FEDERAL COURT OF AUSTRALIA
MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. Orders 2 and 3 of the Federal Circuit Court of Australia made on 20 August 2015 be set aside and in place of those orders:
(i) a writ of mandamus issue to the second respondent to hear and decide the application made to the then Refugee Review Tribunal on 24 April 2014;
(ii) the first respondent pay the costs of the applicant.
3. The first respondent pay the appellant’s costs of the appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
KENNY, TRACEY, ROBERTSON AND MORTIMER JJ:
Introduction
1 This appeal is from the judgment and orders of a judge of the Federal Circuit Court of Australia, Judge Hartnett, given and made on 20 August 2015. Her Honour dismissed the application to that court, with costs.
2 The application to that court was for judicial review of a decision of the then Refugee Review Tribunal that it did not have jurisdiction to review the decision of the delegate of the Minister, dated 1 April 2014, because the application to the Tribunal was not made in accordance with the relevant legislation.
3 The Tribunal held that the present appellant used a superseded version of the approved Form R1; therefore, the purported review application to the Tribunal was not made on an approved form for the purposes of s 412(1)(a) of the Migration Act 1958 (Cth).
4 In dismissing the application for judicial review, the judge of the Federal Circuit Court found that the appellant’s application to the Tribunal made on 24 April 2014 was made using a form marked Form R1 (Design date 06/12) whereas the two approved forms were Form R1 (Design date 07/13 and Design date 03/14): see [16] below. The judge of the Federal Circuit Court held that the appellant used the wrong form and the Tribunal did not have any ability to determine the matter other than as it did. The judge applied the decision of the Full Court in SZJDS v Minister for Immigration and Citizenship [2012] FCAFC 27; 201 FCR 1 which considered s 347(1) of the Migration Act which, her Honour said, corresponded to s 412(1).
5 The use of the incorrect form was not identified until after the time in which to lodge a valid review application had passed. An application for review had to be made within 28 days after the present appellant was notified of the decision and the present appellant was taken to be notified on 10 April 2014. The prescribed period within which the review application could be made ended on 8 May 2014.
6 This Court is not concerned with the appellant’s claims underlying his application for a Protection (Class XA) visa lodged on 20 December 2013, or the circumstances in which a delegate of the Minister on 1 April 2014 refused that application for a visa because she found the appellant not to be credible or genuine.
The grounds of appeal
7 The proposed amended grounds of appeal, dated 2 February 2016, are as follows:
1. Judge Hartnett erred in that her Honour failed to find that the decision of the Tribunal is affected by jurisdictional error, in that the Tribunal did not lack jurisdiction to conduct the review.
Particulars
a. The appellant made an application for review in a form that was once the approved form.
b. The approved form at the time of the application for review was an updated version of the form used by the appellant.
c. The form used by the appellant “substantially complied” with the approved form within the meaning of s 25C of the Acts Interpretation Act 1901 (Cth), which applies to s 412(1)(a) of the Migration Act 1958 (Cth).
d. Alternatively, a failure to comply with s 412(1)(a) of the Migration Act 1958 (Cth) does not mean that the Tribunal lacked jurisdiction to conduct the review, and in fact, the Tribunal was seized of jurisdiction to conduct the review.
e. Alternatively, a failure to comply with s 412(1)(a) of the Migration Act 1958 (Cth) in the circumstances of this case did not mean that the Tribunal lacked jurisdiction to conduct the review, and in fact, the Tribunal was seized of jurisdiction to conduct the review.
The Minister consented to the appellant being granted leave to advance the ground in the amended notice of appeal. In those circumstances we granted that leave and also granted the appellant leave under s 27 of the Federal Court of Australia Act 1976 (Cth) to adduce the evidence on affidavit of Hannah Jean Carmel Dickinson affirmed on 1 February 2016 and for that purpose we dispensed with the requirements of r 36.57 of the Federal Court Rules 2011 (Cth).
8 There are two main issues in the appeal. The first is whether use of a non-approved form itself made the application to the Tribunal invalid as not compliant with s 412 of the Migration Act. The second is whether substantial compliance with an approved form is sufficient and whether there was such substantial compliance in this case.
The statutory provisions
9 As at 24 April 2014, the date of the appellant’s purported application to the Tribunal for review of the delegate’s decision, the relevant statutory provisions were as follows. First, the relevant provisions of the Migration Act were:
412 Application for review by the Refugee Review Tribunal
(1) An application for review of an RRT-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by the non-citizen who is the subject of the primary decision.
(3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).
…
414 Refugee Review Tribunal must review decisions
(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision.
(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
…
495 Minister may approve forms
The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression “approved form” is used.
…
(1) The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act.
…
10 Secondly, the relevant provisions of the Acts Interpretation Act 1901 (Cth) were in the following form:
(1) This Act applies to all Acts (including this Act).
Note: This Act also applies to legislative instruments and other instruments made under an Act: see subsection 13(1) of the Legislative Instruments Act 2003 and subsection 46(1) of this Act.
(2) However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
…
Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.
As in Bal v Minister for Immigration and Multicultural Affairs [2002] FCAFC 189; 189 ALR 566 at [37], although the form presently under consideration is not prescribed by the Act or the regulations, it is accepted that a “substantial compliance” requirement may be applicable to it: see Wu v Minister for Immigration and Ethnic Affairs [1996] FCA 106; 64 FCR 245 at 279 per R D Nicholson J, with whom Jenkinson J agreed; Minister for Immigration and Multicultural Affairs v A [1999] FCA 1679; 91 FCR 435 per Merkel J at [43]; Shahabuddin v Minister for Immigration and Multicultural Affairs [2001] FCA 273 per Katz J at [16].
The submissions of the parties
11 The appellant’s submissions drew a contrast between the language of s 412 and the language of ss 45-47, particularly s 46 (“if, and only if … ”) and the express consequences of a failure to comply with s 46 and s 47. The appellant submitted the Migration Act did not specify the consequence of a failure to comply with s 412(1)(a). The appellant submitted that a failure to comply with s 412(1)(a) did not necessarily lead to the consequence that the Tribunal lacked jurisdiction to conduct a review and referred, in support of that conclusion, to Braganza v Minister for Immigration [2001] FCA 318; 109 FCR 364, which held that a failure to have an application for review accompanied by the prescribed fee did not necessarily lead to the consequence of invalidity.
12 In relation to s 25C of the Acts Interpretation Act, the appellant submitted that the purpose of the provision was to ameliorate the potentially harsh effects of a failure strictly to comply with the common administrative features of a prescribed form. This ameliorating purpose was not served by the narrow construction adopted by Rares and Cowdroy JJ in SZJDS but was served by the broader construction advanced by the appellant. The appellant submitted that when the form submitted by him was compared with the approved form, it was immediately evident that the appellant “substantially complied” with the prescribed form.
13 The appellant relied on the Explanatory Memorandum or Notes on Clauses to the Acts Interpretation Amendment Bill 1984, cl 13, at [18], being in the following terms:
Proposed section 25C provides that where a form is prescribed in an Act, or by a regulation, unless the contrary intention appears, any form which is like or has the effect of the prescribed form will be sufficient for the purposes of the Act or regulation. The inclusion of this provision will remove the need to include such a provision in particular Acts and regulations.
14 The appellant also submitted, if he was wrong in relation to the applicability of s 25C of the Acts Interpretation Act, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 should be understood as allowing attention to be given to the extent or degree of any non-compliance with a statutory requirement such that the question became: “What consequence(s) did Parliament intend in relation to this particular action, having regard to the provision with which that action purports, intends or should comply, but does not comply?”. It followed, so the submission went, that what was required for compliance with s 412(1) was that a person makes something which objectively bore the quality of an “application for review”. This meant that the actions taken by a purported applicant in communicating with the Tribunal must bear such a quality as to warrant the description of an “application for review”.
15 The Minister submitted that the Full Court may need to consider three distinct issues in deciding whether the Tribunal did or did not have jurisdiction to undertake a review. Those issues, as identified by the Minister, together with his proposed answers were as follows:
1. Is compliance with s 412(1)(a) a precondition to invoking the jurisdiction of the Tribunal?
Yes.
2. Can an applicant “substantially comply” with the requirement in section 412(1)(a) to make an application in the approved form, in circumstances where the applicant does not, in fact, use that form?
No.
3. If the answer to Q2 is “yes”, did the appellant “substantially comply” with the requirement in section 412(1)(a) in this case?
No.
As we have explained at [8] above, it is the second and third of these issues which determine the outcome of this appeal.
16 The Minister submitted that because the revocation of the approval of the 2013 form did not take effect until 1 July 2014, as at 24 April 2014 when the appellant purported to apply for review, there were two approved forms, the 2013 form of R1 and the 2014 form of R1, but the 2012 form of R1, which the appellant used, was not an “approved form”. That approval had been revoked on 30 January 2014.
17 The Minister relied on four decisions in support of his construction that, where the wrong form was used, s 25C had no application. Those decisions were, in chronological order: Wu; Onea v Minister for Immigration & Multicultural Affairs [1997] FCA 1472; 80 FCR 254; Pradabsuk v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 66; 150 FCR 584; and SZJDS.
