Fernando v Minister for Immigration & Multicultural Affairs [2000] FCA 324

MIGRATION - refugees - application for review of Refugee Review Tribunal decision - whether time limit may be extended

Migration Act 1958 (Cth) s 412(1)(b)

Migration Regulations reg 4.31(2)(b)

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 491 applied

Nguyen v MW Gerkens, Refugee Review Tribunal (6 October 1996, Ryan J) mentioned

Santos v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 229 (Tamberlin J) mentioned

Dawai v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 379 (Moore J) mentioned

Shrestha Minister for Immigration and Multicultural Affairs [1997] FCA 1051 (Sackville J) mentioned

Tjandra v Minister for Immigration and Multicultural Affairs [1998] FCA 276 (Kiefel J) mentioned

Ismail v Minister for Immigration and Multicultural Affairs [1998] FCA 1654 (Wilcox J) mentioned

Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 353 (Wilcox J) mentioned

Naheem v Minister for Immigration and Multicultural Affairs [1999] FCA 1360 (Sundberg J) mentioned

Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 506 (Hill J) mentioned

Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 613 (Einfeld J) mentioned

Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 (Mansfield J) mentioned

Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 (Merkel J) mentioned

Accident Compensation Commission v Murphy [1988] VR 444 discussed

Montreal Street Railway Co v Normandin [1917] AC 170 at 175 discussed

Tasker v Fullwood [1978] 1 NSWLR 20 at 24 mentioned

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38 applied

Minister for Immigration v Teoh (1995) 183 CLR 273 at 287 mentioned

Newcrest Mining WA Ltd v Commonwealth (1997) 147 ALR 42 at 148 mentioned

Simsek v McPhee (1982) 148 CLR 636 at 643 per Stephen J followed

Scurr v Brisbane City Council (No 5) (1973) 133 CLR 242 at 256-257 applied

Victoria v The Commonwealth (1975) 134 CLR 81 at 179 mentioned

Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488 Windeyer J mentioned

O'Reilly v Mackman [1983] 2 AC 237 at 284 mentioned

Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738 mentioned

Maxwell v Murphy (1957) 96 CLR 261 at 269 per Dixon CJ applied

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

NO. A 80 OF 1999

HEEREY, FINKELSTEIN & DOWSETT JJ

22 MARCH 2000

MELBOURNE (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 80 OF 1999

On appeal from a single judge of the Federal Court of Australia

BETWEEN:

KALUTARAGE GNANASIRI FERNANDO Appellant

AND:

PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE:

HEEREY, FINKELSTEIN & DOWSETT JJ

DATE OF ORDER:

22 MARCH 2000

WHERE MADE:

MELBOURNE (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.  The appeal is dismissed.

2.  The appellant pay the respondent's costs, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 80 OF 1999

On appeal from a single judge of the Federal Court of Australia

BETWEEN:

KALUTARAGE GNANASIRI FERNANDO Appellant

AND:

PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE: HEEREY, FINKELSTEIN & DOWSETT JJ

DATE: 22 MARCH 2000

PLACE: MELBOURNE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

HEEREY J:

Introduction

1. This appeal from Finn J raises the question whether the Refugee Review Tribunal ("RRT") has jurisdiction to hear an application for review when the application has not been made within 28 days of notification of the RRT-reviewable decision, as required by s 412(1)(b) of the Migration Act 1958 (Cth) ("the Act") and reg 4.31(2)(b) of the Migration Regulations ("the Regulations").

2. Decisions of single judges of this Court have consistently answered this question in the negative. In arguing for a contrary result, counsel for the appellant contends that these decisions are incorrect on their own terms. He also says two further important factors support the appellant's case, namely the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 491 and Australian treaty obligations under the Convention Relating to the Status of Refugees ("the Convention") and the International Covenant on Civil and Political Rights ("the Covenant").

