FEDERAL COURT OF AUSTRALIA

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

3.    The costs of the appeal be assessed on a lump sum basis.

4.    If the parties agree on a lump sum figure in relation to the first respondent’s costs, they are to file a joint minute of proposed orders.

5.    In the absence of any joint minute of proposed orders:

(a)    within 28 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within 28 days thereafter, the appellant file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of GPN-COSTS; and

(c)    the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1    The appellant appeals a decision of the Federal Circuit Court of Australia. The Federal Circuit Court dismissed an application for judicial review of a decision by the second respondent (the Tribunal): Beni v Minister for Immigration and Anor [2018] FCCA 756. The Tribunal held it did not have jurisdiction to review a decision by a delegate of the first respondent (the Minister) to cancel the appellant’s Temporary Business Entry (Class UC) (Subclass 457) visa.

2    The reason for the Tribunal’s finding was that the application for review was brought outside the time prescribed by s 347(1)(b) of the Migration Act 1958 (Cth) and reg 4.10 of the Migration Regulations 1994 (Cth). The time relevantly prescribed by that regulation is seven days after the appellant was notified of the decision. The delegate had made the cancellation decision on 27 July 2016 pursuant to s 116 of the Act. An email giving notice of the cancellation decision was sent on the same day.

3    The Tribunal was “prepared to accept” that the appellant did not receive that email on 27 July 2016 but, ultimately, it did not make any decision about this question because it concluded that by virtue of sending the email, the email was “transmitted” and notification was therefore deemed to have occurred by reason of s 494C(5) of the Act (although the appropriate deeming provision was reg 2.55(8) of the Regulations). Similarly, the primary judge did not expressly determine whether or not the email was actually received. The Federal Circuit Court agreed with the approach of the Tribunal.

4    The amended notice of appeal raises two issues. The first is whether or not, in circumstances where notice of a decision was sent by email to the appellant, but not received, the notice was given to the appellant “by transmitting the document by … email” within the meaning of reg 2.55(3)(d)(ii) of the Regulations. The second question is whether the Tribunal had the power to extend the time within which an application may be brought to seek review of a decision by reason of s 29(7) and s 29(8) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). At completion of the appeal, and for reasons which follow, we indicated that the second ground of appeal, which rested on an affirmative answer to the second question, would be dismissed.

IN THE FEDERAL CIRCUIT COURT

5    In reasons delivered on 27 March 2018, the primary judge provided a detailed account of the Tribunal’s decision. The appellant was legally represented in the Federal Circuit Court.

6    The primary judge recorded that the Tribunal, after forming a preliminary view that the application for review was lodged out of time, invited the appellant to comment on the validity of the application for review, in consequence of which, on 29 September 2016, detailed written submissions were provided. A statutory declaration from the appellant and screenshots of her email account were also filed. In the screenshots, the appellant attached images from her email inbox for the period from 26 July 2016 to 31 July 2016. She also attached the screenshot of 9 August 2016, which in turn, attached the delegate’s decision. The appellant asserted that this was the first time she had received the delegate’s decision. The Tribunal, on 24 October 2016, sought clarification from the Minister’s Department regarding the method, date and record of the transmission of the letter notifying the appellant of the decision to cancel her visa.

7    On 25 October 2016, the Tribunal received from the Department screenshots of outbound emails, one of which showed an email which had the subject line recording the Department file number, the Department cancellation identification number, the appellant’s name and the words “notification of decision”. The date sent was 27 July 2016. The Minister’s Department advised that no delivery failure notification had been received.

8    Although the Tribunal accepted that the appellant did not “receive” the delegate’s decision until 9 August 2016, it found that the delegate’s decision was sent by email on 27 July 2016. In finding the decision had been sent by email on that date, the Tribunal concluded that any application for review had to be made by 5 August 2016. As such the appellant’s application, received on 9 August 2016, was lodged out of time.

