Bodruddaza v Minister for Immigration and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Gummow,Kirby,Hayne,Heydon,Crennan JJ.
• Judgment Date: 18 April 2007
• Neutral Citation: 2007-0418 HCA A,[2007] HCA 14
• Docket Number: S241/2006
• Court: High Court
• Date: 18 April 2007

[2007] HCA 14

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon And Crennan JJ

S241/2006

Kazi Fazly Alahi Bodruddaza

Plaintiff

and

Minister for Immigration and Multicultural Affairs

Defendant

Representation

S B Lloyd with L J Karp for the plaintiff (instructed by Parish Patience Immigration Lawyers)

D M J Bennett QC, Solicitor-General of the Commonwealth with G R Kennett for the defendant and intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

S F Stretton with L K Byers intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor's Office South Australia)

Bodruddaza v Minister for Immigration and Multicultural Affairs

Constitutional law — High Court — Constitutional writs — Availability of constitutional relief in the High Court's original jurisdiction — A delegate of the respondent cancelled the plaintiff's visa — s 486A of the Migration Act 1958 (Cth) purported to place a time limit on applications to the High Court exercising its original jurisdiction — The plaintiff applied for relief outside this time limit — Whether s 486A applies to the plaintiff's application — s 51(xxxix) of the Constitution conferred on Parliament power to regulate procedures for seeking relief under s 75(v) of the Constitution — To what extent this power is limited by the constitutional purposes of s 75(v) — Significance of s 75(v) in the federal scheme — Whether s 486A of the Migration Act 1958 (Cth) is valid.

Certiorari — Interrelationship with s 75(v) of the Constitution — Whether s 486A of the Migration Act 1958 (Cth) validly regulated the authority of the High Court to grant certiorari to the plaintiff.

Immigration — Cancellation of visa — The plaintiff's visa was cancelled because of a failure to meet language skills qualifications in the Migration Regulations 1994 (Cth) — Whether the decision to cancel the plaintiff's visa amounted to jurisdictional error.

Statutes — Statutory Construction — Presumption that words in the singular include the plural — Item 6A31 of the Migration Regulations 1994 (Cth) fixed on what transpired ‘in a test’ — Whether presumption vitiated by the text of Item 6A31 of the Migration Regulations.

Words and phrases — ‘purported privative clause decision’, ‘migration decision’, ‘in a test’.

Constitution, ss 51(xxxix), 73, 75(v).

High Court Rules, rr 4.02, 25.06.1.

Judiciary Act 1903 (Cth), ss 33, 32.

Migration Act 1958 (Cth), s 486A.

Migration Litigation Reform Act 2005 (Cth).

Migration Regulations 1994 (Cth), reg 2.26A(2)(a)(iv), Sched 2, Item 880.222, Sched 6A, Pt 2, Sched 6A, Pt 3, Item 6A31.

ORDER

Questions asked in the special case be answered as follows:

(1) Q. Does s 486A(1) of the Migration Act 1958 apply to the plaintiff's application to the High Court for remedies to be granted in exercise of the Court's original jurisdiction?

A. Yes.

(2) Q. If the answer to Question 1 is yes for any or all of the remedies applied for, is s 486A of the Migration Act 1958 invalid in respect of the plaintiff's application?

A. Yes.

(3) Q. If appropriate to answer having regard to the answers to questions 1 and 2, did the delegate of the Minister make a jurisdictional error in the course of assessing the plaintiff's visa application?

A. No.

(4) Q. By whom should the costs of the proceeding in this Honourable Court be borne?

A. The defendant should bear the costs of the plaintiff reasonably necessary for the determination of questions 1 and 2. The plaintiff should bear the costs associated with preparing and presenting the case in relation to question 3.

1 Gleeson CJ, Gummow, Kirby, Hayne, Heydon And Crennan JJ. The plaintiff was born in 1976 in Bangladesh and is not and never has been an Australian citizen. He entered Australia on 18 July 2003 as the holder of a visa and his then current visa was due to expire on 13 February 2006. The litigation arises from the plaintiff's unsuccessful attempt to obtain a further visa.

2 In the original jurisdiction of this Court, the plaintiff seeks various orders against the respondent (‘the Minister’) respecting a decision made by a delegate of the Minister on 5 January 2006. The delegate was exercising power conferred upon the Minister by s 65 of the Migration Act 1958 (Cth) (‘the Act’) to decide to grant or refuse visas.

