Keo v Minister for Immigration & Anor
[2008] FMCA 1502
•20 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KEO v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1502 |
| MIGRATION – VISA – BC- Partner (Migrant) (Class BC) 100 (Spouse) visa – where Tribunal found it did not have jurisdiction – application lodged out of time – whether Tribunal fell into jurisdictional error – whether Tribunal wrongly held that it did not have jurisdiction – whether the Tribunal misconstrued Migration Act 1958 (Cth) s.347(1)(b)(i) – whether Tribunal misconstrued Migration Regulations 1994 (Cth) reg.4.10(1)(a) – whether Tribunal wrongly denied the existence of its jurisdiction under Migration Act 1958 (Cth) s.348 – whether Tribunal decision invalid – where applicant did not provide name and address of authorised recipient – where letter notifying applicant of the delegate’s decision was sent to the last residential address given by the applicant – where letter dated 18 December 2006 was posted on 19 December 2006 – where applicant did not collect registered letter from post office until 15 January 2007 – where application was taken to have been notified on 29 December 2007 – where application for review by the Tribunal was signed on 18 January 2007 – where application for review was not received by Tribunal until 24 January 2007 – where Tribunal found that last day for lodging application was 19 January 2007 – no jurisdictional error. MIGRATION – Date of Tribunal decision is the date on which it is handed down. MIGRATION – Migration Review Tribunal – constitution of Tribunal for a particular review – constitution of Tribunal a matter for the Principal Member. CONSTITUTIONAL LAW – Challenge to the validity of Migration Act 1958 (Cth) ss.347(1)(b) and 348(1) and to the validity of Migration Regulations 1994 (Cth) reg.4.10(1)(a) – implied constitutional rights – freedom of communication on government or political matters – reasonable period of time after notice of decision refusing the grant of a visa – implied right of potential applicants for review – implied right of potential applicants to a reasonable period of time to make an application for review – whether period of 28 days to make an application for review unreasonable – whether so unreasonable as to involve an impermissible infringement of implied constitutional rights – neither ss.347(1)(b) nor 348(1) are invalid – reg 4.10(1)(a) is not invalid. |
| The Constitution Ch II, ss.7, 24, 51, 64, 128 Migration Act 1958 (Cth) ss.4, 66, 338, 347, 348, 354, 368B, 494B, 494C, 494D, 504 Judiciary Act 1903 (Cth) s.78B Legal Profession Act 1987 (NSW) s.216 Migration Regulations 1994 (Cth) reg.4.10(1)(a) Legal Profession Regulation 2002 (NSW) Part 14 |
| SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162; 79 ALJR 1009; [2005] HCA 24 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Australian Capital Television Pty Limited & Ors v The Commonwealth of Australia (1992) 177 CLR 106 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Levy v Victoria (1997) 189 CLR 579 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 APLA Limited & Ors v Legal Services Commissioner & Anor (2005) 224 CLR 322 Cunliffe v The Commonwealth (1994) 182 CLR 272 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 Bank of NSW v The Commonwealth (1948) 76 CLR 1 Standard Oil Co of New Jersey v Southern Pacific Co (1925) 268 US 146 Davis v The Commonwealth (1988) 166 CLR 79 South Australia v Tanner (1989) 166 CLR 161 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436 SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 followed. WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94 Roberts v Bass (2002) 212 CLR 1 Minister for Primary Industries and Energy v Austral Fisheries Pty Limited (1993) 40 FCR 381 Bodruddaza v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 234 ALR 114; 81 ALJR 905; [2007] HCA 14 |
| Applicant: | LEAKHENA KEO |
First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1210 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 June 2008 |
| Date of Last Submission: | 17 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cockburn |
| Counsel for the First Respondent | Mr Smith |
| Solicitors for the Respondents | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant is to pay the First Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1210 of 2007
| LEAKHENA KEO |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The Applicant is a citizen of Cambodia who asks the Court to review a decision of the Migration Review Tribunal handed down on 2nd April 2007, finding it did not have jurisdiction. By her amended application, filed on 29th February 2008, the applicant asks the Court to issue writs of certiorari, mandamus and prohibition and make a declaration that the decision of the Tribunal is invalid.
The Applicant relies on two grounds:
a)The Tribunal’s decision is invalid; and
b)Regulation 4.10(1) (a) is invalid.
The First Respondent, the Minister for Immigration and Citizenship, has filed a Response declining to admit that there is any jurisdictional error in the Tribunal’s decision.
Background
The Applicant is a national of Cambodia who was born on 10th May 1981. She applied to the Australian Embassy in Phnom Penh for a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act on 4th 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 was married to the Applicant in Cambodia on 17th April 2004.
The Applicant and her sponsor attended an interview at the Australian Embassy on 6th September 2004. The Applicant was granted a subclass UF 309 offshore spouse temporary residence on 9th September 2004. She arrived in Australia on 11th September 2004.
On 18th December 2006 a delegate of the Minister refused the Applicant’s application for a Partner (Migrant) visa. The delegate notified the Applicant by registered post.
Application to the Migration Review Tribunal
The Applicant applied to the Migration Review Tribunal for a review the delegate’s decision on 24th January 2007. The application was accompanied by statutory declarations of the Applicant, her husband, her father-in-law and her brother. The Applicant nominated a migration agent, Mr Ignatius Asuzu, as her migration adviser and her authorised recipient for correspondence.
The Tribunal wrote to the Applicant care of her migration agent on
25th January 2007, acknowledging receipt of the application. The Tribunal wrote again on 20th March 2007, advising that, based on an initial assessment, her application may be ineligible for review by the Tribunal. The Tribunal invited the Applicant to comment on the following information:
Section 347 of the Act sets out the requirements for making an eligible application for review, including the requirement to make the application within the prescribed time period.
According to Regulation 4.10, you were required to make the application for review 21 calendar days after the date that the Department notified the visa applicant of its decision. The Department made its decision on 18 December 2006 and is taken to have notified the visa applicant of the decision on 29 December 2006. As the Department’s letter was posted to an address within Australia to the visa applicant, this date is 7 working days after the date of the Department’s notification letter. This means that the last day you could have made the application for review was 19 January 2007. You made the application for review on 24 January 2007.
Your application for review may not be eligible because the application was not made to the Tribunal within the prescribed time period.