9    What the Tribunal meant by “receive” is not entirely clear. On the one hand, it may mean that, while the email was technically received at the appellant’s email address, she did not access it, view it or notice it. On the other hand, it may mean that due to some electronic failure, it was not electronically received. Maybe there are other possibilities. The Tribunal did note that the appellant’s inbox had 18,648 unread messages and other mail folders containing unread messages. The Tribunal speculated that it was possible that the email had gone to the appellant’s spam or other folders. The Tribunal considered it was unnecessary to resolve that matter because of the effect of the deeming provision. Both the Tribunal and the Federal Circuit Court considered the case law, to which reference will be made below, including two single judge decisions of this Court: Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86 per Jacobson J and Singh v Minister for Immigration and Border Protection (2015) 231 FCR 573 per Perry J.

10    The primary judge noted that the Tribunal considered that “transmitting” meant “sending” and that the Department had sent the cancellation decision by email to the appellant on 27 July 2016. His Honour considered the Tribunal had arrived at the correct decision, relying on Sainju and Singh 231 FCR 573.

11    The primary judge noted the submission, also raised in this appeal by the appellant, that “transmitted” for the purpose of reg 2.55(3)(d) means “sent and received”, not just merely “sent”. His Honour noted that the appellant was relying upon, amongst other things, the decision of the Federal Circuit Court in Singh v Minister for Immigration and Border Protection [2015] FCCA 2531, where Judge Harland held that a facsimile must be sent and received in order to be transmitted for the purpose of s 379A of the Act, holding that “there must have been a legislative intention to draw a distinction between ‘dispatch’ and ‘transmit’”. The primary judge noted that it was accepted by the appellant that the Federal Circuit Court was bound to follow Sainju and Singh 231 FCR 573. On the basis of this concession by the appellant, it was unnecessary for the primary judge to consider this issue further. The primary judge concluded (at [27]):

… As [the appellant] did not lodge the application until 9 August 2016, the Tribunal was correct in finding it did not have jurisdiction in this matter. The Tribunal did not have any discretion to waive this requirement.

(Citations omitted.)

AMENDED GROUNDS OF APPEAL

12    The amended grounds of appeal are succinct and may be repeated verbatim:

1.    The primary judge erred by failing to hold that the [Tribunal] fell into jurisdictional error by interpreting ‘transmitting’ in regulation 2.55(8) of the [Regulations] and section 494C(5) of the [Act] [to] mean only the act of sending a document by email, rather than both the sending and receipt of that document.

2.    The [p]rimary [j]udge erred in failing to hold that the [Tribunal] fell into jurisdictional error by failing to recognise or consider exercising its power under section 29(7) and (8) of the [AAT Act] to extend the time for the Appellant to apply for review of the delegate’s decision made on 27 July 2016.

GROUND 1

The statutory framework

13    The cancellation decision was a “Part 5-reviewable decision” within the meaning of s 338(3) of the Act. Section 347(1)(b)(i) provides that an application for review of a Part 5-reviewable decision covered by s 338(3) must be given to the Tribunal “within the prescribed period, being a period ending not later than … 28 days after the notification of the decision”. Regulation 4.10(1)(b) prescribes that this period “starts when the appellant receives notice of the decision and ends at the end of 7 working days after the day on which the notice is received”. The interaction between s 347(1) and reg 4.10 was discussed by the Full Court (Spender, Kiefel and Dowsett JJ) in Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172 (at [4]-[5]).

14    The combined effect of s 127 of the Act and reg 2.45 of the Regulations is that the Minister must notify a visa holder of a cancellation decision “in writing”. The note to reg 2.45 states that reg 2.55 applies to the “giving of a document relating to … the cancellation of a visa under the Act”.

15    Regulation 2.55 provides:

2.55    Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation

(1)    This regulation applies to:

(a)    the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act; and

(ab)    the giving of a document under subsection 133E(2) of the Act relating to a decision to cancel a visa under subsection 133A(1) or 133C(1) of the Act; and

(b)    the giving of a document under subsection 501G(3) of the Act relating to a decision to:

(i)    cancel a visa under section 501, 501A, 501B, 501BA or 501F of the Act; or

(ii)    not revoke a decision to cancel a visa under section 501CA of the Act; and

(c)    the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.

