FEDERAL COURT OF AUSTRALIA

Ngu v Minister for Immigration & Multicultural Affairs [2002] FCA 998

MIGRATION – deportation – whether application seeking review of decision of Administrative Appeals Tribunal affirming deportation order is competent – application filed on 2 November 2001 – whether Tribunal decision a “privative clause decision” – whether preclusion of appeal invalid for retrospectivity – whether preclusion of appeal beyond competence of Commonwealth Parliament – whether preclusion of appeal contrary to international conventions

The Constitution s 51

Acts Interpretation Act 1901 (Cth) ss 8, 8(c)

Administrative Appeals Tribunal Act 1975(Cth) s 44

Judiciary Act 1906 (Cth) s 39B, 78B

Migration Act 1958 (Cth) ss 200, 201, 474(2), 474(3), 474(4) and (5), 475A, 477(1), 477(2), 478, 483

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Sch 1 item 8(2), 8(3)

Migration Reform Act 1992 (Cth) s 39

Mezbur v Minister for Immigration & Multicultural Affairs [2002] FCA 165 considered

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

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 referred to

Tuitupou v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 361 referred to

R v Kidman (1915) 20 CLR 425 referred to

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

Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 476 undisturbed on appeal at [2001] FCA 1884 referred to

Yao v Minister for Immigration & Multicultural Affairs (1996) 69 FCR 583 followed

Mahboob v Minister for Immigration & Ethnic Affairs (No 2) (1996) 65 FCR 248 referred to

Abidin v Minister for Immigration & Multicultural Affairs [2001] FCA 842 followed

Abidin v Minister for Immigration & Multicultural Affairs [2002] FCAFC 54 followed

Rahman v Minister for Immigration & Multicultural Affairs [2002] FCA 83 followed

Oguzhan v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 285 followed

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 followed

HUNG THE NGU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 483 of 2001

RD NICHOLSON J

13 AUGUST 2002

PERTH

THE COURT ORDERS THAT:

1.                  The respondent’s notice of objection to competency be allowed.

2.                  The application be dismissed.

3.                  The applicant pay the respondent’s costs on the application and the notice of objection to competency.

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

REASONS FOR JUDGMENT

1                     A notice of objection to competency is brought on behalf of the respondent in respect of an application by the applicant for an order of review.  The applicant seeks to have such an order made in respect of the decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 11 August 1999.  That decision affirmed a decision made on 21 June 1998 by a delegate of the respondent to deport the applicant from Australia pursuant to the powers conferred by s 200 and s 201 of the Migration Act 1958 (Cth) (“the Act”).  The application seeks to have the decision of the Tribunal set aside.

Background circumstances

2                     The applicant was born on 11 January 1974 and is a citizen of Vietnam.  He arrived in Australia on 10 June 1992 as a dependent of his mother who was granted approval to come to Australia to marry.  He was granted permanent resident status on 21 July 1992. 

3                     On 25 October 1996, after trial in the Supreme Court of Western Australia, the applicant was convicted of two counts of unlawful wounding with intent and one count of unlawfully doing grievous bodily harm.  He was sentenced to a total of eight years imprisonment with eligibility for parole. 

4                     His application to this Court was not filed until 2 November 2001.  As stated it related to the decision of the Tribunal given on 11 August 1999. 

Ground of objection

5                     The basis of the objection to competency is that the application for review of the decision was not made to the Court within 28 days of the notification of the decision as required by s 477(1) of the Act.  That section provides that an application to the Federal Court under s 39B of the Judiciary Act 1906 (Cth) in respect of a “privative clause decision” must be made to the court within 28 days of the notification of the decision.  Section 477(2) of the Act provides that the court must not make an order allowing or which has the effect of allowing an applicant to lodge an application referred to in subs (1) outside the period specified in that subsection. 

6                     The expression “privative clause decision” is defined in s 474(2) of the Act.  It means “a decision of an administrative character made, or proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)”.  Section 474(3) provides that a reference to a decision includes a reference to “(i)  a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act”.  There is no relevant application here of the exclusions in subss (4) or (5) of s 474. 