18 The Minister also relied on a decision of the Supreme Court of South Australia, T & S Liapis Pty Ltd v Commissioner of Taxation [2015] SASC 63; 124 SASR 1; appeal dismissed Commissioner of State of Taxation v T and S Liapis Pty Ltd [2015] SASCFC 151, for the proposition that the word “form” in the context of a statutory requirement to use an “approved form” may be understood in the sense of “[a] set or fixed order of words” and a “formulary document with blanks for the insertion of particulars”. So understood, the submission went, making an application in an approved “form” necessarily involved making an application by using a particular document with a fixed order of words (including questions that elicit certain information to be inserted in blank spaces) that has been approved for that purpose.
19 The Minister submitted that even if an applicant may have provided most of the information sought by the approved form, in using the wrong form an applicant did not make an application “in” such a “form”. The Minister relied on Farrugia v Farrugia [2000] FCA 385; 99 FCR 16 at 27-28 in this respect. The Minister submitted that s 25C was inapplicable because it dealt with the subject of the degree of compliance with a particular form (which either is, or is not, used), rather than the distinct subject of the consequences of not making an application in a particular form.
20 The Minister submitted that if the Court concluded that an applicant had “substantially” complied with s 412(1)(a) by making an application in a form revoked by the Minister or the Principal Member under s 495 that would give rise to significant uncertainty. The Tribunal member who assessed the application for validity would be required to undertake a comparative analysis of the differences between the two forms and then make an evaluative judgment about whether the differences between the two forms were “substantial”.
21 The Minister also submitted that the appellant did not substantially comply with the approved forms as there was a specific requirement to include particular information and it was not “substantial” compliance not to give that information. The Minister referred to Adams v Lambert [2006] HCA 10; 228 CLR 409 at [22]. In the present case, the Minister submitted, the appellant did not give his passport number as required by the approved forms. It could not be supposed, the submission went, that that information was unimportant. Indeed, it might readily be expected that the provision of a unique passport number (compared to other non-unique identifiers such as name and address) was conducive to the Tribunal quickly and certainly establishing the identity of a prospective applicant for review. It could only be concluded that the information was considered important to the administrative processes of the Tribunal. That was so even if the change might be perceived to be relatively minor in a quantitative sense, or if the information sought might be perceived not to have an obvious or direct relationship to the merits of an application for review of a Tribunal decision. The Minister submitted that SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; 168 FCR 487 at [75]-[85] was distinguishable. In that case the Full Court held that a visa applicant had substantially complied with an approved form in circumstances where she had not answered particular questions, but the purpose of those questions was only to elicit the applicant’s claims for protection, and the applicant had elsewhere on the form particularised her claims for protection.
Consideration
22 For the reasons we set out below, s 25C of the Acts Interpretation Act is applicable to s 412(1)(a) of the Migration Act. In our opinion, ultimately the questions raised by the appeal can only be answered, in the present circumstances, by comparing what it was the appellant submitted in the form he used, with what was required by the approved form or forms at the time of his application to the Tribunal. Thus, we reject the Minister’s proposed answer to issue 2 as set out at [15] above.
23 The relevant three paragraphs in the judgment of the majority (Rares and Cowdroy JJ) in SZJDS, are as follows:
[26] Two different scenarios can arise where legislation requires a specific form to be used to make an application. The first arises where a specific form is required to be used to make an application. In this instance, it is essential that the specified form be used. Here, there is no scope for partial or substantial compliance with the requirement to use the particular form. Either an applicant uses the correct form, or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid.
[27] The second scenario arises where an applicant uses the prescribed form, but fails in some respect to complete it accurately or fully. In this instance, the failure does not necessarily result in an invalid application. That is because of the operation of s 25C of the Acts Interpretation Act which provides that where “an Act prescribes a form, then unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”.
[28] The distinction between the first and second scenarios is that a person cannot partially or substantially comply with the requirement to use the specific form; the application will be valid only if he or she uses the specific form, otherwise the application is invalid. On the other hand, if the person substantially complies with the directions on that specific form, depending on the circumstances, a partial failure to complete it in accordance with its stated directions may not affect its validity.
24 This analysis does not seem to us to be required or appropriate absent a comparison of the application that was in fact made with the application as it should have been made in the approved form. It is only that comparison which will show whether there has been substantial compliance with the (approved) form. To the extent that the reasoning in these paragraphs suggests that s 25C does not apply to s 412(1)(a) of the Migration Act we respectfully disagree with that reasoning.
25 SZJDS is readily to be distinguished as in that case the appellant was not within the particular class of applicant for review contemplated by the form he used as he was not in immigration detention. So much is clear, in our opinion, from [32] and [35] of the judgment of the majority where reference was made to the form the appellant used not being capable of being used by him as an approved form to make an application for review. Each of the forms, the majority said, had been approved for different purposes and classes of applicants. In the present case, however, all that appears is that the appellant used a superseded form but one which was directed to applicants of his class and where the form, although superseded, had not been approved for different purposes.
26 Similarly, Wu is readily to be distinguished as in that case none of the appellants completed application forms for a protection visa. One of their arguments was that if there was a requirement for a form to be completed when applying for a protection visa, any such requirement was not mandatory but directory. As RD Nicholson J noted, at 275F-G, it was common ground that none of the appellants completed application forms for a protection visa. Expressed broadly, their case before the trial judge was to the effect that what they had done and said, upon and after arrival, manifested a wish on their part to be treated as applicants for such a visa.
27 It was in that context that RD Nicholson J, with whom Jenkinson J agreed, said at 278-279 that the statutory provisions requiring an application form as a necessary precondition to validity of an application and Ministerial power to resolve the application were a manifestation of a relevant contrary intention. His Honour said that there was no room left by the statute for the concept of a constructive application or substantial compliance with the provisions for a form by conduct falling short of use of the form. His Honour went on to say, at 279F-G, that it appeared to him that there was room for the application of the substantial compliance principle in relation to the manner in which Form 866 was completed by an applicant. See also at 261G per Carr J, who said that in circumstances in which an application form was partially completed it might be necessary to consider whether there had been substantial compliance. In our opinion, Wu does not stand for the proposition that using a form, albeit a superseded one, may not be substantial compliance with the form as presently approved. Indeed, we consider it was unnecessary to their decision for their Honours to reason, at pages 261A and 278G, by reference to the statutory provisions manifesting a relevant contrary intention to the application of s 25C of the Acts Interpretation Act: where no writing was used it would seem to us that s 25C is not applicable at all.
28 It was also significant to the reasoning of both Carr J and RD Nicholson J that the relevant regulatory provision was made in reg 2.07 which provided that, for the purposes of ss 45 and 46, if an application was required for a particular class of visa, the approved form to be completed by an applicant and other matters were set out in the relevant Part of Sch 1. With respect to protection visas, that Part provided for the use of Form 866. That form included provision for a declaration by the applicant that the definition of a refugee in the Convention and Protocol had been read to him or her and that the applicant believed that the definition applied to him or her.
29 As Beazley J (as her Honour then was) had earlier said in Hamilton v Minister for Immigration, Local Government and Ethnic Affairs (1993) 48 FCR 20 at 33, the requirement that there be substantial compliance with the form does not mean that the nomination does not have to be in writing.
30 Read out of context, what was said in SZJDS at [26] may suggest that in all cases s 25C is not addressed to the form of the form. That was the construction adopted by the Tribunal and by the primary judge. We do not criticise the Tribunal or the primary judge for following SZJDS however, in our opinion, outside the perhaps special circumstances in SZJDS, that is not the correct construction of the section. That construction is inconsistent with the Explanatory Memorandum which we have set out at [13] above. In our opinion, s 25C of the Acts Interpretation Act, subject to a contrary intention, applies both to the arrangement of the material (the form) and to the content of the material.
31 In MZZCU v Minister for Immigration and Border Protection [2013] FCA 1178, an extension of time in which to seek leave to appeal was refused. The judge of this Court said that when the applicant applied to the Tribunal to review the decision of the delegate, he used the wrong form. In the Federal Circuit Court, the judge of that court had held, in reliance on the judgment of the Full Court in SZJDS at [26], that the failure of the applicant to use the correct form meant that there was no valid application before the Tribunal to review the decision of the delegate. Her Honour also referred to s 412(1)(a) of the Migration Act which made it a pre-condition to the exercise of power by the Tribunal that the application for review be on the approved form. As there was no valid application before it, the Tribunal was bound to dismiss the application. The judge of the Federal Circuit Court found that the Tribunal determined correctly that it had no jurisdiction to embark on the review sought by the applicant. It is not clear from the judgment of the judge of this Court what the “wrong form” used by the applicant was. However, a consideration of the first instance decision, MZZCU v Minister for Immigration and Anor [2013] FCCA 1060, cited by the primary judge in the present case, shows that the applicant in that case used a form which had merely been superseded. We would not follow that reasoning. We also note that the applicant in MZZCU was not legally represented in either Court, and the application in this Court was dealt with without an oral hearing.
