Fernando v Minister for Immigration & Multicultural Affairs

[1999] FCA 1375

FEDERAL COURT OF AUSTRALIA

Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 1375

PRACTICE AND PROCEDURE - application for review of Minister's decision not to grant a visa filed out of time - whether Refugee Review Tribunal nevertheless had jurisdiction - a number of single judge decisions establishing that Tribunal does not have jurisdiction in such circumstances - principle of "comity" - whether decisions "clearly wrong".

Migration Act 1958 (Cth), s 412, s 412(1)(b), s 478(2)
Convention Relating to the Status of Refugees, Arts 16(2), 32(1), 32(2)
International Covenant on Civil and Political Rights, Art 3

Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 referred

Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 cited

Nguyen v M W Gerkens, Refugee Review Tribunal (FCA, 6 October 1996, Ryan J) referred
Santos v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 229 referred
Dawai v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 379 referred
Shrestha v Minister for Immigration and Multicultural Affairs [1997] FCA 1051 discussed Tjandra v Minister for Immigration and Multicultural Affairs [1998] FCA 276 referred
Ismail v Minister for Immigration and Multicultural Affairs [1998] FCA 1654 referred
Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 353 discussed
Naheem v Minister for Immigration and Multicultural Affairs [1999] FCA 1360 referred
Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 discussed
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 discussed

Accident Compensation Commission v Murphy [1988] VR 444 referred

Cole v Director-General of Youth and Community Services (1987) 7 NSWLR 541 referred

KALUTARAGE GNANASIRI FERNANDO v PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

A18 OF 1999

FINN J

8 OCTOBER 1999

CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A18 OF 1999

BETWEEN:	KALUTARAGE GNANASIRI FERNANDO Applicant
AND:	PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	FINN J
DATE OF ORDER:	8 OCTOBER 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1.        the application be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A18 OF 1999

BETWEEN:	KALUTARAGE GNANASIRI FERNANDO Applicant
AND:	PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	FINN J
DATE:	8 OCTOBER 1999
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. The comity principle applied by judges of this Court at first instance is well settled:  a decision of another judge that is not distinguishable will be followed unless it is thought to be clearly wrong:  see Bank of Western Australia Ltd v Commissioner of Taxation (1994) 55 FCR 233 at 255. That principle provides the short answer to the present application.

2. The issue raised in the application is now well worn in first instance decisions of the Court. It is whether, notwithstanding the time limit set by s 412 of the Migration Act 1958 (Cth) ("the Act"), the Refugee Review Tribunal ("the Tribunal") may nonetheless extend the time within which an application for review of an RRT reviewable decision must be given to the Tribunal. Section 412, insofar as presently relevant, is in the following terms:

   "412    Application for review by the Refugee Review Tribunal

   (1)       An application for review of an RRT-reviewable decision must:
     (a)       be made in the approved form;  and

   (b)be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision;  and

   (c)       be accompanied by the prescribed fee (if any).

   …

   (4)Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place)."

3. It is unnecessary for present purposes to refer to the regulations made under sub-section (4) and to those dealing with "notification" and "receipt" of a decision, or to enter upon the question of their possible invalidity:  see eg Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147. It is conceded by the applicant, Kalutarage Gnanasiri Fernando, that even on the view of the law most favourable to him, his application to the Tribunal was late by seven days. This concession renders it likewise unnecessary to canvass the circumstances concerning the delay in making the application to the Tribunal.

4. There is now a considerable body of decision that has held, or has acted upon the premise, that s 412(1)(b) is an inflexible and imperative requirement that denies the Tribunal jurisdiction to entertain an application for review lodged out of time: see Nguyen v M W Gerkens, Refugee Review Tribunal (FCA, 6 October 1996, Ryan J);  Santos v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 229; Dawai v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 379; Shrestha v Minister for Immigration and Multicultural Affairs [1997] FCA 1051; Tjandra v Minister for Immigration and Multicultural Affairs [1998] FCA 276; Ismail v Minister for Immigration and Multicultural Affairs [1998] FCA 1654; Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 353; Naheem v Minister for Immigration and Multicultural Affairs [1999] FCA 1360; see also Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446.

5. In many of the above decisions the judges have adverted, sometimes critically, to the harshness of the results that the inflexibility of s 412(1)(b) can occasion. And in several instances - and notably in Shrestha and Singh - the comity principle was explicitly applied notwithstanding that "arguable" contentions for a contrary interpretation of the provision were advanced.  Nonetheless it has been accepted that both the unambiguous language of the provision, and the policy of finality inherent in it, support the interpretation placed on the subsection:  see eg Nguyen's case, above;  Tabet's case, above.  Unsurprisingly, given that most of the above decisions pre-date the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490, the conclusion as to the inflexible nature of the time limitation has in some instances been arrived at after reference to the dichotomy between mandatory and directory provisions. I do not consider though, that the reasoning in Project Blue Sky would necessitate a reconsideration of the cases for this reason.

6. In the present proceeding I am being asked to conclude that all that has preceded me is clearly wrong. The essence of the contentions advanced in support of this arresting conclusion can be stated as follows. To the extent that explicit consideration has been given to the question whether the provision deprives the Tribunal of jurisdiction if the time provision is not met, judges (a) have too readily assumed the provision to be mandatory; (b) have failed to recognise the "beneficial character" of the Act and of the "appeal right" both of which have been curtailed by the failure to find s 412(1)(b) to be directory: see Accident Compensation Commission v Murphy [1988] VR 444 and Cole v Director-General of Youth and Community Services (1987) 7 NSWLR 541 at 543; (c) have not, in finding the provision to be mandatory, had regard to the need to construe the Act consistently with Australia's obligations under the Convention Relating to the Status of Refugees (esp Arts 16(2), 32(1) and 32(2)) and the International Covenant on Civil and Political Rights (esp Art 3); and (d) have failed to recognise the significance in the interpretation of s 412(1)(b) and of s 478(2)'s express exclusion of any power in this Court to extend time to lodge an application to the Court under Part 8 of the Act.

7. It is unnecessary for me to enlarge upon these contentions here. While they may be "arguable", I am far from satisfied either that the body of decision to which I have referred is clearly wrong or, more importantly in light both of the dimensions of that body of decision and of the reliance now placed upon it, that it is appropriate for a judge at first instance to depart from it no matter the novelty or ingenuity of the submissions made. If it is to be challenged the point has been reached, in my view, where that should be done before the Full Court of this Court. In saying this I should not be interpreted as in this instance encouraging a challenge to the prevailing construction of s 412(1)(b).

8. I would dismiss the application.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated:            8 October 1999

Counsel for the Applicant:	Mr A Anforth
Solicitor for the Applicant:	City First Solicitors
Counsel for the Respondent:	Mr T Howe
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 October 1999
Date of Judgment:	8 October 1999