SZICV v Minister for Immigration & Anor - [2006] FMCA 1063

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZICV v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1063

MIGRATION – Jurisdiction of Court – time limit on applications – time for application for extension of time – failure of applicant to mark “yes” box in original application – whether implicit extension application – whether Court could backdate extension application – relevance of amendment powers – mandatory requirement that extension application be made “within 84 days” of notification of decision – no power to remedy failure to apply for extension – application dismissed as incompetent.

Acts Interpretation Act 1901 (Cth), ss.25C, 36(2)
Commonwealth of Australia Constitution Act, s.71
Federal Court Rules (Cth), O.3 r.2(4A), O.13 r.3A
Federal Magistrates Act 1999 (Cth), s.3
Federal Magistrates Court Rules 2001 (Cth), rr.1.03, 1.05(2), 1.06(1), 2.04(1), 4.03(2), 7.01(1), 44.03, 44.05, 44.06, Sch.2 Pt.1
Migration Act 1958 (Cth), ss.5, 5E, 417, 424A(1), 476, 476(1), 477, 477(1), 477(1A), 477(2), 477(2)(a), 477(3), 478, 478(1)(b), 479, 483A

Migration Litigation Reform Act 2005 (Cth), Sch.1 cll.28, 41, 42

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Adams v Lambert [2006] HCA 10
Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265
Emanuele & Anor v Australian Securities Commission & Ors (1996) 188 CLR 114
Liu v Minister for Immigration & Multicultural Affairs (1997) 72 FCR 345
MZXJP v Minister for Immigration & Anor [2006] FMCA 1010
NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 375, (2002) 70 ALD 64
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Rahman v Minister for Immigration & Multicultural Affairs (2002) 118 FCR 448
Secretary, Department of Family and Community Services v Haagar (2001) 115 FCR 25
Sneade v Wotherton Barytes & Lead Mining Co Ltd [1904] 1 KB 295
Streimer v Tamas (1981) 54 FLR 253
SZBVC v Minister for Immigration [2006] FMCA 834
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2
SZELA v Minister for Immigration & Anor [2005] FMCA 1068
SZICO & Ors v Minister for Immigration [2006] FMCA 435
WACB v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 210 ALR 190, (2004) 79 ALJR 94
Wickremasinghe v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 125
Wingadee Shire Council v Willis (1910) 11 CLR 123
Wodrow v Commonwealth of Australia [2003] FCA 403
Yong v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 155

Applicant:

SZICV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG142 of 2006

Judgment of:

Smith FM

Hearing dates:

27 April 2006, 14 July 2006

Delivered at:

Sydney

Delivered on:

4 August 2006

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser and Ms S Thode

Counsel for the First Respondent:

Mr J Smith

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed as incompetent.
Either party may within 14 days apply in relation to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG142 of 2006

SZICV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 13 January 2006 seeking to invoke the Court’s jurisdiction under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”). It seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 14 May 2003 and handed down on 10 June 2003. The Tribunal affirmed a decision of a delegate made on 5 March 2002 which refused to grant a protection visa to the applicant.
Regrettably, I have decided that I must dismiss the application on the ground that it is incompetent, due to the failure of the applicant to make an application to the Court for an extension of the 28 day mandatory time limit within the 84 day period provided under s.477(2)(a) of the Migration Act. My reasons for regret will emerge from my consideration of the facts and law below. In brief, the applicant filed a substantive application only 15 days after the expiry of the relevant 28 day limitation period. His helper failed to tick a box on the form which would have shown an intention to seek an extension of time. The mistake was understandable, since the time limit and form of application first came into effect on 1 December 2005, and the applicant required a Mandarin interpreter, was not legally represented and was held in immigration detention at Villawood. Unfortunately, this was not rectified at the first court date listing before me on 15 February 2006 nor subsequently prior to 24 February 2006. The applicant first sought to remedy the defect at the final hearing on 27 April 2006.
Notwithstanding my regrets, the jurisdictional point having been raised, I am obliged to address it (c.f. Yong v Minister for Immigration & Multicultural Affairs (1997) 75 FCR 155 (“Yong”) at 167A). Arguments on the issue of competency were presented by counsel for both parties, and I am grateful for their written and oral submissions.
Counsel also addressed me on whether there were jurisdictional errors which vitiated the Tribunal’s decision. Written and oral evidence from the applicant was also presented going to the issue whether, if a material jurisdictional error were found, the Court should refuse relief due to a substantial period of delay between the applicant’s actual receipt of the Tribunal’s decision in June 2003 and his filing of his application in this Court. However, the outcome of these issues is not clear, and my conclusion on the competency of the application means that I have not found it necessary to address them.