7                     Those provisions of the Act were introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (“Amending Act”).  Schedule 1, item 8(2) of that Amending Act provides, amongst other things, that the Act as amended applies in respect of judicial review of a decision under the Act if the decision was made before the commencement of the Schedule and as at that commencement an application for judicial review of the decision had not been lodged.  The Schedule commenced on 2 October 2001. 

8                     There is evidence that the applicant was notified of the decision of the Tribunal some time prior to a letter sent to him dated 21 June 2000.  Therefore, in accordance with the requirements of s 477(1) the application to the Court ought to have been made within 28 days of that notification.

9                     It is submitted for the respondent that it follows from the fact the application was not lodged prior to 2 October 2001, the Act as amended applies to it. 

10                  It is also submitted for the respondent that pursuant to s 477(2) the Court cannot allow the applicant to lodge an application outside the time limited by s 477(1).  Accordingly, it is submitted the application is incompetent and must be dismissed.

11                  Furthermore, reliance is placed on the fact that the Court does not have any jurisdiction with respect to the decision of the Tribunal other than that under s 39B of the Judiciary Act:  see s 475A and s 483 of the Act.

12                  These submissions are supported by reference to Mezbur v Minister for Immigration & Multicultural Affairs [2002] FCA 165.  There Whitlam J found that a decision of an Administrative Appeals Tribunal made on 26 October 2001 affirming a decision of a delegate of the respondent made on 15 December 1999 to order the deportation of Mr Mezbur was a “privative clause decision”.  In the absence of any of the factors described in Deputy Commissioner of Taxation v Richard Walter Pty Limited (1995) 183 CLR 168 at 210 – 211 per Deane and Gaudron JJ by way of reference to R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 610, he held the Amending Act would take effect in relation to the decision.  The matters referred to in Hickman’s case are that the decision is a bona fide attempt to exercise power; it relates to the subject matter of the legislation and it is reasonably capable of reference to the power given to the body.  There were no circumstances in Mezbur’s case giving rise to the application of any of those exceptions. 

Submissions for applicant

Other applications

13                  In written submissions it was first argued for the applicant that there were circumstances in which he had made an application for citizenship.  I accept the submissions for the respondent that this submission is irrelevant and in any event there is no evidence before the Court that the applicant made such an application which was refused.  Additional submissions concerning applications which the applicant could make to the Court about the supposed refusal are equally irrelevant. 

Retrospectivity

14                  Then it is submitted for the applicant that the provisions of the Amending Act cannot apply retrospectively to the applicant.  The effect of item 8(2) of the Sch 1 has earlier been referred to.  Item 8(3) of the same Schedule defines an application for judicial review, for the purposes of subitem (1), to include an application for review of a decision under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”).  As has been seen, Sch 1 to the Amending Act commenced on 2 October 2001.  As the application to the Court made by the applicant was not lodged prior to that date, the respondent submits the Act as amended applies to it. 

15                  The respondent contends it is not beyond the competence of the Commonwealth Parliament to enact laws which retrospectively affect individuals:  see Tuitupou v Minister for Immigration & Multicultural Affairs (2000) 60 ALD 361 at [10] per Carr, Sackville and RD Nicholson JJ, R v Kidman (1915) 20 CLR 425 and Polyukhovich v The Commonwealth (1991) 172 CLR 501 per Mason CJ at 534, 538, 539; Dawson J at 642 and 644; McHugh at 715.  It is said the effect of the enactment of s 474 of the Act and other amendments made by the Amending Act removed any right which the applicant may have had prior to the commencement of the amendments to apply under s 44 of the AAT Act to the Court for an extension of time within which to appeal against the decision of the Tribunal made on 11 August 1999. 

16                  Furthermore, it is contended for the respondent that as the meaning and effect of Sch 1, item 8(2) of the Amending Act is clear, there is no possibility that s 8 of the Acts Interpretation Act 1901 (Cth) could apply to allow the applicant to make a valid application for an extension of time under s 44 of the AAT Act notwithstanding the Amending Act:  Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 476 undisturbed on appeal at [2001] FCA 1884; Yao v Minister for Immigration & Multicultural Affairs (1996) 69 FCR 583.