32 The inconvenience of the construction adopted by the Tribunal and by the primary judge in the present case is self-evident. That construction also prefers form over substance. This may be seen from the course of oral argument when it was put to Senior Counsel for the Minister that the Tribunal in this case had the file number as the appellant had put it on his application to the Tribunal for review:
MR JOHNSON: It’s not that he doesn’t supply identifiers. It’s that he doesn’t use the form which has been approved; he uses a form the approval for which has been revoked. And he doesn’t give the passport number. And a lot of the details in the application form to the RRT are ones which ultimately are unlikely to have any bearing upon the substantive outcome of the review application. The forms which are requested are more to do with identifying who’s before the Tribunal in relation to what, and there are a lot of questions which seek information which is relevant to the Tribunal’s conduct of its review. We’re not saying that this is a case where the Tribunal could not identify the applicant without being given itself the passport number. What we are saying is that he didn’t apply in a form approved by the principal member and, accordingly, his application, unfortunately, was not valid.
33 Turning to the authorities on which the Minister relied, we have already considered Wu and SZJDS.
34 Onea concerned ss 45, 46 and 47(1). It concerned the submission of an application on Form 147 rather than Form 1066 which was the form for a Temporary Business Entry (Class UC) visa. It was in that context, as a matter of the proper construction of those provisions, that Finkelstein J said, at 261, the Minister was not required to consider any application for a visa unless that application was made on the appropriate form: “No other form will do.” Finkelstein J followed Wu as standing for the proposition that the effect of s 25C had been excluded. As we have said at [27] above, we do not regard that part of the reasoning in Wu as necessary to the decision in that case and we do not regard the reasoning in Onea as apposite to the facts of the present appeal.
35 In Pradabsuk the Full Court (French, Stone and Siopis JJ) said that the requirements specified in cl 1128CA(3)(d)(ii) of Sch 1 to the Migration Regulations 1994 (Cth) were not to be equated with the duty to complete a form in accordance with the stated directions – in respect of which “substantial compliance” would be sufficient. Their Honours said, at 595, that there was an inherent flexibility in the requirement to provide “satisfactory evidence” but the clause did not admit of “substantial compliance” in relation to the event that must be evidenced, namely, that the Australian Federal Police had completed a check of criminal records in relation to the visa applicant.
36 Although not referred to in the submissions on behalf of the Minister, we should mention Samuel v Minister for Immigration and Multicultural Affairs [2000] FCA 854; 175 ALR 529. In that case, Wilcox J held in an ex tempore judgment that the result of the operation of ss 45 to 47 of the Migration Act and reg 2.07 was that the document which was considered by the delegate in that case was not in truth an “application”; that is, a valid application under the Act. Accordingly, the delegate's decision was invalid, and there was nothing for the Tribunal to review. It followed that the Tribunal’s decision was set aside. The circumstances were that, in respect of matters critical to the evaluation of the question whether he answered the definition of “refugee”, Mr Samuel provided no information other than a reference to his statutory declaration. However, at that time, it appeared that no statutory declaration was in existence and none was produced to the Department. His Honour held, consistently with Wu, that ss 46 and 47 left no room for the application of s 25C of the Acts Interpretation Act and evinced a contrary intention. In our opinion, there could be no doubt as to the correctness of his Honour’s conclusion that there was not a valid application, but for the reason that there was no substantial compliance. So explained, the conclusion is consistent with the later decisions of the Full Court in Minister for Immigration and Multicultural Affairs v Li [2000] FCA 1456; 103 FCR 486 and SZGME which we consider at [53] and [54] below.
37 T & S Liapis Pty Ltd v Commissioner of State Taxation, at first instance, concerned s 14(1)(b) of the Taxation Administration Act 1996 (SA) which stated that the Commissioner may make an assessment only by written notice that is in a form approved by the Commissioner. The words quoted in the submissions of the Minister in the present appeal were definitions from the Oxford English Dictionary. The first words quoted omitted the parenthesis “e.g. as used in religious ritual”. In any event, notwithstanding the definitions, Blue J held, at 26, that the Notice and Spreadsheet comprised an assessment and notice of an assessment within the meaning of the Taxation Administration Act. The issue does not appear to have been taken up on appeal: Commissioner of State Taxation v T & S Liapis Pty Ltd [2015] SASCFC 151. We regard the decision, with respect, as of little assistance in the present appeal.
38 Adams v Lambert at [22] seems to us to be remote from the present issue. That was a bankruptcy case and the form required there to be stated, if interest was claimed, the provision under which the interest was being claimed. In that context, the High Court said it was not substantial compliance to state a different provision.
39 The context in Farrugia was materially different. It concerned the validity of a bankruptcy notice and it was held that a bankruptcy notice which complied strictly with the form, except insofar as the following statement was in regular, rather than in bold, typeface, did not comply substantially with the form. The statement was “This Bankruptcy Notice is an important document. You should get legal advice if you are unsure of what to do after you have read it”. The Minister sought to gain assistance from the distinction, in the historical legislative context then under consideration, between “in” the form and “in accordance with” the form. However the conclusion of this part of the discussion was at [64] where Katz J said:
Giving effect to the “in accordance with” phrase in s 41(2) of the Act as was done in the cases to which I have just referred, one concludes that s 41(2) of the Act itself lays down a requirement of substantial, rather than strict, compliance with Form 1 of Sch 1 to the Regulations. In those circumstances, it can be seen that s 25C of the Acts Interpretation Act has no potential role to play with respect to that form; s 25C is simply superfluous in the circumstances.
Thus, the reasoning was where the legislature used the “in” formulation, s 25C had a potential role. We do not see that the decision assists the Minister.
40 This is made clear by Curtis v Singtel Optus Pty Ltd [2014] FCAFC 144; 225 FCR 458, where a Full Court was also considering the validity of a bankruptcy notice. Section 41(2) of the Bankruptcy Act 1966 (Cth) required that the notice must be in accordance with the form prescribed by the Regulations. Subregulation 4.02(2) provided that the bankruptcy notice “must follow Form 1 in respect of its format (for example, bold or italic typeface, underlining and notes).” Nevertheless, reg 4.02(3) indicated that only substantial compliance is necessary. The Full Court said at [56]:
To the same effect, one could also argue, as an anterior point to any consideration of regs 4.02(2)–(3), that the words “in accordance with” in s 41(2) as distinct from just the word “in” permits of some degree of flexibility, so that only substantial compliance with the form is required. And if this is accepted, one never gets to reg 4.02(3) (see Farrugia v Farrugia (2000) 99 FCR 16 at [61]–[68] per Katz J). But for present purposes, it matters little which route is used. The short point is that only substantial compliance is required.
41 A decision of the Queensland Court of Appeal, QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41, provides assistance. We were not referred to it by counsel.
42 The relevant provision of the Acts Interpretation Act 1954 (Qld) was s 49 and is now s 48A. It is relevantly in the following terms and is, by s 4, subject to a contrary intention appearing in any Act:
49 Forms
(1) If a form is prescribed or approved under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient.
It may be seen that this provision is in substance in the same language as s 25C which we have set out at [10] above.
43 In QUYD Pty Ltd v Marvass Pty Ltd the Court of Appeal held that s 134(1) of the Property Agents and Motor Dealers Act 2000 (Qld) did not exclude the application of s 49(1) of the Acts Interpretation Act. Section 134 provided:
134 Form of appointment
(1) The appointment must be in the approved form.
(2) The approved form must include a prominent statement that the client should seek independent legal advice before signing the appointment.
(3) An appointment that does not comply with subsection (1) is ineffective from the time it is made.
44 The applicant contended that the appointment of the respondent as its agent to sell land was not in the form required by the Property Agents and Motor Dealers Act. The applicant contended that the appointment was not in the approved form. The first page of the form was endorsed “Form 21a V1 2004”. On 1 July 2005, the Chief Executive approved another form, “Form 21a V2”. Both version 1 and version 2 were approved forms until the Chief Executive revoked version 1 on 1 October 2005. Thus, the only approved form when the appointment was executed in July 2006 was version 2. The applicant contended that the executed appointment did not comply with s 134(1) because it was made in version 1 rather than in version 2. The only differences between version 1 and version 2 were the endorsements identifying them as different versions and a change in the telephone number of the Office of Fair Trading.
45 McMurdo P agreed with Fraser JA and added, at [2], that were the applicant’s contentions successful, it would be an absurd triumph of form over substance and one completely inconsistent with the commendable objects of the Property Agents and Motor Dealers Act set out in s 10 of that Act.
46 Fraser JA, with whom Philippides J agreed, said at [22] that the apparent purposes of requiring the appointment be made in the approved form were all fulfilled. His Honour rejected the contention that strict compliance with the form was essential and that the prima facie rule of construction expressed in s 49(1) of the Acts Interpretation Act was displaced by a contrary intention appearing in the Property Agents and Motor Dealers Act as follows:
[24] The defendant’s senior counsel argued that such a contrary intention was demonstrated by the use of the word “must” in s 134(1). I reject that argument. PAMDA does not provide that an appointment is valid “if and only if” it is made in the approved form: that might have demanded strict compliance. Subsection 134(1) simply mandates the use of the approved form. The prescription of a form will normally be expressed in language of obligation rather than of permission: that raises the question whether a provision in the form of s 49(1) is excluded but it does not answer it.
[25] That s 134(1) requires the appointment to be “in” the approved form does not of itself necessarily justify the conclusion that PAMDA insists upon pedantically strict compliance with that form as a pre-condition of a valid appointment. As Gleeson CJ and Hayne J said of the different interpretative provision considered in Pfeiffer v Stevens:
“The purpose of such an interpretative provision is to permit economy of language. Like an interpretative provision to the effect that the singular includes the plural, it means that to employ the language of singularity does not indicate an intention to deny plurality. If such an intention exists, it must be found elsewhere.”