Time limits under the 2005 legislation

The Court’s current jurisdiction under s.476 of the Migration Act was introduced by the Migration Litigation Reform Act 2005 (Cth), which repealed the Court’s jurisdiction under s.483A (see Sch.1 cll.28 and 41). Section 483A previously gave the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. An attempt to impose a mandatory and non‑extendable 28 day time period on applications invoking that jurisdiction was contained in former s.477(1A), which provided:
477Time limits on applications for judicial review
(1A)An application to the Federal Magistrates Court under section 483A for:
(a) a writ of mandamus, prohibition or certiorari; or
(b) an injunction or a declaration;
in respect of a privative clause decision in relation to which the jurisdiction of the Federal Magistrates Court is not excluded by section 476 must be made to the Federal Magistrates Court within 28 days of the notification of the decision.
A similar time limit was imposed by s.477(1) on the Federal Court’s jurisdiction. However, in both courts it applied only to an application “in respect of a privative clause decision”, and was rendered largely ineffective by the interpretation of that term taken by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. Although this effect was only slowly appreciated by many lawyers and migration agents (c.f. my discussion in SZELA v Minister for Immigration & Anor [2005] FMCA 1068 at [55]‑[65]), the consequence was that before 1 December 2005 there was no statutory time limit preventing an applicant applying to the Court for relief in relation to a Tribunal decision affected by jurisdictional error, although delay might be relevant to the Court’s discretion to grant relief. It is clear that one object of the Migration Litigation Reform Act 2005 (Cth) was to deal with this by extending a new, more generous, time limit to a “purported privative clause decision” as well as to a “privative clause decision” (see the definitions of “migration decision” in s.5 and “purported privative clause decision” in s.5E).
Under s.476(1) the Court now has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. Requirements as to the timing of an application to invoke that jurisdiction are found in a new s.477, which provides:
477Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.
(2)The Federal Magistrates Court may, by order, extend that 28 day period by up to 56 days if:
(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and
(b) the Federal Magistrates Court is satisfied that it is in the interests of the administration of justice to do so.
(3)Except as provided by subsection (2), the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an applicant to make an application mentioned in subsection (1) outside that 28 day period.
(4)The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.
The transitional provisions of the Migration Litigation Reform Act 2005 (Cth) applied this time limit to applications in relation to decisions made before its commencement, but allowed a period of grace after 1 December 2005 in which an application could be brought. This was achieved by Sch.1 cl.42, which provides:
42Transitional provision–migration decision made before commencement day
Where proceedings are commenced on or after the commencement day in relation to a migration decision made before the commencement day, and actual notification of the decision is given before the commencement day:
(a) section 477 of the Migration Act 1958 applies as if the actual notification of the decision took place on the commencement day; and …
The effect of cl.42 on s.477 is that an application in relation to a Tribunal decision published before 1 December 2005 is incompetent if it is filed in the Court on and after Friday, 24 February 2006 even if it is accompanied by an application for extension of time, but only if the Court could be satisfied that actual notification occurred prior to 1 December 2005 (c.f. my decision in SZBVC v Minister for Immigration [2006] FMCA 834). If it is not so satisfied, time can continue to run until a bar arises directly by reason of s.477, i.e. calculated from such date subsequent to 1 December 2005 at which the Court is satisfied that the applicant has received actual notification.
Where, as is conceded by the present applicant, actual notification did occur prior to 1 December 2005, it was necessary for the applicant to apply for an extension of time under s.477(2) if he did not lodge his application before Friday, 30 December 2005. That date was not a public holiday, so that time was not extended by s.36(2) of the Acts Interpretation Act 1901 (Cth). Since the time limit was not specified in Rules of Court, the deemed closure of the Registry in the Christmas vacation under O.3 r.2(4A) of the Federal Court Rules (Cth) also did not extend the time.
It was not contested before me that both the period of 28 days for “making” an application under s.477(1) for a remedy (which I shall refer to as a “substantive application”), and the period of 56 days allowed for an extension of that time upon an application made under s.477(2)(a) (which I shall refer to as an “extension application”), are mandatory limitations upon the Court’s jurisdiction. It was conceded by counsel for the applicant that a substantive application filed outside the 28 day period for which no extension of time can be made under s.477(2) should be dismissed as incompetent.
The mandatory effect of an indistinguishable time limit, and the power of the Parliament to impose such a limitation on jurisdiction invested in a Federal court under s.71 of the Commonwealth Constitution, was accepted in relation to the 1992 judicial review jurisdiction previously given to the Federal Court (see Rahman v Minister for Immigration & Multicultural Affairs (2002) 118 FCR 448, and Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [5], [237], [279]‑[281], and note this assumption taken in WACB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 79 ALJR 94 (“WACB”)).
Since both counsel relied upon authorities which considered the effect of the 1992‑2001 time limitation provision, it is convenient to extract it here. It was found in then s.478:
478Application for review by Federal Court
(1)An application under section 476 or 477 must:
(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and
(b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.
(2)The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1) (b).
It will be noted that former s.478 contained an injunctive provision comparable with that in the current s.477(3), which confirmed the mandatory intention of the 28 day time limit on a substantive application. It did not, however, contain an extension of time provision comparable with current s.477(2), and this raises new issues of construction which I shall address below as to how that provision envisages the making and giving effect to an extension application.

