Mahboob v Minister for Immigration and Ethnic Affairs

[1996] FCA 148

CATCHWORDS

Immigration - administrative review - application for refugee status refused - whether decision of Refugee Review Tribunal reviewable - whether Court has jurisdiction - examination of impact of substantial amendments made to the Migration Act 1958 by the Migration Reform Act 1992 - new provisions for judicial review commenced after the applicant applied to the Refugee Review Tribunal but before the Tribunal made its decision - whether review under the Administrative Decisions (Judicial Review) Act 1977 available in the circumstances - extent to which new statutory regime is to apply to applications made before its commencement - whether applicant has an accrued right to have the application determined in accordance with the law in force at the time the application was made - whether accrued right preserved - whether legislation evidences a contrary intention

Administrative Decisions (Judicial Review) Act 1977 s 8
Judiciary Act 1903 s 39B
Migration Act 1958 s 5(9)(a), s 26B (s 36), s 115A (s 338), s 166B (s 411), s 166L (s 474), s 166LA (s 475), s 166LB (s 476), s 166LD (s 478), s 166LG (s 481), s 166LK (s 485), Part 2 Division 1AA, Part 2 Division 2 (Part 2 Division 3), Part 4B (Part 8), (current section numbers appear in brackets)
Migration Reform Act 1992 s 2(3), s 32, s 39
Migration Laws Amendment Act 1993
Migration Legislation Amendment Act 1994
Administrative Appeals Tribunal Act 1975
Acts Interpretation Act 1901 s 8, s 8A(c)
Migration Reform (Transitional Provisions) Regulations 1994 r 22(7)(a)

Guo Wei Rong v Minister for Immigration and Ethnic Affairs Full Court 26 February 1996 unreported followed
Singh v Minister for Immigration and Ethnic Affairs Von Doussa J 31 January 1996 unreported applied
Esber v Commonwealth (1992) 174 CLR 430 considered
ACI PET Operations Pty Ltd v Comptroller‑General of Customs (1993) 118 ALR 114 at 120, 121 considered
Director of Public Works v Ho Po Sang [1961] AC 901 referred
Li Shi Ping v Minister for Immigration Local Government and Ethnic Affairs Full Court 13 April 1995 unreported referred

FUAD BIN MAHBOOB v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS & ANOR.
NG412 of 1995

CORAM:Lehane J

PLACE:Sydney

DATE:       15 March 1996

IN THE FEDERAL COURT OF AUSTRALIA                 )
NEW SOUTH WALES DISTRICT REGISTRY                )
GENERAL DIVISION  )       No. NG412 of 1995

BETWEEN:FUAD BIN MAHBOOB

Applicant

AND:MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

DR K CHAN

constituting the Refugee Review Tribunal

Second Respondent

CORAM:Lehane J

PLACE:Sydney

DATE:15 March 1996

REASONS FOR JUDGMENT

LEHANE J:  This is an application to review a decision of the Refugee Review Tribunal.  It is made under the Administrative Decisions (Judicial Review) Act 1977 (the AD(JR) Act) and s 39B of the Judiciary Act 1903.

Briefly stated, the circumstances in which the application is made are these. On 18 January 1993 the applicant applied to the Minister, under Division 1AA of Part 2 of the Migration Act 1958 as then in force, for a determination that the applicant is a refugee. On 21 July 1993 a delegate of the Minister determined that the applicant is not a refugee. By reason of provisions of the Migration Reform Act 1992 which took effect on 1 July 1993, that determination was a decision reviewable by the Refugee
Review Tribunal; that Tribunal, in turn, was established by other provisions of the Migration Reform Act which came into effect on 7 December 1992, the date on which the Act received the Royal Assent.  The applicant, accordingly, applied on 4 August 1993 for review, by the Refugee Review Tribunal, of the delegate's determination.  By a decision made on 17 November 1994 the Tribunal upheld the determination.  It is that decision of the Tribunal of which the applicant now seeks a review.

There is a threshold question.  Although the applicant and the respondents joined in submitting that I should answer it favourably to the applicant, I have found it by no means easy.  It is whether, having regard to the amendments made to the Migration Act by the Migration Reform Act, the Court has jurisdiction to undertake the review which the applicant seeks.