[26] The defendant also relies upon the mandatory terms of s 133 and the provision in s 140(1)(c) that penalises non-compliance by depriving the agent of the reward it has earned for fulfilling the terms of its appointment. Section 133, with which the plaintiff complied, does not advance the argument and s 134(3) and s 140 are opposed to the defendant’s construction. The consequence of excluding the application of an interpretative provision such as s 49(1) is a weighty factor to be taken into account in deciding whether a particular Act evinces an intention to exclude it. Sections 134(3) and 140 have a draconian effect, destructive of common law rights, where an appointment is not in the approved form. It seems most unlikely that the legislative purpose extended to visiting such extreme consequences for a trivial departure of the kind that occurred here.
[27] The defendant also contends that an intention to exclude s 49(1) is revealed by the consumer protection purpose of PAMDA. That is an accurate description of the broad statutory purpose and it should of course be taken into account, but it does not follow that the object of s 134(1) was to condition the validity of an appointment upon “an incantation whose words had significance for their own sake, and of which no syllable might be altered without destroying its value”. [Equipment Investments Pty Ltd v M J Dowthwaite & Co Pty Ltd (1969) 16 FLR 23 at 30 per Gibbs J.]
(Citations omitted.)
In Equipment Investments, Gibbs J, sitting as a judge of the Supreme Court of the Australian Capital Territory, was considering s 3(1) of the Hire-Purchase Act 1960 (NSW) which provided that before any hire-purchase agreement was entered into in respect of any goods, the owner or the dealer should give to the prospective hirer a statement in writing duly completed in accordance with the form in the First Schedule to the Act, in effect summarising the proposed hire-purchase transaction. It may be noted that his Honour was considering the position at common law, before the enactment of s 25C of the Acts Interpretation Act. His Honour said, at 30:
… the intention of the legislature as expressed in s. 3(1) cannot be ascertained without considering the object for which the section was enacted. That object was not to require the dealer to recite in writing an incantation whose words had significance for their own sake, and of which no syllable might be altered without destroying its value, but to ensure that the financial obligations of the hirer should be clearly brought to his notice before he entered into the agreement. This object might be achieved notwithstanding the fact that the form was not strictly followed, and it would be absurd to impute to the legislature an intention that, for no sensible reason, there should be so exact a correspondence between the statement and the form that the least disconformity—even the addition of one word which in no way altered the meaning—should result in the serious consequences mentioned in s. 3(4) as well as in penal consequences.
47 The assistance we derive from QUYD Pty Ltd v Marvass Pty Ltd is that, first, in the context of the statutory provisions there under consideration and which might be seen to warrant a stricter approach to compliance than s 412 of the Migration Act, an argument as to the form of the form and the claimed impermissibility of using a form which had been revoked was rejected. Secondly, the Court of Appeal rejected the submission that s 134(1) of the Property Agents and Motor Dealers Act provided a contrary intention to the application of s 49 of the Acts Interpretation Act. Thirdly, the Court of Appeal proceeded by reference to the purpose of s 134. Fourthly, the Court of Appeal adopted the approach of substantive compliance by reference to s 49 in circumstances where s 134(1) of the Property Agents and Motor Dealers Act used the language of “must” and “in” in requiring that the appointment must be in the approved form.
48 It follows, in our view, that there is no authority for the proposition that merely to use a superseded form prevents there being an analysis of “substantial compliance” with the current form. The present appeal is not a case of no form at all being used, or a form which the appellant was expressly or impliedly prohibited from using.
49 Indeed, the present form is not an application for a visa at all, which may well involve precise and detailed information, but an application for a review of the merits by the Tribunal of an identified decision. We would distinguish the cases concerned with visa applications, to which we have referred and those on which the Minister relies, as concerned with different and more specific statutory language and as having a different purpose in the scheme of the Migration Act.
50 In our opinion, it would be counter to the scheme of the legislation to hold that the mere use of a superseded form, subject to the question of substantial compliance with the current form, rendered ineffective an application to the Tribunal which had been made. Indeed, in the present case, such is the similarity of the forms that those not versed in the identification system in very small print at the foot of each page would be hard pressed to tell whether or not the form currently approved was being used. It follows, in our opinion, that s 412(1)(a), in context, does not show a contrary intention for the purposes of s 2(2) of the Acts Interpretation Act: see Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd (1989) 86 ALR 424 at 430, per Burchett J, with whom Sheppard and Beaumont JJ agreed, who cited Sin Poh Amalgamated (HK) Ltd v Attorney-General (Hong Kong) [1965] 1 WLR 62 for the proposition that the application of the Acts Interpretation Act is not easily excluded.
51 We do not accept the Minister’s submission that if the Court concluded that an applicant had “substantially” complied with s 412(1)(a) by making an application in a form revoked by the Minister or the Principal Member under s 495 that will give rise to significant uncertainty. Neither do we accept that the Tribunal member who assessed the application for validity would be required to undertake a comparative analysis of the differences between the two forms and then make an evaluative judgment about whether the differences between the two forms were “substantial”. The answer to both these issues, in our opinion, is that the Tribunal would ask itself the question whether the form of the application made contained the information the Tribunal needed to set in train the process of review. That, in our view, is the purpose of s 412. Otherwise, as we have said, despite s 25C, the focus of attention would be on the form of the form rather than on the substance of its contents. These submissions on behalf of the Minister would also seem to be inconsistent with the Minister’s approach in SZGME and with the decision of the Court in that case: see [54] below.
52 We reject the Minister’s submissions that where a superseded form is used for an application to the Tribunal, s 25C of the Acts Interpretation Act cannot apply. We would read s 412(1)(a) with s 25C as raising the question whether an application for review to the Tribunal had been made in or substantially in the approved form.
53 As to what may be substantial compliance at least in relation to ss 45 and 46 and reg 2.07(3) we refer to Minister for Immigration and Multicultural Affairs v Li, where the Full Court held at [61]-[62]:
It was common ground in the appeals that neither of the “applications” lodged with the Department had been completed in accordance with the directions stated on Form 866. It follows that neither respondent complied with reg 2.07(3) and the applications, as originally submitted, were not valid applications: s 46(1)(b). The Minister was therefore precluded from considering each of the “applications” for a protection visa: s 47(3).
The authorities have acknowledged that, by reason of s 25C of the Acts Interpretation Act 1901 (Cth), substantial compliance with the requirements of reg 2.07(3) may be sufficient: Wu at 278-279, per R D Nicholson J; Minister v A at 444-445, per Merkel J. However, as occurred in Minister v A and Yilmaz, the respondents’ failure to answer the critical questions on the prescribed forms meant that there had been no substantial compliance with the requirements of reg 2.07(3): Minister v A at 445, per Merkel J; Yilmaz at 508 [69], per Gyles J.
54 In SZGME, the issue was whether valid applications for protection visas had previously been made so that s 48A prevented the non-citizens from again applying. Black CJ and Allsop J said, at 506 [78] and following, in relation to s 25C of the Acts Interpretation Act:
The Regulations did not stipulate or specify different application forms for those applicants who claimed to have separate claims and those who relied on family membership. Rather, Form 866 had distinct parts and directed different parts to be filled in depending on the nature of the application.
In this context, we agree with the submission of the Minister that the question of substantial compliance is judged by reference to compliance with Form 866 and not by reference to the individual parts. As was said in Bal 189 ALR 566 at [39]-[40]:
“In Shahabuddin [[2001] FCA 273] the applicant gave more detail of the ‘political opinion’ ground on which he relied, stating that he had been a member of the Bangladesh Freedom Party and adding that a ‘statement would be sent very shortly’. Katz J followed Hill J in Nader [(2000) 101 FCR 352] at [4] and Tamberlin J in Myint [[2001] FCA 122] at [15], in holding that substantial compliance was to be assessed by reference to the purpose of the form in eliciting the applicant's claim to be a refugee within the Convention and that the questions posed in the form were only guidelines to that end. Accordingly, so his Honour held, it was not necessary to be able to distil from the applicant's responses, answers to all questions on the form.
We agree with the approach taken to the notion of ‘substantial compliance’ in the present context by Heerey J in Nie [[2000] FCA 347] and Katz J in Shahabuddin, outlined above. (See too, Wu [(1996) 64 FCR 245] at 280 per RD Nicholson J; Minister for Immigration & Multicultural Affairs v A per Merkel J at [43], [44]; Li v Minister for Immigration & Multicultural Affairs [2000] FCA 421 (Heerey J) at [49].)”
(Emphasis added.)
The Minister submitted that the material submitted to the delegate substantially conveyed both the basis of the independent claims of SZGME and of her family status. Thus, it was submitted, the purposes of both Parts C and D of Form 866 were substantially satisfied and complied with.
As to the former, the document together with the Part B provided a tolerably clear basis for understanding the mother's claim to be a refugee. The questions posed in Part C were a guide to that. Part C contained numerous questions which were not addressed by SZGME: education, past employment, method of leaving Armenia. The essential or substantial purpose of Part C was, however, to elicit and express the basis of the claims for protection. The document sent by the migration agent to the Department did that.