The form of an extension application

In contrast to current s.477, it will be noted that old s.478 expressly referred to Rules of Court specifying the “manner” of making a substantive application. It also required the time period to be calculated from the date when the application was “lodged with a Registry” rather than “made to the court”.
In my opinion, the absence of express reference to Rules of Court in the new s.477, implies that the legislature envisaged that the form and other requirements in relation to the making of applications should be governed by all the relevant procedures of the Court, i.e. under the rules, practices and directions of the Court.
The change from “lodged with a Registry” to “made to the court”, may normally not be material, since in my opinion an application could not be “made” unless and until it is received by the Court according to whatever formalities are required or accepted by the Court (c.f. the discussion of authorities on the word “made” in Secretary, Department of Family and Community Services v Haagar (2001) 115 FCR 25).
However, both of these differences from old s.478 tend to confirm that the legislature did not intend generally to impose any strict formal requirements on the manner of making either a substantive application or an extension application, but intended generally to leave to the Court the regulation of the manner in which it permitted such applications to be made. This is traditionally provided by court rules which indicate formal requirements of application, but which also include broad discretions of amendment or dispensation in relation to defects in documents or procedures.
Since the Migration Act does not itself, in s.477 or elsewhere, direct observance with any particular form for the making of a substantive or extension application, the present issue is not to be addressed by reference to authorities on when compliance with a form is intended to be a condition of validity or jurisdiction. It is therefore unnecessary to consider authorities on s.25C of the Acts Interpretation Act 1901 (Cth) or similar provisions which were invoked by the applicant’s counsel (and c.f. Adams v Lambert [2006] HCA 10 at [14], [18] and [25]). As I shall explain below, the Court’s Rules and incidental powers themselves allow it to overlook, amend or dispense with formal requirements. The issue in the present case is whether these powers are available to dispense with a requirement as to the time for making the extension application, not its form.
In this Court, a new Part 44 was introduced into the Federal Magistrates Court Rules 2001 (Cth) (“the Rules”) from 1 December 2005 to provide specifically for proceedings under s.476 of the Migration Act. Rule 44.05 provides:
44.05Application for order to show cause
(1)An application for a remedy to be granted in exercise of the Court’s jurisdiction under section 476 of the Migration Act in relation to a migration decision must be made in accordance with the form of application under the Migration Act set out in Part 1 of Schedule 2.
(2)An application must be supported by an affidavit including:
(a)    a copy of the decision in relation to which the remedy is sought and any statement of reasons for the decision; and
(b)    any document or other evidence the applicant seeks to rely on; and
(c)     if an extension of time is sought – the reasons for any delay and the reasons why an extension should be granted.
Although this rule envisages a substantive application being accompanied by an extension application, it contains no provision for the separate making of an extension application. No other rules specifically provide for this, although there are general rules available in relation to making interlocutory applications. This omission is explained by the “form of application under the Migration Act” which was inserted into Part 1 of Sch.2 to the Rules. In this form, provision is made for an applicant to complete a section headed “Application for extension of time” which draws attention to the possible need to seek an extension of time. The applicant is invited by the form to indicate whether an extension application is made at the time of filing the substantive application by marking a “yes” box, and the instruction draws attention to s.477 and the need for a supporting affidavit.
The Rules contain other provisions which mean that strict compliance with this form and procedure for seeking an extension application is not necessarily fatal. Rule 44.03 indicates that the Court’s Rules applicable in other types of proceedings generally may be applied or followed in relation to migration proceedings if they are “not inconsistent with this Part”.
Rule 1.03 indicates that the general object of the Rules is “to assist the just, efficient and economical resolution of proceedings”, reflecting s.3 of the Federal Magistrates Act 1999 (Cth) which states objectives of enabling the Court to “operate as informally as possible” and “to use streamlined procedures”. As would be expected, the Court is then given an array of powers to mitigate against technical objections.
Strict compliance with forms is expressly not required under the Rules:
2.04(1) Unless the Court otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient.
The Court is given a broad charter to dispense with formal requirements of the Rules:
1.06(1) The Court may in the interests of justice dispense with compliance, or full compliance, with any of these Rules at any time.
It has general powers under Part 7 to allow or direct amendment of forms:
7.01(1) At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
In my opinion, under these powers, the Court would have power to permit the making of an informal, even oral, application for an extension of time necessary to permit it to consider a substantive application, unless there were found in the Migration Act some clear and overriding provision which rendered them unavailable or ineffective. Powers such as these have also been held to allow a Court to deem an extension application to have been made at an earlier time on a nunc pro tunc basis (see Emanuele & Anor v Australian Securities Commission & Ors (1996) 188 CLR 114 at 131, and c.f. Streimer v Tamas (1981) 54 FLR 253).