If you disagree, and you think the Tribunal has power to consider your application, please write to us. We must receive your letter by 12 April 2007.[1]
[1] See Court Book at 160-161
The Applicant’s migration agent, Mr Asuzu, replied to the Tribunal on his client’s behalf in a letter dated 23rd March 2007:
Having concluded a conference on the subject matter, I am instructed that the Department’s Registered Letter was not actually received by the applicant until 15 January 2007, by 4.44 pm. I then put a verification call to Australia Post on131318, which confirmed, according to Tracking No. RP32522474, that date and time to be the exact time of delivery and/or receipt of the said Departmental Decision.
My client’s 21 calendar days did not start to run, until the Departmental Decision was either delivered or received by the applicant. That is, on the basis that she would have no idea of the very decision until she signed for it as a registered mail, at the Post Office.
According to the Department’s postage envelope, first attempt was made on 20 December to notify the applicant to no avail. Second and final notice was attempted on 9 January 2007. I therefore submit that the applicant had made the review application within the statutory 21 calendar days on 24 January 2007. Otherwise, the applicant would not have been notified of the decision earlier, or as the said document was never notified on 29 December 2006.[2]
[2] Court Book 162
The Tribunal signed its decision on 29th March 2007 and faxed a copy of the Decision Record to the Applicant’s migration agent on 2nd April 2007.
The Decision of the Migration Review Tribunal
The Tribunal found that it did not have jurisdiction to deal with the application for review. The Tribunal expressed itself to be satisfied that the contents of the delegate’s decision notification complied with the requirements of s.66(2) of the Migration Act.
The Tribunal considered the applicant’s submissions contained in
Mr Asuzu’s letter of 26th March 2007.
The Tribunal set out its reasons in this way:
The Department’s file records indicate that the applicant did not give the Minister written notice of the name and address of an authorised recipient under s 494D. The file contains a letter from the applicant dated23 November 2006 providing her new Canley Heights address. The Tribunal finds this address to be the last residential address provided to the Minister by the applicant for the purposes of receiving documents in accordance with s.494(b)(4)(c)(ii)[3].
The decision notification letter was dated 18 December 2006 and sent by prepaid registered on 18 December 2006 from a place in Australia to the applicant’s Canley Heights address in Australia provided to the Minister for the purpose of receiving documents.
The Tribunal finds that the decision notification letter was dispatched within 3 working days of the date of the letter to the applicant’s correct address, in accordance with s.494B(4). Therefore, the applicant is taken to have received the notice on 29 December 2006, being 7 working days from the date of the notice. This is so even though the notice was not received by the applicant until 15 January 2007.[4]
[3] sic – this is a typographical error. It should read s.494B (4) (c) (ii).
[4] Court Book 167
The Tribunal found that the applicant was seeking review of the delegate’s decision under s.338(2) and the 21 days prescribed period set out in s.347(1)(b) and reg.4.10(1)(a) applied. The Tribunal went on to find that the last day that the application for review could have been lodged ended on 19th January 2007.
The Tribunal considered the Applicant’s migration agent’s submission, which contained a copy of the Department’s Registered Post envelope and stated:
From the dates on the envelope and the applicant’s representative’s submission, it appears that Australia Post attempted to deliver to the applicant the Department’s notification letter on 20 December 2006. The applicant’s representative’s submission states that this “first attempts was made on 20 December to no avail.” This would indicate that the Department’s letter was dispatched within 3 working days of the date of the letter to the applicant’s correct address, in accordance with s. 494B(4). The Tribunal relies on the Mail and Distribution officer’s assertion that the item was sent on 19 December 2006 and the envelope marking indicating that Australia Post had possession of the envelope on ’20 December’ in finding that the decision notification was dispatched before 21 December 2006.
Actual receipt
That the applicant did not actually sign for and receive the letter until 15 January 2007 is irrelevant to the operation of the deeming provision under s 494C (4). Given the Tribunal’s finding that the applicant is taken to have received the notice 7 working days after the date of the letter in accordance with s. 494C(4), the Tribunal does not have to consider when the applicant actually received the notice.[5]
[5] Court Book 168
The Tribunal found that the application for review was received outside the mandatory time limit, so it was not a valid application and the Tribunal had no jurisdiction to review the delegate’s decision.
Application for Judicial Review
The Applicant commenced proceedings in this Court by filing an application and an affidavit in support on 13th April 2007.
The application was originally listed for final hearing before Nicholls FM on 15th February 2008. On that date, the Applicant had obtained other legal representation and sought an adjournment to file an amended application and to file and serve further submissions and affidavits. His Honour granted that application, albeit with an order for costs in favour of the First Respondent, and adjourned the matter until 7th April 2008.
The Applicant filed three affidavits, written submissions and a Notice of a Constitutional Matter under s.78B of the Judiciary Act. On 7th April 2008 the application was transferred into my docket and listed for final hearing on 17th June 2008.
The Applicant’s Notice of a Constitutional Matter contains a challenge to the validity of ss.347(1)(b)(i) and 348(1) of the Migration Act and reg4.10((1)(a) of the Migration Regulations by reason that they impermissibly infringe implied constitutional rights.
The first implied constitutional right relied on by the Applicant is the right of freedom of communication on government or political matters. The Applicant contends that potential applicants for review to the Migration Review Tribunal in relation to an MRT-reviewable decision have a right to a reasonable period of time after a notice of decision refusing the grant of the visa is received by them in which to give an application for review to the Tribunal which is reasonable having regard to steps reasonably necessary to be taken in relation to the making of such an application for review having regard to relevant exigencies or deficiencies.
The second implied right relied on by the Applicant is a right of potential applicants for review to the Tribunal to be implied in the system of government for which Chapter II of the Constitution applies.
The Applicant also contends that potential applicants for review to the Tribunal have a right to a reasonable period of time after a notice of decision refusing the grant of the visa is received by them in which to make an application for review to the Tribunal which is reasonable having regard to steps reasonably necessary to be taken in relation to the making of the application for review having regard to the relevant exigencies or deficiencies.
The Applicant also contends that there is a corresponding correlative implied requirement of the system of government provided by Chapter II which has been impermissibly infringed.
The third implied right upon which the Applicant relies 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 the constitution and which permeates the fabric of the Constitution.