(2)    However, this regulation does not apply in relation to:

(a)    a notice to which section 137J of the Act relates; or

(b)    a person who is in immigration detention.

Note:    See regulation 5.02.

(3)    Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:

(a)    by handing it to the person personally;

(b)    by handing it to another person who:

(i)    is at the person’s last residential or business address known to the Minister; and

(ii)    appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(iii)    appears to be at least 16 years of age;

(c)    by dating it, and then dispatching it:

(i)    within 3 working days (in the place of dispatch) of the date of the document; and

(ii)    by prepaid post or by other prepaid means;

to the person’s last residential address, business address or post box address known to the Minister;

(d)    by transmitting the document by:

(i)    fax; or

(ii)    email; or

(iii)    other electronic means;

to the last fax number, email address or other electronic address known to the Minister.

Note:    Subregulation (3A) deals with giving documents mentioned in paragraphs (1)(a) and (c) to minors.

…

(5)    If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.

(6)    If the Minister gives a document to a person by handing it to another person at a residential or business address, the person is taken to have received the document when it is handed to the other person.

(7)    If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:

(a)    if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

(b)    in any other case—21 days after the date of the document.

(8)    If the Minister gives a document to a person by transmitting it by fax, email or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.

(9)    If:

(a)    the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and

(b)    the person nonetheless receives the document or a copy of the document;

the Minister is taken to have given the document to the person and the person is taken to have received the document:

(c)    at the time specified by this regulation for that method; or

(d)    if the person can show that he or she received the document at a later time—at that later time.

(Emphasis added.)

16    Section 7A of the Electronic Transactions Act 1999 (Cth) together with reg 4 and item 80AB of Sch 1 of the Electronic Transactions Regulations 2000 (Cth) have the effect that reg 2.55(3)(d) of the Regulations (the relevant provision for this appeal) is exempted from the application of ss 14, 14A and 14B of the Electronic Transactions Act relating to the dispatch and receipt of electronic communications. Except for ss 14, 14A and 14B, the Electronic Transactions Act applies to the giving of notice under the provisions of the Act and Regulations mentioned above. In particular, s 9(1) of the Electronic Transactions Act relevantly provides:

Requirement to give information in writing

(1)    If, under a law of the Commonwealth, a person is required to give information in writing, that requirement is taken to have been met if the person gives the information by means of an electronic communication, where:

(a)    in all cases—at the time the information was given, it was reasonable to expect that the information would be readily accessible so as to be useable for subsequent reference; and

…

(d)    if the information is required to be given to a person who is neither a Commonwealth entity nor a person acting on behalf of a Commonwealth entity—the person to whom the information is required to be given consents to the information being given by way of electronic communication.

17    Section 9(4) and s 9(5) of the Electronic Transactions Act provide:

(4)    This section applies to a requirement or permission to give information, whether the expression give, send or serve, or any other expression, is used.

(5)    For the purposes of this section, giving information includes, but is not limited to, the following:

(a)    making an application;

(b)    making or lodging a claim;

(c)    giving, sending or serving a notification;

(d)    lodging a return;

(e)    making a request;

(f)    making a declaration;

(g)    lodging or issuing a certificate;

(h)    making, varying or cancelling an election;

(i)    lodging an objection;

(j)    giving a statement of reasons.

18    The expressions “electronic communication” and “information” are defined in s 5 of the Electronic Transactions Act as follows:

electronic communication means:

(a)    a communication of information in the form of data, text or images by means of guided and/or unguided electromagnetic energy; or

(b)    a communication of information in the form of speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system.

information means information in the form of data, text, images or speech.

Regulation 1.03 of the Regulations provides that “electronic communication has the same meaning as in the Electronic Transactions Act 1999”.

19    The expression “document” is defined in reg 2.54 as follows:

In this Division:

…

document includes:

(d)    a letter; and

(e)    an invitation, notice, notification, statement or summons, if it is in writing.

20    This definition is to be contrasted with the more comprehensive definition in the Dictionary to the Evidence Act 1995 (Cth) as follows:

document means any record of information, and includes:

(a)    anything on which there is writing; or

(b)    anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

(c)    anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or

(d)    a map, plan, drawing or photograph.

21    Neither party suggested that anything turned on s 9 of the Electronic Transactions Act. In particular, the question of the appellant’s consent under s 9(1)(d) of the Electronic Transactions Act was not raised as an issue by the parties. No consideration was given to whether s 9 of the Electronic Transactions Act was inconsistent with later provisions of the Act and Regulations, reg 2.55 having commenced on 10 August 2001, nor of the consequence if there were any such inconsistency. In any event, however, as the Minister submitted when the question was raised whether the appellant had given consent as contemplated by s 9(1)(d), the appellant’s consent may be inferred from the fact that she provided her email address to his Department in her application for the visa. The Minister also noted that this issue was not raised before the Tribunal or the Federal Circuit Court and it cannot now be raised in this appeal. Despite the appellant being given the opportunity, at the hearing of this appeal, to consider seeking leave to raise further grounds, no application was made to raise any issue in this respect.

22    The ultimate effect of these provisions is that, subject to any question arising from any inconsistency with later provisions, s 9 of the Electronic Transactions Act applies to the giving of a notification of the kind referred to in s 347(1) and 127 of the Act and reg 4.10 and reg 2.45 of the Regulations.

23    As alluded to above, reg 4 of the Electronic Transactions Regulations has the effect that ss 14, 14A and 14B of the Electronic Transactions Act do not apply to reg 2.55(3)(d) (the relevant provision for this appeal), as was discussed in Sainju (at [66]-[69]) and more recently in Calimoso v Minister for Immigration and Border Protection [2016] FCA 1335 per Charlesworth J (at [21]). This exclusion was introduced by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). Notably this exclusion did not exclude from operation any of the other provisions of the Electronic Transactions Act discussed above. Nonetheless, the content of s 14 and s 14A is relevant to an argument put in this appeal by the appellant.

24    The first two of those sections provide in substance, amongst other things, that the time of “dispatch” of an electronic communication is the time it leaves the sender, but if it does not actually leave, the time of receipt; further “receipt” is when the communication is capable of being retrieved:

14    Time of dispatch

(1)    For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication, the time of dispatch of the electronic communication is:

(a)    the time when the electronic communication leaves an information system under the control of the originator or of the party who sent it on behalf of the originator; or

(b)    if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator—the time when the electronic communication is received by the addressee.

Note:    Paragraph (b) would apply to a case where the parties exchange electronic communications through the same information system.

(2)    Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been dispatched under section 14B.

14A    Time of receipt

(1)    For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:

(a)    the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or

(b)    the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:

(i)    the electronic communication has become capable of being retrieved by the addressee at that address; and

(ii)    the addressee has become aware that the electronic communication has been sent to that address.

(2)    For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.

(3)    Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.

(Emphasis added.)

25    Finally, because they are similar in terms to reg 2.55 above and because they were considered in two of the authorities that are central to this appeal, it is appropriate to set out ss 494A, 494B and 494C of the Act. They provide:

494A    Giving documents by Minister where no requirement to do so by section 494B method

(1)    If:

(a)    a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and

(b)    the provision does not state that the document must be given:

(i)    by one of the methods specified in section 494B; or

(ii)    by a method prescribed for the purposes of giving documents to a person in immigration detention;

the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

Note:    Section 494D deals with giving documents to a person’s authorised recipient.

…

494B    Methods by which Minister gives documents to a person

Coverage of section

(1)    For the purposes of provisions of this Act or the regulations that:

(a)    require or permit the Minister to give a document to a person (the recipient); and

(b)    state that the Minister must do so by one of the methods specified in this section;

the methods are as follows.

…

Giving by hand

(2)    One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.