In my opinion, subject to contrary indication in the Migration Act, the Court would also have power at any time to direct the amendment of a substantive application filed in the form provided under r.44.05, so as to allow it to include markings showing an application for extension of time. The amended application, including its extension application, would then be deemed to take effect from the date when the substantive application was filed, either under common law principles (c.f. Sneade v Wotherton Barytes & Lead Mining Co Ltd [1904] 1 KB 295 at 297, cited in Yong (supra) at 165), or by force of Federal Court Rule O.13 r.3A, which would apply in this Court in the absence of provision for this under Part 7 of the Rules (see FMC r.1.05(2)).
The legal issue in the present case is whether by reason of the language of s.477 of the Migration Act the exercise of any of these procedural powers is precluded, or would not be effective, to permit the Court to grant an extension of time to an applicant who filed a substantive application more than 28 days but within 84 days of actual notification of the decision sought to be reviewed, but failed to include an extension application in his substantive application or in any other application made to the Court before the expiry of that 84 day period.
When arguing for an affirmative response to this question, it was not contended by the Minister that r.44.05 and the “combined” form of application was inconsistent with s.477 or any other provision of the Migration Act. Nor was it contended that the Court would not have had power to allow the applicant to make an informal extension application at any time prior to 24 February 2006. However, it was submitted that, where the applicant lodged the application form under r.44.05 between 28 and 84 days after actual notification of the decision, and did not mark the “yes” box under “Application for extension of time” nor otherwise make a request to the Court for an extension of time either in the documents filed or in some other manner, then the Court had no power which could rectify that omission after the expiry of the 84 day period.
I shall consider the arguments on this issue after describing what happened in the present case. I also need to explain why I have decided that the present substantive application cannot be construed as in fact making an extension application in the form in which it was originally filed.