3 The delegate refused an application lodged by the plaintiff on 26 July 2005 for a Skilled — Independent Overseas Student (Residence) (Class DD) Subclass 880 visa. The criteria to be met for the grant of such a visa were set out in Pt 880 of the Migration Regulations 1994 (‘the Regulations’). It will be necessary later in these reasons to refer to the text of Pt 880.

4 The plaintiff was notified of the decision of the delegate by notice sent by prepaid post on 5 January 2006 and addressed to his migration agent. The plaintiff instructed the migration agent to apply for review of the delegate's decision. By application lodged with the Migration Review Tribunal (‘the Tribunal’) on 7 February 2006, the plaintiff sought review by the Tribunal of that decision. Section 347 of the Act and reg 4.10 of the Regulations required the application for review to be made to the Tribunal within a period ending not later than 21 days after the receipt of notification of the decision. Further, it followed from a combination of ss 494B, 494C and 494D of the Act that it was on 16 January 2006 that the plaintiff was taken to have received the notification sent on 5 January 2006.

5 The result was that the 21 day period for the making of the review application ended on 6 February 2006. This was one day before the application was made. It is from this failure of the plaintiff's migration agent by one day to ensure observance of the statutory deadline that the litigation in this Court ensued.

6 First, on 9 May 2006, the Tribunal decided that it did not have jurisdiction to determine the application for review. In its accompanying reasons, the Tribunal stated:

‘There is no provision for an extension of time and the submission [made by the plaintiff] provides no basis for accepting the review application received on 7 February 2006 outside the mandatory time limit. The review application is not a valid application and the Tribunal has no jurisdiction to review the delegate's decision.’

7 Thereafter, on 11 July 2006, the plaintiff instituted the present proceeding in this Court. He seeks in respect of the decision of the delegate made on 5 January 2006 certiorari to quash that decision, accompanied by prohibition, and also mandamus requiring determination by the Minister of his visa application according to law. The plaintiff asserts jurisdictional error by the delegate in refusing his visa application lodged on 26 July 2005. On this aspect of the application, the plaintiff's arguments turn upon the construction of Pt 880 of the Regulations.

8 However, in this Court, the plaintiff encounters a threshold difficulty. This also turns upon a time constraint. The constraint is presented by s 486A of the Act in the form taken after amendment by the Migration Litigation Reform Act 2005 (Cth) (‘the 2005 Act’).

9 The application to this Court was made outside the maximum 84 day period now identified in s 486A of the Act. If valid, s 486A(2) denies to this Court any competency to make an order allowing the making of the plaintiff's application out of time.

The special case

10 In reliance upon s 486A, the Minister, by summons, sought dismissal of the application as incompetent. The sequel was an order by a Justice of this Court on 21 September 2006. A special case which had been agreed on by the parties pursuant to r 27.08.1 of the High Court Rules 2004 (‘the Rules’) was referred to the Full Court. Section 18 of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) provides that a Justice may direct that any case or question be argued before a Full Court and the Full Court thereupon has power to hear and determine that case or question.

11 Questions 1 and 2 in the special case ask respectively whether s 486A applies to the plaintiff's application and, if so, whether s 486A is invalid in respect of that application. Question 3 is contingent upon answers to questions 1 and 2 which favour the plaintiff. Question 3 proceeds to the determination by the Court of the legal merits of the application, asking whether the decision of the delegate of the Minister displayed jurisdictional error.

12 The Solicitor-General of the Commonwealth appeared for the Minister and on behalf of the Attorney-General as intervener. His submissions with respect to question 2 were supported by counsel who appeared on behalf of the Attorney-General for South Australia as intervener.

13 For the reasons which follow, s 486A applies to the application but does not validly deny the competence of this Court to entertain the application, and questions 1 and 2 should be answered accordingly. However, the plaintiff makes out no case of jurisdictional error by the delegate of the Minister and, accordingly, question 3 should be answered adversely to the plaintiff.

Section 486A of the Act

14 Section 486A as it previously stood received some attention in Plaintiff S157/2002 v Commonwealth1. Section 486A then provided that an application to this Court for a writ of mandamus, prohibition or certiorari or an injunction or declaration in respect of ‘a privative clause decision’ had to be made to this Court within 35 days of the actual, as opposed to the deemed, notification of the decision; further, this Court was enjoined by s 486A(2) not to make an order allowing, or having the effect of allowing, an applicant to make an application outside that 35 day period.

15 In Plaintiff S157/2002, Callinan J accepted that the Parliament may in exercise of power conferred by s 51(xxxix) of the...