The Applicant further contends that potential applicants to the Tribunal have a right to a reasonable period of time after a notice of decision refusing the grant of the visa in which to make an application for review to the Tribunal which is reasonable having regard to steps reasonably necessary to be taken in relation to the making of the application for review and certain exigencies or deficiencies and that the impugned provisions are invalid for the reason that they impermissibly infringe that third constitutional right.
The Applicant contends that the 28 days allowed from the date of the delegate’s letter notifying a refusal to grant the visa in which to make an application for review to the Tribunal is so unreasonable as to involve an impermissible infringement of each of the implied constitutional rights relied on or contended by the applicant.
The Applicant filed an amended application on 29th February 2008. In that amended application she seeks the following orders and declarations:
i)A writ of certiorari issued and directed to the Second Respondent, quashing the decision of the Second Respondent dated 29 March 2007.
ii)A writ of mandamus issued and directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
iii)The First Respondent shall pay the Applicant’s costs.
iv)A declaration that the decision of the Tribunal that it did not have jurisdiction in MRT Case Number 071121986 set out in its decision record of 29 March 2007 was and is invalid.
v)An order for a writ of prohibition directed to the First Respondent prohibiting him from acting upon or giving effect to or proceeding further upon the decision of the Second Repondent dated 29 March 2007 in MRT Case Number 071121986.
vi)An order for a writ of certiorari directed to the First and Second Respondents quashing the decision dated 29 March 2007 of the Second Respondent in MRT Case Number 071121986.
vii)An order for a writ of mandamus directed to the Second Respondent requiring it to determine the Applicant’s application for review to the Tribunal under the Migration Act 1958 (Cth) according to law.
With respect, there is a degree of redundancy in the orders sought. Counsel for the Applicant, Mr Cockburn, informed the Court that the Applicant did not intend to pursue her claims for Orders 1 and 2.
Further, the Applicant refers to the Tribunal decision by the date on which it was signed by the then Principal Member, 29th March 2007. The date of a decision of the Migration Review Tribunal is the date on which the decision is handed down (Migration Act, s.368B(4)). That said, it is clear to which decision the Applicant is referring.
The applicant relied on Grounds 3 and 4 of the amended application filed on 29th February 2008. Counsel for the Applicant informed the Court that the Applicant did not intend to pursue Grounds 1 and 2 of the amended application at the hearing.
Ground 3 states:
The decision record of the Second Respondent signed on 29 March 2007 in MRT Case Number 071121986 was and is invalid in that:
(a) by its decision record, the Second Respondent (“the Tribunal”) wrongly held that it did not have jurisdiction in MRT Case Number 071121986;
(b) contrary to the law relating to jurisdictional errors, the Tribunal misconstrued provisions of the Migration Act 1958 and of the Migration Regulations 1994 as to its jurisdiction, viz s.347(1)(b)(i) and r.4.10(1)(a);
(c) the Tribunal reached a mistaken conclusion as to its jurisdiction and its exercise or purported exercise of its power and was thereby affected;
(d) the Tribunal wrongly denied the existence of its jurisdiction in circumstances in which s.348 of the Migration Act 1958 (“the Act”) provided that (subject to an immaterial sub-section) if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision;
(e) the Tribunal misconceived its duty as to its jurisdiction;
(f) what the Tribunal did was not authorised by the Act and did not constitute performance of its duty under the Act;
(g) the Tribunal’s decision involved jurisdictional error by reason of its failure to discharge its “imperative duties” found in the Act and it failed to exercise its jurisdiction in relation to MRT Case Number 071121986; and
(h) as a consequence, the Tribunal’s decision was and is invalid.
The particulars of Ground 3, which are summarised to avoid repetition, are:
(1) Subparagraph s.347(1)(b)(i) provided and provides that: “An application for review of an MRT-reviewable decision must:
(a) 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 sub-section 338(2) (of the Act) – 28 days after the notification of the decision”.
(2) In the applicant’s circumstances, the MRT-reviewable decision was covered by sub-section 338(2) of the Act;
(3) Regulation 4.10(1)(a) provided and provides that: “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 sub-section 338(2)…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”;
(4) Section 348(1) of the Act provided and provides that if an application is properly made under s.347 for review of an MRT-reviewable decision, the Tribunal must review the decision;
(5) Subparagraph 347(1)(b)(i) and regulation 4.10(i)(a) (“the impugned provisions”) are invalid, in whole or in part, by reason that they, on their proper, construction, jointly or severally:
(a) impermissibly infringe the right to freedom of communication on government or political matters;
(b) impermissibly infringe a right of potential applicants for review to the Tribunal that is implied in the system of government for which Chapter II of the Constitution provides or impermissibly infringe an implicit requirement of Chapter II of the Constitution that potential applicants to the Tribunal shall have a reasonable period of time after a notice of a decision refusing the grant of a visa is received by potential applicants for review to the Tribunal in which to give an application for a review of a Tribunal-reviewable decision to the Tribunal which is reasonable having regard to steps reasonably necessary to be taken in relation to the making of such an application for review and the exigencies or deficiencies of the delivery of notifications of refusal of visa applications, obtaining advice on legal rights and remedies of potential applicants, the preparation of such applications and the signing and filing of such applications;
(c) impermissibly infringe the right of potential applicants for review to the Tribunal that 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 to have a reasonable period of time after a notice of a decision refusing the grant of a visa is received by potential applicants for review to the Tribunal in which to give an application for review of a Tribunal-reviewable decision to the Tribunal which is reasonable having regard to steps reasonably necessary to be taken in relation to the making of such an application for review and the exigencies or deficiencies of the delivery of notifications of refusal of visa applications, obtaining advice on legal rights and remedies of potential applicants, the preparation of such applications and the signing and filing of such applications;
(6) in whole or in part, sub-subparagraph 347(1)(b)(i) or sub-section 348(1), jointly or severally, impermissibly bar or limit the exercise of the jurisdiction of the Tribunal otherwise to review MRT-reviewable decisions referred to in s.338(2) of the Act and, jointly or severally, within implied constitutional rights or within constitutional limits or requirements;
(7) contrary to requirements of general law, the Tribunal failed to observe applicable general law in that:
(a) the Tribunal misconstrued the impugned provisions;
(b) the Tribunal failed to observe the statutory requirements of relevant legislative provisions, namely, the impugned provisions.
(8) The Tribunal failed, under the general law, to correctly construe or interpret the impugned provisions.