The history of the proceeding

The factual background to the present issue can be sketched briefly.
The applicant arrived in Australia in October 2001, and applied for a protection visa on 16 January 2002. He claimed a fear of returning to the People’s Republic of China, on the ground that an “evil director of the company” for which he used to work had threatened to report him to the Chinese authorities with false accusations.
A delegate refused the application on 5 March 2002, on the ground that his claims did not relate to the Refugees Convention.
On 5 April 2002, the applicant sought review of the decision by the Tribunal. He attended a hearing on 13 May 2003, and on 10 June 2003 the Tribunal handed down its decision affirming the delegate’s decision. Its reasoning is not clear, but it appears to rest upon several adverse findings:
·It doubted whether the applicant was the subject of hostility by the director, as claimed.
·“Even if it were so satisfied, … the alleged antipathy of the director was not motivated by any of the five Convention reasons. Rather, it was said to be motivated by personal jealousy”.
·“Further, the Tribunal is of the view that, had the director seriously wished harm to the applicant, he had adequate opportunity to inflict that harm while the applicant was employed by him and in the period which followed immediately”. The relationship of this finding to its other reasoning is unclear.
·The applicant’s claim that he was sought by the Chinese authorities was doubted, particularly since this was not claimed in either his initial visa application or in his application for review.
·The Tribunal “infers from his lengthy delay in seeking protection that he was not, and is not in fear of persecution”.
·“In these circumstances, the Tribunal finds that the applicant was not wanted by PRC authorities for allegedly taking Falun Gong literature into China. It finds that he therefore would not be at risk of persecution in China for that reason, were he to return there in the reasonably foreseeable future”.
In the amended application sought to be filed by his counsel, the applicant wishes to contend that the Tribunal misunderstood that he claimed a Convention nexus on the ground that, although the director was not motivated by a Convention reason, he feared persecution by Chinese authorities for political opinions falsely imputed to him by the director. He also wishes to argue that the Tribunal’s reasons for rejecting the truth of his claims reveals a failure to comply with s.424A(1), since it used “prior” information from the contents of his visa application, including its omissions, contrary to principles examined in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214, [2006] FCAFC 2. I consider that there is arguable substance in both of these grounds.
The respondent disputes these grounds, and also contends that relief would be denied because the errors identified were not material, and because of the delay in the applicant seeking judicial review.
In relation to his delay, the applicant admitted that he “received a copy of the Tribunal’s decision a few days after the letter dated 10 June 2003” enclosing a copy of the Tribunal’s decision. However, he said that he followed advice from his agent that he should seek a decision of the Minister under s.417 of the Migration Act and that “it’s no use for you to bring this matter to the Court” (see transcript p.11). He learned that his application to the Minister was refused in a letter dated 30 December 2004, and then “decided to remain in Australia illegally”.
He explained how he came to lodge the application filed in the Court:
9.On 15 December 2005 I was arrested by police and taken to Villawood Detention Centre.
10.Before Christmas 2005 someone in Villawood Detention Centre told me that I could appeal to the Federal Magistrates Court against the decision of the Tribunal. Until this time I did not know that I could appeal to the Federal Magistrates Court. For example, my migration agent never told me that I could appeal to the Federal Magistrates Court.
11.There is a document titled “Application under Migration Act” signed by me and dated 9 January 2006. Around 9 January 2006 someone at Villawood Detention Centre who spoke English and Mandarin helped me complete the application. As far as I was aware, the person was not a lawyer or migration agent.
12.Attached and marked with the letter “C” is a bundle of documents. The bundle of documents indicates or supports my recollection that:
a)On 6 January 2006 I sent a fax in order to obtain a copy of the Tribunal’s decision in my matter.
b)On or shortly after 10 January 2006 a man from the Department of Immigration at Villawood Detention Centre gave me a copy of the Tribunal’s decision in my matter.
c)On 11 January 2006 I faxed a copy of my application to the Federal Magistrates Court.
In fact the document is marked as received in the Registry by facsimile at 18.59 on 12 January 2006, and is stamped “Filed/Presented” on 13 January 2006. The Registry wrote to the applicant on 16 January 2006, telling him that he needed also to file an affidavit, and stating: “please complete the Affidavit and fax it back so your application can be accepted for filing”. A brief and obscure affidavit was then filed on 27 January 2006. The Registry appointed a first court listing for 15 February 2006, and on 30 January 2006 it served a copy of the application on the Minister according to standing arrangements. The Minister’s solicitors filed an appearance on 2 February 2006, and advised the Court that the applicant would require an interpreter.
At the first court listing before me on 15 February 2006, the Minister produced the applicant from Villawood immigration detention centre, and the Court arranged for a Mandarin interpreter to assist. The applicant was unrepresented. At that time, the Minister had not filed a Response which r.44.06 and r.4.03(2) required to be filed on or before 13 February 2006. I gave directions requiring a Response to be filed by 28 February 2006, and allowing the applicant to file an amended application after receiving a Court Book and free legal advice. I set the matter down for a final hearing on 27 April 2006.
A transcript of the first court date shows that the Minister’s representative told the Court: “we plan on putting on a response saying that there is no jurisdiction to hear the matter because he hasn’t applied for an extension of time”. She said that this had not been done because “the applicant also failed to fill in the date of his actual notification, so we weren’t one hundred per cent sure that his application was out of time”. Neither she nor the applicant referred the Court to the date when the applicant admitted actually receiving the Tribunal’s decision. Unfortunately, neither the Court nor the applicant were clearly alerted to the possible need for the applicant to apply for an extension of time prior to 24 February 2006.
The Minister’s solicitors did file a Response on 16 February 2006, the day after the first court date listing. This contained a ground of objection that “the Applicant has not made an application for an extension of time and the Court therefore does not have jurisdiction under s476 of the Act”. There is no evidence that the applicant’s attention was drawn by the Minister’s solicitors, when it was served, to his ability to remedy this defect before the 84 day period under s.477(2)(a) expired on 23 February 2006. In any event, the applicant did nothing in relation to applying for an extension before that date had passed.
On 31 March 2006, the Minister’s solicitor filed an affidavit by the solicitor who attended the first court date, in support of the Response. She swore that “prior to the directions hearing I had a conversation with the Applicant, through the Mandarin interpreter”, in which the applicant said that he actually received notification of the Tribunal’s decision “a few days after the handing down” and “on 12 June 2003”. A notice to admit this fact was also filed, and presumably was also served on the applicant. The written submission of counsel for the Minister filed on 20 April 2006, contended that “this application is incompetent and the Court has no jurisdiction to determine it”.
The issue was first addressed by the applicant at the hearing before me on 27 April 2006, where he appeared with counsel who was first instructed shortly before the hearing. He applied for leave to file an amended application in the form provided under r.44.05, which contained a mark in the “yes” box indicating that an extension of time was sought.
Counsel applied for leave to amend on two bases. The first, was that this would rectify an obvious defect in the original application, on the basis that even without the amendment it was apparent that the original application contained an application for extension of time. His alternative contention was that, if on the proper construction of the original application no extension application was made before 24 February 2006, the Court’s amendment powers could retrospectively effect the making of such an application before that date.
The amendment application was opposed by the Minister, upon the ground that the original application could not be construed as containing an extension application. It was further submitted that the Court was expressly precluded by the language of s.477(2) and (3) from using its amendment and dispensing powers to backdate an extension application.
I shall first consider whether the document originally filed by the applicant can be construed as containing an extension application.

Did the applicant seek an extension of time in his original application?

