Federal Commissioner of Taxation v Brown
[1997] FCA 721
•10 July 1997
FEDERAL COURT OF AUSTRALIA
Immigration - objection to competency - legislative prescription of time in which Federal Court may review decision of Refugee Review Tribunal - scope for judicial review by the Federal Court - jurisdictional fact - duty of Crown to abide by a standard of fair play - duty of Crown to advise applicant of appellate rights.
The Migration Act 1958, s 478(1)(b)
Migration Regulations, r 5.03, r 4.40
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 - applied
Faud Bin Mahboob v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 398 - applied
Yong Jun Qin v Minister for Immigration and Multicultural Affairs, Beaumont, Burchett and Goldberg JJ, 6 June 1997, unreported - distinguished
Moges Eshetu v Minister for Immigration and Ethnic Affairs, Davies, Burchett and Whitlam JJ, 10 July 1997, unreported - distinguished
Melbourne Steamship Co Ltd v Moorhead (1912) 15 CLR 333 - considered
Hughes Aircraft Corporation v The Commonwealth, Finn J, 30 June 1997, unreported - considered
WASSIM MOHAMAD AL ACHRAFI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 36 of 1997
JUDGE: BEAUMONT J PLACE: SYDNEY DATED: 10 JULY 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 36 of 1997 ) GENERAL DIVISION )
BETWEEN: WASSIM MOHAMAD AL ACHRAFI
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE: BEAUMONT J PLACE: SYDNEY DATED: 10 JULY 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The objection to competency be upheld.
The application be dismissed, with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG 36 of 1997 ) GENERAL DIVISION )
BETWEEN: WASSIM MOHAMAD AL ACHRAFI
ApplicantAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE: BEAUMONT J PLACE: SYDNEY DATED: 10 JULY 1997
REASONS FOR JUDGMENT
Before the Court is an application objecting to the competency of an application for an order of review of a decision of the Refugee Review Tribunal given on 14 October 1996. The Tribunal affirmed the decision of the delegate of the Minister to refuse the applicant a protection visa. By s 478(1)(b) of the Migration Act 1958 (“the Act”) it is provided that an application under s 476 must:
“...be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.”
By s 478(2) it is provided that 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(1)(b).”
The present application for an order of review was filed in the Registry on 15 January 1997. It is dated 25 November 1996. There is endorsed upon the present application a note, apparently made by an officer in the Registry, in these terms:
“Applicant informed... Application well out of time. Brother-in-law insisted on acceptance even though they may lose the filing fee. Also told no power to extend time.”
The present objection to competency is grounded upon the failure of the applicant to lodge his application with the Registry within twenty-eight days of the applicant being notified of the Tribunal's decision. It is submitted on behalf of the respondent that the Court should find that the applicant was notified of the Tribunal's decision on 18 October 1996 with the consequence, the respondent submits, that by virtue of the provisions of s 478, this Court can have no jurisdiction in the present matter.
In support of its objection, the respondent relies upon documentary evidence attached to the affidavit of Stephanie Mancell sworn 7 March 1997, none of which is challenged, as follows:
The decision and reasons for decision of the Tribunal show that it bears the date 14 October 1996.
By letter dated 16 October 1996, the Tribunal wrote to the applicant enclosing a copy of its decision. The letter went on to state:
“You may have a right of review of this decision in the courts. An application for such review, in the case of the Federal Court of Australia, must be made within twenty-eight (28) days of notification of this decision. You should seek independent advice if you wish to pursue this or any other right available to you."
The letter was addressed to the applicant at the address, namely 6/51 Ernest Street, Lakemba, which appeared in the applicant's application for review by the Tribunal (Exhibit A).
The Tribunal's letter dated 16 October 1996 bears upon it a written notation "RP193952". A copy receipt held by Australia Post is in evidence showing that mail, sent by "Security Post" and addressed to the applicant as item number "RP193952", was delivered on 18 October 1996. The signature endorsed on the receipt on the delivery of this item bears the surname Akkawi.
