FEDERAL COURT OF AUSTRALIA

Van Deventer v Minister for Immigration & Multicultural Affairs

[2002] FCA 484

WILLIAM VAN DEVENTER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W482 OF 2001

CARR J

17 APRIL 2002  

PERTH

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The injunction granted on 30 November 2001 be discharged.

3.         The applicant pay the respondent’s costs including all reserved costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is a motion on notice by the respondent seeking orders that the principal application be dismissed, that an interlocutory injunction, granted on 30 November 2001, be discharged and that the applicant pay the respondent’s costs including reserved costs.  The respondent advances three bases for his motion.  The first is that the application is defective in that it seeks review of a decision of the Administrative Appeals Tribunal which did not occur.  Secondly, even if the applicant were to amend the application so that it became one to review the respondent’s decision to cancel the applicant’s visa, the Court, so the respondent contends, has no jurisdiction to hear the application because it was filed out of time and s 477(1) of the Migration Act 1958 (Cth) (“the Act”) prevents the Court from extending that time.  Thirdly, the respondent submits that the application discloses no reasonable cause of action, alternatively that it is frivolous or vexatious and an abuse of process. 

factual background

2                     The applicant, who is a citizen of the United States of America, was born in Thailand on 15 May 1975 and first arrived in Australia four months later.  At all material times he held a permanent residency visa.  On 2 May 2000 the applicant was convicted on two counts of indecent assault, for which he was sentenced to six months imprisonment on each count, to be served concurrently.  On the same date he was convicted on three counts of sexual penetration without consent.  On the first count he was sentenced to six years imprisonment.  On each of the second and third counts he was sentenced to two years imprisonment, each such sentence being concurrent.

3                     On 7 August 2001 the respondent made a decision under s 501(2) of the Migration Act.  His decision was expressed in these terms:

“(d)     I reasonably suspect that Mr William VANDEVENTER does not pass the character test and Mr William VANDEVENTER has not satisfied me that he passes the character test AND I have decided TO EXERCISE MY DISCRETION UNDER SUBSECTION 501(2) OF THE ACT TO CANCEL THE VISA, so I hereby cancel the visa.”

4                     Before the respondent made that decision, he gave notice to the applicant of his intention to consider doing so.  The applicant made submissions in response.

5                     The respondent has caused to be filed in support of his motion an affidavit of service of the papers relating to his decision to cancel the applicant’s visa.  That affidavit is uncontradicted.  When, on the first return date of this motion, I asked Mr V de Alwis, counsel for the applicant, on what date his client says he was given notice of the respondent’s decision, his reply was to the effect that he was unaware of the exact date of notification and that the onus rested on the respondent to prove his case. 

6                     I am prepared to infer, and do infer, from the affidavit, sworn by Mr Robert Dean Bailey an employee of the respondent on 25 March 2002, that on or about 13 August 2001 the respondent caused to be sent to the applicant, by registered post, certain documents in relation to that cancellation.  The documents were contained in a letter to the superintendent of the Bunbury Regional Prison in which the applicant was, at that time, serving his sentences.  In that envelope was, first, a letter addressed to the superintendent explaining that an attached notice was for his file in relation to the applicant and stating that the applicant’s visa had been cancelled under s 501(2) of the Act.  The letter also contained a request that the superintendent pass on an enclosed envelope containing the applicant’s copy of the notice.  The letter contained an envelope addressed to the applicant which in turn enclosed a letter dated 13 August 2001 addressed to him.  That letter (i.e. the one addressed to the applicant) among other things, notified the applicant that the respondent had, after considering the contents of the applicant’s file and exercising his discretion, decided to cancel the applicant’s visa pursuant to s 501(2) of the Act on the ground that the applicant did not pass the character test in s 501(6)(a) when read with s 501(7)(c) of the Act.  The envelope addressed to the applicant also contained a copy of the decision record which set out the reasons for the respondent’s decision, a notice under s 254 of the Act and a copy of s 254. 

7                     The application for judicial review was not filed in this Court until 2 November 2001. 

the statutory framework

8                     Section 501(2) of the Act relevantly provides that the respondent may cancel a visa if he reasonably suspects that a person does not pass the character test and that person does not satisfy the respondent that the person passes the character test. 

9                     Section 501G of the Act relevantly provides that if a decision is made under s 501(2) the respondent must give the person a written notice that sets out the decision, specifies the provision under which it was made, sets out the effect of that provision, and sets out the reasons for the decision.  Section 501G(3) provides that a notice under s 501G(1) must be given in the prescribed manner.  The manner of giving that notice is prescribed by Regulations 2.54 and 2.55. 

10                  Regulation 2.54 (in the circumstances relevant to this matter) relevantly provides that the notice to be given under s 501G(1) must either be served personally on the relevant person or posted to such person at the address found by the respondent’s Department or the person’s address last given to the respondent’s Department by that person.

11                  Regulation 2.55(3)(c)(i) relevantly required the respondent’s letter of 13 August 2001 to be despatched within three working days of its date by prepaid post to the applicant’s last residential address.  I am satisfied from the evidence before me that those requirements were complied with. 

12                  Regulation 2.55(7)(a) relevantly provides that the applicant is taken to have received that letter seven working days after its date i.e. on 22 August 2001. 