The purpose of Form 866, including Part D, was to provide a framework for the assertion of a claim to be a “member of the same family unit” as the primary applicant: see cl 866.222(a) in force at the relevant time.
…
The information contained in the Part B signed by SZGME, the supplementary statement signed by her sent by her migration agent and her migration agent's covering letter made clear that she claimed to be a member of the family unit which included her daughter. The documents made clear the family relationship. To the extent that the daughter needed to be a “dependent child of the family head” for the purposes of reg 1.12(1)(b), or otherwise to fall within reg 1.12(1)(d), the information provided revealed that the daughter was 20 years old, and a bookkeeper, though not currently employed. The joint statement stated that “[t]hey are fully supported by family” in Australia. Whilst this information may have been less than clear as to the elements of the definition, it was sufficient for the delegate to conclude, as she did, that SZGME was a member of the family unit of which the daughter was part. The contents of the documents provided were sufficient to reveal the basis of the claim to be a member of the family unit of which the daughter was part. Thus, although Part D was not filled in, Form 866 was substantially complied with in this respect.
There was, in our view, substantial compliance with the regulations requiring Form 866 to be used. In these circumstances, the Tribunal was entitled to deal with the individual claims of SZGME with her Part C and further statement.
If there was only substantial compliance with Form 866 insofar as it related to SZGME being a member of a family unit, there was, nevertheless, a valid application for a protection visa. We see no basis in the Regulations to conclude that a further application had to be filed to permit consideration of a changed basis for consideration of a valid application for a protection visa.
55 Applying this approach to “substantial compliance” the remaining question is whether or not giving the passport number is to be considered as preventing substantial compliance with either of the forms current at the time of the appellant’s application to the Tribunal. There was no material difference between the 2013 and 2014 versions of the form. The comparison is between the 2012 version, which the appellant used, and either the 2013 or 2014 versions, which remained approved at the time of the appellant’s application to the Tribunal.
56 The appellant referred to the affidavit of Hannah Jean Carmel Dickinson and submitted that the comparison of what was submitted by the appellant and the approved form(s) “reveals that the form used by the appellant and the ‘approved forms’ are substantially equivalent in style and structure, and conveyed substantially equivalent information to the Tribunal.” The Minister disputed this submission and pointed to the absence from the form used by the appellant under “details of the person applying for review” of the appellant’s passport number. The other matters referred to by the Minister in the Annexures to his Outline of Submissions do not seem to us to be matters of any significance.
57 In our opinion, there was substantial compliance with an approved form despite the absence from the form submitted to the Tribunal of the appellant’s passport number. Before giving our reasons for that conclusion we should note that although the applicant ticked the box indicating that he was attaching to his application to the Tribunal a copy of the protection visa decision record from the Department, the better view is, and we find, that he attached only the notification letter from the Department. It is that latter document which appears in the Appeal Book immediately following the form of application for review to the Tribunal.
58 Our reasons for concluding that there was substantial compliance are as follows. First, the purpose of the form is to indicate that the visa applicant invokes the jurisdiction of the Tribunal and for that purpose states who he is and identifies the decision that is being challenged. Secondly, the appellant’s application to the Tribunal attached a copy of the notification letter from the Department which contained the appellant’s name, date of birth, client ID, application ID and file number. Thirdly, many applicants to the Tribunal would not have passport numbers. Senior Counsel for the Minister accepted that the Tribunal could still deal with applications by those who did not have passports. Fourthly, the request for a passport number appears to be directed, at best, to the administrative convenience of the Tribunal rather than to whether, as a matter of substance, its jurisdiction has been duly invoked. Fifthly, in context, the request for a passport number provides merely a further or additional means, as a matter of detail, of the purpose stated on the form: “ … to collect information about the person, or persons, applying for review.” It is also significant that, unlike an application for a visa which occurs at an early stage of the process, an application to the Tribunal of necessity follows a substantial administrative process. If there is a dispute before the Tribunal as to whether the visa applicant truly is a national of a particular country then that is a matter for the review itself rather than the validity of the application. Lastly, assuming the Secretary fulfils his or her obligation under s 418(3) of the Migration Act, as soon as practicable after being notified of the application to the Tribunal the Secretary will give to the Registrar of the Tribunal each other document in the Secretary’s possession or control considered by the Secretary to be relevant to the review of the decision. In the present case, this would include the appellant’s passport number referred to at item 29 of the appellant’s application for a Protection (Class XA) visa. A photocopy of part of that passport was annexed to that application.
59 For completeness, we note that in our opinion the appellant’s reliance on Braganza is not well-founded as in that case the Full Court expressly founded its conclusion on the inclusion of the words “if any” in s 347(1)(c), and as read in conjunction with s 504(1)(b), as shown by the reasoning set out at [51]-[54] of the judgment.
Conclusion
60 We would allow the appeal and set aside orders 2 and 3 made by the primary judge on 20 August 2015. We would issue a writ of mandamus ordering the Tribunal to hear and decide the application made to the then Refugee Review Tribunal on 24 April 2014. The appellant sought in addition a writ of certiorari but, in circumstances where the Tribunal decided it did not have jurisdiction, we do not consider that to be necessary. As to costs, the Minister accepted that if the appeal were allowed the appellant should have his costs both of the appeal and of the proceedings before the Federal Circuit Court. We would so order.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kenny, Tracey, Robertson and Mortimer. |
Associate:
REASONS FOR JUDGMENT
BUCHANAN J:
61 On 20 December 2013, the appellant lodged an application for a protection visa under the Migration Act 1958 (Cth) (“the Migration Act”). The grounds upon which he made his claims for protection, and his personal circumstances, are not relevant to the legal issues which arise on the present appeal.
62 The application was refused by a delegate of the Minister on 1 April 2014.
63 On 24 April 2014, the appellant lodged an application for review of the delegate’s decision with the Refugee Review Tribunal (“the RRT”).
64 On 23 June 2014, the RRT issued a decision declaring that it lacked jurisdiction to deal with the application.
65 The RRT was satisfied that the time in which the appellant might lodge an application to review the decision of the delegate extended to 8 May 2014. On that day (i.e. on 8 May 2014), the appellant was sent a letter inviting him to comment on the proposition that his application lodged on 24 April 2014 was not valid. Inevitably, therefore, the appellant had no opportunity to address that question in any practical sense before the time in which to make an application had passed.
66 The issue of jurisdiction was identified by the RRT in these terms:
4. The approved form at the time the review application was lodged were the July 2013 and March 2014 versions of Form Rl. The date of the form used by the applicants is identifiable from the footer where it reads Design date 06/12, indicating June 2012. According to the Principal Member instrument dated 30 January 2014, the June 2012 form used by the applicants ceased to be an approved form after 30 January 2014.
5. The applicant was invited to comment on the issue of jurisdiction by letter dated 8 May 2014. In his response received 16 May 2014, he stated that he had downloaded form from the “internet” and that information he had read on the form suggested the form was valid.
6. It is not clear from the applicant’s response which website he accessed to obtain the form he used to lodge the application for review. In any event, it does not change the fact that a superseded version of the form was used, even if it may have been through no fault of the applicant. I therefore find that the purported application in this case was not made on an approved form for the purposes of s.412(1)(a).
(Bold emphasis added.) (Italics in original.)
67 The RRT regarded itself as bound to reach its conclusion, that it lacked jurisdiction to review the decision of the delegate, by reference to the judgment of a Full Court in SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1 (“SZJDS”).
68 The factual position about the form used, and those approved, was set out in more detail in the written submissions for the first respondent as follows:
Approved forms
7. The appellant’s purported application for review was made in form “R1” designed in June 2012 (the 2012 form).
8. On 30 January 2014, the Principal Member made a decision under section 495, for the purpose of section 412(1)(a), with the effect of:
8.1. revoking all previous approvals of forms for the purposes of section 412; and
8.2. approving form “R1” designed in July 2013 (the 2013 form) from 31 January 2014.
9. On 11 March 2014, the Principal Member made a decision under section 495, for the purpose of section 412(1)(a), with the effect of:
9.1. revoking the approval of the 2013 form from 1 July 2014; and
9.2. approving form “R1” designed in March 2014 (the 2014 form) from 12 March 2014.
10. Accordingly, as at 24 April 2014, when the appellant purported to apply for review of an RRT-reviewable decision, the 2012 form was not an “approved form”. At that time, there were two approved forms: the 2013 form, and the 2014 form.
(Emphasis in original.)
69 On the hearing of the present appeal, the appellant’s solicitor provided an affidavit, annexing each of those forms, and offering the following observations, which may be accepted as a useful summary of the similarities and differences in the various versions (noting that each version occupies about nine pages, with instructions):
2. The appellant purported to make an application for review by the then Refugee Review Tribunal using a form described as “R1 (Design date 06/12)”. Now produced and shown to me and marked ‘HJCD-1’ is a true copy of “R1 (Design date 06/12)”.
3. At the time of that application, the approved form for the purposes of making an application for review was designated as “R1 (Design date 03/14)”. Now produced and shown to me and marked ‘HJCD-2’ is a true copy of “R1 (Design date 03/14)”. There is only one difference between the two in the fillable component of the form, with other small differences in the information provided to applicants in the initial three pages. The only observable differences between the form used by the appellant and the approved form as follows.