The helpers of the present applicant have adopted and presented to the Court the form of application set out in Part 1 of Schedule 2 of the Federal Magistrates Court Rules 2001 (Cth). They have included and completed the sections of the form headed “Decision details” and “Application for extension of time” as follows:
Decision details
If a Tribunal made the decision, name of the Tribunal:
RRT’s decision
……………………………………………………………………..
If the Minister or a delegate made the decision, name the decision‑maker and his or her office:
……………………………………………………………………..
Date of the decision:
14 May 2003
……………………………………………………………………..
Date when notification of the decision was received by the applicant:
……………………………………………………………………..
Section of the Migration Act 1958 under which the decision was made:
……………………………………………………………………..
…
Application for extension of time
Does the applicant apply for an order that the time for making the application be extended under section 477 of the Migration Act 1958?
Yes * No *
NOTE: An extension of time is required if the application is not made within 28 days of the actual (as opposed to deemed) notification of decision – see section 477 of the Migration Act 1958. If it is required, the applicant must file an affidavit explaining the delay and the reasons why an extension of time should be granted.
The absence of professional assistance given to the applicant when preparing his application is apparent from the terms of the “Grounds of application” which were inserted:
Grounds of Application
[Each ground on which the relief is sought and the particulars of each ground must be stated. See NOTES on last page.]
The Grounds of the Application are:
1.I’m a citizen of China. If I go back to my country I will be risk of suffering persecute. Within the meaning of the 1951 Convention relating to the status of (RRT) Refugees and the 1967 protect relating to the status of Refugees.
2.Member of RRT failed to understand my claims and failed to consider relevant matters. Further particular to be provided.
3.The respondent refused to grant my Protection visa application without any proper grounds and proper investigation.
The failure of the applicant and his helper to complete the sections of the form inviting him to state when he had actual notification of the decision, and whether he applied for an extension of time, is not explained by him in his evidence. Possible explanations might be that the applicant’s helper was unsure as to the date of notification, or of the significance of providing this information to the Court, or of the significance of marking a box under the heading “Application for extension of time”. It is conceivable that the helper was unsure whether the applicant required an extension of time, and thought that by leaving these sections of the form unmarked, the Court would assist the applicant to decide if he needed one. However, there is no evidence that this was the reason.
I do not consider on the proper construction of the document presented to the Court and the respondents, that it conveyed an application for an extension of time. Perhaps an implication of this could have been drawn, if the application revealed on its face that an extension was required, for example by reason of a stated date of actual notification prior to 1 December 2005. However, this was left blank, and a reader of the form could not have concluded that the applicant, in fact, needed an extension of time. The need for this only became confirmed when the applicant subsequently told the Minister’s solicitor outside the Court on 15 February 2006, and then in evidence to the Court on 27 April 2006, that he had received the Tribunal’s decision in June 2003.
It may be possible to conclude that the document presented to the Court showed an intention to file an application which was legally effective to achieve the judicial review which its substantive parts requested. However, I do not consider that it showed an intention to apply for the extension of time which the facts, now admitted by the applicant, establish to be needed.
I therefore conclude that it is not possible to explain the exercise of a power to amend the substantive application by placing a mark in the “yes” box, as rectifying a mistake in its completion which did not alter the true intention of the document in relation to making, at the time of its filing, an application to the Court for an order extending time. The absence of a mark in the “yes” box is not, in my opinion, able to be overlooked under legal maxims covering apparent errors (c.f. Yong (supra) at 169, citing Wingadee Shire Council v Willis (1910) 11 CLR 123 at 131, 140, 144, and 148).
I therefore am unable to find that, in fact, the applicant did “make” an extension application “within 84 days of the actual … notification of the decision”, according to the ordinary meaning of these words.

Can an amendment backdate the extension application?

Counsel for the applicant’s alternative basis for seeking leave to file an amended application containing an extension application proceeded upon the assumption that, if I allowed the amendment, the amended document would take effect on the same date that the original application was filed, i.e. 13 January 2006, under the principle referred to above at [28]. He argued that there would then be deemed to have always existed in the proceeding an “an application for that [extension] order … made within 84 days of the [deemed by the transitional provisions] actual … notification of the decision” within s.477(2)(a).
As I have explained above, I consider that the Court’s amending and dispensing powers might be capable of allowing it to order an amendment of the original application so that it would include an extension application, and to confirm or order that the amended application would take effect as if the original application contained an extension application when it was accepted by the Registry on 13 January 2006 (or some later date in January). However, I must consider whether the making of such an order would be effective in allowing the resultant extension application to be described as having been “made within 84 days of the actual … notification of the decision” upon the true construction of those words in s.477(2)(a). If an order would not have this effect, then there would be no purpose in exercising the power.
Both counsel addressed me as to the general principles upon which I should approach this issue of construction of s.477. Counsel for the applicant emphasised that the jurisdiction of the Court under s.476 had remedial objects in providing judicial remedies of public importance, similar to the Constitutional jurisdiction of the High Court which it emulates. He argued that the limits upon that jurisdiction should not be construed in a confining or narrow way, and that they should be construed to avoid unjust or inconvenient results such as would be illustrated in the present case if the applicant’s application was found to be incompetent.
Counsel for the applicant placed strong reliance on a line of cases decided in relation to the 1992 provisions in s.478, whose terms I have set out above. In particular, he cited passages from Liu v Minister for Immigration & Multicultural Affairs (1997) 72 FCR 345, Yong (supra), Wickremasinghe v Minister for Immigration & Multicultural Affairs (1998) 82 FCR 125, and NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 375, (2002) 70 ALD 64. In these cases, the Court refused to find incompetent applications under then s.478, which did not correctly name the respondent or applicant in terms conforming to provisions similar to those now found in ss.478 and 479. The Full Court construed these provisions as being procedural rather than jurisdictional, so that the Court’s powers to rectify the defective applications remained available. In Yong, the Full Court said (supra) at 167: “In order to characterise a mere matter of form as “jurisdictional”, extremely clear language is needed”.