There is evidence before me that this is the signature of the applicant's sister, Mrs Akkawi, who lives with the applicant at the address in Lakemba previously mentioned. From that evidence, the respondent asks the Court to infer that the Tribunal's decision and reasons for decision were received by the applicant on 18 October 1996. If this evidence stood alone, I would be prepared to make that finding as a matter of inference from the documentary and other material I have mentioned. I would add that there is now other evidence in the form of the oral evidence of the applicant and of his brother-in-law, Mr Akkawi, also before me, which confirms that it is appropriate to make that finding.
In those circumstances, it is not necessary for me to consider whether service of the document in question should be deemed to have taken place at the time specified in reg 5.03 of the Migration Regulations, read in conjunction with reg 4.40.
As has been indicated, the applicant and Mr Akkawi gave evidence. It is fair to say that, at least in the first instance, their evidence did not emerge clearly, but two factors should be mentioned in this connection. First, the applicant needed to give evidence through an interpreter; and secondly, the hearing commenced without the applicant having the benefit of any legal representation. Soon after the commencement of the hearing Mr Diab, solicitor, offered to appear pro bono for the applicant and, of course, that offer was gratefully accepted by the Court. I have been considerably assisted by the submissions made by the legal representatives for each of the parties. The evidence of the applicant and Mr Akkawi, when taken together, indicates that the following appears to be the sequence of events which occurred:
Mrs Akkawi picked up the mail containing the Tribunal's decision and reasons for decision on 18 October 1996. On that day, or on any view at about that time, she provided that decision and reasons for decision to the applicant. That matter was then discussed within the family and it was decided that a further review of the matter should be sought. About a week later, one of the members of the family telephoned the Tribunal and inquired about the prospects of review.
It is not clear from the evidence what precisely then occurred, but within a week or so, the applicant completed a document in the form of an application for review addressed to the Refugee Review Tribunal and lodged that document with the Tribunal. Within the following week or so, and it may have been somewhat later, an officer of the Tribunal contacted one of the members of the applicant's family by telephone and indicated that a different form was needed. It was suggested that, for this purpose, the applicant should contact the Department of Immigration at its Bankstown office.
This was done at about this time with the result that the Department provided the applicant with a form of application for an order of review in this Court. That form was subsequently completed by members of the applicant’s family and signed by him. This is the present application which, as has been noted, is dated 25 November 1996. It then appears, according to the applicant’s evidence, that one of the members of the applicant's family posted the present application, not to the Law Courts or the Federal Court Registry, but (so it seems) to the Tribunal. However, as I have already said, it is clear that the document itself was not filed in this Court's Registry until 15 January 1997.
It does appear that, on that occasion, Mr Akkawi was informed, as the endorsed note indicates, that the application was well out of time.
Against that uncertain factual background, I come to the legal questions which have been argued. In Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322, Sackville J, delivering the principal judgment of the Full Court, said (at 346-7):
“I should add that Pt 8 [of which ss 476 and 478 form a part] does contain stringent time limits. An application must be lodged within 28 days of notification of the tribunal’s decision and the court has no power to extend the period: s 478. Thus, where an individual, whether through ignorance or mistake, or for some other reason, fails to lodge an application in time, no relief is available under Pt 8 of the Migration Act.”
It has previously been held by Lehane J in Faud Bin Mahboob v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 398 that where the application for judicial review was made out of time, the Court was prohibited from dealing with the matter. Other judges have also considered this decision; see, for instance, Ying Chao Mai v Minister for Immigration and Ethnic Affairs, Tamberlin J, 9 May 1996, unreported, and Dai Xing Yao v Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal, Black CJ, Davies and Sundberg JJ, 18 September 1996, unreported.
Even if, as I think is the case, the present point were not strictly before the Full Court in Ozmanian for decision, the observations made by Sackville J, which I have cited, are strong persuasive authority on the present point. Moreover, as I have noted, Mahboob and other cases dealt with at first instance in the Court, squarely support the respondent's present objection and, as a matter of comity, I should follow those decisions unless I am persuaded that they are clearly wrong. I am not so persuaded.
