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MIGRATION - time limit for lodging application for review - operation of s 478 of Migration Act 1958 - validity of s 487(2) of Migration Act 1958 - distinction between statutes of limitation and limitation provisions - whether new right created or condition placed on existing right

Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 5 (1

Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 5 (11 February 2002); [2002] FCA 83
Last Updated: 30 April 2002


Rahman v Minister for Immigration & Multicultural Affairs [2002] FCAFC 5
Rahman v Minister for Immigration & Multicultural Affairs [2002] FCA 83



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Rahman v Minister for Immigration & Multicultural Affairs [2002] FCA 83


MIGRATION - time limit for lodging application for review - operation of s 478 of Migration Act 1958 - validity of s 487(2) of Migration Act 1958 - distinction between statutes of limitation and limitation provisions - whether new right created or condition placed on existing right

Migration Act 1958 (Cth) s 478

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

National Telephone Company Ltd v Postmaster General [1913] AC 546 cited

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

Hockey v Yelland (1984) 157 CLR 124 cited

ABDULLAH aka ABDUL RAHMAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 245 OF 2000

HILL, TAMBERLIN & EMMETT JJ

11 FEBRUARY 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
W245 OF 2000



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ABDULLAH aka ABDUL RAHMAN

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
HILL, TAMBERLIN & EMMETT JJ

DATE OF ORDER:
11 FEBRUARY 2002

WHERE MADE:
PERTH



THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA


WESTERN AUSTRALIA DISTRICT REGISTRY
W245 OF 2000



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
ABDULLAH aka ABDUL RAHMAN

APPELLANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
HILL, TAMBERLIN & EMMETT JJ

DATE:
11 FEBRUARY 2002

PLACE:
PERTH




REASONS FOR JUDGMENT
THE COURT:

1 The appellant is an Indonesian citizen who arrived in Australia on 2 December 1997. He applied for a protection visa under the Migration Act 1958 (Cth) ("the Act") on 25 February 1998. On 26 June 1998, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), decided to refuse to grant a protection visa to the appellant. On 23 July 1998, the appellant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision.

2 On 5 February 1999 the Tribunal affirmed the delegate's decision not to grant a protection visa to the appellant. By letter dated 10 February 1999, the Tribunal informed the appellant of its decision and enclosed a copy of the Tribunal's decision and reasons for the decision. The appellant received that letter on 15 February 1999.

3 On 24 September 1999, the appellant lodged an application to the Federal Court seeking an order of review of the decision of the Tribunal. The Minister objected to the competency of the application on the basis that the Court had no jurisdiction because it was not lodged in accordance with of s 478(1)(b) of the Act. That is to say, the application was not lodged with a registry of the Court within twenty-eight days of the appellant being notified of the Tribunal's decision.

4 The Minister's objection to the competency of the application was heard as a threshold question. On 14 December 2000, a judge of the Court determined that the objection to competency must be upheld and ordered that the application be dismissed with costs. The appellant now appeals to the Full Court from the orders made on 14 December 2000.

STATUTORY FRAMEWORK

5 Section 475(1) of the Act provides that decisions of the Tribunal are judicially reviewable decisions. Under s 476(1) of the Act, an application may be made to the Federal Court for review of a judicially reviewable decision on any one or more of the grounds set out in that section.

6 However, s 485 of the Act limits the jurisdiction of the Federal Court in relation to judicially reviewable decisions. Section 485 is relevantly in the following terms:

" (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), 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."

Under s 486 of the Act, the Federal Court has exclusive jurisdiction with respect to judicially reviewable decisions, save for the jurisdiction of the High Court under s 75 of the Constitution.

7 The critical provision in this appeal is s 478 of the Act. Section 478 provides as follows:

"
;478 Application for review by Federal Court
(1) An application under section 476 or 477 must:

(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976 ; and

(b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

(2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)."


DECISION OF THE PRIMARY JUDGE

8 The primary judge, after setting out the relevant factual background and the relevant provisions of the Act, noted a submission on behalf of the appellant that s 478(2) was beyond legislative power and was invalid. His Honour also noted contentions on behalf of the appellant that:

* the proper construction of s 478(1)(b) of the Act required notification of the decision to be in a language that an applicant understands;

* the Minister was estopped from contending that the appellant had not lodged an application within twenty-eight days of being notified of the decision, by reason of conduct of an officer of the Minister's department.

9 His Honour noted that the appellant had acknowledged that he had received notification from the Tribunal on 15 February 2000 and that he had been notified of the Tribunal's decision before he attended an office of the Minister's department on 23 February 2000. Accordingly, his Honour concluded that the conduct of the officer was irrelevant to the issue of notification of a judicially reviewable decision.

10 After referring to various matters touching on the construction of s 478 of the Act, and referring to a number of authorities, his Honour observed that an arguable construction of s 478(1) is that it purports to restrict judicial review by directing the Court as to the manner in which the judicial power conferred upon the Court by the Constitution is to be exercised. His Honour expressed the view that such a direction would be beyond the legislative power conferred by the Constitution on the Parliament, and would be invalid.