A decision of the Refugee Review Tribunal is a decision of an administrative character made under an enactment and accordingly, in the absence of a statutory provision to the contrary, is a decision open to review under s 8 of the AD(JR) Act. The difficulty is that, in addition to introducing provisions for review by the Refugee Review Tribunal, the Migration Reform Act also introduced a new Part 4B into the Migration Act.  That part provided a new regime for the review by the Court of decisions made under the Act.  It introduced the concept of "judicially‑reviewable decision", a phrase which was defined in ss 166L and 166LA (the provisions have since been renumbered, but their substance is unchanged: I shall continue to use the
numbering as it appears in the Migration Reform Act). A decision of the Refugee Review Tribunal is a judicially‑reviewable decision. Section 166LB permits the making of an application to the Court for review of a judicially‑reviewable decision on a number of specified grounds. Those grounds are in some respects significantly narrower than the grounds available under the AD(JR) Act. Section 166LG empowers the Court to make various orders on an application under s 166LB.

There are then two provisions which in combination give rise to the threshold question in this case.  Section 166LD provides that an application for review of a judicially‑reviewable decision must be lodged with a registry of the Court within 28 days of the applicant being notified of the decision.  Sub‑section (2) provides:

(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 [of 28 days].

Section 166LK then provides:

(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 166LA(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.

(3)If a matter relating to a judicially‑reviewable decision is remitted to the Federal Court under section 44 of the Judiciary Act 1903, the
Federal Court does not have any powers in relation to that matter other than the powers it would have had if the matter had been as a result of an application made under this Part.

If the decision which the applicant asks the Court to review is a judicially‑reviewable decision to which those provisions apply then it is clear that the Court does not have jurisdiction to deal with it.  It is now, obviously, too late to make an application under s 166LB and it was already too late to do so when, on 9 June 1995, the application in these proceedings was filed. 

Part 4B did not come into effect on 1 July 1993 as the provisions for review by the Refugee Review Tribunal did. It was originally, under s 2(3) of the Migration Reform Act, to commence on 1 November 1993.  The Migration Laws Amendment Act 1993, however, changed that date to 1 September 1994. Thus, the provisions for review by the Refugee Review Tribunal commenced after the applicant made his primary application to the Minister for determination of his status as a refugee but before the Minister's delegate made his determination. The provisions for judicial review commenced after the applicant applied to the Refugee Review Tribunal for a review of the delegate's determination but before the Tribunal made its decision.

If the Tribunal's decision had been made before 1 September 1994 then presumably (though I have misgivings about the effect of s 39 of the Migration Reform Act, to which I shall refer later in these reasons) a review under the AD(JR) Act would have been available. Although this issue was not discussed in the recent decision of the
Full Court in Guo Wei Rong v Minister for Immigration and Ethnic Affairs, 26 February 1996 unreported, their Honours proceeded on the basis that such a review was available in circumstances not relevantly different from those of this case except that the date of the Tribunal's decision was 19 May 1994.  The question here is whether the applicant had, immediately before 1 September 1994, an accrued right of a kind which enabled him to institute these proceedings despite the commencement of the provisions concerning judicially‑reviewable decisions.

It is desirable to start from firm ground. The exclusion from the application of the AD(JR) Act of decisions of the Refugee Review Tribunal (which occurred on 1 September 1994 when the relevant provisions of the Migration Reform Act commenced) effected a repeal, to that extent, of the AD(JR) Act for the purposes of s 8 of the Acts Interpretation Act 1901: see s 8A(c).

Section 8 of the Acts Interpretation Act provides:

8.Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not:

...

(c)affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or

...

(e)affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability ...  as aforesaid;

and any such investigation legal proceeding or remedy may be instituted continued or enforced ... as if the repealing Act had not been passed.

The next matter to note is that the partial repeal of the AD(JR) Act is merely one aspect of very substantial changes made by the Migration Reform Act to the provisions of the Migration Act dealing with the making and review of decisions, including those relating to a claim for recognition as a refugee. The changes in relation to claims of that kind may, I think, be sufficiently summarised as follows. First, Division 1AA of Part 2 of the Migration Act was repealed. There was introduced instead, by a new s 26B, a category of visas called "protection visas", a criterion for which is "that the applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". Secondly, there was introduced into Division 2 of Part 2 a new subdivision AB which provides what is described as a code of procedure for dealing fairly, efficiently and quickly with visa applications and a new subdivision AC dealing with the making and notification of decisions and, particularly, if an application for a visa is refused, matters relating to the grounds of the refusal. Thirdly, though decisions as to refugee status (including decisions as to the grant or refusal of a protection visa) were excluded from the system of internal review under Division 1 of Part 3 (s 115A(2)(d)) such a decision was, as I have said, to be reviewable by the Refugee Review Tribunal established by the Act. Fourthly, decisions of the Refugee Review Tribunal were one of the categories of decisions under the Migration Act reviewable, under Part 4B, by the Court.

