FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration and Border Protection [2016] FCA 177

ORDERS

THE COURT ORDERS THAT:

1.    The time for filing an appeal is extended to 8 October 2015.

2.    The appeal is allowed.

3.    The orders made by the Federal Circuit Court on 14 September 2015 are set aside.

4.    In lieu of those orders, the following orders are made:

(a)    a writ of certiorari issue, directed to the second respondent, removing into the Court its decision, made on 29 January 2015, affirming the decision of a delegate of the first respondent not to grant a Student (Temporary) (Class TU) visa to the first appellant for the purpose of quashing that decision;

(b)    a writ of mandamus issue, directed to the second respondent, requiring it to hear and determine the application of the appellants for review of the decision of the delegate of the first respondent refusing to grant the first appellant a Student (Temporary) (Class TU) visa.

5.    The first respondent pay the appellants’ costs of the appeal, and $6,000 costs of the proceeding in the Federal Circuit Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Before the Court is an application for an extension of time within which to appeal from orders made by the Federal Circuit Court on 14 September 2015. The primary judge dismissed an application for review of a decision made by the then Migration Review Tribunal (the Tribunal), now the Administrative Appeals Tribunal, on 29 January 2015.

2    The Tribunal affirmed a decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the first and second appellants Student (Temporary) (Class TU) Subclass 572 visas (the 572 visas).

3    Although the proceeding in this Court commenced as an application for an extension of time, the moving parties are referred to as the appellants in the following circumstances. The 21-day period prescribed by r 36.03(a) of the Federal Court Rules 2011 (Cth) within which to commence an appeal expired on 5 October 2015. At that time the appellants were not legally represented. On 8 October 2015, the appellants filed an application for an extension of time within which to appeal to this Court. They were thus three days late. As it turns out, the Minister does not oppose the grant of an extension of time. Consequently, leave was granted and the hearing proceeded as the hearing of the appeal.

4    There is some confusion about the parties to the appeal. The first appellant, Yogesh Kumar, was the primary visa applicant. His wife, the second appellant, Priyanka Arora, was a dependent applicant. They have a son, the third appellant, Harshad Kumar, who curiously was not part of the visa application.

5    The Tribunal decision was made in respect of the first and second appellants. However, the proceedings in the Federal Circuit Court appear to have been taken by all three appellants. Notwithstanding that fact, the orders by the Federal Circuit Court were directed to the first appellant only.

6    The appeal to this Court was brought by all three appellants. It was accepted by the parties that the determination of the first appellant’s appeal would in practice determine the situation of the second and third appellants. In those circumstances, the first appellant is referred to in these reasons for judgment as the appellant.

7    The appellant held a Subclass 485 (Temporary Graduate) visa (the 485 visa) which was due to expire on Sunday, 12 January 2014. On Friday, 10 January 2014, the appellant lodged his 572 visa application by post and it was received by the Department of Immigration and Border Protection on Monday, 13 January 2014. The relevant criterion stipulated in cl 572.211(2)(d) of Sch 2 to the Migration Regulations 1994 (Cth) (the Regulations) for the appellant to obtain a 572 visa was that he was the holder of a 485 visa at the time of application. The Tribunal, affirming the delegate’s decision not to grant a 572 visa, held that the appellant did not satisfy the requirement in cl 572.211(2)(d) and consequently could not be a granted a 572 visa.

8    The appellant applied to the Federal Circuit Court for a review of the decision of the Tribunal on the ground that the Tribunal made a jurisdictional error by failing to apply s 36(2) of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act), which provides:

If:

(a)     an Act requires or allows a thing to be done; and

(b)     the last day for doing the thing is a Saturday, a Sunday or a holiday;

then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.

Example:    If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.

9    The appellant argued that s 36(2) of the Interpretation Act applied so that he was entitled to make the application for the 572 visa on 13 January 2014. Although the application was made on 13 January 2014, he submitted, it was to be assessed in the circumstances which applied on 12 January, namely, that he held the 485 visa at the time of application.

10    On 14 September 2015, relying on the majority judgment of Neaves and Beazley JJ in Zangzinchai v Milanta (1994) 53 FCR 35 (Zangzinchai), the primary judge rejected this argument as follows:

11.    The problem in the present case is that cl.572.211(2) does not, in express terms or in its effect, prescribe or allow anything to be done on a particular day. In my opinion, cl.572.211(2) identifies a state of affairs that must exist as part of the criteria for the making of a valid application and, accordingly, s.36(2) of the Acts Interpretation Act has no application. In my opinion, that state of affairs or state of things for the purpose of a valid application, is a real distinction from a provision that, in its terms or in its effect, requires or allows a thing to be done.

