Maung Michael Lewis v The Minister for Immigration & Ethnic Affairs & Anor [1997] FCA 14 (23 January 1997)

CATCHWORDS

IMMIGRATION - refugee status - protection visa - refusal by Tribunal - application for judicial review - whether jurisdiction to review under Administrative Decisions (Judicial Review) Act 1977 - whether jurisdiction to review pursuant to Pt8 of the Migration Act 1958 .

Acts Interpretation Act 1901

Administrative Decisions (Judicial Review) Act 1977 , s5, s6

Judiciary Act 1903 , s39

Migration Act 1958 , s475, s485, s478, Pt8

Migration Legislation Amendment Act 1984 , s84

Migration Reform Act 1992 , s39, Pt4B

Chen v The Minister (Tamberlin J, 9 May 1996, unreported)

Dai Xin Yao v The Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal (Full Court, 18 September 1996, unreported)

Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693

Mai v The Minister (Tamberlin J, 9 May 1996, unreported)

Parmakovski v The Minister (Davies J, 22 April 1996, unreported)

The Minister for Immigration and Multicultural Affairs and McNaughton v Ozmanian (1996) 141 ALR 322

Velmurugu v The Minister (Olney J, 23 May 1996, unreported)

MAUNG MICHAEL LEWIS v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NO WAG 83 OF 1995

R D NICHOLSON J

PERTH

23 JANUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 83 OF 1995

B E T W E E N: MAUNG MICHAEL LEWIS

Applicant

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: R D NICHOLSON J

DATE OF ORDER: 23 JANUARY 1997

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondents' costs

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 )

GENERAL DIVISION ) NO WAG 83 OF 1995

B E T W E E N: MAUNG MICHAEL LEWIS

Applicant

and

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

CORAM: R D NICHOLSON J

DATE: 23 JANUARY 1997

PLACE: PERTH

REASONS FOR JUDGMENT

On behalf of the applicant review is sought of the decision of a Refugee Review Tribunal ("the Tribunal") on 8 May 1995 (certified on 9 May 1995) finding the applicant is not entitled to protection as a refugee under the Migration Act 1958 ("the Act") and affirming the decision of the delegate of the first respondent to refuse him a protection visa.

The application is brought pursuant to s5 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). The grounds upon which it relies are s5(1)(a) - natural justice; s5(1)(b) - non- observance of procedures required by law; s5(1)(f) - error of law; s5(1)(h) - absence of evidence to justify the making of the decision; and s5(1)(j) - the decision was otherwise contrary to law.

The applicant was born in what was then described as Rangoon, Burma on 24 December 1967. He entered Australia on 8 December 1989 as a visitor and was granted an entry permit valid for three months. At the expiration of that period he remained in Australia without the grant of any further entry permit.

On 14 December 1990 the applicant lodged an application for refugee status. He was interviewed by an officer of the Department of Immigration, Local Government and Ethnic Affairs on 23 July 1991. On 4 August 1992 a delegate of the first respondent determined the applicant was not a refugee.

On 7 September 1992 the applicant applied for review of the decision. On 1 July 1993 the decision became reviewable by the Tribunal. It then made its determination of 8 May 1995.

The present application was lodged on 2 August 1995.

Preliminary questions arise as to the jurisdiction of the Court to entertain the application. Under Pt8 of the Act the Court only has jurisdiction to review a decision of the Tribunal where the application for review is lodged with the Court within twenty eight days of the applicant being notified of the decision. In the present case on the applicant's evidence he was notified of the Tribunal's decision prior to mid-June 1995. In any event a copy of the decision and reasons had been forwarded by the Tribunal to the applicant care of his solicitors on or about 9 May 1995.

If the present application was to be treated as an application pursuant to Pt8 of the Act, it is relevant that it was not lodged with the Court until 2 August 1995 and thus not within twenty eight days of the applicant having been notified of the Tribunal's decision as required by s478(1)(b) of the Act. No jurisdiction can therefore arise under Pt8 of the Act.

The application in its terms purports to arise under the ADJR Act. The jurisdiction to bring an application pursuant to that Act has been the subject of a number of decisions in the Federal Court.

The issue arose because Pt4B of the Migration Reform Act 1992 ("the 1992 Act") provided for review, inter alia, of decisions of the Tribunal on more limited grounds than previously existed under s39B of the Judiciary Act 1903 and the ADJR Act. The question arose whether it had the effect of removing the right of the Federal Court to review such decisions under those Acts.

The amendment to the Act took effect on 1 September 1994.

In Dai Xin Yao v The Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal (Full Court, 18 September 1996, unreported), the Court was called upon to decide the issue in the following circumstances:

" (a) the applicant made his primary application for determination of his status as a refugee before 1 September 1994; and

(b) the [Minister's delegate] made his determination refusing the application for refugee status before 1 September 1994;

(c) the applicant applied to the Tribunal to review the decision of the Minister's delegate before 1 September 1994;

(d) a decision was made by the Tribunal affirming the delegate's decision after 1 September 1994;

(e) an application for review was filed in the Federal Court after 1 September 1994; and

(f) the application for review includes applications for relief under the AD(JR) Act, and the Judiciary Act 1992 ."