The Applicant’s Ground 4 states:
Regulation 4.10(1)(a) of the Migration Regulations 1994 is invalid in that the impugned provisions, being invalid in whole or in part as particularised in relation ground 3, it (r.10(1)(a))[6] is not within the regulation making power or the legislative power of the Commonwealth and, as a consequence, the Tribunal’s decision record, including its Statement of Reasons and Decision on r.4.10(1)(a), involves jurisdictional error.
[6] sic
The particulars of Ground 4 are those particulars given in respect of Ground 3 insofar as they relate to r.4.10(1)(a).
The amended application also included four schedules setting out particulars to the particulars of Grounds 3 and 4. Those four schedules been read but have not been reproduced in these reasons for judgment.
The Applicant sought to rely on three affidavits by the Applicant, all filed on 29th February 2008. One affidavit was rejected almost in its entirety, and parts of another were rejected as hearsay. The Applicant’s affidavit evidence that was admissible referred to her dealings with her earlier legal advisers. I am unable to understand why it was necessary for the Applicant to affirm three separate affidavits, all on the one day, all of which were filed on the one day. In my view the Applicant’s affidavit evidence does not do much to advance her case on the grounds that are argued.
The Applicant’s submissions
Counsel for the Applicant, Mr Cockburn, submitted that the Tribunal fell into jurisdictional error by wrongly holding that it did not have jurisdiction and by misconstruing s.347(1)(b) of the Act and reg.4.10(1)(a), which are jurisdictional errors of the kind referred to in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs[7] or in Craig v South Australia[8].
[7] (2005) 215 ALR 162; 79 ALJR 1009; [2005] HCA 24
[8] (1995) 184 CLR 163; [1995] HCA 58
Mr Cockburn submitted that the first of the rights relied on or contended for by the Applicant is the right of freedom of communication on government or political matters. Potential applicants have a right to a reasonable period of time after they receive a notice of a decision refusing them a visa in which to apply for review of an MRT-reviewable decision to the Tribunal which is reasonable having regard to steps reasonably necessary to be taken in relation to making the application.
The second implied right relied is a right of potential applicants for review to the Tribunal which is implied in the system of government for which Chapter II of the constitution provides. Also, these potential applicants have a right to a reasonable period of time after they receive a notice of a refusal of a visa to make an application for review of an MRT-reviewable decision which is reasonable having regard to steps reasonably necessary to be taken in relation to making the application.
Mr Cockburn submitted that there is a corresponding correlative implied requirement of the system of government provided for by Chapter II which has been impermissibly infringed.
Mr Cockburn further submitted that the third implied right relied on is a 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. Again, these potential applicants have a right to a reasonable period of time after receiving a notice of a decision refusing the grant of a visa to apply for review “having regard to steps reasonably necessary to be taken in relation to the making of such an application for review…and certain exigencies or deficiencies”.[9]
[9] Part of this sentence has been deleted because it is repetitive and may be a typographical error. Applicant’s Written Submissions (as corrected) at [55]
As to the Applicant’s claim that the impugned provisions are invalid by reason that they impermissibly infringe the right to freedom of communication on government or political matters, the Applicant refers to Australian Capital Television Pty Limited & Ors v The Commonwealth of Australia[10], where it has been held that there is an implied right to freedom of communication on government or political matters.
[10] (1992) 177 CLR 106
Mr Cockburn went on to submit that an earlier decision of the High Court adumbrated a “reasonably appropriate and adapted” test in relation to the implied freedom of communication on government matters: see Lange v Australian Broadcasting Corporation[11].
[11] (1997) 189 CLR 520
The second test formulated in Lange has subsequently been reworded: see Levy v Victoria[12] at 622, and Coleman v Power[13]. The second test is now taken to be:
Is the law reasonably appropriate and adapted to serve a legitimate end (in a manner) which is compatible with the maintenance of the Constitutionally prescribed system of representative and responsible government?[14]
[12] (1997) 189 CLR 579
[13] (2004) 220 CLR 1; [2004 HCA 39
[14] Coleman v Power at 50
For an impugned law to be valid, the High Court intended the second test to be read in a way that requires that both the end and the manner of its achievement be compatible with the system of representative and responsible government.
Mr Cockburn referred the Court to APLA Limited & Ors v Legal Services Commissioner of NSW & Anor[15] at [202]-[203], where it was noted that s.51 of the Constitution is expressed to be “subject to this Constitution”.
[15] (2005) 224 CLR 322
It was submitted that the implied freedom of communication on government matters, as a constitutional restriction on the exercise of power, may not be infringed by the legislature. The right of freedom of communication about government matters extends to communication with government authorities in the course of, or for the purposes of, the administration of an Act according to its terms (see Cunliffe v The Commonwealth[16] at 297 and 298). This, it is submitted, includes communication with the Migration Review Tribunal.
[16] (1994) 182 CLR 272
The freedom of communication about the government of the Commonwealth necessarily extends to the working of the Migration Review Tribunal and other Tribunals which administer laws of Australia.
The time limit imposed by the impugned provisions on the making of an application for review to the MRT interferes with the freedom of communication implied by the Constitution (Nationwide News Pty Ltd v Wills[17]).
[17] (1992) 177 CLR 1
Insofar as the impugned provisions restrict or burden the making by potential applicants to the MRT to the particular time limit prescribed, they are inconsistent with the grant of rights to potential applicants to apply for review to the MRT.
The impugned provisions impose a time limit that restricts such things as:
·Taking and receiving advice from an adviser
·The preparation of an application for review
·Giving the application for review to the Tribunal
to a period of as little as 4 days.[18]
[18] This submission is problematic insofar as the preparation of an application for review is concerned.
Mr Cockburn submits that in the circumstances of such restriction, the freedom of communication with the Tribunal is unreasonably restricted, and so also is the time in which to arrange a meeting with an adviser. Such cases, he submits, involve an impermissible infringement on the freedom of communication on government matters.
It is further submitted that the provision and receipt of advice by potential applicants for review are within the scope of the freedom of communication about the government of the Commonwealth.
Non-citizens in Australia are entitled to invoke the implied freedom of communication, particularly when they are exercising that freedom for the purpose of or pursuing an application for a visa (see per Mason CJ in Cunliffe v The Commonwealth at 298-299).