Handing to a person at last residential or business address

(3)    Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:

(a)    is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and

(b)    appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(c)    appears to be at least 16 years of age.

Dispatch by prepaid post or by other prepaid means

(4)    Another method consists of the Minister dating the document, and then dispatching it:

(a)    within 3 working days (in the place of dispatch) of the date of the document; and

(b)    by prepaid post or by other prepaid means; and

(c)    to:

(i)    the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or

(ii)    the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or

(iii)    if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.

Transmission by fax, email or other electronic means

(5)    Another method consists of the Minister transmitting the document by:

(a)    fax; or

(b)    email; or

(c)    other electronic means;

to:

(d)    the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or

(e)    ...

…

494C    When a person is taken to have received a document from the Minister

(1)    This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).

Giving by hand

(2)    If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.

Handing to a person at last residential or business address

(3)    If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.

Dispatch by prepaid post or by other prepaid means

(4)    If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:

(a)    if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or

(b)    in any other case—21 days after the date of the document.

Transmission by fax, email or other electronic means

(5)    If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.

Document not given effectively

(7)    If:

(a)    the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and

(b)    the person nonetheless receives the document or a copy of it;

then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.

(Emphasis added.)

26    It is common ground that the construction of “transmitting” in the Act should accord with an interpretation that best achieves the purpose or object of the legislation: s 15AA of the Acts Interpretation Act 1901 (Cth) and Thiess v Collector of Customs (2014) 250 CLR 664 per French CJ, Hayne, Kiefel, Gageler and Keane JJ (at [23]). Nor is it controversial that “transmitting” should be given its natural and ordinary meaning. Also well-established is the principle that the meaning of a provision is to be construed so that it is consistent with the language and purpose of all the provisions of the statute and that such a meaning must be determined by reference to the language of the instrument viewed as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ (at [69]).

The appellant’s contentions

27    As the appellant says, in Sainju, Jacobson J emphasised what his Honour saw as the purpose of the Regulation, namely, to create a deeming provision which focuses upon the act by the Minister of giving the document, rather than its receipt. Each paragraph of subreg 2.55(3) identifies a way in which the Minister must “give the document”. The four relevant acts are set out in paras (a) to (d) of subreg 2.55(3). Each of them requires the Minister to do something. Subregulations 2.55(5), (6), (7) and (8) each contain a statutory deeming of receipt tied to the relevant act (of giving) identified in paras (a) to (d) of subreg 2.55(3) In Sainju, his Honour said (at [51]):

What seems to me to be decisive is that each of the deeming provisions [in subregs 2.55(5), (6), (7) and (8)] focuses upon the physical act [identified in paras (a) to (d) of subreg 2.55(3)] of the Minister in giving the document to the person, rather than whether the document is actually received.

28    The appellant contends, however, that Jacobson J in Sainju failed to give consideration to the principle of construction that a statutory instrument ought to be construed so as to preserve fundamental rights. The appellant argues that the right to receive the notice and thus have a meaningful opportunity for review, is such a right. In Buck v Comcare (1996) 66 FCR 359, Finn J, speaking of suspension of compensation payments, stated (at 364-365):

… Yet it is a right of sufficient significance to the individual in my view, that, where there may be doubt as to Parliament’s intention, the courts should favour an interpretation which safeguards the individual. To confine our interpretative safeguards to the protection of “fundamental common law rights” is to ignore that we live in an age of statutes and that it is statute which, more often than not, provides the rights necessary to secure the basic amenities of life in modern society.

29    In Sainju, Jacobson J said (at [59]):

In Joshi v Minister for Immigration and Multicultural Affairs (2001) 116 FCR 87 at [41]-[42], Emmett J pointed to the tension between the interests of administrative certainty and an effective right of review of administrative action which is revealed in this type of provision. However, in the present case, it is not necessary to consider that question because the federal magistrate was not satisfied on the balance of probabilities that the email did not reach the appellant’s mailbox.