11    It is necessary to appreciate the statutory context which applies to the grant of visas. The Minister is given power to grant a non-citizen permission, known as a visa, to travel to and enter Australia and/or remain in Australia: s 29(1) of the Migration Act 1958 (Cth) (the Migration Act). Visas may be permanent or temporary. A temporary visa may be a visa to remain (s 30):

(a)     during a specified period; or

(b)     until a specified event happens; or

(c)     while the holder has a specified status.

Section 82 deals with when a visa ceases to be in effect. Relevantly, s 82(7) provides:

A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.

Section 82(10) provides:

For the purposes of subsections (5), (6) and (7), particular date includes:

(a)    the date an event, specified in the visa, happens; or

(b)    the date the holder ceases to have a status specified in the visa or the regulations.

Section 31(1) allows for classes of visas to be prescribed. Section 31(3) allows criteria for a visa of a specified class to be prescribed by regulation. Classes of visa are set out in Sch 1 to the Regulations: reg 2.01; and prescribed criteria are set out in Sch 2: reg 2.03. Section 45 of the Migration Act relevantly provides that a non-citizen who wants a visa must apply for a visa of a particular class. Section 65 provides that the Minister must grant a visa if the criteria are satisfied, but must not grant the visa if the criteria are not satisfied.

12    Where s 45 of the Migration Act allows a person to apply for a visa, the Migration Act allows a thing to be done within the meaning of s 36(2)(a) of the Interpretation Act. As a matter of fact, in the present case, the last day for the appellant to apply for the 572 visa was Sunday, 12 January 2014.

13    Section 36(2) of the Interpretation Act then operated to allow the thing to be done on the next day which was not a Saturday, a Sunday, or a holiday. In this case that allowed the application for the 572 visa to be made when it was made on Monday, 13 January 2014.

14    The way s 36(2) of the Interpretation Act then operates is that “the thing” is “done” on that next day. In order for “the thing” to be “done”, the circumstances existing on the Saturday, Sunday or holiday are, by operation of the section, regarded as existing on the extended date.

15    Section 36(2) of the Interpretation Act does not say that it operates only as an extension of time for doing a thing. Rather, it allows the thing in question to be done; that is to say, it allows for the thing to be effectuated on the later date as if it were being done on the earlier date.

16    The vice in the reasoning of the primary judge is that that reasoning asked whether s 36(2) of the Interpretation Act applied to the criteria specified in cl 572.211(2), namely, that the appellant be the holder of the 485 visa. But the criteria for the grant of the visa do not constitute things allowed to be done by the Migration Act. What the Migration Act allows to be done is for the non-citizen to apply for the visa. Section 36(2) of the Interpretation Act addresses whether that may be done on a later date and how the passage of time is accommodated.

17    The Minister relied, as had the primary judge, on the judgment of the majority in Zangzinchai. The appellant there held an entry permit which expired on Sunday, 1 March 1992. On Monday, 2 March 1992, the appellant applied for a new entry permit. It was a condition for the grant of the new entry permit that the appellant was legally present in Australia when the application was made. The Immigration Review Tribunal held that the appellant was not lawfully present in Australia because the old entry permit had expired before he applied for the new one. The appellant relied on s 36(2) of the Interpretation Act in the form it then took, as follows:

Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.

18    The majority said at 38-39:

The effect of the relevant provisions of the Migration Act and the Migration Regulations to which we have referred above, was that an entry permit might be limited in duration, both as to the period in which it was valid and as to the time the holder might remain in Australia. These regulations did not provide for the doing of anything. Nor did they prescribe or allow a time for the doing of anything. Rather, during the currency of a temporary entry permit, or during the period in which the holder might remain in Australia, whichever was the shorter, the holder was authorised to be in Australia. Once the shorter of those periods had expired, the holder became an illegal entrant, assuming for the purposes of the argument that no other entry permit had been granted. In other words, Beaumont J said, regs 24 and 27 affected status. They did not prescribe or allow a time for the doing of anything. The consequence of being an illegal entrant was that a person had to satisfy different regulatory criteria to be eligible for the grant of a further entry permit.