Applications for protection visa and subsequent RRT review

3. By letter dated 6 October 1998 City First Solicitors, acting on behalf of the appellant and his wife, forwarded to the Secretary, Department of Immigration and Multicultural Affairs ("the Department") applications for protection visas. Included with the letter was a Departmental Form Number 956, headed "Appointment of Person to Act as Agent", by which the appellant appointed Mr Chanaka Bandarage to act as his agent in relation to his application. The form gave the appellant's address as 1/166 Clarence Road, Indooroopilly, Queensland, 4068.

4. By letter dated 17 November 1998 the Department advised the appellant that the applications from himself and his wife had been refused. The letter advised the appellant of his right to apply to the RRT for review of the refusal and stated, amongst other things, that "(i)f you decide to apply for review you must lodge your application with the RRT within 35 days of the date of the decision". (The basis of this advice was the combined operation of s 412(1)(b) of the Act and Regulation 5.03 - see below.) The Department's letter was sent by registered post to the appellant at the Indooroopilly address. A copy of the letter was also sent by registered post on that day to the appellant's agent, City First Solicitors.

5. The appellant had moved from the Indooroopilly address prior to 18 November. He did not inform his solicitors or the Department of his change of address. On 20 November City First Solicitors signed for and uplifted a copy of the letter which had been sent to them by registered post.

6. On 7 December the appellant's solicitors completed an Application for Review Form and posted it to him at the Indooroopilly address for signature, together with a 23 page draft submission. On the 14th the solicitors' letter was received by the new occupier who redirected it to the appellant. The appellant received the letter on the 17th, signed the documents and on the 21st returned them to his solicitors. The documents reached the appellant's solicitors on the 23rd. On the same day the solicitors posted the Application for Review to the Sydney Registry of the RRT where it arrived on 30 December. It is common ground that, subject to any power which might exist to extend time, the last day under the Act for receipt of the Application for Review was 21 December.

RRT decision

7. On 3 February 1999 the RRT determined that it did not have jurisdiction to review the decision to refuse the appellant a protection visa because the application had been received outside the time limit imposed by s 412(1)(b) of the Act.

Primary judge's decision

8. On 8 October 1999 Finn J dismissed the appellant's application for an Order for Review.

The legislation

9. Section 412(1) of the Act provides:

"(1) An application for review of an RRT-reviewable decision must:

(a) be made in the approved form; and

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

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

10. A decision to refuse a protection visa is an "RRT-reviewable decision": s 411(1)(c).

11. By s 414(1), if a valid application is made under s 412 for review of any RRT-reviewable decision, the RRT must review the decision.

12. Section 66(2) sets out a number of matters that must be included in the Minister's notification of a refusal of an application for a visa, including (in the case of protection visa applications) the time within which an application for review may be made.

13 Regulation 2.16(1) of the Regulations provides: s 66(2)(d).

"(1) For the purposes of subsection 66(1) of the Act ... the Minister is to notify an appellant of a decision to grant or refuse a visa:

(a) ...

(b) ...

(c) by sending a notice of the decision to, or leaving a notice of the decision at, the last address given to the Minister by the appellant under section 53 of the Act ..."

14. Regulation 4.31 of the Regulations prescribes the period referred to in s 412(1)(b) of the Act and deals with the manner and timing of lodgment of applications with the Tribunal. It provides as follows:

"(1) For the purposes of paragraph 412(1)(b) of the Act, each period stated in subregulation (2) is prescribed as the period within which an application for review of an RRT-reviewable decision to which the period applies must be given to the Tribunal.

(2) A period mentioned in subregulation (1) commences on the day on which the appellant is notified of the decision to which the application relates, and ends at the end of:

(a) ...

(b) in any other case - 28 days.

(3) Subject to this regulation, an application must be lodged at a registry of the Tribunal:

(a) by posting the application to that registry; or

(b) by leaving it at that registry in a box designated for the lodgement of such applications; or

(c) by leaving it with a person employed at that registry and authorised to receive such documents; or

(d) by means of electronic facsimile transmission to that registry.

(4) An application posted in accordance with paragraph 3(a) or transmitted in accordance with paragraph (3)(d) is not to be taken to have been lodged until it is received at a registry of the Tribunal."

15. Regulation 5.03 of the Regulations provides:

"(1A) This regulation applies to a document sent by the Minister or a Tribunal to a person in that person's capacity as:

(a) an applicant, of any kind, under the Act or these regulations;

(b) ...

(c) ...

(1) For the purposes of the Act and these Regulations, and subject to the Act, and specific provisions elsewhere in these Regulations, a document is taken to be received by the person to whom it was sent at the time that the document is taken to be received at the address to which the document was sent, which is either:

(a) if the document is sent from a place in Australia to an address in Australia - 7 days after the date of the document;

(b) ...

(2) Subregulation (1) does not apply to a document unless it is sent within 7 days after the date of the document."

16. Also relevant is s 53 of the Act which provides that a visa applicant is to tell the Minister the address at which he or she intends to live while the application is being dealt with (sub-s (1)). A change of address for 14 days or more must be notified to the Minister (sub-s (2)). If notification is given by the Minister to the applicant at the address given under sub-ss (1) or (2) the notification "is taken to have been received by the applicant even if it was not received" (sub-s (3)).

Single judge decisions

17. The following decisions of single judges have either explicitly held or assumed that s 412(1)(b) is, in the words of the learned primary judge in the present case

"... an inflexible and imperative requirement that denies the Tribunal jurisdiction to entertain an application for review lodged out of time."

Nguyen v MW Gerkens, Refugee Review Tribunal (6 October 1996, Ryan J); Santos v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 229 (Tamberlin J); Dawai v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 379 (Moore J); Shrestha v Minister for Immigration and Multicultural Affairs [1997] FCA 1051 (Sackville J); Tjandra v Minister for Immigration and Multicultural Affairs [1998] FCA 276 (Kiefel J); Ismail v Minister for Immigration and Multicultural Affairs [1998] FCA 1654 (Wilcox J); Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 353 (Wilcox J); Naheem v Minister for Immigration and Multicultural Affairs [1999] FCA 1360 (Sundberg J); Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 506 (Hill J);

Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 613 (Einfeld J).

A like result has been reached in the case of analogous provisions of the Act: Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 (Mansfield J) (internal review under s 339); Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 (Merkel J) (judicial review under s 478).

The language of the Act

18. Leaving aside for the moment the special additional factors relied on by the appellant and mentioned at the outset of these reasons, the ordinary meaning of s 412(1)(b) is in my opinion that found by the primary judge and by the judges in the earlier decisions mentioned. If an application is not made in accordance with s 412, it is not a valid application and thus not one which the RRT has jurisdiction to review under s 414.

19. The appellant's argument involves either reading into the Act a discretionary power to extend the time fixed pursuant to s 412(1)(b), presumably to any time in the future which might be reasonable in the circumstances of a given case, or including after the words "within the period prescribed" an expression like "or thereabouts". Both possible solutions to the perceived injustice of a strict construction involve significant rewriting of the language of the statute. Nor are they consistent with each other. There is no logical reason why an intention to adopt one solution rather than the other should be imputed to Parliament.

20. In Australia statutes making provision for administrative or judicial review and statutes regulating civil litigation usually prescribe time limits within which an initiating document is to be lodged with the appropriate authority or court. Sometimes such statutes confer a discretion for the extension of time, for example Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11(1)(c), Administrative Appeals Tribunal Act 1975 (Cth) s 29(7), State and Territory Limitation Acts which confer a discretion on courts to allow damages claims for personal injuries and death to be brought outside the statutory period and State and Territory Testator's Family Maintenance Acts. However other statutes provide no such discretionary power, for example Superannuation (Resolution of Complaints) Act 1993 (Cth) s 14(3), Trade Practices Act 1974 (Cth) s 82 and State and Territory limitation statutes for claims in contract and tort, other than personal injury and death claims.

21. So when no provision is made in the Act in relation to RRT reviews for any extension of time the likely conclusion is that this was a deliberate choice by Parliament rather than inadvertence or unawareness that provisions of this kind could be made.

22. This construction of the Act is consistent with its revealed policy that visa applications be dealt with fairly, efficiently and quickly (Pt 2 Div 3 Subdivision AB). Consistent with this policy are provisions designed to avoid arguments as to whether the Department or the applicant in fact received communications (ss 52, 53). There are therefore rational reasons why Parliament would want to make a review application period non-extendable, notwithstanding that one can hypothesise that this might cause hardship in individual cases on applicants who are without fault. (It has to be said that the appellant's is not such a case; it was entirely his fault that he did not keep the Department and his solicitors advised of his change of address.) There is moreover a mitigatory provision in s 48B which, admittedly in very special circumstances, allows the Minister to permit a further application for a protection visa.

23. I should add that I do not see any significance for present purposes in the absence from s 412 of a provision like s 478(2) which expressly prohibits the Federal Court from making an order allowing an application for review by the Court outside the period fixed by s 478(1). Express prohibition may well have been thought necessary to avoid a possible argument that the Federal Court Rules, or even the inherent jurisdiction of the Court, permitted such an extension.

24. The only authority cited which might possibly support the appellant's argument is the decision of the Full Court of the Supreme Court of Victoria in Accident Compensation Commission v Murphy [1988] VR 444. The Full Court was concerned with s 117(5) of the Accident Compensation Act 1985 (Vic) which dealt with applications to the Tribunal division of the Commission. Section 117(5) relevantly provided:

"A Tribunal division shall commence to hear an application -

(a) within 60 days of an application under this Part for a determination by a Tribunal division being lodged with the Tribunal or a matter becoming subject to the determination by a Tribunal division."

25. The Full Court (at 449) formulated the issue before it as being whether this stipulation was "truly directory" as distinct from "mandatory". It held that the Tribunal division could validly deal with an application notwithstanding the hearing was commenced thirty-seven days beyond the time fixed by s 117(5). The Full Court's reasoning placed particular reliance on the principle stated by the Privy Council in Montreal Street Railway Co v Normandin [1917] AC 170 at 175:

"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only."

26. The Full Court observed (at 452) that a "compelling" consideration for the conclusion it reached was that the choice of date for the commencement of the hearing, which would allow for compliance by the Tribunal division with the statutory requirement, was in the hands of the Tribunal and not within the control of the parties.

27. The Full Court discussed the traditional distinction between "mandatory" and "directory" provisions. The Court referred to the New South Wales Court of Appeal's decision in Tasker v Fullwood [1978] 1 NSWLR 20 at 24 where it was said:

"(4) The intention being sought is the effect upon the validity of the act in question having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirements: Victoria v Commonwealth (1975) 134 CLR 81.

(5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true enquiry will therefore be side-tracked, but also because these descriptions have been used with varying significations."

28. The Full Court in Murphy thought that determination of the instant case did not require it to comment on those propositions. However, as will be seen, the High Court's subsequent decision in Blue Sky endorses the Tasker approach. Murphy was a case which turned on the construction of the particular statute. There is an obvious distinction between it and the present case in that the critical step, the lodging of an application for RRT review is a matter entirely within the control of the applicant.

Project Blue Sky Inc v Australian Broadcasting Authority

29. In Blue Sky the Australian Broadcasting Authority pursuant to s 122 of the Broadcasting Services Act 1992 (Cth) determined an Australian Content Standard which required for 1996 and 1997 at least 50 per cent Australian content for television programs. Section 160 of the Broadcasting Services Act provided that:

"The ABA is to perform its functions in a manner consistent with

(a) ...

(b) ...

(c) ...

(d) Australia's obligations under any convention to which Australia is a party or any agreement between Australia and a foreign country."

30. The High Court held that s 122 had to be read subject to the directions contained in s 160 and that the standard was in breach of the Australia and New Zealand Closer Economic Relations Trade Agreement. But did that mean that the standard was invalid? The High Court held (at par [94]) that the fact that s 160 regulated the exercise of functions already conferred on the ABA rather than imposing essential preliminaries to the exercise of its functions strongly indicated that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section. Further, as the likelihood of the ABA breaching its obligation under s 160 was far from fanciful, if acts done in breach of the section were invalid, there was likely to be much inconvenience to those members of the public who have acted in reliance on the conduct of the ABA. Accordingly the better interpretation of s 160 was that while it imposed a legal duty on the ABA, an act done in breach of its provisions was not invalid (at par [97]). This will be recognised as an application of the principle stated in Montreal Street Railway Co v Normandin already discussed in relation to Murphy (supra). The majority of the Full Court (McHugh, Gummow, Kirby and Hayne JJ) discussed the principles governing the approach of courts to the question whether breach of a statute renders an act invalid. Their Honours said (citations omitted):

"[91] An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories go give guidance on the issue.

[92]. Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearce v Morrice, Taunton J said `a clause is directory where the provisions contain mere matter of direction and nothing more'. In R v Loxdale, Lord Mansfield CJ said `[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory'. As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity. However, statements can be found in the cases to support the proposition that, even if the condition is classified as directory, invalidity will result from non-compliance unless there has been `substantial compliance' with the provisions governing the exercise of the power. But it is impossible to reconcile these statements with the many cases which have held an act valid where there has been no substantial compliance with the provision authorising the act in question. Indeed in many of these cases, substantial compliance was not an issue simply because, as Dawson J pointed out in Hunter Resources Ltd v Melville when discussing the statutory provision in that case:

substantial compliance with the relevant statutory requirement was not possible. Either there was compliance or there was not.

[93]. In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the `elusive distinction between directory and mandatory requirements' and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to `the language of the relevant provision and the scope and object of the whole statute'."

31. In my opinion Blue Sky does not assist the appellant. On the contrary, ss 412 and 414 clearly stipulate that the making of an application within the prescribed time is an essential preliminary to the exercise of the RRT's function. Moreover, this is not a case like Blue Sky or Murphy that is within the Normandin principle. This is not a case where individuals would suffer if invalidity were to flow from some default within the administration of a public authority that is entirely beyond the control of the individual. Here the individual, the applicant for a protection visa, is the person who has to perform the act stipulated by Parliament as an essential preliminary to the RRT's jurisdiction.

International obligations

32. Counsel for the appellant relied on the following provisions of the Convention:

"Article 16(2): A refugee shall enjoy in the contracting states in which he has his habitual residence the same treatment as a national in matters pertaining to access to the courts, including legal assistance...

Article 32(1): The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.

Article 32(2): The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority ..."

33. As to the Covenant, counsel relied on Articles 3 and 14 as follows:

"Article 3: Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority it provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

Article 14: All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

34. The first answer to this argument is that international treaties do not operate by their own force as part of domestic law, but only as an aid to the construction of statutes. Brennan, Deane and Dawson JJ said in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38:

"We accept the proposition that the court should, in the case of ambiguity, favour a construction of a common law statute which accords with the obligations of Australia under an international treaty."

35. See also Minister for Immigration v Teoh (1995) 183 CLR 273 at 287 and Newcrest Mining WA Ltd v Commonwealth (1997) 147 ALR 42 at 148. For the reasons already mentioned, I do not think there is any ambiguity in the Act.

36. Even if that were not so, the particular international obligations relied on have no application to the present case. The Convention confers rights and immunities on persons who are refugees within the meaning of that term as defined in the Convention itself. However the Convention establishes no particular procedural process for the purpose of determining whether any individual is in fact entitled to refugee status. Contracting states may establish whatever procedures they see fit for the purpose of such determinations and those procedures in fact vary widely: Simsek v McPhee (1982) 148 CLR 636 at 643 per Stephen J.