30    The appellant contends that his Honour did not appear to have regard to the principle of legality. Rather, his Honour’s reasoning (at [59]), the appellant says, seems to suggest that in an appropriate case (but not that case on its facts), the unfairness of failure of actual notification might be a relevant consideration. The appellant contends it is not clear how the interpretation of an instrument could vary in the way described by his Honour (at [59]), depending upon the fairness of its application in a particular case. The appellant argues that this is an error in his Honour’s reasoning which undermines the conclusion that “transmit” does not connote receipt. In our view, his Honour was merely recording a submission which it was necessary to deal with on the facts before him, rather than accepting that the issue might arise if the facts were different. We observe that, in any event, this remark in Sainju was clearly obiter and not central to the decision.

31    Reliance is also placed on Hall v University of New South Wales [2003] NSWSC 669, where McClellan J said (at [68]):

68    A fundamental element of procedural fairness is the hearing rule or the “right to be heard”. The elements of the right will vary in particular cases but will generally include some or all of the following:

•    a reasonable opportunity to make submissions (Annetts v McCann (1990) 170 CLR 96), give evidence (Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49), and call witnesses in support (R v Hull Prison Board of Visitors; ex parte St Germain (No. 2) [1979] 1 WLR 1401 (DC);

•    notice of various matters (Andrews v Mitchell [1905] AC 78 at 80 (Lord Halsbury: “impossible to disregard[”]); R v Small Claims Tribunal; ex parte Cameron [1976] VR 427 at 432 (Anderson J: “a cardinal principle”); Re Hamilton [1981] AC 1038 at 1047 (Lord Fraser: of “constitutional importance”) including:

•    the time, date and place of the hearing (Hopkins v Smethwick Board of Health (1890) 24 QBD 712 at 715);

•    the subject matter (Kanda v The Government of Malaya [1962] AC 322 at 377) and potential adverse consequences of the decision (Parker v Director of Public Prosecutions (1992) 28 NSWLR 282; Roos v Director of Public Prosecutions (1994) 34 NSWLR 254[;] Powick v Commissioner of Corrective Services (1996) 87 A Crim R 565 (NSWCA Mahoney ACJ, Sheller and Powell JA); Dixon v Commonwealth (1981) 55 FLR 34 at 41);

•    the case to be answered (Kanda v The Government of Malaya [1962] AC 322 at 377; R v Solicitors’ Disciplinary Tribunal; ex parte L (a solicitor) [1988] VR 757); and

•    adequate time to prepare submissions and gather evidence (Ansell v Wells (1982) 43 ALR 41; Claro v The Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 581; (1993) 119 ALR 342)[;]

•    disclosure of material to be relied upon by the decision-maker. The extent of this duty depends upon the type and nature of the decision-maker or investigating body. As a general rule, material which concerns matters personal to a person who is entitled to be heard, should be disclosed to that person (per Mason J in Kioa at 587)[;]

•    disclosure of any adverse conclusion not obviously open on the known material: see Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591. In that case, Northrop, Miles and French JJ said: “if information on some factor personal to [a] person is obtained from some other source and is likely to have an effect upon the outcome, he or she should be given the opportunity of dealing with it” (at 591). Their Honours also said: “The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.” (at 592)[.]

32    The appellant also submits that notice of a decision is fundamental to an individual’s right of review, relying on R (on the application of Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604, where Lord Steyn said (at [26]):

… Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system: Raymond v Honey [1983] 1 AC 1, 10G, per Lord Wilberforce; R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198, 209D; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115.

33    The appellant contends this principle appears to have been recognised in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77 (at [43]-[48]), where a majority of the Full Court (O’Connor and Mansfield JJ, Tamberlin J dissenting on this point) held that a former version of the Regulations dealing with notice by post was invalid on the basis that the Regulations were inconsistent with the right of review provided for by the Act. However, in Singh 231 FCR 573, which concerned the email notification of a refusal to grant a visa given under s 494B of the Act, Perry J followed Sainju, holding that “transmitted” meant being transmitted “in the sense of being sent”. Her Honour said (at [30]):

It follows, in my view, that, assuming that notification of the decision was transmitted, the appellant is taken to have received it for the purposes of reg 4.10(1)(a) when it was transmitted in the sense of being sent. The very fact that s 494C(5) deems the document to have been received makes it clear that the critical act is the act of transmission in this sense as opposed to actual receipt.

