FEDERAL COURT OF AUSTRALIA

Keo v Minister for Immigration and Citizenship [2009] FCA 676

CONSTITUTIONAL LAW ‑ whether s 347(1) and s 348(1) of the Migration Act 1958 (Cth) and reg 4.10(1)(a) of the Migration Regulations 1994 (Cth) infringed the implied constitutional freedom of communication in respect of government and political matters – whether constitutional rights may be implied by reference to the concepts of representative democracy and the rule of law.

COSTS – whether litigation was public interest litigation.

Constitution Ch II, s 75(v)

Migration Act 1958 (Cth) ss 65, 33(2), 347, 347(1), 348(1), 477, 486A, 494B(4), 494C(4)

Migration Regulations 1994 (Cth) reg 4.10(1)(a)

Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651

Cunliffe v Commonwealth (1994) 182 CLR 272

Mulholland v Australian Electoral Commission (2004) 220 CLR 181

SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410

SZICV v Minister for Immigration and Citizenship (2007) 158 FCR 260

McGinty v Western Australia (1996) 186 CLR 140

Ruddock v Vadarlis (No 2) (2001) 115 FCR 229

Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975

Save the Ridge Inc v Commonwealth (2006) 230 ALR 411

LEAKHENA KEO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 1869 of 2008

SIOPIS J

22 JUNE 2009

PERTH

THE COURT ORDERS THAT:

1.         The appeal is dismissed.

2.         The appellant is to pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          The appellant is a citizen of Cambodia.  She applied to the Australian Embassy in Phnom Penh for a Partner (Migrant) (Class BC) visa under s 65 of the Migration Act 1958 (Cth) (the Act) on 4 May 2004.  She was sponsored by Mr Asna Yi, an Australian citizen.  The application was accompanied by a statutory declaration from Mr Yi, who declared that he married the appellant in Cambodia on 17 April 2004.

2                          The appellant and her sponsor attended an interview at the Australian Embassy on 6 September 2004.  On 9 September 2004, the appellant was granted a Subclass UF 309 Spouse Provisional (Temporary) visa.  She arrived in Australia on 11 September 2004.  On 18 December 2006, a delegate of the Minister refused the appellant’s application for a Partner (Migrant) visa.  The delegate notified the appellant by a letter sent by registered mail on 19 December 2006.  The appellant did not actually receive the notification of the decision until 15 January 2007.

THE TRIBUNAL

3                          The appellant applied to the Migration Review Tribunal (the Tribunal) for review of the delegate’s decision on 24 January 2007.  The Tribunal found that the decision of the delegate was an MRT-reviewable decision under s 338(2) of the Act, but that it did not have the jurisdiction to conduct the review because the appellant’s application for review was received outside the time limits prescribed by the Act.

4                          Section 348(1) of the Act provides:

(1)        Subject to subsection (2), if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.

5                          Section 347(1) of the Act relevantly provides:

(1)        An application for review of an MRT-reviewable decision must:

(a)        be made in the approved form; and

(b)        be given to the Tribunal within the prescribed period, being a period ending not later than:

(i)         if the MRT-reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A) – 28 days after the notification of the decision.

6                          Regulation 4.10(1)(a) of the Migration Regulations 1994 (Cth) (the Regulations) provides:

(1)        For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT-reviewable decision must be given to the Tribunal:

(a)        if the MRT-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received.

7                          Section 494C(4) of the Act provides:

If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

(a)        if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or

(b)        in any other case – 21 days after the date of the document.

8                          The Tribunal found that the delegate’s decision notification letter was dated 18 December 2006 and was sent by prepaid registered mail on 19 December 2006 from a place in Australia to the appellant’s Canley Heights address in Australia provided to the Minister for the purpose of receiving documents.  The Tribunal was satisfied that this met the requirements of s 494B(4) of the Act.  Accordingly, the Tribunal found that, pursuant to s 494C(4), the appellant was taken to have received the notification of the decision on 29 December 2006, being seven working days from the date of the notice, even though the notice was not received by the appellant until 15 January 2007.