13                  Sections 475, 475A and 476 of the Act contain provisions relating to what are referred to as “privative clause decisions” – a term defined in s 474.  Section 477 relevantly provides that an application to this Court under s 39B of the Judiciary Act 1903 (Cth) for a writ of mandamus, prohibition or certiorari or for an injunction or declaration in respect of a privative clause decision in relation to which the jurisdiction of this Court is not excluded by s 476 must be made within 28 days of the applicant being notified of the decision.  Section 477(2) relevantly provides that this 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 s 477(1).

my reasoning 

14                  On the evidence as to service of the letter dated 13 August 2001 to the applicant which is before me in this matter, the application should have been filed in this Court no later than 19 September 2001.  I accept the respondent’s submission that there is no relevant difference between the provisions of s 478 as they were before 2 October 2001 and the relevant provisions of s 477 as in force on and since that date, so that the authorities relating to the former provision remain relevant.

15                  As French J observed, in Caritativo v Minister for Immigration and Multicultural Affairs [2001] FCA 1873 at [12] the test for striking out an application generally speaking is that it is manifestly untenable.  The circumstances in that application were relevantly very similar to the circumstances of the present application. 

16                  The present application is, in my opinion, manifestly untenable because it seeks review of an Administrative Appeals Tribunal decision which was never made.  There was never an application to that Tribunal. 

17                  Even if Part 8 of the Act, as it stood before the amendments which came into effect on 2 October 2001 were still in operation, it is now too late for the applicant to seek judicial review of the respondent’s decision.  It is quite clear from a line of fairly recent authorities that s 478 imposed (and its present analogue s 477 imposes) a time limit which is not procedural, but which goes to the jurisdiction of the Court.  The time limit cannot be extended.  The authorities include Nirmalan v Minister for Immigration and Multicultural Affairs [1998] FCA 672; Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269, Kucuk v Minister for Immigration and Multicultural Affairs [2001] FCA 535; Salehi v Minister for Immigration and Multicultural Affairs [2001] FCA 995 and Caritativo.

18                  I think that I should in these reasons refer to the following matters.  On 30 November 2001 the application came before me for a directions hearing and the hearing of an application for an interlocutory injunction to restrain the respondent from removing the applicant from Australia.  Mr de Alwis appeared for the applicant and indicated that he proposed to raise some Constitutional issues.  I made an order that the respondent file an affidavit exhibiting the papers relevant to the decision sought to be reviewed (on the basis that the decision was the one made on 7 August 2001).  That order was in paragraph 1 of the directions.  Paragraph 2 read as follows:

“2.    The applicant shall within 7 days of service of the affidavit referred to in paragraph 1 above file and serve an outline of his proposed submissions in relation to the matters of:

         (a)     the Constitutional validity of any relevant statutory provisions and;

         (b)     this Court’s jurisdiction to hear the matter.”

19                  The respondent filed his affidavit on 10 December 2001.

20                  The applicant did not file an outline of proposed submissions in relation to the matters referred to in paragraph 2 of the directions order either within 7 days of service of the respondent’s affidavit exhibiting the relevant documents or at all.  On 18 February 2002 the solicitors for the parties (including Mr de Alwis) were notified of the fact that the matter had been re-listed for a directions hearing on 15 March 2002. 

21                  On 15 March 2002 there was no appearance for the applicant.  Mr de Alwis had caused a message to be passed to the Court to the effect that, owing to illness, he would not be able to attend Court until later that day.  In view of my experience of having had at least one similar last-minute request from Mr de Alwis in another matter, I decided to proceed with the directions hearing, conscious of the fact that there should be no prejudice to the applicant.  The respondent indicated that he intended to file a notice of motion seeking the dismissal of the application.  I made orders by way of a timetable for the filing of such a notice of motion and affidavits in support and the like with a view to bringing the motion on for hearing as soon as possible after 5 April 2002.  The significance of that date is, as I understand it, that the applicant would from that date be eligible for release from prison, apart from any requirement that he be detained under the Act. 

22                  The respondent filed his motion, supporting affidavit and submissions on 25 March 2002. 

23                  The motion was made returnable on 9 April 2002.  Mr de Alwis appeared and tendered a draft of an unsworn affidavit to which he was the proposed deponent.  I found the draft difficult to understand, but it dealt with matters concerning Mr de Alwis’ health.  Mr de Alwis made submissions in opposition to the motion.  Some of those submissions were to the following effect.  Under many other Commonwealth Acts the Court has power to grant an extension of time.  The Migration Act, so it was submitted, was a discriminatory Act which discriminated against and targeted migrants and prospective migrants.  Mr de Alwis submitted that this was “not acceptable at all”.  He went further and submitted that s 477 of the Act was constitutionally invalid.  Mr de Alwis said that he would be submitting that Part 8 of the Act was “ultra vires the Constitution”.

24                  At that point, conscious of the provisions of s 78B of the Judiciary Act 1903 (Cth), I decided to adjourn the matter and made the following directions:

“1.    Applicant to file and serve written submissions by 16 April 2002 in opposition to the motion and in relation to the matters referred to in paragraph 2 of the directions made on 30 November 2001.

  2.    Motion adjourned to 4.15pm on 17 April 2002.

  3.    Costs of today’s adjournment reserved.” 

25                  The applicant has not complied with paragraph 1 of the directions made on 9 April 2002.  There was no appearance on his behalf today. 

26                  In all of the circumstances I do not think that s 78B of the Judiciary Act precludes the Court from disposing of this matter.  In short, I do not think that a Constitutional question has properly been raised – see the discussion in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 167 ALR 303 at 307-308.

27                  It is quite clear, in my view, that the application should be struck out and that the orders sought in the respondent’s motion should be made.

A/g Associate:

Dated:              22 April 2002