(a) At page 2, under the heading ‘What will it cost to apply for review?’, the approved form lists $1604, whereas the form used by the appellant lists $1540.
(b) At page 2, under the heading ‘How will the information that I provide to the Tribunal be used?’, the approved form inserts “For example, the Tribunal may seek an opinion, information or records from an organisation or person as part of a review”. It also replaces “other government and non-government individuals or organisations” to “other government agencies or other entities”.
(c) At page 2, under the heading ‘How do I lodge an application for review?’, the form used by the appellant states:
“An application for review that is sent by fax or post is taken to have been lodged with the Tribunal at the time it is received by the Tribunal. An application for review that is handed to the Tribunal is taken to be lodged at the time it is received by the Tribunal.”
The approved form states:
“An application for review is taken to have been lodged with the Tribunal at the time that it is received by the Tribunal at one of the addresses or fax numbers listed on page 3.”
(d) At page 3, the form used by the appellant lists the address of the Melbourne branch of the Tribunal as ‘Level 12, 260 Lonsdale Street, Melbourne VIC 3000’. The approved form reflects the relocation of the Tribunal to ‘Level 10, 120 Spencer Street, Melbourne VIC 3000’.
(e) At question 1, the approved form provides space for provision of a passport number. There is no corresponding space on the form used by the appellant.
4. At the time of that application, a second version of the form, designated as “R1 (Design date 07-13)” was also approved for use. Now produced and shown to me and marked ‘HJCD-3’ is a true copy of “R1 (Design date 07/13)”. As between the approved form and the form used by the appellant, the sole difference between the second version of the form and the form used by the appellant in the fillable component of the forms is the inclusion of a space for provision of a passport number. There also exist minor differences between these two forms in the information provided to applicants in the initial three pages of the forms.
(Emphasis added.)
70 The result is that the appellant was found to have failed to make a valid application on 24 April 2014 because he did not use a version of the form approved on 30 January 2014, or 11 March 2014 (noting that both were approved and able to be used between 12 March 2014 and 1 July 2014) even though no relevantly different information was sought, except a passport number, a detail which was available in other ways, as I shall later discuss.
71 An application was brought to the Federal Circuit Court of Australia (“the FCCA”) to seek judicial review of the decision of the RRT, but was rejected on essentially the same basis.
72 I would uphold the appeal against the orders made by the FCCA, set aside the decision of the RRT for jurisdictional error and require the RRT to consider the application for review lodged on 24 April 2014.
73 The constitution of a Full Court of five judges to hear the present appeal was directed by the Chief Justice because the appellant made it plain that he proposed to ask that SZJDS be overruled.
74 I would overrule SZJDS. With great respect to the very able judges who constituted the Full Court in that matter, in my view so much of the judgment as compelled the outcome in the present case in the RRT and the FCCA is erroneous in point of law. If it is necessary to go so far as to say that it was “plainly wrong” to overcome the constraints of comity then I feel compelled to go so far in this case.
75 The statutory provision which requires consideration in the present case is s 412 of the Migration Act, which provides:
412 Application for review by the Refugee Review Tribunal
(1) An application for review of an RRT-reviewable decision must:
(a) be made in the approved form; and
(b) be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision; and
(c) be accompanied by the prescribed fee (if any).
(2) An application for review may only be made by the non-citizen who is the subject of the primary decision.
(3) An application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.
(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of RRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).
76 That provision may be seen as similar in relevant respects to the provision considered in SZJDS (s 347 of the Migration Act) but it is different in legal content and effect, in my view, from the provisions considered in two cases to which it is necessary to first refer, which considered the effect of ss 46 and 47 of the Migration Act.
77 Section 46 of the Migration Act provides that an application for a visa is valid, if, and only if a number of stated requirements are satisfied. One requirement is (s 46(1)(b)) that the application: “satisfies the criteria and requirements prescribed under this section”.
78 Further, s 40(1) provides:
40 Circumstances for granting visas
(1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.
79 In 1994, regulations made under the Migration Act had the effect that an application for a protection visa was required to be made on a particular form (Form 866). At the same time, s 25C of the Acts Interpretation Act 1901 (Cth) provided:
25C Compliance with forms
Where an Act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient.
[The precise terms of s 25C have changed; it still operates to the same effect.]
80 In Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 (“Wu”), Carr J (at 261) and R D Nicholson J (at 277-279), with whom Jenkinson J agreed (at 247), concluded that s 25C did not apply in the case of an application for a visa made otherwise than as prescribed.
81 However, that bland statement must be understood by reference to the facts and circumstances of that case, and I shall return to deal with those further.
82 In Pradabsuk v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 584 (“Pradabsuk”), a Full Court reached a similar conclusion about a failure to satisfy another of the requirements for a valid visa application: a prescribed check of criminal records (see especially at [42]-[47]). I shall return to it in more detail also.
83 Wu and Pradabsuk each involved (in their own way) a consideration of mandatory requirements for a valid application. Section 47(3) of the Migration Act prohibited (and continues to prohibit) consideration of a non-valid application for a visa.
84 In SZJDS, the majority applied the same approach to a case concerning commencement of proceedings in the Migration Review Tribunal (“the MRT”). Jessup J dissented, although not on the issue of present concern.
85 What required consideration in SZJDS was not the effect of ss 46 and 47 of the Migration Act (i.e. whether there was a valid application for a visa) but the provisions of ss 347 and 348 of the Migration Act which provided for when the MRT might, and must, review a decision of a delegate of the Minister. The procedural requirements to be satisfied under s 347 included time limits and who might apply for review of a decision. They also included:
347 Application for review by Migration Review Tribunal
(1) An application for review of an MRT-reviewable decision must:
(a) be made in the approved form; …
86 The majority in SZJDS saw, in Wu and Pradabsuk, authority for their conclusion:
25 There is a distinction between a requirement to make an application for a visa under s 45 of the Act on a specific form and an obligation to complete that form in respect of stated directions: Wu v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245 at 261 per Carr J, 278-279 per RD Nicholson J, with whom Jenkinson J agreed; Pradabsuk v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 584 at [46] per French, Stone and Siopis JJ.
26 Two different scenarios can arise where legislation requires a specific form to be used to make an application. The first arises where a specific form is required to be used to make an application. In this instance, it is essential that the specified form be used. Here, there is no scope for partial or substantial compliance with the requirement to use the particular form. Either an applicant uses the correct form, or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid.
27 The second scenario arises where an applicant uses the prescribed form, but fails in some respect to complete it accurately or fully. In this instance, the failure does not necessarily result in an invalid application. That is because of the operation of s 25C of the Acts Interpretation Act which provides that where “an Act prescribes a form, then unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”.
28 The distinction between the first and second scenarios is that a person cannot partially or substantially comply with the requirement to use the specific form; the application will be valid only if he or she uses the specific form, otherwise the application is invalid. On the other hand, if the person substantially complies with the directions on that specific form, depending on the circumstances, a partial failure to complete it in accordance with its stated directions may not affect its validity.
…
31 We are of opinion that the Parliament intended a similar result in enacting ss 347 and 348. …
87 With respect, I disagree.
88 In SZJDS, the applicant for review had used a form intended for someone in immigration detention, which he was not. On the form, he nominated an authorised representative who was also authorised to receive all correspondence. When the error (use of the incorrect form) was discovered, the correct form was completed at the MRT with the assistance of an officer of the MRT. The part of the earlier form nominating the authorised representative was detached and simply attached to the relevant part of the new form. The parts were identical except that one was designated “section B” and the other “section E”. On the new form, section F asked who was to receive correspondence. There were three options: only the authorised representative; only another person nominated as authorised recipient; or, only the applicant. The applicant ticked the second box, but provided no further details.
89 Unsurprisingly, with respect, the MRT sent advice of the hearing before it to the nominated authorised representative. That advice was passed by the authorised representative on to the applicant in writing and by telephone before the hearing, but the applicant failed to appear and his application was dismissed.
90 The majority in SZJDS considered that the application on the original form was wholly invalid, including that part attached to the new form (i.e. nominating the applicant’s authorised representative) and, in any event, concluded that ticking the second (not first) box had countermanded the earlier nomination of the authorised representative as authorised recipient. Their Honours concluded:
44 It follows that by failing to give notice to the appellant of its invitation to a hearing when it only sent the invitation to Ms Payne, the Tribunal committed a jurisdictional error. The trial judge erred in failing so to hold.
91 Jessup J thought that the question of whether an effective nomination of an authorised recipient had occurred was to be judged by reference to s 379G of the Migration Act, which deals more directly with the obligation upon the MRT about who should be sent notices, and that s 347 had nothing to say about that issue. There is no need to revisit that question in the present case.
92 I am not able to accept the proposition that the procedural direction in s 347(1)(a) was properly equated to the statutory condition for validity in Wu and Pradabsuk. In my respectful view, s 25C of the Acts Interpretation Act clearly applied to the circumstances in SZJDS if, contrary to the opinion of Jessup J, s 347(1)(a) was relevant to consider.
93 I would overrule the majority judgment in SZJDS to that extent.
94 Before I come in more detail to the authorities considered in SZJDS, the procedural defect in the present case should be further explained.