9                          The Tribunal found that the fact that the appellant did not actually sign for and receive the letter until 15 January 2007 was irrelevant to the operation of the deeming provision under s 494C(4) of the Act.

10                        The Tribunal concluded that as the application for review was received by the Tribunal outside the mandatory time limit it was not a valid application and, therefore, the Tribunal did not have the jurisdiction to review the delegate’s decision.

THE FEDERAL MAGISTRATES COURT

11                        In her amended application for judicial review in the Federal Magistrates Court, the appellant contended that the Tribunal’s decision was attended with jurisdictional error.  The appellant contended that s 347(1)(b) and s 348(1) of the Act and reg 4.10(1)(a) of the Regulations were invalid on the basis that they impermissibly infringed the implied right to freedom of communication on government or political matters; impermissibly infringed a right of potential applicants for review to the Tribunal which is implied in the system of government for which Ch II of the Constitution provides; and impermissibly infringed the right of potential applicants for review which is implied in the system of government for which the Constitution provides or which is implied in the principle of the rule of law underlying the Constitution and which permeates the fabric of the Constitution.

12                        The Federal Magistrate found that s 347 of the Act did not have the effect of preventing or controlling communication on political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides.

13                        The Federal Magistrate was also not satisfied that reg 4.10(1)(a) of the Regulations was invalid as s 347 of the Act envisaged the prescription, by regulation, of a period of time, that may be 28 days or less.

14                        The Federal Magistrate also set out in his reasons a passage from the joint judgment of the High Court in the case of Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 (Bodruddaza).  This passage describes the underlying facts in Bodruddaza, which are similar to the facts in this case.  In that passage of the joint judgment reference is made to s 347(1)(b) of the Act and reg 4.10(1)(a) of the Regulations without comment.

15                        Having referred to that passage of the joint judgment in Bodruddaza, the Federal Magistrate went on to observe that as the High Court had considered an essentially similar situation in Bodruddaza and had made no adverse comment on the validity of either s 347 or reg 4.10, neither should the Federal Magistrates Court.

THE APPEAL

16                        On 3 December 2008, the appellant filed a notice of appeal which set out 13 grounds of appeal.  They may be summarised as follows:

(a)        The Federal Magistrate erred in failing to hold that s 347(1)(b)(i) and s 348(1) of the Act and reg 4.10(1)(a) of the Regulations were invalid, jointly and severally, by reason that they impermissibly infringed the implied constitutional right of freedom of communication on government or political matters.  (Ground 1)

(b)        The Federal Magistrate erred in concluding that in Bodruddaza the High Court considered an essentially similar situation and made no adverse comment on the invalidity of either s 347 of the Act or reg 4.10 of the Regulations and that, accordingly, neither should the Federal Magistrates Court.  (Ground 2)

(c)        The Federal Magistrate erred in failing to hold that aspects of the ratio decidendi and observations made by the High Court in Bodruddaza were relevant, by analogy or by parity of reasoning, to the issues raised by the appellant before the Federal Magistrates Court, and were favourable to the appellant.  (Ground 3)

(d)        The Federal Magistrate erred in failing to hold that s 347(1)(b)(i) and s 348(1) of the Act and reg 4.10(1)(a) of the Regulations were invalid, jointly and severally, by impermissibly infringing:

(1)        an implied constitutional right of potential appellants for review to the Tribunal implied in the system of government for which Ch II of the Constitution provides to have a reasonable time after notice of a decision refusing to grant a visa in which to make an application for review to the Tribunal; and

(2)        an implied correlative requirement of the system of government to the same effect.  (Grounds 4, 5 and 6)

(e)        The Federal Magistrate erred in failing to hold that there is a right of potential applicants for review to the Tribunal which is implied in the system of government for which the Constitution provides, or which is implied in the rule of law underlying and permeating the Constitution, to have a reasonable period of time after a notice of decision refusing the grant of a visa in which to make an application for review to the Tribunal.  (Ground 7)

(f)         The Federal Magistrate erred by failing to take relevant considerations into account and/or taking irrelevant considerations into account. (Grounds 8 and 9)

(g)        The Federal Magistrate erred in failing to hold that the Tribunal had not correctly understood the law and had not correctly applied the law to the facts, and in not declaring that the Tribunal had fallen into jurisdictional error.  (Grounds 10, 11 and 12).