Even if I were to look at the matter afresh, it does appear that the imposition of the time limit prescribed by s 478(1)(b) is, in truth, a jurisdictional fact with the consequence, inevitably, that, unless that event occurs, that is to say, unless an application is lodged within the 28 day period, this Court has no jurisdiction in the matter. This aspect of the operation of Pt 8 may be distinguished as a matter of principle and for policy reasons, from the reasoning that led the Full Court in Yong Jun Qin v Minister for Immigration and Multicultural Affairs, Beaumont, Burchett and Goldberg JJ, 6 June 1997, unreported, to conclude that the proper naming of a party was not a jurisdictional fact.
In his careful submissions on behalf of the applicant, Mr Diab urged me to adopt the reasoning of the majority (Davies, Burchett JJ) in the decision of the Full Court in Moges Eshetu v Minister for Immigration and Ethnic Affairs, Davies, Burchett and Whitlam JJ, 10 July 1997, unreported. It was there held, by a majority, that a strict construction should be given to a privative clause in the circumstances of that case. However, the context in that case was different, being concerned with the scope of judicial review that was available. That is not the present question which, on my analysis, is one of jurisdictional fact and this flows from either a literal or purposive interpretation of Pt 8 of the statute.
It was further submitted on behalf of the applicant that the Court should presume that, in a case such as the present, the Parliament did not intend that an injustice should occur. I accept, of course, that the Crown is bound by a standard of fair play (see Melbourne Steamship Co Ltd v Moorhead (1912) 15 CLR 333 at 342; Yong Jun Qin, above, at 23; and Hughes Aircraft Corporation v The Commonwealth, Finn J, 30 June 1997, unreported) but I see no scope for the application of this principle here. As has been noted, in the final paragraph of its letter dated 16 October 1996, the Tribunal made it clear that the applicant had a right of review in the courts and that “... in the case of the Federal Court of Australia, [an application] must be made within twenty-eight (28) days of notification of this decision. You should seek independent advice if you wish to pursue this or any other right available to you.” That, in my opinion, was an appropriate discharge of the Crown's obligation to observe a standard of fair play. Mention has been made of the evidence, which, as I have indicated, is somewhat unsatisfactory, of contact made by members of the applicant's family with the Tribunal and with the Bankstown office of the Department of Immigration with a view to the pursuit of the applicant's right of appeal, by way of applying for judicial review in this Court.
I cannot accept that either the Tribunal or the Department had any obligation to advise the applicant as to the steps to be taken in pursuit of his appeal rights beyond the statement made in the letter of 16 October 1996. That statement having been made in the general terms in which it was expressed, the responsibility clearly remained with the applicant to make his own inquiries and to seek his own advice in other quarters. So far as the Minister and his Department were concerned, the applicant was then in an adversarial relationship with them, in the pursuit of his appellate rights. There can be no suggestion open, in my view, that either the Minister or his Department had any obligation to facilitate the pursuit by the applicant of his appellate rights. As I have said, the Tribunal discharged its responsibilities in the statement made in the letter dated 16 October 1996.
One final matter should be mentioned. It was faintly suggested for the applicant that the document which became Exhibit A, being the form of application for review to the Tribunal, could be called in aid as a pro forma document which might stand as sufficient indication of an intention to appeal to this Court, in the form of an application for judicial review. But I cannot accept the suggestion. It may be, and I express no concluded view on this matter, that there is scope for the application of a doctrine of substantial compliance in this area. Yet a document in the form of Exhibit A could, in my opinion, be construed as nothing more than its heading and terms suggest, that is to say, as an application to the Refugee Review Tribunal for a review of a decision of the Minister or his delegate. On no view could it be construed as an application to this Court for judicial review of the Tribunal's decision.
For those reasons, I uphold the objection to competency. The formal orders of the Court then are:
ORDERS
Objection to competency upheld.
Application dismissed, with costs.
I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont
Associate:
Dated: 10 July 1997
Solicitor for the Applicant: Mr Diab Solicitor for the Respondent: Ms Doust, Australian Government Solicitor Date of Hearing: 10 July 1997 Date of Judgment: 10 July 1997
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