Mr Cockburn submitted that if the impugned provisions had prescribed a longer time limit of, say, down to one year after actual receipt of a letter notifying the applicant of the decision to refuse the visa, it would not be reasonably arguable that the provision infringed any of the implied constitutional rights relied on by the applicant. In this case, the applicant received the delegate’s letter dated 18th December 2006 on 15th January 2007. As a practical matter, this left 4 days in which to take reasonably necessary steps to prepare and sign an application for review and give it to the Tribunal.
As to prescribed time limits, it was submitted that a question of reasonableness may be said to arise, which is a question of fact for the Court to decide. What is reasonable depends on all of the relevant facts and circumstances. Mr Cockburn referred to the decision of Starke J in Bank of NSW v The Commonwealth[19], where his Honour said at 300:
“The ascertainment of value is not controlled by artificial rules. It is not a matter of formulas, but there must be a reasonable judgment having its basis in a proper consideration of all relevant facts” (cf. Standard Oil Co. of New Jersey v Southern Pacific Co. (6))[20].
[19] (1948) 76 CLR 1
[20] (1925) 268 U.S. 146 at p. 156 [69 Law. Ed. 890, at p. 895]
Mr Cockburn submitted that the impugned restrictions impermissibly infringe the right conferred by federal law to potential applicants for review to the Tribunal by denying them reasonable, appropriate and adequate opportunity to exercise this right. The impugned provisions go beyond what is reasonably necessary for the achievement of the end sought to be obtained and involve an impermissible infringement of the implied freedom of communication in relation to government matters, unrelated to the achievement of the object or purpose of the impugned provisions: Davis v The Commonwealth[21] at 100.
[21] (1988) 166 CLR 79
Counsel for the Applicant submits that the impugned provisions are so lacking in reasonable proportionality that they must be characterised as having no reasonable relationship to the objective they are intended to achieve (South Australia v Tanner[22] at 165-168, 178-179). They cannot be justified as falling within the area of any permissible regulatory power. They are not proportionate to the attainment of any legitimate governmental objective (Castlemaine Tooheys Ltd v South Australia[23] at 473-474).
[22] (1989) 166 CLR 161
[23] (1990) 169 CLR 436
The Applicant claims that the impugned provisions are, in whole or in part, invalid by reason that they impermissibly infringe the second implied right contended for by the Applicant in relation to Chapter II of the Constitution.
The Applicant further claims that the impugned provisions are, in whole or in part, invalid by reason that they impermissibly infringe the third implied right relied on and contended for by the Applicant. The approach used by the High Court in relation to its holding that there exists a right of freedom of communication in relation to government and political matters is appropriate to apply, with, Mr Cockburn submits, suitable changes, in relation to the Applicant’s contention that there exists the third right referred to.
The underlying basis of the Constitution is the rule of law, which the Constitution assumes.
The Applicant claims that, in whole or in part, s.347(1)(b)(i) or subsection 348(1), jointly or severally, impermissibly bar or limit the exercise of the jurisdiction of the Tribunal otherwise to review MRT-reviewable decisions referred to in s.338(2) of the Act and, jointly or severally, are, to that extent, invalid or are required, if permissible to be read down, to bring them, jointly or severally, within the implied constitutional rights or within constitutional limits or requirements.
The Applicant claims that the Tribunal failed to observe applicable general law.
The Applicant also submits that reg.4.10(1)(a) is invalid in that the impugned provisions, being invalid in whole or in part, are not within the regulation-making power or the legislative power of the Commonwealth and, as a consequence, the Tribunal’s decision on reg.4.10(1)(a) involves jurisdictional error.
The Applicant seeks a declaration, writs of prohibition, certiorari and mandamus, as well as costs. The applicant’s submission goes on to say that:
…In the circumstances of this particular case, the Court should indicate that upon the relevant matter being remitted to the Tribunal, that matter should be dealt with by a different Member of the Tribunal.[24]
[24] Applicant’s Submissions at [146]
Mr Cockburn raised this point at the hearing and I indicated then that I had some difficulty in making such an order even if I were to be satisfied that the matter should in fact be remitted to the Tribunal. The Full Court of the Federal Court has expressed doubt about the power of the Federal Magistrates Court to make an order about the constitution of the Tribunal when a matter is remitted in SZEPZ v Minister for Immigration and Multicultural Affairs[25].
[25] [2006] FCAFC 107
In my view, it is inappropriate to make such an order. The constitution or reconstitution of the Migration Review Tribunal is a matter for the Principal Member. Subsection 354 (2) of the Migration Act provides:
The Principal Member, or a Senior Member acting in accordance with guidelines under sub-section (3), may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.
Accordingly, I do not propose to make such an order.
The First Respondent’s submissions
Counsel for the First Respondent, the Minister for Immigration and Citizenship, submitted that the Applicant’s Ground 3, dealing with the implied constitutional freedom of communication on government matters, faced “difficulties” at each stage.
Mr Smith, who appeared for the Minister, submitted that since the decision of the High Court in Coleman v Power[26], two questions must be answered in order to determine whether a law infringes the freedom recognised in Lange v Australian Broadcasting Corporation[27]:
a)Does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? And
b)If so, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s.128 of the Constitution to the informed decision of the people?
[26] supra
[27] supra
Mr Smith referred to the applicant’s argument that the time limits in s.347 of the Migration Act restrict her right to review or otherwise hinder or burden that right and submitted that the restriction does not concern communications at all, let alone communications about government or political matters and is therefore irrelevant to the constitutional issue.
Again, Mr Smith submitted that the restriction does not hinder or burden the applicant’s ability to seek advice about the review. The Migration Act confers upon unsuccessful visa applicants a limited entitlement to seek merits review of a delegate’s decision. Section 347 facilitates that entitlement; it does not destroy it (see WACB v Minister for Immigration and Multicultural and Indigenous Affairs[28] at [31]). The right granted by the Act is circumscribed by its own terms and cannot be said to impose any burden on communication.
[28] (2004) 79ALJR 94
It is submitted that the relevant communication in respect of which there is an implied freedom under the Constitution is relevantly limited to that about federal government or political matters. As Brennan J said in Cunliffe v The Commonwealth at 329:
The immunity from legislative control which the Constitution implies in order to secure freedom of political discussion does not preclude the making of laws to control any activity, the control of which might be politically controversial. The constitutional freedom of political discussion ensures freedom to engage in debate about the institutions of government and the exercise of any kind of governmental power but it does not impair, much less sterilise the exercise of a power which might become the subject of political debate.