(h)        The Federal Magistrate erred in the exercise of his discretion in awarding costs to be paid by the appellant.  (Ground 13)

Ground 1

17                        In support of ground 1 of the appeal, the appellant contended that there was an implied right to freedom of communication on government and political matters which extended to communication with government authorities in the course of, or for the purpose of, the administration of an Act according to its terms - which, said the appellant, included communication with the Tribunal and making an application for review to the Tribunal.

18                        The appellant relied particularly on the following observations made by Mason CJ in Cunliffe v Commonwealth (1994) 182 CLR 272 at 298-299 (Cunliffe) in support of this contention:

Notwithstanding the variations in these descriptions of the implication, they are inconsistent with the Commonwealth’s submission that the implication only precludes legislative restrictions upon communications for the purposes of the political processes in a representative democracy.  That submission, which asserts that the freedom does not extend to communications with government authorities or other persons in the course of, or for the purposes of, the administration of an Act according to its terms, takes a too narrow view of the part which freedom of communication plays in the workings of representative democracy and government.  That freedom necessarily extends to the workings of the courts and tribunals which administer and enforce the laws of this country.  The provision of advice and information, particularly by lawyers, to, and the receipt of that advice and information by, aliens in relation to matters and issues arising under the Act falls clearly within the potential scope of the freedom.  Non‑citizens who are actually present within this country, like citizens, are entitled to the protection afforded by the Constitution and the laws of Australia.  It follows that non‑citizens actually within this country are entitled to invoke the implied freedom of communication, particularly when they are exercising that freedom for the purpose, or in the course, of establishing their status as entrants and refugees or asserting a claim against government or seeking the protection of government.  And that is precisely what aliens are doing when they receive legal advice, obtain representation and procure the making of representations in connexion with entry applications, applications for refugee status, the refusal of such applications and consequential review proceedings and court proceedings.  In essence, the advice and services sought and received relate to the rights and status of an alien under a law of the Commonwealth.  The provision by citizens of advice and services to non‑citizens on such matters falls clearly within the freedom.  (Footnote omitted.)

19                        The appellant submitted that the impugned provisions of the Act and Regulations impermissibly infringe the implied freedom because, by the operation of the time limit imposed, the provisions prevent her from having an adequate opportunity to communicate with the Tribunal about her visa application.  The appellant submitted that the restriction imposed by the impugned provisions was not reasonably appropriate and adapted to meet a legitimate purpose and, therefore, the Court should find that the provisions are invalid.  In support of that contention, the appellant said that the time limits imposed by the legislation restrict a person’s opportunity to arrange to take advice from an advisor, receive advice from an advisor, prepare an application for review to the Tribunal, sign an application for review to the Tribunal and give the application for review to the Tribunal.  In practice, the operation of the provisions may reduce the time to do all this to just four days.

20                        In my view, the observations of Mason CJ do not assist the appellant.  First, Mason CJ was in the minority in Cunliffe and the judges in the majority did not adopt the observations of Mason CJ relied upon by the appellant.

21                        Further, Mason CJ did not state that the implied freedom would be infringed by the legislative imposition of time limits for the bringing of review applications to the Tribunal.  The Cunliffe case was concerned with legislation which sought to regulate a liberty, namely, the provision of advice on immigration matters, which was previously unregulated.  The Cunliffe case was not concerned with the question of whether a statute providing for the terms on which an unsuccessful visa applicant would be entitled to a merits review, constituted a challenge to the implied freedom.  The provisions of the Act and the Regulations which are impugned by the appellant are part of the same legislative scheme which creates and defines the scope of, a statutory benefit, namely, the merits review.  As counsel for the first respondent said, the impugned provisions of the Act are facilitative of an unsuccessful visa applicant’s entitlement to a merits review and not destructive to it.