17                  Section 8 of the Acts Interpretation Act relevantly provides that where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not “(c)  affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed”.  In Yao it was recognised that there can be a contention that s 8(c) preserves to an applicant the benefit of the whole range of pre-repeal avenues of review so long as the applicant has set the review process in train by making an initial application:  at 590 per Black CJ and Sundberg J.  Their Honours assumed that to be arguable but held in the circumstances there pertaining, a contrary intention appeared in s 39 of the Migration Reform Act 1992 (Cth).  That section provided that the provisions of the Act as amended “(including provisions relating to review of decisions)” applied.  The parenthetical words were the foundation of the view which their Honours formed that there was a contrary intention expressed:  cf Mahboob v Minister for Immigration & Ethnic Affairs (No 2) (1996) 65 FCR 248.

18                  In the Amending Act it is provided in s 8(1):

“8(1)   If an application for judicial review of a decision under the Migration Act 1958 is lodged before the commencement of this Schedule, the Migration Act 1958, the Administration Appeals Tribunal Act 1975 and the Administrative Decisions (Judicial Review) Act 1977, as in force immediately before that commencement, apply in respect of the application, and in respect of the review, as if this Schedule had not been enacted.”

That contains the reference to the rights of review.  It is indistinguishable from the section which was at the foundation of the reasoning of the majority in Yao.  Consequently I am bound to hold s 8(1) of the Amending Act provides a contrary intention for the purpose of s 8(1)(c) of the Acts Interpretation Act.  The argument for the applicant on retrospectively cannot therefore succeed.

Power to enact

19                  Then it is submitted for the applicant that the provisions of the Amending Act are bad in law because the contents do not satisfy the requirement of being a law for the peace, order and good government of the Commonwealth as required by s 51 of the Constitution.  The argument is raised despite decisions, mentioned below, to the contrary.  Nevertheless the question arises whether notice was required to be given to the Attorney-General of the Commonwealth and the States pursuant to s 78B of the Judiciary Act 1906 (Cth).  In my opinion it was necessary that be done because the obligation to deliver the notice arises where the matter “involves a matter arising under the Constitution or involving its interpretation”.  Directions were made to that end.  The applicant’s then solicitor failed to give such notice as directed.  On 16 July 2002 the solicitor for the respondent caused the notice of constitutional matter to be filed at the Court and copies sent to the applicant’s solicitor and the Commonwealth, State and Territory Attorneys-General.  Responses were received from all Attorneys indicating none wished to intervene, therefore it is appropriate for the Court to now proceed.

20                  As explained by Dawson J in Polyukhovich at 636, it is, save possibly for quite extraordinary circumstances, for the Commonwealth Parliament alone to judge whether legislation which otherwise falls within power is for the peace, order and good government of the Commonwealth.  The former s 478 of the Act, which is in substantially similar form to the current s 477 with respect to the incapacity of the Court to extend a time limit, was held to be constitutionally valid in Abidin v Minister for Immigration & Multicultural Affairs [2001] FCA 842 undisturbed on appeal in Abidin v Minister for Immigration & Multicultural Affairs [2002] FCAFC 54; Rahman v Minister for Immigration & Multicultural Affairs [2002] FCA 83 and Oguzhan v Minister for Immigration & Multicultural Affairs (2000) 99 FCR 285.  There is no basis upon which the applicant’s contention could succeed.

International Conventions

21                  Next it is submitted for the applicant that the contents of the Act as amended are contrary to international conventions to which Australia is a signatory.  It is, however, “well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute”:  Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 per Mason CJ and Deane J at 286 – 287; Tuitupou at [14].  Moreover, even if it be assumed that sections of the Act are in conflict with the international conventions referred to by the applicant (which is not accepted), there is no reason why the Commonwealth cannot so legislate.

Merits

22                  Other issues raised relative to the merits of the decision of the respondent’s delegate are irrelevant to the notice of objection to competency. 

Conclusion

23                  There is nothing in the applicant’s submissions which places any doubt upon the respondent’s submission that the application is incompetent.  It is incompetent because any application to the Court for review of the decision of the Tribunal had to be made within 28 days of the applicant being notified of the decision of the Tribunal (s 477(1) of the Act).  The application was not made within time and pursuant to s 477(2) of the Act, the Court cannot allow the applicant to lodge an application outside the time limit specified in s 477(1) of the Act.  The application to the Court is incompetent and must be dismissed.

Associate:

Dated:              13 August 2002