Counsel for the Minister also referred the Court to APLA Limited v Legal Services Commissioner (NSW)[29] at 403, [219] per Gummow J and 451, [380] per Hayne J. He submitted that the proper view of the extent of the protection is that the implied freedom prohibits restrictions that are incompatible with a system of representative and responsible government or with the requirements of sections 7, 24, 64 and 128 of the Constitution (APLA Limited v Legal Services Commissioner at 351, [29] per Gleeson CJ and Heydon J, 359, [57] per McHugh J, 450-451 per Hayne J and 478, [453] per Callinan J.
[29] (2005) 224 CLR 322
Thus, Mr Smith submitted that the first limb of the test in Lange v Australian Broadcasting Corporation is not satisfied.
Counsel for the Minister submitted that this is not a case where freedom of expression is “chilled” by the possible application of a penalty, fine or imprisonment or the imposition of damages under defamation laws (see Roberts v Bass[30] at 40, [102] per Gaudron, McHugh and Gummow JJ). There can be no question that the immediate purpose of the provision is not one to restrict freedom of political speech but to ensure the timely completion of applications for the right to remain in Australia.
[30] (2002) 212 CLR 1
Also, there is no question that arises directly and properly under the aliens power in s.51(xix) of the Constitution. Given that the interests of any visa applicant must be balanced against the national interests of the regulation of coming into and the presence in Australia of non-citizens (Migration Act, s.4) the imposition of time limits upon merits review are reasonably adapted to the purpose of the legislation.
As to the validity of the regulation, Counsel for the Minister submitted that the test is set out in Minister for Primary Industries and Energy v Austral Fisheries Pty Limited[31] at 384 :
Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that the legislation of this offending kind cannot be within the scope of what parliament intended when authorising the subordinate legislative authority to enact laws.
[31] (1993) 40 FCR 381
It is further submitted that s.347 of the Act not only envisages the prescription of a period by regulation but also that it may be less than 28 days, eg s.347(1)(b)(i). Thus, the regulation cannot be seen to be outside the scope of the authority intended to be given by Parliament.
Further, Mr Smith submitted that this very legislation has been considered without question by the High Court on a number of occasions including in Bodruddaza v Minister for Immigration and Multicultural Affairs[32].
[32] (2007) 81 ALJR 905
As to the factual side of the Applicant’s case, Mr Smith referred to the evidence in the Applicant’s large affidavit, which contained
21 paragraphs. He pointed out that the Applicant deposed that she received the letter from the Department when she went to the Post Office on 15th January 2007. She found out that her application for a visa had been refused.
The following day, she sought advice and went to see a lawyer in his Pitt Street office that same day, a Tuesday. The lawyer said he would prepare an application for her and did so by 18th January. The lawyer said to her;
I will take it to the MRT today because it is almost late.[33]
[33] Affidavit of Leakhena Keo filed 29 February 2008 at paragraph [15]
Mr Smith told the Court that at that stage the Applicant was within time. If the migration agent had done what he had told her that he would do there would be no case before the Court, at least in respect of this issue. There is no explanation as to why the application was not received by the Tribunal on 24th January.
It was not the fault of the legislation that the document was not received by the Tribunal until 24th January. The Applicant was able, within the time required, to get the legal advice she needed, to get the migration assistance she needed, to get documents prepared including statutory declarations, to prepare a cheque for $1,400.00 that was paid to the Tribunal for the filing fee and to give instructions to the lawyer to carry out her wishes that the Tribunal could review the delegate’s decision.
The inference, he submitted, is that there was negligence on the part of the migration agent. The proper course for the Applicant is to bring proceedings against him.
The Applicant’s submissions in reply
In reply, Mr Cockburn that the essence of the Applicant’s case is that the impugned provisions do two things:
a)they grant a statutory right to apply to the Tribunal; and
b)they then prohibit the exercise of that right in a manner analogous to that referred to in Bodruddaza v Minister for Immigration and Multicultural Affairs.
The right, he submitted, is not a right conferred equivalent to the right implicit in s.75(v) of the Constitution, but there is a freedom to communicate is in relation to a legislative right conferred by the Migration Act. There is, through the time limit, an unreasonable and draconian effect on the provisions that nullifies and takes away and removes the legislative right.
The Applicant submits that the impugned provisions are unreasonable because they do not give sufficient and reasonable time to do the things that need to be done, including taking advice from a lawyer or a migration agent.
Mr Cockburn submitted that the complaint by the Applicant is not about the fact that the Applicant’s migration agent was negligent, as
Mr Smith submitted, which would have to be the subject of separate proceedings. The Applicant’s complaint is that the provisions themselves stop the communication to the Tribunal being effective.
The Applicant does not say that the federal legislature cannot legislate time limits. If there is a time limit, it must not be unreasonable, and the time limit in this case does not give time for the necessary things to be done. Thus, the communication with the Migration Review Tribunal is not effective or free. Therefore, the time limit breaches the Lange test.
Mr Cockburn went on to submit that the amended application in respect of each of the three freedoms of communication contended for relies on the system of representative and responsible government as the basis for the implication.
Conclusions
The Minister’s delegate refused the Applicant’s application for a visa on 18th December 2006. The letter was addressed to the Applicant at her address in Canley Heights, which was the address that the Applicant had given in her letters to the delegate dated 14th[34] and 23rd November 2006.[35] The Applicant did not provide the delegate with the name and address of an authorised recipient, so s.494D of the Act will not apply.
[34] Court Book 88
[35] Court Book 91
The Canley Heights address was the last residential address provided to the Minister by the Applicant for the purpose of receiving documents. The document was dated 18th December 2006[36] and dispatched within 3 working days of the date of the document. The Tribunal received confirmation that the document was sent by registered post on 19th December 2006.[37]
[36] Court Book 119
[37] Court Book 168
The Applicant’s then migration agent, Mr Asuzu, informed the Tribunal in his letter dated 23rd March 2007 that:
According to the Department’s postage envelop[38], first attempt was made on 20 December to notify the applicant to no avail.[39]
[38] sic
[39] Court book 162
The registered post envelope dispatched to the Applicant was provided to the Tribunal, or at least a copy of it was. It clearly shows a handwritten notation “(indecipherable” 20/12).”[40]
[40] Court Book 163
The Tribunal was satisfied that the decision notification letter was in fact dispatched to the Applicant by registered post within 3 working days of the date of the document. The evidence supports this finding. Thus, the Tribunal was satisfied that the delegate dispatched the letter to the Applicant in accordance with s.494B(4) of the Migration Act. There is no error in that finding.