I have mentioned that the provisions for the establishment of the Refugee Review Tribunal and for the review of decisions by that Tribunal commenced respectively on
7 December 1992 and 1 July 1993. I have mentioned also that the provisions for review by the Court commenced on 1 September 1994. The provisions substituting the protective visa regime for the procedure under the old Division 1AA of Part 2 also commenced on 1 September 1994, as did the provisions establishing the code of procedure and regulating the making and notification of decisions. It is clear, however, that the new regime is not, and was not intended to be, wholly inapplicable to an application made, before its various elements commenced, for a determination whether a non‑citizen is, or is not, a refugee. For example, s 39 of the Migration Reform Act provided, as originally enacted, as follows:

39.The application for a determination by the Minister that a person is a refugee within the meaning of the Principal Act as in force immediately before 1 November 1993 that was made, and not finally determined (within the meaning of the Principal Act), before that date is taken, on that date, to be an application for a protection visa (within the meaning of the Principal Act as in force on that date).

On the other hand, the "code of procedure" does not apply to an application made before 1 September 1994 (Migration Reform (Transitional Provisions) Regulations 1994, r 22(7)(a)); nevertheless, as I have mentioned, a decision (such as the one made on the applicant's application to the Minister) made before 1 September 1994 that a non‑citizen is not a refugee has since 1 July 1993 been a decision reviewable by the Refugee Review Tribunal: Migration Act s 166B(1), inserted by s 32 of the Migration Reform Act.  Thus by virtue of express provisions of the legislation the new regime applies in part, and in part does not apply, to applications made before
1 September 1994, the date from which the new regime as a whole has been in operation.

The point of that is that it cannot be said that a non‑citizen (such as the applicant in this case) who, before 1 July 1993, had lodged an application for a determination that he or she was a refugee retained, after 1 September 1994, if the application had not then been finally dealt with, an accrued right to have the application dealt with in accordance, in all respects, with the law in force at the time when the application was made.  By virtue of the express provisions of the Migration Reform Act the old Division 1AA of Part 2 does not apply to it; instead, it is to be treated as an application for a protection visa under the new provisions. The new code of conduct does not apply to it; but the provisions for review by the Refugee Review Tribunal do. If all of the provisions concerning applications of this kind had come into force on the same day (including the provisions for review by the Court) the conclusion might well be irresistible that the new regime, including the provisions for review by the Court and in particular ss 166LD and 166LK applied in full to applications made before the regime commenced. The fact that the code of practice was not to apply to those applications would not, I think, be a significant indication of a contrary intention: as a purely practical matter it might no doubt be thought inconvenient to require an application, consideration of which was already well advanced, to be dealt with in accordance with the code. If one looks at the provisions as a whole there is ample express indication of an intention that they are to apply to applications not yet finally dealt with: they are to be treated as if they were applications for visas of the new
kind; it is expressly said that the code of conduct is not to apply to them; it is expressly provided that they are to be reviewable by the Refugee Review Tribunal.  All that being so, I think it might well equally be the case that the simple provision that a decision of the Tribunal is one reviewable by the Court under the new regime should - if all the new provisions had commenced at the same time - be taken as a sufficient indication of an intention that that regime, also, was to apply to all decisions of the Tribunal, whenever made.  Some support for that view, I think, may be found in the recent decision of Von Doussa J in Singh v Minister for Immigration and Ethnic Affairs, 31 January 1996 unreported.

It is peculiar to the provisions dealing with applicants claiming recognition as refugees, however, that they did not commence simultaneously. Particularly, the provisions for review by the Refugee Review Tribunal were in operation before the commencement of those providing for review by the Court. As a consequence, a decision of the Tribunal made before 1 September 1994 apparently is not excluded from review under the AD(JR) Act: Guo Wei Rong supra.  Counsel for both parties submitted that I should hold that the successor provisions of ss 166LD and 166LK are inapplicable to any decision of the Refugee Review Tribunal on a review of a decision to grant or refuse a primary application for a determination that the applicant is a refugee, where the primary application was made before 1 September 1994: including, of course, such an application made only a few days before the whole of the Migration Reform Act, enacted some considerable time previously, was to come into force.  What I have already said will make it clear why I would have considerable difficulty in accepting a submission in those wide terms, and to do so might well be inconsistent with the views expressed by Von Doussa J in Singh.