95 It is not without significance, in the present case, that no question of exceeding a time limit, or accepting an application from an unauthorised person arises. The question of compliance with a prescribed form, and whether substantial compliance is sufficient, is directly addressed by s 25C of the Acts Interpretation Act, unless a contrary statutory intention appears.
96 Under s 496 of the Migration Act, the Minister has delegated certain functions to the Principal Member of the RRT including the power to approve forms for use in the RRT.
97 Prior to 31 January 2014, a particular version of “Form R1” was in use. It was endorsed with a footer which said: Design date 06/12. By an instrument executed on 30 January 2014 by the Principal Member of the RRT, a new version of form R1 was approved from 31 January 2014 which was endorsed: Design date 07/13. Then, by endorsement on an “Executive Minute for Action” on 11 March 2014, a further version of form R1 was approved with effect from 12 March 2014: Design date 03/14. The preceding version (Design date 07/13) also remained approved until 30 June 2014.
98 The result was that there were two approved versions of form R1 as at 24 April 2014, but not version Design date 06/12.
99 In SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 (“SZGME”), a Full Court (in a visa application case) considered the question of substantial compliance with a prescribed form. In that case, the Minister relied on the notion of substantial compliance (as the Minister did in SZJDS). Black CJ and Allsop J, in their joint judgment observed:
80 The Minister submitted that the material submitted to the delegate substantially conveyed both the basis of the independent claims of SZGME and of her family status. Thus, it was submitted, the purposes of both Parts C and D of Form 866 were substantially satisfied and complied with.
81 As to the former, the document together with the Part B provided a tolerably clear basis for understanding the mother’s claim to be a refugee. The questions posed in Part C were a guide to that. Part C contained numerous questions which were not addressed by SZGME: education, past employment, method of leaving Armenia. The essential or substantial purpose of Part C was, however, to elicit and express the basis of the claims for protection. The document sent by the migration agent to the Department did that.
82 The purpose of Form 866, including Part D, was to provide a framework for the assertion of a claim to be a “member of the same family unit” as the primary applicant: see cl 866.222(a) in force at the relevant time.
…
84 … The contents of the documents provided were sufficient to reveal the basis of the claim to be a member of the family unit of which the daughter was part. Thus, although Part D was not filled in, Form 866 was substantially complied with in this respect.
85 There was, in our view, substantial compliance with the regulations requiring Form 866 to be used. In these circumstances, the Tribunal was entitled to deal with the individual claims of SZGME with her Part C and further statement.
100 In relying upon the “purpose” of a form to assess the question of substantial compliance, their Honours in SZGME approached the matter consistently with the approach taken by a Full Court in Bal v Minister for Immigration and Multicultural Affairs [2002] FCAFC 189; (2002) 189 ALR 566 (“Bal”) (see at [34]-[40]).
101 If the present case is approached in a similar fashion, I think there can be no question that use of a recently superseded version of form R1 conformed to the purpose for which use of a form was required.
102 As I earlier pointed out, the only difference of any substance in the versions was a question about a passport number. The first respondent’s written submissions suggested that the passport number was a piece of information that was not “unimportant”. The submission was:
51. In this case, the appellant did not give his passport number as required by the approved forms. It cannot be supposed that that information was unimportant. Indeed, it might readily be expected that the provision of a unique passport number (compared to other non-unique identifiers such as name and address) is conducive to the Tribunal quickly and certainly establishing the identity of a prospective applicant for review.
103 There are a number of reasons to doubt the soundness of those contentions. This was a very recent, entirely procedural requirement for something suggested to be important. Some applicants for protection visas may have no such document. The unique identifier assigned by the Department does not depend on production of a passport. In any event, the passport number was readily available from other sources.
104 The application to the RRT was required to (and did) identify the Department file number. The application to the RRT was required to (and did) attach a copy of the notification letter from the Department.
105 The notification letter also prominently set out a “Client ID” number, an “Application ID” number and a “File Number”.
106 Section 418(1) and (3) provide:
418 Secretary to be notified of application for review by Refugee Review Tribunal
(1) If an application for review is made to the Refugee Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.
…
(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.
107 Accordingly, all the relevant material before the delegate should normally be before the RRT, without any particular step from an applicant being necessary.
108 The application for a protection visa (which was rejected by the delegate) is obviously a critical document. It gave the passport number and attached a copy of two pages of the passport which gave both current and previous passport details.
109 The decision record made by the delegate stated the appellant’s Indian passport number when he first entered Australia in 2006 (which corresponded with the previous passport number recorded in the current passport). The delegate’s decision recorded the following:
The applicant first arrived in Australia on 30 December 2006 on Indian passport number [number] as the holder of a Class TU subclass 572 (Student) visa. On 21 March 2007 he was granted another Student visa that was valid until 20 June 2009. He has not held a substantive visa since this date.
On 19 June 2009 the applicant applied for another Student visa. This application was refused on 3 December 2009 because he was not enrolled in an acceptable course of study. The Migration Review Tribunal (MRT) remitted the application on 27 April 2011. On 6 July 2011 the Student visa applicant was refused because the delegate was not satisfied that the applicant was a genuine student. The MRT affirmed this decision on 14 March 2013.
The applicant travelled out of Australia on a Bridging B visa between 9 April 2012 and 9 May 2012.
The applicant married in Australia on 27 January 2013.
The applicant last travelled out of Australia on a Bridging B visa between 10 February 2013 and 12 February 2013. While outside Australia he lodged an application for a Class UC subclass 457 (Temporary Work) visa on the basis of his relationship with his wife.
The applicant requested Ministerial Intervention on 15 April 2013. On 23 April 2013 the applicant was advised that that it would be inappropriate for the Minister to intervene because of his pending subclass 457 visa application. The applicant withdrew his subclass 457 application on 22 May 2013.
On 29 May 2013 the applicant applied for a Class UB subclass 602 (Medical Treatment) visa. This application was refused on 4 June 2013 because the application had not been made within 28 days of the applicant ceasing to hold a substantive visa. The MRT affirmed this decision on 3 December 2013.
On 20 December 2013 the applicant lodged the current application for a Class XA (Protection) visa.
110 Any suggestion, particular to the present case, that the application to the RRT lacked information or precision about the appellant’s identity is fanciful. The position does not materially alter if the appellant’s personal circumstances are put to one side and the matter is looked at more generally.
111 Inevitably, from the nature of the application for review, what is placed before the RRT is a request to review a formal decision by a delegate of the Minister in which all the necessary personal information is already contained. The suggestion that the decision in the present case (or in any other) could turn upon a recently imposed clerical requirement to also, separately, state a passport number on the application form does not merit serious attention.
112 There can be no respectable suggestion in the present case that there was not substantial compliance with an approved form. After all, the form used by the appellant was promulgated by the RRT itself. It was styled “Form R1”. The only defect was the failure to use the correct piece of paper. It was a failure of the utmost triviality in the circumstances of the present case.
113 In my respectful view, the majority in SZJDS erred in reaching back to Wu, rather than applying the approach in Bal and SZGME and in not giving, as those authorities direct, greater emphasis to conformity with the purpose to which the use of a particular form may be seen to be directed.
114 Be that as it may, in my respectful view neither Wu nor Pradabsuk suggested the outcome or approach in SZJDS.
115 In Wu, the appellants relied on oral communications and filling in certain forms (not the prescribed form) as conduct by which they “constructively” made claims for protection visas. They were attempting to locate such claims at a point in time before 30 December 1994, when new statutory provisions blocked protection visa applications from persons (such as them) who were ethnic Chinese, born in Vietnam, who had been expelled from Vietnam and relocated in China, from which country they now sought refuge.
116 Carr J explained the factual position in these terms:
The appellants, 49 men, 37 women and 32 children, are ethnic Chinese almost all of whom were born in Vietnam. The older members were expelled from Vietnam in about 1979 and were allegedly re-settled in China. There was evidence that many of the appellants settled initially in provinces such as Hainan Island, Guangdong and Fujian. At the time of their departure from China, all of the appellants lived in the port of Bei Hai. In October 1994, the appellants acquired the Albatross and decided to sail it to Australia. The Albatross was intercepted by HMAS Gawler on 12 November 1994. On board HMAS Gawler were officers from three government departments, namely Immigration and Ethnic Affairs (DIEA), Customs and Quarantine. One of the DIEA officials who boarded the Albatross was fluent in Cantonese and acted as an interpreter when the appellants were first questioned on board their vessel. The DIEA officials, acting under s 189(2) of the Migration Act 1958 (Cth) (the Act), detained the appellants and caused them to be escorted by HMAS Gawler to Darwin.
The two boats arrived at Darwin on 13 November 1994. The appellants were transported to a school at Berrimah which served as a temporary detention centre.
On 15 November 1994, the appellants were flown to the Immigration Reception and Processing Centre (the Centre) at Port Hedland in Western Australia.
On 13 February 1995 the Centre Manager at Port Hedland informed the appellants that they would be returned to China.