Having made that finding, the Tribunal found that the Applicant is taken to have received the decision notification letter on 29th December 2006, being 7 working days after the date of the notice.[41] This finding is in accordance with s.494C(4). The fact that the Applicant did not actually receive the letter until 15th January 2007 is irrelevant, as the Tribunal found.[42]
[41] Court Book 167, 168
[42] Court Book 168
The Tribunal correctly applied the law in this finding and no error is shown.
The Applicant does not explain why it took until the second registered post notification for her to collect the letter from the Post Office. However, when she did receive the letter she acted promptly. According to her affidavit, she rang a person from the Khmer Community Association for advice the following day, Tuesday
16th January. She went to see him that day and he referred to a lawyer who had done cases for people in the Cambodian community. The Applicant deposed that she made an appointment to see the lawyer that same day.[43]
[43] Applicant’s affidavit at [13]
The Applicant deposed that she went to see the lawyer in his office in Pitt Street, Sydney, on the afternoon of Tuesday 16th January. She claims that he said he would prepare the application for her and she could return on 18th January to sign the application form.[44]
[44] Applicant’s affidavit at [14]
The Applicant claims in her affidavit that she and her husband went to the lawyer’s office in the city on the morning of 18th January. She signed the application for review to the Migration Review Tribunal.
A copy of that application is annexed to the Applicant’s affidavit and a further copy appears in the Court Book at pages 125 to 131. It is hand dated 18.1.07. The representative is described as:
ASUZU
IGNATIUS
AFRO VISION ENTERPRISES
SUITE 46A, LEVEL 4, 332 PITT STREET
SYDNEY NSW 2000[45]
[45] Court Book 128
The Applicant deposes that the lawyer, Mr Asuzu, said to her words to the effect;
“I will take it to the MRT today because its[46] almost late”.[47]
[46] sic
[47] Applicant’s affidavit at [15]
It is clear that the copy of the Application for Review to the Migration Review Tribunal shows that it was received by hand and date-stamped;
24 Jan 2007[48]
[48] Court book 125, 127, 129, 131
The Applicant deposes that the lawyer subsequently rang her and said word to the effect of:
“The MRT said the application was late”.[49]
[49] Applicant’s affidavit at [17]
Obviously, the lawyer, Mr Asuzu, has not given evidence in these proceedings. There is no explanation from him as to why an application that on its face was signed on 18th January 2007, a Thursday, was not received by the Migration Review Tribunal until
24th January 2007, which was the following Wednesday. The evidence is that the document was signed on the Thursday morning at 332 Pitt Street, Sydney and was not received at the Tribunal’s office at
83 Clarence Street, Sydney, until the following Wednesday.
The Applicant’s evidence is that Mr Asuzu said to her that the application was almost late and he would take it to the MRT that day. He appears not to have done that.
The application was almost late on 18th January 2008, but it was not out of time. Had it been submitted to the Tribunal on 18th January, or even the following day, it would have been in time. The Tribunal set out the law in this way:
In respect of an applicant who has applied for review of an MRT-reviewable decision covered by s.338(2) and is not in immigration detention when notified of the delegate’s decision, the application for review must be lodged at a registry of the Tribunal within a period not later than 21 days after the day on which notice is received: s.347(1)(b)(i) and r.4.10(1)(a). There is no provision for extension of time. An application sent to the Tribunal by post or fax or other electronic means is taken to be given to the Tribunal when it is received at a registry of the Tribunal: r.4.10(5) and (6).[50]
[50] Court Book 166
There is no error in the Tribunal’s description of the law.
Subsection 347(1)(b)(i) of the Migration Act says:
Section 347 - Application for review by Migration Review Tribunal
(1) An application for review of an MRT‑reviewable decision must:
(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;…
The Tribunal correctly found that a decision to refuse to grant a partner (Migrant) (Class BC) visa is covered by s.338(2).[51]
[51] Court Book 166
Regulation 4.10(1) 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;…
The Tribunal correctly found that the Applicant is taken to have received the notification 7 working days after the date when it was posted. It was posted on 18th December 2006, and 7 working days later, including Christmas Day and Boxing Day, took the date up to 29th December 2006, as the Tribunal found.[52]
[52] Court Book 167
The Tribunal then found that the last day for lodging the application was 21 days later, that is, 21 calendar days. The Tribunal correctly found that the last day for lodging the application was 19th January 2007, which was a Friday.
There is no error in the application of the legislation or the regulation, leaving aside the Applicant’s contention that both the section and the regulation are invalid.
However, in his letter to the Tribunal dated 23rd March 2007,
Mr Asuzu, a registered migration agent, gives a completely different view of the law. His submission was:
My client’s 21 calendar days did not start to run, until the Departmental Decision was either delivered or received by the Applicant…
Second and final notice was attempted on 9 January 2007. I therefore submit that the Applicant had made the review application within the statutory calendar days on 24 January 2007.[53]
[53] Court Book 162
This submission is entirely misconceived. It is astonishing that a registered migration agent, whose job it is to assist people to apply to the Migration Review Tribunal for review of decisions to refuse the grant of a visa, would not be aware of the time limits that apply for lodging an application.
The evidence before the Court raises an inference of negligence on the part of the migration agent.
Turning now to the Applicant’s grounds of review.
As to the Applicant’s first ground, there is nothing to show that the Tribunal misconstrued either s.347(1)(b)(i) of the Migration Act or reg.4.10(1)(a). Its reading of both the subsection and the regulation was correct. Hence, it could only have failed to comply with its duty to review the decision under s.348(1) if either or both s.347(1)(b)(i) or reg.4.10(1)(a) are invalid.