That, however, does not of itself require me to dismiss this application, because the applicant here is within a narrower class: he is within the class of those who had, before 1 September 1994, applied to the Refugee Review Tribunal for review of a determination that he is not a refugee. The question to be answered is whether, having done so, he acquired a right of a kind which, if a contrary intention did not appear, was not affected by the partial repeal, on 1 September 1994, of the AD(JR) Act; and whether, if so, a contrary intention in fact appears.

Counsel referred particularly, in written and oral submissions, to Esber v Commonwealth (1992) 174 CLR 430 and the decision of Foster J at first instance in ACI PET Operations Pty Ltd v Comptroller‑General of Customs (1993) 118 ALR 114 (as to issues not considered by the Full Court on appeal: (1994) 49 FCR 56). The submissions were to the effect that immediately before 1 September 1994 the applicant had an accrued right to have his application for determination of his status as a refugee dealt with in accordance with the law then in force, including the principles of administrative law enforceable by review proceedings under the AD(JR) Act. It may well be that authorities such as those referred to have expanded the class of rights, including those that are inchoate, contingent or conditional, at the expense of the "hope" category as it had appeared to emerge from decisions such as Director of Public Works v Ho Po Sang [1961] AC 901. In that respect the submissions properly relied on powerful support provided by a passage in the judgment of Foster J in ACI PET at 120, 121.

The difficulty, however, is that an accrued right and proceedings to protect it are preserved only "unless a contrary intention appears": that is, unless the repealing legislation expressly or by necessary implication provides to the contrary. In that context the particular problem is, I think, s 39 of the Migration Reform Act as amended, with effect from the date when the Migration Reform Act received the Royal Assent, by the Migration Legislation Amendment Act 1994. Section 39 in its amended form provides as follows:

39.If:

(a)an application for:

(i)a determination by the Minister that a person is a refugee within the meaning of the Principal Act as in force immediately before 1 September 1994; or

(ii)...

was made before that date; and

(b)before that date, the application had not been finally determined (within the meaning of the Principal Act);

then, on and after that date, the provisions of the Principal Act (including provisions relating to review of decisions) apply as if the application was an application for a protection visa (within the meaning of the Principal Act as in force on that date).

Because the Tribunal, as at 1 September 1994, had not dealt with the applicant's application, the application was not "finally determined" within the meaning of the Migration Act as in force on that date (s 5(9)(a) as it now appears).  I am unable to escape the conclusion that the addition of the words I have emphasised in the amended section necessarily subjected the application to the provisions relating to review in their entirety, including those relating to judicial review under what was introduced as Part 4B.  The procedure before the Court is described by the provisions as "review", just as the procedure before the Tribunal is; Part 4B is the last in a series of three Parts of the Migration Act, all of which deal with the subject of the review of decisions.  It seems to me inescapable that the words in parenthesis refer to the new review procedure in whole: if, of course, they were intended (and I can see no basis for thinking that they were) to apply only to review by the Tribunal they were, for reasons already apparent, unnecessary.

It follows in my view that the Court does not have jurisdiction to deal with this application and it must therefore be dismissed.

Despite that conclusion, I propose to defer making formal orders disposing of these proceedings for a brief period to enable the parties to consider these reasons and to seek leave to make further submissions should they wish to do so. The reason why I propose to take that course is that the analysis of the legislation which I have undertaken was not, in detail, the subject of submissions. Rather, counsel concentrated more on the authorities as to accrued rights and proceeded on the basis that there was no express or necessarily implied indication in the legislation of an intention to subject to the new procedures (to the exclusion of the old) "primary" applications made before 1 September 1994. In particular s 39, in its amended form, received only passing reference in the respondent's submissions during a discussion of the decision of the Full Court in Li Shi Ping v Minister for Immigration Local Government and Ethnic Affairs 13 April 1995 unreported.  It may be that, having considered these reasons, counsel will wish to bring to my attention other matters relating to the construction of the legislation.

I shall also hear counsel on the question of costs.  Counsel for the applicant has submitted that, in view of aspects of the history of the matter to which she referred, I should order that the respondent pay the applicant's costs if I were to conclude that the Court lacked jurisdiction to deal with the application.  Counsel for the respondent indicated that he had no instructions to consent to such an order and may wish to oppose it.  Accordingly, I shall hear anything further that counsel wish to say about costs.

I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.

Associate:

Dated:  15 March 1996

Heard:  9 and 21 February 1996

Place:  Sydney

Decision:  15 March 1996

Appearances:  Ms L McCallum of counsel instructed by Parish Patience appeared for the applicant.

Mr R T Beech‑Jones of counsel instructed by the Australian Government Solicitor appeared for the respondent.