37. As to the Covenant, there has not been, in terms of Article 3(a) a violation of any right or freedom. The right of the appellant was to make an application for review by the RRT on terms provided by the Act. There has been no violation of that right. The appellant simply did not comply with the condition provided by Parliament for the exercise of that right. As to Article 14, the appellant has been treated no differently to anybody making application to the RRT. The appellant, like every other applicant, had to comply with the conditions prescribed by Parliament. As already mentioned, Australian law makes different provisions in different contexts for the exercise of administrative or judicial review or the commencement of legal proceeding in terms of whether fixed time limits may be extended. It is impossible to say that there is a general legal norm in Australia that time limits can always be extended and that the appellant has been deprived of that right.

Orders

38. The appeal should be dismissed with costs, including reserved costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated: 22 March 2000

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 80 of 1999

On appeal from a single judge of the Federal Court of Australia

BETWEEN:

KALUTARAGE GNANASIRI FERNANDO Appellant

AND:

PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES: HEEREY, FINKELSTEIN & DOWSETT JJ

DATE: 22 MARCH 2000

PLACE: MELBOURNE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

FINKELSTEIN J:

39. The question at issue is whether the Refugee Review Tribunal has jurisdiction to review a decision made under the Migration Act 1958 (Cth) when the application for review was not given to the Tribunal within the prescribed period.

40. The decisions that the Tribunal has jurisdiction to review are referred to as RRT-reviewable decisions and are defined in s 411 of the Migration Act. Section 412 deals with the making of an application for a review. It provides:

"(1) An application for review of an RRT-reviewable decision must:

(a) be made in the approved form; and

(b) be given to the Tribunal within the period prescribed, being a

period ending not later than 28 days after the notification of the decision; and

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

(2) An application for review may only be made by the non-citizen who is the subject of the primary decision.

(3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

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

41. Regulation 4.31 of the Migration Regulations prescribes the periods within which an application for the review of an RRT-reviewable decision must be given to the Tribunal. Relevantly that period is 28 days after the applicant is notified of the decision to which the application for review relates. It is common ground that the application in this case was not given to the Tribunal within that period.

42. Once the inquiry that would have been undertaken to resolve the matter at issue would have been to ask whether the requirements of s 412, more particularly the requirements of s 412(1)(b), are mandatory or directory. Shortly put, in the case of mandatory obligations, strict compliance was necessary. If the provision was directory, substantial compliance would do: Scurr v Brisbane City Council (No 5) (1973) 133 CLR 242 at 256-257; Victoria v The Commonwealth (1975) 134 CLR 81 at 179.

43. In Tasker v Fullwood [1978] 1 NSWLR 20 at 23 the New South Wales Court of Appeal said that the true task of construction is to determine whether Parliament intended that a failure to comply with the stipulated requirement would invalidate the act done or whether the validity of the act would be preserved notwithstanding non-compliance. The court went on to say that it would be misleading if one substitutes for the question thus posed, an investigation into whether the statute is mandatory or directory. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 153 ALR 490 at 516 the High Court agreed that the distinction between directory and mandatory requirements had outlived its usefulness, because the distinction deflected attention from the real issue at hand, that issue being whether an act done in breach of a statutory provision is invalid or not.

44. Therefore it is necessary to consider whether s 412(1)(b), on its proper construction that takes into account the purpose and object of the legislation, requires the conclusion that an application for review lodged beyond the prescribed period is of no effect. I have formed the view that this should be so. What follows are my reasons for that conclusion.

45. There are cases where the failure to comply with certain stipulations as to time with regard to judicial or quasi-judicial proceedings have not affected the validity of those proceedings. In Montreal Street Railway Co v Normandin [1917] AC 170 at 175 Sir Arthur Channell speaking for the Privy Council said:

"When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done. This principle has been applied to provisions for holding sessions at particular times and places; to provisions as to rates; to provisions of the Ballot Act; and to justices acting without having taken the prescribed oath, whose acts are not held invalid." (citations omitted)

46. Here, of course, we are not concerned with an act of a public official over whom the appellant had no control. This case is concerned with a condition that the appellant himself was required to observe, but failed to do so. I therefore put to one side cases such as Montreal Street Railway Co as being of no assistance.