The tests for determining whether a law infringes the requirements the requirement of freedom of communication imposed by ss.7, 24, 64 or 128 of the Constitution are set out in Lange v Australian Broadcasting Corporation at 567-568:
First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s.128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively ‘the system of government prescribed by the Constitution’). If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.[54]
[54] footnotes have been omitted
In Coleman v Power, Mc Hugh J held that for the purposes of ss.7, 24, 64 and 128 of the Constitution, the sections that give rise to the constitutional implication, the relevant subjects of political and governmental communication include the activities of the executive arm of the government (at 45, [80]). His Honour went on to consider criticism of the second test, “the reasonably appropriate and adapted test”. He stated that:
However, it is clear that the Court did intend the second limb to be read in a way that requires both the end and the manner of its achievement be compatible with the system of representative and responsible government.[55]
[55] Lange at 50, [93]
McHugh J expressed the view that the true test was that expressed by Kirby J in Levy v Victoria:
This is: does the law which is impugned have the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides?[56]
[56] (1997) 189 CLR 579 at 646
Subsection 347(1) of the Migration Act provides for applications for review of certain decisions by the Migration Review Tribunal, including:
a)that they must be in the approved form;
b)that they must be made within particular time limits; and
c)they must be accompanied by the prescribed fee.
It appears to me to be clear that s.347 provides a way for an applicant to apply for a review of a decision. If the Applicant makes an application that complies with s.347, the Tribunal is required under s.348 to review that decision.
I agree with the Minister’s submissions that the time limits in subsection 347(1) neither concerns communications about government or political matters nor hinders or burdens an applicant’s ability to seek advice about the review of a decision from a lawyer or a migration agent.
The decision in Cunliffe v The Commonwealth dealt with restrictions on giving migration advice by people who are not registered migration agents. Brennan J said at 329:
The prohibitions on conduct contained in ss.114F, 114G and 114H are not expressed as restrictions on political discussion. Nor, in their operation, do they do so. To control the giving of immigration assistance or the making of immigration representations is not to impose a restriction on political discussion. The immunity from legislative control which the Constitution implies in order to secure freedom of political discussion does not preclude the making of laws to control any activity the control of which might be politically controversial. The constitutional freedom of political discussion ensures freedom to engage in debate about the institutions of government and the exercise of any kind of governmental power but it does not impair, much less sterilize, the exercise of a power which might become the subject of political debate. It would be absurd to hold that legislative control of the provision of services to aliens is beyond the power of the Parliament merely because that control might prove to be politically controversial. If it were otherwise, the constitutionally implied freedom of political discussion would destroy the plenary power of the Parliament to make laws with respect to the subject matters of power.[57]
[57] (1993-1994) 182 CLR 329
In APLA Limited v Legal Services Commissioner (NSW), the High Court was considering the validity of Part 14 of the Legal Profession Regulation 2002 (NSW), which was made under section 216 of the Legal Profession Act 1987 (NSW). The regulation concerned prohibited, subject to certain exceptions, a barrister or solicitor from publishing any advertisement that included any reference to or depiction of personal injury.
The High Court considered whether there was an infringement of the implied constitutional freedom about government or political matters. The High Court held that there was not. As Gleeson CJ and Heydon J said at 351, [29]:
Restrictions on the marketing of legal services are not incompatible with a system of representative and responsible government, or with the requirements of ss 7, 24, 64 and 128 of the Constitution.
Both Gummow J at 403, [219], and Hayne J at 451, [380], referred to the decision of Brennan J in Cunliffe v The Commonwealth. Hayne J said:
As Brennan J pointed out in Cunliffe v The Commonwealth[58], it is necessary top distinguish between laws controlling an activity and laws restricting political discussion about whether that activity should be controlled.[59]
[58] footnote omitted
[59] (2005) 224 CLR 322 at 451, [380]
In my view, s.347 of the Migration Act does not contain restrictions that are incompatible with the system of representative and responsible government or with the requirements of ss.7, 24, 64 and 128 of the Constitution. Therefore, it does not effectively burden freedom of communication about government or political matters either in its terms, operation or effect.
In my view, s.347 of the Act does not have the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides.
Thus, s.347 does not satisfy either of the tests in Lange, as modified by Coleman v Power and Levy v Victoria. It must follow that I am not satisfied that s.347 is invalid.
Similarly, I am not satisfied that reg.4.10(1)(a) is invalid. As counsel for the Minister has submitted, s.347 not only envisages the prescription of a period of time by regulation, but also that it may be less than 28 days. Subsection 347(1)(b)(i) requires an application to be given to the Tribunal “within the prescribed period, being a period ending not later than[60]:
(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;
[60] emphasis added
It is also submitted for the Minister that the legislation has been considered without question by the High Court on a number of occasions, including in Bodruddaza v Minister for Immigration and Multicultural and Indigenous Affairs.[61] In their joint judgment, their Honours set out the history of the matter, which, like the present case, involved an application being made to the Migration Review Tribunal out of time:
[4]The plaintiff was notified of the decision of the delegate by notice sent by registered post on 5 January 2006 and addressed to his migration agent. The plaintiff instructed the migration agent to apply for review of the delegate’s decision. By application lodged with the Migration Review Tribunal (the tribunal) on 7 February 2006, the plaintiff sought review by the tribunal of that decision. Section 347 of the Act and reg. 4.10 of the Regulations required the application for review to be made to the tribunal within a period ending not later than 21 days after the receipt of notification of the decision. Further, it followed from a combination of ss 494B, 494C and 494D of the Act that it was on 16 January 2006 that the plaintiff was taken to have received the notification sent on 5 January 2006.
[5]The result was that the 21-day period for the making of the review application ended on 6 February 2006. This was one day before the application was made. It is from this failure of the plaintiff’s migration agent by one day to ensure observance of the statutory deadline that the litigation in this court ensued.
[6]First on 9 May 2006, the tribunal decided that it did not have jurisdiction to determine the application for review. In its accompanying reasons, the Tribunal stated:
There is no provision for an extension of time and the submission [made by the plaintiff] provides no basis for accepting the review application received on 7 February 2006 outside the mandatory time limit. The review application is not a valid application and the Tribunal has no jurisdiction to review the delegate’s decision.
[7]Thereafter, on 11 July 2006, the plaintiff instituted the present proceeding in this court.[62]
[61] supra
[62] (2007) 234 ALR 114 at 115-116
Thus, the High Court has considered an essentially similar situation and has made no adverse comment on the validity of either s.347 or regulation 4.10. Accordingly, neither should this Court.
There is no jurisdictional error. The Tribunal decision is a privative clause decision. It is final and conclusive and so the remedies of certiorari, mandamus and prohibition are not available (s.474(1)).
The application will be dismissed with costs.
I certify that the preceding one hundred thirty-seven (137) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V. Lee
Date: 3 November 2008
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