The precise circumstances in Dai were:

" (i) the applicant made his primary application to the Minister for determination of his status as a refugee on 24 July 1991;

(ii) the Minister made his determination, refusing the applicant's application for refugee status on 22 October 1993;

(iii) the applicant applied to the Refugee Review Tribunal to review a decision of a delegate of the first respondent refusing the applicant's application for refugee status and for a domestic protection (temporary) entry permit on 17 November 1993; and

(iv) the decision of the Refugee Review Tribunal was made on 4 October 1994."

It will be observed that the circumstances arising in Dai, whether expressed generally with reference to the date of the amendment or particularly, accord in principle with those arising in this present application.

The decision of the Full Court in Dai was to the effect that the decision of the Tribunal in that case was reviewable only under the provisions of Pt8 of the Act. Black CJ and Sundberg J gave joint reasons in which they described the effect of the 1992 Act as follows:

"The Migration Reform Act ("the 1992 Act") received the Royal Assent on 7 December 1992. Section 33 of the 1992 Act inserted Part 4B into the Migration Act 1958 ("the Act"). The new Part consisted of ss166L to 166LK and dealt with the review by the Federal Court of certain decisions made under the Act. Part 4B was to have come into operation on 1 November 1993, but by the Migration Laws Amendment Act 1993 the commencement date was deferred to 1 September 1994. As a result of the renumbering of sections of the Act effected by later legislation, Part 4B became Part 8, and ss166L to 166LK became ss475 to 486."

Included in those sections was the following subsection:

"485(1) In spite of any other law, including s39B of the Judiciary Act 1903 , the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subs475(2), other than the jurisdiction provided by this Part of by s44 of the Judiciary Act 1903 ."

A "judicially-reviewable decision" is defined by s475(1), subject to subs(2), to include decisions of the Tribunal. Section 475(2) provides for decisions which are not judicially-reviewable decisions. Of this subsection Black CJ and Sundberg J said:

"The effect of s485(1) of the Act is to remove from this Court the jurisdiction it has under "any other law, including section 39B" in respect of "judicially-reviewable decisions". It therefore "excludes" the application for the ADJR Act and s39B to a "subject matter or circumstance", namely reviews by this Court of decisions of Tribunal. Accordingly, the exclusion effected by s485(1) does not affect any "right...accrued" under the excluded Acts."

The reference to "right...accrued" was a reference to s8(c) of the Acts Interpretation Act 1901 which provides that where an Act repeals in the whole or in part a former Act, then, unless the contrary intention appears, the repeal shall not:

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

After considering various authorities Black CJ and Sundberg J were prepared to assume that, unless a contrary intention appeared, the applicant's right to review under the ADJR Act and s39B of the Judiciary Act 1984 was preserved by s8(c).

Turning to the question of contrary intention, the Court held that s39 of the 1992 Act, in the form it assumed as a result of s84 of the Migration Legislation Amendment Act, was inconsistent with the application proceeding unaffected by the deemed repeal of the ADJR Act and s39B of the Judiciary Act effected by s485(1) and that it expressed "a contrary intention" for the purposes of s8 of the Acts Interpretation Act. Section 39 of the 1992 Act provides:

"If

(a) an application for:

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

...

was made before that date; and

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

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

In so deciding their Honours accepted the decision of Lehane J in Mahboob v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 693 was correct. That was a decision which, as their Honours noted, has been followed by other judges of this Court: Chen v The Minister (Tamberlin J, 9 May 1996, unreported); Parmakovski v The Minister (Davies J, 22 April 1996, unreported); Mai v The Minister (Tamberlin J, 9 May 1996, unreported); and Velmurugu v The Minister (Olney J, 23 May 1996, unreported). A number of submissions were considered by their Honours as to why Mahboob was wrong and should be overruled. Those submissions were all rejected.

In separate reasons Davies J, after reviewing relevant authorities, expressed no doubt that the applicant had an accrued right to have the decision rejecting his application for recognition as a refugee reviewed by the Tribunal. Turning then to the question of legislative intent he reached the view there was no accrued right because the decision sought to be reviewed was taken under provisions which came into operation on 1 September 1994 at the same time as s485(1) of the Act. In addition, s485(1) of the Act expressly stated Parliament's intention that the Federal Court should have no jurisdiction other than that conferred by Parliament in respect to decisions taken under the Act. There was therefore no basis for finding an "accrued right" prevailing notwithstanding the amendment of the legislation.

In The Minister for Immigration and Multicultural Affairs and McNaughton v Ozmanian (1996) 141 ALR 322 the Full Court allowed an appeal from the decision of the primary judge to the effect that s485(1) of the Act excluded from review not only the jurisdiction of the Court to hear and determine applications under s8 of the ADJR Act but also jurisdiction arising under s6 in respect of conduct. An application for leave or special leave to appeal to the High Court of Australia was filed on 12 December 1996 and remains undetermined.

The present application is on all fours with Dai. Nothing arises from Ozmanian to affect the authority of Dai.

It follows the jurisdiction objection is sound and the application should be dismissed.

I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date: 23 January 1997

APPEARANCES

The applicant attended in person

Counsel for the First Respondent: Mr P Corbould

Solicitors for the First Respondent: Australian Government Solicitor

There was no appearance for the Second Respondent.

Amicus curiae assisting the applicant: Mr V De Alwis

Date of Hearing: 25 June 1997

Submissions: 18 November 1996

Date of Judgment: 23 January 1997