47. In Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471 at 488 Windeyer J said of provisions which require actions to be commenced within a prescribed period:

"Statutory provisions imposing time limits on actions take various forms and have different purposes. Some are for preventing stale claims, some for establishing possessory titles, some for the protection of public authorities, some in aid of executors and administrators. Some are incidents of rights created by statutes. Some prevent actions being brought after, some before, a lapse of time."

48. In the present case it is necessary to remember that what is being circumscribed is the review of an administrative decision made by the executive government albeit through an independent statutory tribunal. It has been said on more than one occasion, and by high authority, that there is a need for the expeditious determination of the validity of an administrative decision. Both the interests of good administration and of third parties are at stake: O'Reilly v Mackman [1983] 2 AC 237 at 284; Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738. Mindful of this need, courts which have adopted rules regulating judicial review have often imposed time limits on the commencement of proceedings although there is the power to extend the time allowed: in Victoria see O 56, r 2 of the Supreme Court Rules 1996 where the application must be brought within 60 days; in England O 53 r 4 of the Rules of Supreme Court 1965 requires that an application to review to be made within 3 months. See also s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) where the time within which an application must be made is 28 days.

49. It is also important to note that when Parliament conferred upon a non-citizen the right to apply to the Tribunal for the review of an RRT-reviewable decision, it also circumscribed that right by requiring it to be exercised within a stipulated period: see s 31 of the Migration Reform Act 1992 (Cth) inserting into the Migration Act s 166B permitting review and s 166BA limiting the time for that review. This suggests that the right to review will cease to exist after the prescribed period has elapsed: compare Maxwell v Murphy (1957) 96 CLR 261 at 269 per Dixon CJ.

50. Then there is the language of s 412 itself. An application for review "must" be given to the Tribunal within the prescribed period. If one adopts, as it is sometimes necessary to do, the maxim that Parliament says what it means and means what is says, the language adopted by the legislature strongly suggests that an application given to the Tribunal after the relevant period has elapsed is invalid.

51. The consequences of a contrary construction must also be taken into account. If an application can be made to the Tribunal after the prescribed period has elapsed then it can be made at any time thereafter. That is to say, if an application made beyond the prescribed period is a valid application, it will be valid if given one day or one year after that period. This result could not have been intended.

52. The appellant seeks to avoid this problem by arguing that the Tribunal has a discretion whether or not to consider a late application. The argument is without foundation. The Tribunal has the jurisdiction conferred upon it by the Migration Act. If it is given a valid application for review it must determine that application according to its merits. The Tribunal has no power to refuse to consider a valid application. I leave out of account the question whether the Tribunal has power to strike out an application which is brought in abuse of process. It is not necessary to determine, on this appeal, whether an administrative tribunal has such a power.

53. Finally I should mention the appellant's reliance upon the Convention Relating to the Status of Refugees. The Convention does not advance the appellant's case in any way, as the reasons given by Heerey J demonstrate.

54. The appeal should be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated: 22 March 2000

THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 80 OF 1999

On appeal from a single judge of the Federal Court of Australia

BETWEEN:

KALUTARAGE GNANASIRI FERNANDO Appellant

AND:

PHILIP RUDDOCK IN HIS CAPACITY AS MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGES: HEEREY, FINKELSTEIN & DOWSETT JJ

DATE: 22 MARCH 2000

PLACE: MELBOURNE (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

DOWSETT J:

55. I have read the reasons prepared by Heerey J and Finkelstein J. I am in general agreement with their Honours' reasons and concur in the proposed orders.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 22 March 2000

Counsel for the Appellant: Mr A Anforth

Solicitor for the Appellant: City First Solicitors

Counsel for the Respondent: Mr T Howe

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 15 February 2000

Date of Judgment: 22 March 2000

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