22                        In Mulholland v Australian Electoral Commission (2004) 220 CLR 181 (Mulholland), McHugh J observed at 223-224:

Because the DLP has no right to make communications on political matters by means of the ballot paper other than what the Act gives, Mr Mulholland’s claim that the Act burdens the DLP’s freedom of political communication fails.  Proof of a burden on the implied constitutional freedom requires proof that the challenged law burdens a freedom that exists independently of that law.  As I pointed out in Levy:

The freedom protected by the Constitution is not, however, a freedom to communicate.  It is a freedom from laws that effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution.  Unlike the Constitution of the United States, our Constitution does not create rights of communication.  It gives immunity from the operation of laws that inhibit a right or privilege to communicate political and government matters.  But, as Lange shows, that right or privilege must exist under the general law.  (Original emphasis).  (Footnote omitted.)

23                        In my view, these observations are apposite to the appellant’s contention.  It follows that the impugned provisions cannot be said to infringe the implied constitutional freedom of communication upon government and political matters.

24                        It follows that, in my view, the Federal Magistrate did not err in rejecting the appellant’s contention that the impugned provisions were invalid because they infringed the implied freedom of communication in respect of political and government matters.  Ground 1 of the appeal is dismissed.

Grounds 2 and 3

25                        Grounds of appeal 2 and 3 relate to the Federal Magistrate’s findings regarding Bodruddaza.  In Bodruddaza, the High Court considered the constitutional validity of s 486A of the Act.  That section imposed a time limit within which a party could apply for relief under s 75(v) of the Constitution in respect of a migration decision.  The High Court held that s 486A of the Act was invalid because it limited the exercise of the constitutional remedy in a manner which was inconsistent with the place of that provision in the Constitution.  The High Court, in the joint judgment, observed at 672, at [58] that the time limit subverted the constitutional purpose of s 75(v) of the Constitution.

26                        In my view, ground 2 of the appellant’s grounds of appeal misconceives the observations made by the Federal Magistrate.  The Federal Magistrate’s comments are made in passing.  The Federal Magistrate is not thereby saying the High Court decisively dealt with the question of the validity of the impugned provisions as the appellant’s ground of appeal appears to assume.  In any event, there is no utility in ground 2 of the appeal standing alone because it does not contend for an alternative finding which would assist the appellant.  The alternative finding contended for, which is that the reasoning in Bodruddaza supports the appellant’s case, is found in ground 3.  Grounds 2 and 3 must, therefore, be read together.

27                        The appellant is correct in her contention that the validity of the impugned provisions of the Act and Regulations was never in issue in Bodruddaza and that, therefore, the High Court did not consider the validity of those provisions in that case.  However, for the reasons set out below, the appellant’s contention that Bodruddaza supports her contention that the impugned provisions are invalid, is not to be accepted.

28                        The appellant in the case of SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 (SZAJB), contended that by reason of the decision in Bodruddaza, s 477 of the Act was invalid.  Section 477 of the Act imposed a time limit for the bringing of an application for judicial review of a migration decision in the Federal Magistrates Court in terms similar to those of s 486A.  French J (as he then was) (with whom Tracey J agreed) rejected the appellant’s contention and held that the decision in Bodruddaza did not require the Court to find that s 477 of the Act was invalid.  At 421, at [32], French J observed:

A point of immediate difference between the position with respect to s 477 and that with respect to s 486A is that s 477 operates upon a jurisdiction defined by statute pursuant to Ch III of the Constitution.  Section 486A operated directly upon the jurisdiction conferred upon the High Court by operation of s 75(v) of the Constitution.  The considerations which underpinned the High Court’s finding that s 486A was invalid do not apply to s 477.

29                        French J went on to approve the observations of Buchanan J in SZICV v Minister for Immigration and Citizenship (2007) 158 FCR 260, to the effect that it was a proper exercise of legislative power by the Parliament to impose limitations on the jurisdiction in the Federal Magistrates Court, but that circumstance was to be distinguished from Parliament seeking to limit the jurisdiction of the High Court in respect of the constitutional remedy under s 75(v) of the Constitution.

30                        In my view, the reasoning of the Full Court in SZAJB undermines the appellant’s submission that the ratio decidendi and observations of the High Court in Bodruddaza support her contention that the impugned provisions are invalid.  It follows that grounds 2 and 3 of the appellant’s grounds of appeal are dismissed.

