be a conclusion that the preceding decisions on the issue of construction were plainly wrong. It would say no more than a contrary view existed as to the proper construction of s 478(2).

40                  I am unable to say that the construction accepted in the preceding decisions is untenable. It follows that the application filed by the applicant in this matter was incompetent and has not attracted the jurisdiction of the Court.

41                  The objection to competency must be upheld and the application dismissed.

Associate:

Dated: