FEDERAL COURT OF AUSTRALIA Abidin v Minister for Immigration and Multicultural Affairs [2001] FCA 842 MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – application out of time – application placed in delivery box at Detention Centre in sufficient time but not forwarded by Centre authorities until too late – whether "lodged" in time – whether s 478 of Migration Act constitutionally valid WORDS AND PHRASES – "lodged" Constitution s 77(i) Migration Act 1958 (Cth) s 478 Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 at 471 applied Kucuk v Minister for Immigration and Multicultural Affairs [2001] FCA 535 followed Rudolphy v Lightfoot (1999) 197 CLR 500, at 507 Oguzhan v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 285 at [34] Abebe v Commonwealth (1999) 197 CLR 510 at 523, [23] Gleeson CJ, McHugh J ZAINAL ABIDIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 206 OF 2000 HEEREY J 16 JULY 2001 MELBOURNE (HEARD IN PERTH) IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 206 OF 2000 BETWEEN: ZAINAL ABIDIN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 16 JULY 2001 WHERE MADE: MELBOURNE (HEARD IN PERTH) THE COURT ORDERS THAT: 1. The respondent's objection to competency is upheld. 2. The application is dismissed. 3. The applicant pay the respondent's costs to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 206 OF 2000 BETWEEN: ZAINAL ABIDIN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HEEREY J DATE: 16 JULY 2001 PLACE: MELBOURNE (HEARD IN PERTH) REASONS FOR JUDGMENT 1 This is an application for review under Pt 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse to grant the applicant a protection visa. The Minister has brought on a notice of objection to competency on the ground that the application was not lodged within the requisite time specified by s 478 of the Act. That section provides: "(1) An application under section 476 or 477 must: (a) be made in such manner as is specified in the Rules of the 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 any order allowing or which has the effect of allowing an applicant to lodge an application outside the period specified in paragraph (1)(b)." 2 In this case the decision of the Tribunal was handed down on 6 November 2000. It is common ground that it was received by fax by the applicant, who is in detention at the Port Hedland Detention Centre, on 7 November. Accordingly, as is agreed, the last day for lodgment of an application for review was 5 December 2000. 3 The application, which is in a roneoed form with some spaces filled in handwriting and dated 30 November 2000, was received by fax in the Federal Court Registry in Perth on 7 December 2000. 4 There is an issue of fact which arises. The applicant says that he put the application in a box marked "DIMA" at the Port Hedland Centre on 30 November. More particularly he says that when he received the letter advising him of the decision of the Tribunal, he got some friends to help to explain it to him. With their help he filled out the application to the Federal Court. He says that all this took some time. 5 He says that on 30 November his friends put the date on the application and he put it in "a yellowish envelope addressed to the Federal Court". He then put the envelope in a box. He says there are three boxes in the Detention Centre. One is marked "DIMA", the second "ACM" and there is a third box. He put the letter with the application form in the box marked "DIMA" at about 11 am on 30 November. 6 The Minister relied on an affidavit of Mr Richard Konarski sworn 28 June 2001. He was, between August 1999 and February 2001, the Business Manager of the Port Hedland Immigration Reception and Processing Centre (which I take to be the official name of the Detention Centre). He deposes that at Port Hedland no facilities existed for a detainee to directly fax documents. There were three boxes marked "DIMA", "ACM" and "Complaints". If a detainee wished to have documents sent by mail or fax, he or she could leave it in the DIMA box. Mr Konarski says that in the ordinary course of events the DIMA box was cleared at least once a day during the week. It was only in "exceptional circumstances" such as a riot or other disturbance that the box was not cleared. There were some incidents which occurred during the week commencing 30 November, but he was "not aware of them impacting upon the clearance and dispatch of faxes from the IRPC". 7 He says that once the box is cleared, the "usual practice" was to dispatch any application to the Tribunal or the Federal Court on the same day that it was received by the DIMA officer. While the dispatch of the document was recorded on the detainee's file, records were not kept of the date when the particular document was received from a detainee. 8 Notwithstanding the strong criticism that was made of the applicant's credit by the Tribunal, I accept what he says about the dispatch of the envelope on 30 November. It seems inherently probable that a man obviously wanting to pursue his claims for refugee status would seek to comply with the time limit which would have been advised to him in the accompanying letter from the Tribunal and would put the application in the box on the date which it bears. All that is against him is evidence as to what the general practice was, but that evidence itself concedes the possibility of some breakdown in the system. 9 On that factual basis then the question arises whether the requirements of s 478 have been complied with. The meaning of the word "lodge" in the context of the Act has been authoritatively dealt with by a Full Court of this Court in Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 at 471 where the Court said: "… an application to review will be 'lodged' when it comes into the possession of a Registry or the staff of a Registry. The means by which possession is obtained does not matter. It could come about when an application is delivered into the hands of the registry staff or, if the application is posted, when it is received by the Registry. When an application to review is sent by facsimile transmission to a facsimile machine that is located in the Registry the application will be in the possession of the Registry when the transmission is complete." 10 It was argued on behalf of the applicant that in enacting s 478(1)(b) Parliament should be taken to have intended the provision to operate in circumstances where the applicant is most likely to be in detention without direct access to a Registry of the Court. It was said that such a reading is consonant with common sense and justice and is to be preferred to a more stringent construction, given that issues of an applicant's liberty and personal safety may depend on a favourable review of the decision. 11 On that basis it is said that an applicant should be held to have lodged his application when within the period of 28 days of receiving notification of the Tribunal's decision he or she had done all that he or she was able to do to achieve substantial compliance with the stipulated requirement. 12 I am satisfied that I am bound by the decision of Hong and that argument is not open to me. A case applying that principle in very similar circumstances was the decision of Hely J in Kucuk v Minister for Immigration and Multicultural Affairs [2001] FCA 535. 13 The foregoing reasons were delivered ex tempore at the conclusion of the hearing on 28 June 2001. However the applicant also made a constitutional challenge. Counsel submitted that if I were to adopt the construction which I in fact have s 478 would be beyond power because it is not reasonably appropriate and adapted to the pursuit of the ends of the power under which the Act is enacted. 14 Notices were given to the Attorneys-General under s 78B of the Judiciary Act 1903 (Cth) on 25 June 2001. By the time of the hearing five out of the seven Attorneys had responded. They did not wish to intervene, at least at this stage. It was agreed that I should postpone consideration of the constitutional issue until a reasonable time had elapsed, as required by s 78B(1), so as to give the remaining Attorneys the opportunity to intervene. The issue would then be dealt with on the basis of the parties' written submissions. I think the time that has now elapsed (three weeks) is reasonable. 15 Counsel for the applicant argued that it would be unfair and arbitrary if lodgment depended on the celerity of the officers at the Detention Centre in dispatching applications for Pt 8 review or the availability of appropriate facilities for personal transmission. If the question whether an application has been "lodged" with the Court within the meaning of s 478(1)(b) depends on such contingent or accidental factors, the provision takes on a meaning which would be in excess of the legislative power of the Commonwealth. 16 Counsel argued that the power to enact s 478(1)(b) is to be found primarily within s 52(xix) relating to "naturalization and aliens", s 52(xxvii) relating to "immigration and emigration", or s 51(xxix) relating to "external affairs", together with s 51(xxxix), the power to make laws "with respect to (m)atters incidental to the execution of any power vested by (the) Constitution … in the Federal Judicature". He said that the initiation of an application invoking the jurisdiction of the Federal Court in this matter by lodgment of that application under s 478 is not itself the direct subject of the first three of those legislative powers. The requirement of lodgment as a criterion of jurisdiction of the Court to review a decision of the Tribunal, and how lodgment may be effected, are matters arising incidentally to the exercise of those powers, and to the extent federal jurisdiction is involved, the express incidental power (s 52(xxxix)). 17 It followed, counsel said, that the way in which the requirement of lodgment in accordance with s 478 can be satisfied so as to achieve the end of invoking the Federal Court's jurisdiction must be "reasonably appropriate and adapted to the pursuit of that end: Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, per Mason CJ at 30: also Dawson J at 90-91 and McHugh at 101-103 Re Dingjan; ex parte Wagner (1995) 183 CLR 323, Toohey J 351-353; McHugh J 368-369. 18 Having regard to the fact that s 478(1)(b) is to operate in circumstances of detention, to read "lodge" as depending on the time of receipt instead of the time of dispatch by the applicant, and thus dependent on the vagaries and chances of the detention system, would entail a requirement that is not reasonably capable of accomplishment in a way appropriately adapted to those circumstances. 19 The implicit factual premise founding this argument is that all, or most, of those seeking Pt 8 review of adverse Refugee Review Tribunal decisions will be in immigration detention. This is simply not true. Asylum seekers may have arrived lawfully in Australia on visas other than protection visas and make application during the currency of such visas or, as "overstayers", after the visas have expired. As far as my own experience goes, a substantial majority of Pt 8 review applicants are not in detention. Some have lived in Australia for as long as four or five years. Applicants not in detention may fail to meet the time limit imposed by s 478 for an infinite variety of reasons such as sickness, accident, the vagaries of the postal system or the forgetfulness of people on whom reliance is placed – all being circumstances not involving personal fault on the part of the applicant. Parliament must be taken to have contemplated such possibilities but nevertheless considered that the public interest in a reasonably swift and certain system of migration decision-making and review dictated an unalterable time frame within which applicants have to work. 20 In any case, I agree with counsel for the Minister that s 478(1)(b) is a law defining the jurisdiction of the Federal Court and is validly enacted pursuant to s 77(i) of the Constitution, which provides: "With respect to any of the matters mentioned in the last two sections, the Parliament may make laws: (i) defining the jurisdiction of any court other than the High Court." 21 The matters mentioned in s 76 of the Constitution include matters "[a]rising under any laws made by the Parliament" (s 76(ii)). The imposition of the time limit in s 478 of the Migration Act is an exercise of the power in s 77(i) of the Constitution to define the jurisdiction of any federal court other than the High Court in a matter arising under the Act. 22 It is clear that s 478 defines the jurisdiction of the Federal Court. The prohibition in s 478(2) makes clear that the requirement in s 478(1)(b) of the Act that an application for review be lodged within 28 days stipulates an "essential condition or jurisdictional requirement … [it] does not give rise merely to a defence of non-compliance, which may be waived by a respondent": Rudolphy v Lightfoot (1999) 197 CLR 500, at [10] 23 The present case is in principle on all fours with Rudolphy. That case concerned s 355(3) of the Electoral Act 1918 (Cth) required every petition to the High Court as the Court of Disputed Returns to be filed in the High Court Registry within forty days after the return of a writ. No power was conferred on the Court to relieve from non-compliance. 24 The point was directly dealt with by Carr J in Oguzhan v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 285 at [34]. His Honour said: "Just as, for example, s 481 of the Act (which sets out the extent of the Court's powers) defines its jurisdiction, so also to the provisions of s 478 define its jurisdiction by making it very clear that the Court has no jurisdiction to entertain an application not made within 28 days of an applicant being notified of the decision. Expressed slightly differently, the Parliament has defined the Court's jurisdiction as being limited to applications made within 28 days of notification of the judicially-reviewable decision in question." 25 There is no constitutional barrier to defining the jurisdiction of a federal court by the imposition of an absolute time limit for invoking that jurisdiction. The Parliament need not confer any jurisdiction on the Federal Court (or any other court) to review the decisions referred to in the Act as "judicially-reviewable decisions" (Abebe v Commonwealth (1999) 197 CLR 510 at 523, [23] Gleeson CJ, McHugh J). The Parliament must therefore have power to confer on the Federal Court jurisdiction to review such decisions on condition that an application to review a decision is brought within a certain time. 26 Section 478(1)(b) of the Act is therefore a valid law of the Commonwealth supported by s 77(i) of the Constitution. There is no need for s 478(1)(b) to derive support from the legislative powers conferred by s 51 of the Constitution. I certify that the preceding twenty-six (26 ) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 16 July 2001 Counsel for the Applicant: P W Johnston (pro bono) Counsel for the Respondent: A A Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 June 2001 Date of Judgment: 16 July 2001