Case: Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14
Outcome: discussed
The original jurisdiction of the High Court to review migration decisions arises under s 75(v) of Australia's Constitution. Consequently the legislature does not have power to direct the manner in which the power under that section is exercised or to restrict access to the remedies for which it provides, although it may be that some level of regulation is permissible so long as it does not 'so curtail or limit the right or ability of applicants to seek relief under s 75(v) as to be inconsistent with the place of that provision in the constitutional structure ...'; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 at [53] . The legislature's power is not so restricted in relation to the jurisdiction of the FMC or the Federal Court. 40 Division 2 of Part 8 of the Migration Act allocates jurisdiction for the review of migration decisions between the FMC and the Federal Court. The amendments to the Migration Act made by the Reform Act gave wider jurisdiction to the FMC than the Federal Court. As a result there are only very limited circumstances in which it is possible to commence proceedings for review of migration decisions in the Federal Court; see s 476A(1)(b)-(d). The policy behind the Reform Act is made clear in the following passages from the Reform Bill EM : The key areas of reform in the Bill to improve migration litigation are: (i) directing migration cases to the FMC for more efficient handling Directing migration cases to the FMC is central to the Government's package of reforms for more efficient handling of migration cases. The FMC was established to resolve expeditiously a high volume of less complex and shorter matters, making it a suitable forum for most migration cases. The Federal Court will have limited jurisdiction under the Migration Act in relation to migration cases. This will comprise, first, complex migration cases transferred from the FMC to the Federal Court and, secondly, migration cases involving judicial review of decisions of the Administrative Appeals Tribunal (AAT) under section 500 of the Migration Act or decisions made personally by the Minister for Immigration and Multicultural and Indigenous Affairs under section 501 , 501A , 501B or 501C of the Migration Act . This second group of migration cases involve decisions not to grant or cancel a visa, or involve deportation of a person, on character grounds.... Consistent with the key reform of directing migration cases to the FMC, the Bill also channels nearly all migration cases remitted from the High Court directly to the FMC. Migration cases will only be remitted to the Federal Court where they involve judicial review of character-related decisions made by the AAT or the Minister personally. (ii) ensuring identical grounds of review in migration cases ... (iii) imposing uniform time limits in all migration cases The Bill includes amendments to impose uniform time limits for applications for judicial review of migration decisions in the FMC, the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court. Applications must be made within 28 days of an applicant having received actual notice of the decision he or she seeks to review. The Court may extend the 28 day time limit by a further period of up to 56 days provided the person seeking to file the application makes the request for an extension of time within 84 days of actual notification of the tribunal decision (or decision of the Minister or delegate) and the Court is satisfied that it is in the interests of the administration of justice to extend the time limit. 41 Having considered the words of s 476A(1)(a) , its context and the policy behind Division 2, I have concluded that the section applies only to proceedings pending in the FMC in relation to a migration decision which that Court has jurisdiction to review. The crucial words in the subsection that lead me to this conclusion are 'in relation to the [migration] decision'. A proceeding pending in the FMC cannot be in relation to a migration decision where that Court has no jurisdiction to review the decision. This conclusion is not inconsistent with the FMC having jurisdiction to transfer the present proceeding. In the FMC the filing of Mr Fisher's application gave rise to 'a proceeding pending' in the FMC but not one that was pending in relation to a migration decision . It was pending in relation to a jurisdictional question, namely whether the Court had jurisdiction to review the tribunal's decision. 43 While the intent to apply strict time limits to applications for judicial review is very clear in the Act, there is nothing to indicate that the legislature intended the consequences of filing an application in the wrong court to be so draconian. On the contrary, the provisions of ss 477 , 477A and 486A indicate that Parliament intended applications for judicial review of migration decisions to be subject to the same time limits and the same restrictions on extensions of time whether brought in the FMC, the Federal Court or the High Court. The recent High Court decision in Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 , that s 486A is invalid as an impermissible restriction on the right of applicants to seek relief under s 75(v) of the Constitution , does not cast doubt on the Parliamentary intention which is made plain in the Reform Bill EM. Nor does it impugn the validity of the time limits imposed on applications to the FMC or to this Court. 44 I conclude therefore that while the Federal Magistrate was entitled to transfer the proceeding to this Court pursuant to s 39 of the Federal Magistrates Act , that transfer did not give this Court original jurisdiction under s 476A(1)(a) in relation to the decision of the Tribunal. Once the proceeding was transferred however, pursuant to O 82 r 3 of the Federal Court Rules , the proceeding was to be treated as if it had been instituted in this Court with the consequence that the application filed in the FMC is to be treated as an application made to this Court. As a result, the application falls within s 476A(1)(b) and the time limit imposed by s 477A for applications under s 476A(1)(b) applies. That being so, the applicant still requires an extension of time if his application is to be valid and there is no question of this Court making any order that subverts the time limits in s 477A. 45 As explained in [34] above, the application for review was required to be filed no later than 21 September 2006. Since that time limit was not met, Mr Fisher required an extension of time under s 477A(2) which had to be filed by 16 November 2006. As the application to the FMC was made on 11 October it was within that time limit. Even though the period of 84 days within which an application for an extension of time must be made has now expired, it is my view that I am still able to consider the application for an extension because it was made within that period. Counsel for the respondent, Mr Lloyd accepted that construction which is the construction preferred by his client as opposed to an alternative construction which he put to the Court for the sake of completeness. I do not propose to examine that alternative construction.