On 22 February 1995, the appellants filed an application in this Court …
…
… The appellants’ case was that from their very first contact with DIEA officials, one or more of the members of their group informed officers of the DIEA that they were refugees or that they were seeking asylum. The appellants’ evidence was that this happened before 30 December 1994, particularly while they were in detention at Port Hedland. The significance of the date 30 December 1994 requires reference to certain amendments to the Act which are described below. At this stage, it is sufficient to say that, subject to the relief sought in these proceedings, those amendments would preclude the appellants from applying for protection as refugees. …
…
The appellants maintained that by reason of communications made to DIEA officers before 30 December 1994, including the filling in of forms, the DIEA well knew that they were claiming refugee status and could not now be heard to deny their claim. In the factual circumstances which formed the evidence at first instance, the appellants contended that even though none of them had completed a Form 866 (the appropriate form for a protection visa) they were entitled to a declaration that they had made constructive applications for protection visas before 30 December 1994. …
…
The starting point for the appellants’ submissions was that they had made claims prior to 30 December 1994 which fulfilled the criteria prescribed by the Regulations, namely that they were persons to whom Australia has protection obligations under the Convention. We were referred to what was said on board the Albatross by reference to the first respondent’s accounts as accepted by the primary judge, and to what was contained in the Bio-data forms and in the compliance entry forms (the Compliance Forms).
(Italics in original.)
117 R D Nicholson J (whose judgment was principally relied upon in SZJDS) described the position as follows:
It is common ground that none of the appellants completed application forms for a protection visa. Expressed broadly, their case before the trial judge was to the effect that what they had done and said, upon and after arrival, manifested a wish on their part to be treated as applicants for such a visa. …
118 It was in that context that R D Nicholson J said, referring to s 25C of the Acts Interpretation Act:
… The statutory provisions requiring an application form as a necessary precondition to validity of an application and Ministerial power to resolve the application are, in my opinion, a manifestation of a relevant contrary intention. The legislature having mandated the use of an application as a precondition to the making of a valid application, if the applicant does not utilise the form the applicant does not commence on the path providing the prerequisite entry to Ministerial consideration of the application.
and:
Furthermore, the statutory provisions are such that I do not consider anything short of use being made of a Form 866 could constitute an application. There is no room left by the statute for the concept of a constructive application or substantial compliance with the provisions for a form by conduct falling short of use of the form. The legislature has gone to abundant lengths to make apparent that an application by way of Form 866 is the only way for these matters to come before the Minister and for the Minister’s power in relation to it to be validly activated. In my opinion, this requirement has the result that the prescription of the form is one of substance and is not merely procedural.
However, it appears to me that there is room for the application of the substantial compliance principle in relation to the manner in which Form 866 is completed by an applicant. That is, if a form had been inadequately completed in some way it would be open to argument that the inadequate use of the form satisfied the requirements of the legislation, because to hold otherwise would possibly occasion great injustice by precluding an applicant who has endeavoured to properly embark upon an application from consideration: Hamilton at 359; Formosa v Secretary, Department of Social Security (1988) 46 FCR 117 at 123.
(Emphasis added.)
119 Not only would I not attribute to his Honour any conclusion that use of a wrong version of a particular form spelled invalidity (as opposed to no attempted use of the form at all), I see in his Honour’s remarks a firm view that attempted, but formally inadequate, use of the right form should be assessed with a view to avoiding the possibility of “great injustice”.
120 Furthermore, in my view a distinction must be made between visa application cases where persons are attempting to engage ss 46 and 47 of the Migration Act and review cases where there is, in effect, a statutory guarantee of an available review.
121 The majority in SZJDS suggested that their understanding of Wu had been confirmed in Pradabsuk but, with respect, I again disagree.
122 In Pradabsuk, the Full Court referred to Wu, but the gravamen of the reasoning, in my respectful view, lay elsewhere: namely, in the conclusion that a notion of “substantial compliance” had no relevance to a requirement of “satisfactory evidence” of a check of criminal records.
123 In that case, such a national check had been made by Western Australian Police, but had not been independently completed by the Australian Federal Police (“the AFP”) (as provided by the Migration Regulations 1994 (Cth) at the relevant time). The Full Court disposed of any formality in that respect by saying:
48 As to the second argument advanced by the appellants, we accept that there is nothing in cl 1128CA(3)(d)(ii) which requires that the only evidence of the prescribed event, which could be characterised as “satisfactory”, is the issue of a certificate by the AFP. If the legislature intended the supply of a certificate issued by the AFP certifying that it had completed a check of criminal records to be essential, then it would have been simple enough to set out that requirement in terms. However, by using the words “satisfactory evidence” it is clear that Parliament introduced an element of flexibility as to the means by which an applicant could provide evidence of the prescribed event. As explained at [52] we do not believe that this flexibility extends to the requirement that it is the AFP which must have completed the search. We find however, that in insisting that only a certificate issued by the AFP can be satisfactory evidence of the prescribed event without considering whether the National Police Certificate was capable of comprising “satisfactory evidence”, the delegate misconstrued the effect of cl 1128CA(3)(d)(ii) and, thereby, committed jurisdictional error. Likewise, the federal magistrate erred in the manner in which he construed cl 1128CA(3)(d)(ii).
(Bold emphasis added.) (Italics in original.)
124 However, there was no point in remitting the matter because consideration of the matter could lead to no different result on the facts of that case (see at [51]-[54]).
125 More directly, for the purpose of the present case, the Full Court said (at [42]):
42 We deal first, with the appellants’ argument in relation to “substantial compliance”. The clause in question imposes a requirement for the provision of “satisfactory evidence” of the occurrence of a prescribed event, namely, the completion by the AFP of a check of criminal records in relation to the visa applicant. As the terms of the clause require no more than the provision of satisfactory evidence of the prescribed event, they contain their own flexibility as to what would constitute compliance. Accordingly, we understand that the gravamen of the appellants’ argument is addressed to whether the concept of “substantial compliance” can be applied to the acts comprising the prescribed event.
and (at [47]):
47 The requirement specified in cl 1128CA(3)(d)(ii), is not to be equated with the duty to complete a form in accordance with the stated directions — in respect of which “substantial compliance” will be sufficient. In our view, it is an essential element of the making of a valid visa application that the visa application be accompanied by satisfactory evidence of the prescribed event. As already discussed, there is an inherent flexibility in the requirement to provide “satisfactory evidence”, but the clause does not admit of “substantial compliance” in relation to the event that must be evidenced, namely, that the AFP has completed a check of criminal records in relation to the visa applicant.
126 Those considerations are well removed from the present case. In my view, Wu and Pradabsuk are not germane to the present case and should not have been regarded as decisive in SZJDS.
127 Other cases were relied upon by the first respondent, but they do not alter my view. I mention the four which are closest to the present case hereunder.
128 Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 canvassed a time limit under s 412, not the use of a form. Section 25C of the Acts Interpretation Act had no significance.
129 Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364 canvassed payment of a prescribed fee within a prescribed time. The applicant in that case had sought a waiver of the fee (something which was in the discretion of the MRT) which was refused. The Court said:
50 It will be recalled that the narrower argument accepts that the applicant for review must do something about the prescribed fee within the prescribed period, but contends it is sufficient that the applicant for review has sought waiver of the fee.
51 In our view this argument should be accepted. The effect of doing so is to hold that, where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with reg 4.13, and that application is made within the prescribed period, the application for review may be entertained; provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected. That is, s 347(1)(c) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.
130 I do not see how this case helps the first respondent. Again, s 25C of the Acts Interpretation Act had no application in any event.
131 VOAW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 251 also concerned a failure to comply with a time limit in s 412. It did not concern s 25C of the Acts Interpretation Act.
132 Finally, VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570 also concerned a time limit in s 412, and not s 25C of the Acts Interpretation Act.
133 With respect, all four of those cases are a distraction from the issue which arises in the present case. The other cases relied upon by the first respondent were even more remote.
134 One final point may be made about the application of SZJDS to the present case. In the present case, each of the various versions of the form identified it as “Form R1”. The appellant did not use the wrong form, but simply a slightly older version of the correct form. Even on the approach taken in SZJDS this would be a case where s 25C of the Acts Interpretation Act should be applied.
135 The result of the foregoing analysis seems to me to be the following:
(1) The authorities referred to in SZJDS did not support the line of reasoning in that case; indeed, they suggested a contrary approach.
(2) SZJDS should not be followed; it should be overruled.
(3) Independently of SZJDS, the proper approach to the requirements of s 412(1)(a) of the Migration Act (bearing in mind s 25C of the Acts Interpretation Act) is that substantial compliance is required, and will suffice.
(4) In the present case there was substantial compliance with s 412(1)(a).
(5) The RRT did not lack power to deal with the application made to it on 24 April 2014 and should have dealt with it.
(6) The orders made by the FCCA should be set aside.
136 I would not grant an order in the nature of certiorari, as sought by the appellant, but otherwise I would uphold the appeal and make the orders sought.
137 If I might permit myself two further observations, they are as follows: first, the result for which the first respondent contends in the present case would rightly be thought to bring the administration of justice in this country, and the Court system upon which it depends, into disrepute. I do not feel compelled to contribute to that outcome. Secondly I note, as an aside, that the current form R1 (Design date 07/15), in use by the Administrative Appeals Tribunal (which has taken over the function of the RRT) no longer requires a passport number, on which the first respondent placed so much importance.
I certify that the preceding seventy-seven (77) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. |
Associate:
Dated: 9 March 2016