Grounds 4, 5, 6 and 7

31                        The appellant did not refer to any authority which supports the existence of the implied rights contended for in grounds 4, 5, 6 and 7.  The appellant contended that such rights existed by analogy with the High Court’s recognition of the existence of the implied freedom of communication on political and government matters.  However, this contention misapprehends the effect of the implied freedom.  As McHugh J observes in the passage from Mulholland referred to at [22] above, the implied freedom does not confer rights but provides an immunity from the operation of laws that inhibit a right or privilege to communicate about political and government matters.  Those grounds of appeal are dismissed.

32                        Further, the reliance by the appellant upon concepts such as representative and responsible government and the rule of law, said to underlie the Constitution, as sources for the implication of the rights contended for is contrary to the approach taken by the majority of the High Court to the interpretation of the Constitution in McGinty v State of Western Australia (1996) 186 CLR 140 (see Brennan CJ at 169‑170, Dawson J at 184, McHugh J at 236 and Gummow J at 284).  The following observations of Brennan CJ at 170 are illustrative of the approach of the majority:

The principle of “representative democracy” can be given the status of a constitutional imperative, but only in so far as the meaning and content of that principle are implied in the text and structure of the Constitution.  (Footnote omitted.)

33                        In any event, insofar as the appellant contends that the presence in the Constitution of a power in the High Court under s 75(v) to engage in judicial review of executive action is an emanation of the rule of law as an underlying source of the Constitution, this contention does not assist the appellant because the impugned provisions, on the appellant’s argument, impermissibly limit the right to invoke not a judicial review, but a merits review.

Grounds 8, 9, 10, 11 and 12

34                        Each of grounds 8, 9, 10, 11 and 12 depends upon the appellant’s contentions in relation to the preceding grounds of appeal being accepted.  As these contentions have failed it follows that these grounds of appeal are also dismissed.

Ground 13

35                        The appellant contended that the Federal Magistrate erred in ordering that the appellant pay the costs of the application for judicial review.  The appellant contended the Federal Magistrate should have treated the case as “public interest litigation” and, should have, accordingly, made no order as to costs.

36                        It is the case that the Court may in the exercise of its discretion depart from the usual order for costs because of the public interest element in the litigation in question.  The case of Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 (Ruddock) is such an example.  However, as the Full Court in Ruddock said at 242, at [29], that case was a “most unusual case”.  Among the special circumstances which combined to make that case a “most unusual case” was the fact that the claim was brought on behalf of a number of persons, that the case involved the alleged deprivation of the liberty of individuals, and that the case involved difficult and important questions of law on which there was a divergence of judicial opinion and that the case also involved Australia’s obligations under international law.

37                        In this case, the appellant contended that by reason of having raised constitutional arguments, the case had potentially wide ranging consequences, and, therefore, the Federal Magistrate should have treated the case as “public interest litigation” and made costs orders accordingly.  In my view, the mere fact that a party has raised constitutional arguments will not result in the litigation being treated as “public interest litigation”.  It is only one element to be weighed in assessing whether to depart from the usual order for costs.  As the Full Court has said, many cases in common law jurisdictions have wider implications for persons other than the parties to the litigation (Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 at [13]; Save the Ridge Inc v Commonwealth (2006) 230 ALR 411 at 415).

38                        A substantial factor in considering the weight to be given to the fact that the appellant raised constitutional arguments would be the merit or otherwise of the arguments raised.  In this case, the constitutional arguments raised by the appellant had little prospect of success.  In my view, therefore, little weight can be placed upon the fact that the appellant raised constitutional arguments.  Further, I also take into account the fact that this case did not involve any question of the deprivation of the liberty of an individual and that the case was not brought on behalf of anyone other than the appellant herself.  In my view, it was for the reasons set out above, open to the Federal Magistrate to have made the costs order which he made.  I, accordingly, dismiss ground 13 of the appeal.

39                        The appeal is dismissed.  For the reasons given at [37]-[38] above, the appellant is to pay the first respondent’s costs of the appeal.

Associate:

Dated:         22 June 2009