19    The majority then addressed an argument based on the capacity of the appellant to apply for the new entry permit and said at 39:

Counsel for the appellant submitted that the regulations allowed a time for the doing of an act, or, alternatively, authorised the doing of an act – namely the making of an application for an entry permit. While it was true that the holder of a temporary entry permit might apply, or as counsel for the appellant submitted, was authorised by the legislation to apply, for an entry permit during the currency of the temporary entry permit, this misunderstands the nature of the regulations. The regulations did not prescribe or allow a time in which an application for an extended eligibility (economic) entry permit might be made. Rather, different consequences flowed depending upon whether the application was made while the applicant was or was not the holder of the temporary entry permit. If a person made an application after a temporary entry permit had expired, the person had to satisfy different criteria before being eligible for the grant of a further entry permit, than was the case if the person was the holder of an entry permit at the time of application.

20    The majority also adopted, at 39, the reasoning of a decision of the Immigration Review Tribunal in Re Sekido (unreported, Immigration Review Tribunal, No 91/00033, 6 March 1992) which included the following:

s 36 of the Acts Interpretation Act would appear to be irrelevant in the present case since its application depends, according to the terms of the section, upon the prescription of a period for the doing of something and the Act and Regulations do not contain any such prescription of time for the making of an application for an entry permit.

21    Burchett J in dissent held that s 36(2) of the Interpretation Act did apply. His Honour said, at 42:

On the face of the provision, the use of the expression, “or allowed by an Act”, makes it clear that s 36(2) applies where, according to the true construction of an Act, a period is allowed for the doing of something; it is not necessary to find a provision prescribing in terms that something shall be done within a particular period. That the subsection is not concerned with the formulation of a prescription is also made clear by the way it operates. It does not say that a statement of a period shall be read as extending to the day after a Sunday etc. It is not so tied to the manner in which an Act may be drafted. (That could have been seen as involving possibly fortuitous limitations upon the scope of the Acts Interpretation Act.) Instead, it goes to the substance, providing that “the thing may be done on the first day following ... ”. I think this provision must be construed as meaning “done effectively”, and that it should be given its full impact upon the substance of what other legislation, to be interpreted in the light of the Acts Interpretation Act, may allow.

[Emphasis in original.]

22    In relation to the passage from the decision of the Immigration Review Tribunal in Re Sekido referred to by the majority, and extracted earlier in these reasons for judgment, Burchett J said at 44:

It will be apparent from what I have already written that this reasoning is unreliable; it omits all reference to the alternative of the allowance of a period, not by precise prescription, but by the terms of an Act.

[Emphasis in original.]

23    Zangzinchai was decided in 1994 and dealt with the previous form of s 36(2) of the Interpretation Act. The Interpretation Act was amended to its current form with effect from 27 December 2011: see the Acts Interpretation Amendment Act 2011 (Cth).

24    The construction of the current form of s 36(2) of the Interpretation Act, adopted earlier in these reasons for judgment, follows the current text of the provision. The previous version of the section operated on a period prescribed, or allowed, by an Act, whereas the current version operates on a broader set of circumstances where an Act requires or allows a thing to be done. The views of the majority in Zangzinchai, on the earlier version of the section, do not apply to the different text of the amended version.

25    The Minister relied on the explanatory memorandum to the 2011 amendment in support of the argument that there was no material change to the section, and that the majority judgment in Zangzinchai bound this Court. The explanatory memorandum stated:

224.     Section 36, which deals with how time periods are to be calculated, is being modernised by use of a table to show how different scenarios are to be interpreted in Commonwealth Acts and provides examples for each of the items in the table. It is intended to capture a broader range of situations that are likely to arise from time to time – such as where an Act specifies a period for doing something and the place for doing the thing is closed on the first or last day of doing that thing.

225.     The rationale for the amendment is to make section 36 more user friendly. It does not substantively change the existing policy.

26    Whilst the explanatory memorandum says that the amendment does not substantively change existing policy, it also says that it is intended to capture a broader range of circumstances.

27    The explanatory memorandum may only be used if it is capable of assisting in the ascertainment of the meaning of the provision: s 15AB(1) of the Interpretation Act. In my view, it does not assist because it speaks of a policy, not the text of the section, without stating what that policy is. Further, even if the contents of the policy were exposed, other parts of the explanatory memorandum suggest that the section was to have a wider operation.

28    In the result the appeal is allowed. The decision of the Tribunal will be quashed and the matter remitted for determination in accordance with law.

Associate:

Dated:    29 February 2016