However, in my opinion, the approach taken in Yong is not available when addressing the present issue of construction in s.477. On the authorities cited above at [12], and which I consider I should follow, the time limitations imposed by s.477 on applications to the Court are undoubtedly “jurisdictional”. If, on their language, the time limitations require an extension application actually to be made within the designated 84 day period, then a failure to bring such an application cannot be characterised as a mere defect in form or procedure, and the Court’s powers of rectification in the interests of justice are unavailable to overcome the mandatory effect of that language.
Counsel for the Minister accepted the remedial nature of the Court’s jurisdiction and, implicitly, that this could be given scope in the event that there was ambiguity in the language of s.477. The remedial background was acknowledged by the High Court in WACB (supra) when construing the meaning of “being notified of the decision” in s.478(1)(b) of the 1992 scheme of judicial review. The majority judgment found for the appellant, by construing the reference to “decision” in the light of other provisions of the Migration Act which suggested it referred to a written statement of a decision and reasons physically given to the applicant. However, they accepted the substantive and jurisdictional nature of the time limit in s.478:
[31]As remarked earlier in these reasons, Pt 8, which includes s 478, is headed “Review of decisions by Federal Court”. These provisions confer upon certain unsuccessful visa applicants (and in some circumstances the minister) an entitlement, limited in scope, to seek judicial review in the Federal Court. Section 478 is facilitative of that entitlement, not destructive of it. While an applicant must lodge the application within 28 days from the date of notification and the court may not extend that period, nevertheless the Act confers an entitlement to review, albeit one with a limited threshold. This state of affairs may be contrasted with the power given to the Federal Court by s 11(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to extend the time limit which otherwise applies to the institution of applications for judicial review.
[32]The restriction in s 478 is of a different character to that of typical statutes of limitation which operate to impose a limit of time upon an existing right of action. They operate to bar the prosecution of actions otherwise not subject to such a time limit. In that sense, statutes of limitation are preventative. However, s 478 does not “bar an existing cause of action”; rather, “[i]t imposes a condition which is of the essence of a new right”. Thus, s 478(1)(b) and (2) restrict what otherwise would be the conferral upon the Federal Court of jurisdiction by the parliament under ss 76(ii) and 77(i) of the Constitution. The new jurisdiction so conferred is remedial in nature, although the remedy is confined by the time restriction upon the institution of the proceeding. The provision of information to the unsuccessful visa applicant by the RRT is a necessary step to equip the applicant with the wherewithal to institute such a proceeding in the Federal Court. [citations omitted]
In relation to the present issue, counsel for the Minister denied that there was any ambiguity in the language of s.477, and emphasised that the time limitations should be construed according to their language and their apparent intention of imposing a mandatory time limit with a confined power of extension. He referred me to the judgment of Kirby J in WACB, who in dissent, and with regret, accepted the construction submitted by the Minister. He also took me to extracts from the extrinsic material explaining the objects of the Migration Litigation Reform Act 2005 (Cth), but I do not consider they provide assistance in deciding the present issue of construction.
I consider that the effect of the words in s.477(2)(a) is to be found by considering their language and apparent intent of confining the Court’s jurisdiction with time limits which are clearly defined both in relation to the making of the substantive application, but also in relation to the extension application. I consider that I must apply the principle that where “the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, … it must be given its ordinary and grammatical meaning” (c.f. Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1981) 147 CLR 297 at 305). As did Kirby J in WACB, I have looked “most closely at the statutory language to see whether any ambiguity might properly be resolved so as to ensure that a person, such as the appellant, is afforded a real opportunity to engage the judicial branch of Australian government” (supra at [82]).
However, I consider that the clear language of s.477(2)(a), read in the light of the injunction in s.477(3), must be read as intending that any order of the Court which would have the effect of extending the 28 day period for up to 56 days, may only be made if some action of an applicant amounting to an “application made” to the Court “for that order” is in fact taken “within” the identified 84 day period. Any order of the Court on an application for amendment, dispensation or backdating would, in my opinion, therefore be incapable of converting a backdated extension application into an application “made within 84 days” of the identified day. It follows in my opinion that, in the absence of an extension application actually made in that period, however informally, the Court can have no power available which could be exercised to have the effect that it would acquire power to make the order for an extension of time under s.477(2).
In short, I consider that the word “made” suggests in ordinary language in the context of an application to a Court, a request actually made and received in whatever form permitted by the Court. Standing alone, the word might be able to be read to encompass a deemed application backdated by force of a Court order for amendment. However, in s.477(2)(a) “made” is qualified by a clear temporal description of a relevant application as being made “within 84 days of the actual … notification of the decision”. In my opinion, these words unequivocally indicate that “made” is confined to its ordinary meaning, and requires an extension application actually to be presented and received by the Court, in whatever form permitted, within that period. I consider that “the temporal requirements” in s.477(2) “operate to define the jurisdiction of the court in respect of an application” for extension of time (c.f. David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 276).
I do not consider that the temporal requirement can in any sense be met by the Court receiving an extension application out of time, but using a power to deem an earlier date of receipt, whether in the original application or otherwise. To read it in that way not only offends the plain language of s.477(2)(a), but would also be inconsistent with the legislative policy suggested by s.477(3) not to allow the Court to use amendment or dispensing powers to overcome the time limits imposed by the section.
I therefore consider that the present application is incompetent because it was made outside the 28 day time limit imposed by s.477(1) when read with the transitional provision in Sch.1 cl.42. I consider that the Court lacks any power which could allow it to create an earlier application for an extension of time, and which would answer the description of an application under s.477(2)(a). I therefore cannot order an extension of time under s.477(2), even though such an extension would appear to me to be in the interests of the administration of justice.
This outcome is consistent with the judgment of Driver FM in SZICO & Ors v Minister for Immigration [2006] FMCA 435. In that case, Driver FM considered that an application under s.476 in relation to a decision actually notified before 1 December 2005 was incompetent if it was filed between 30 December 2005 and 23 February 2006, unless an application invoking the Court’s power to extend time under s.477(2) had been “made” within that period. I respectfully agree with this opinion. Driver FM did not address whether such an extension application might have been “made” by an applicant presenting his application in the form of the present application filed on 13 January 2006, i.e. without marking either of the boxes in relation to an extension of time. Nor did he consider whether, if it was not, the Court could allow an amendment of that application having the retrospective effect of backdating an application for extension of time as at the date of its filing, and whether such an amended application would then satisfy the requirements of s.477(2)(a). However, for the reasons I have given above, I do not consider that either of these avenues can save the present application from being dismissed as incompetent.