11 His Honour also referred to a substantial line of authority to the effect that s 478(1) creates a limited right and, therefore, that s 478(2) does not exceed legislative power. His Honour concluded that he was unable to say that the construction of s 478(1) accepted in that line of authority was untenable and that he should follow it. On the basis of that authority, the application was incompetent and had not attracted the jurisdiction of the Court. Accordingly, his Honour concluded that the objection to competency must be upheld and the application be dismissed.

RESOLUTION OF THE ISSUE ON APPEAL

12 Statutory provisions imposing time limits on actions take various forms and have different purposes. There is a distinction between statutes of limitation, properly so-called, which operate to prevent the enforcement of rights of action arising independently of statute, 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 but imposes a condition, which is of the essence of the new right created by the statute - Australian Iron & Steel v Hoogland (1962) 108 CLR 471 at 488.

13 If the right to make an application under s 476 is conditioned upon the application being lodged within the twenty-eight day period, enlargement of that period by the Court would, in effect, create a new right. That would be beyond judicial power. On the other hand, if s 478(1)(b) is to be treated as a limitation provision, properly so-called, it would simply prevent the enforcement of the right, which exists or arises independently, albeit created by the same statute. In that case, a power might be implied to extend the time within which the application may be lodged, and the time within which the jurisdiction that arises in consequence of the lodgment, may be exercised - National Telephone Company Ltd v Postmaster General [1913] AC 546 at 552, 557 and 562.

14 Section 478(2), however, directs the Court not to exercise any such power. It might be thought that, if s 478(1)(b) were to be construed as imposing a condition that is of the essence of the right created by s 476(1), s 478(2) would have little work to do. The appellant contends that such a provision would be necessary only if it is assumed that the Court has power to extend the time and it is only because of the direction in s 478(2) that the Court would not have such a power.

15 Accordingly, the appellant contends, on its true construction, s 478(1) does not condition the right granted by s 476(1) to apply for judicial review. As a consequence, the appellant contends, s 478(2) purports to direct the Court as to the manner in which the Court exercises the judicial power conferred on it. Such a direction, it is said, is beyond the legislative power conferred upon the Parliament by the Constitution and is invalid - see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 ("Chu's Case") at 36-7 and paragraph [37] of the primary judge's reasons [2000] FCA 1844. In Chu's Case, the High Court distinguished between laws that, within the limits of Commonwealth legislative power, grant or withhold jurisdiction, and laws that purport to direct a court as to the manner and outcome of the exercise of its jurisdiction. The former laws are valid whereas the latter laws violate the principles concerning the separation of powers established by the Constitution.

16 Section 478 must be construed as a whole. It is not permissible to construe each subsection independently of the other. It may be that, upon a detailed analysis of the provisions of s 478, s 478(2) does no more than state, in express terms, the consequences of s 478(1). Even if that be so, s 478(2) is not otiose. It is designed to make absolutely clear the intention of Parliament that there is to be no review by the Federal Court of a judicially reviewable decision unless an application for such a review was lodged within twenty-eight days of the applicant's being notified of the decision. It is well recognised that a subject's right of recourse to the courts is not to be taken away except by clear words - see Hockey v Yelland (1984) 157 CLR 124 at 130. Nevertheless, it is patently clear that the Parliament intended that the Federal Court would not have any jurisdiction to entertain an application for an order of review if the application was lodged more than twenty-eight days after the applicant was notified of the decision sought to be reviewed.

17 The distinction drawn in Chu's Case does not assist the appellant in the present case. Section 478(2) is not concerned with the manner or outcome of the exercise of judicial power. An element of the right created by s 476(1) to apply to the Court for review of a judicially reviewable decision is that the right be exercised by application made within the time specified in s 478(1)(b). That provision imposes a condition that is of the essence of the new right created by s 476, being the new right to seek review by the Federal Court of a judicially reviewable decision. It is a valid exercise of the legislative power to limit the jurisdiction of the Court to entertain only those applications filed within twenty-eight days of notification of a judicially reviewable decision. Section 478(2) does no more than direct the Court to give effect to that limitation. It does not exceed the legislative power of the Commonwealth. Sections 478(1) and 478(2) do not direct the Court as to the manner and outcome of the exercise of a discretion. Together, they contribute to the definition of the jurisdiction of the Court to review judicially reviewable decisions.

18 Section 478(2) is valid. It follows that the appellant's application to the Federal Court was incompetent. Accordingly, the appeal should be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.



Associate:

Dated: 1 February 2002

Counsel for the Appellant:
The applicant appeared in person at the hearing.

Final submissions were provided by Mr G Donaldson.




Counsel for the Respondent:
Mr P R Macliver




Solicitor for the Respondent:
Australian Government Solicitor




Date of Hearing:
30 May 2001

Final submissions received 11 September 2001




Date of Judgment:
11 February 2002

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