Concluding comments

As I said at the commencement of this judgment, I find the outcome of this matter most regrettable. I note that McInnis FM has expressed similar regrets in MZXJP v Minister for Immigration & Anor [2006] FMCA 1010, and I agree that the Minister’s solicitors should hold similar opinions. In my opinion, both the Court and the Minister should consider procedures to prevent other applicants encountering the same jurisdictional pitfall.
The applicant is a refugee claimant unfamiliar with the language and procedures of Australian courts, who attempted to exercise his right of application to the Court while he was held in the custody of the Minister’s Department. Although he was allowed a facility to send documents to the Court by facsimile, he did not receive professional assistance when lodging his application. A failure to mark the “yes” box was easily excusable. The period of delay which required this marking was minimal, and, indeed, occupied a period of the legal vacation which would have been disregarded if the time limit had arisen under the Rules of the Court (see Federal Court Rules O.3 r.2(4A)).
If the applicant had been better alerted to the point prior to 24 February 2006, then the Minister’s present objection to my allowing an appropriate amendment would not have been available. Consistent with the Commonwealth’s “model litigant” policy, I doubt whether any other objection to an extension of time would even have been voiced (c.f. Wodrow v Commonwealth of Australia [2003] FCA 403 at [38(f) and (g)]). The applicant had been produced to the Court from detention and was unrepresented at the first court date. If I had been clearly informed by the Minister’s solicitor that the applicant outside the court had admitted receiving actual notice of the Tribunal’s decision prior to 1 December 2005, I might have invited the applicant to apply for an amendment prior to 24 February 2006. Regrettably, this opportunity was lost.
The Respondent’s written Response which raised the point was filed the day after the matter was listed before me. It was there pleaded in terms which might have been obscure to an unrepresented Chinese applicant in the applicant’s circumstances, and which drew no attention to the applicant’s ability easily to answer the Response by applying to the Court before 23 February 2006. I am unaware whether the Minister’s solicitor in some other manner attempted to draw the applicant’s attention to the desirability of this, when serving the Response.
I accept that it was open to the Minister to raise the point of jurisdictional competence, and I have decided it in her favour. However, the above circumstances might provide a reason for declining to award costs in favour of the Minister. This is a matter which I shall consider further in the event that costs are sought by either party.

I certify that the preceding seventy‑three (73) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 4 August 2006