(Emphasis added.)

34    In arriving at that conclusion her Honour placed weight on the use of the term “dispatch” in the cognate provision in s 494C(4) relating to the sending of documents by post, referring to the decision of SZOBI v Minister for Immigration and Citizenship (No 2) [2010] FCAFC 151. In SZOBI, the Full Court (Stone, Jagot and Bromberg JJ) held (at [18]) that s 494B(4) “has nothing to do with receipt”. Her Honour applied this by analogy to the transmitting by email of documents pursuant to s 494B(5).

35    However, the appellant argues that her Honour’s analogy with SZOBI overlooked the different terminology that is used in the provisions dealing with the giving of documents by post as is the case in reg 2.55(3)(c) of the Regulations. A letter is given by “dispatching” the document, whereas reg 2.55(3)(d) refers to an electronic communication being given by “transmitting” the document. Specifically, it is argued that the words are different and should be given different meanings. It is argued that the difference to be given is that the former involves only sending, whereas the latter encompasses both sending and receipt. When viewed that way, the appellant says SZOBI has no application to the present case, for it concerned “dispatching” as distinct from “transmitting”.

36    As to the ordinary meaning of “transmit”, the appellant draws on the definition of transmit in the New Shorter Oxford Dictionary (3rd ed, 1993) where the primary definition is “[c]ause (a thing) to pass, go, or be conveyed to another person, place, or thing; send across an intervening space; convey; transfer” (emphasis added).

37    Similarly, the prefix “trans-” was defined as being:

[A] freely productive pref. ,w. the senses ‘across, beyond’, as transfer, transmaine, ‘on or to the other side of’ (opp. cis-), as transalpine, transatlantic, Transkei, ‘into another state or form’, as transform, transcribe, ‘surpassing, transcending’, as transfinite.

38    The appellant submits it is significant that reg 2.55(8) of the Regulations uses both the term “transmit” and the term “received”. The argument advanced by the appellant recognises that different terms have been used within the Regulations and leaves work for the term “received” to do in enlivening the prescribed period in reg 4.10 for an application for review to be made.

39    Further, the appellant argues that her construction retains the character of the deeming clause. It is said that on the appellant’s construction it is irrelevant whether the email is ever opened or actually read; but the email must reach its destination. The appellant argues that this is a similar concept to that which is employed in s 14 and s 14A of the Electronic Transactions Act (set out above) which refer to “dispatch” and “receipt” in relation to an “information system”.

Consideration - ground 1

40    It must be accepted, and the Minister does not suggest otherwise, that “transmitting” is a word which may convey the meaning contended for by the appellant, but will not necessarily do so. The word must be read in the context in which it is used, including the object and purpose of the legislation. As observed by Jacobson J in Sainju, reg 2.55(8) is one of a number of deeming provisions in the Regulations and the Act clearly designed to achieve administrative certainty as to whether a document has been received by a person and the date on which such receipt is deemed to have occurred. The relevant deeming occurs only if the act contemplated by reg 2.55(3)(d) has occurred. The determination of the time a document is received by a person and, therefore, in any particular case, the amount of time which that person has within which to take action (such as seeking review) is critical to the basic performance of the regime. It is conceivable that on some occasions unfairness could be caused by the possibility of merits review being foreclosed, but as the Minister contends, that should be understood as reflecting the considered decision of the legislature in the circumstances being addressed. This accords with the discussion in Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163 per Dowsett, Stone and Bennett JJ (at [19] and [24]) where the following was said:

19    For reasons given below, we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences. The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received. Insofar as is presently relevant, the provisions of s 494C(4) and (5) are identical and therefore the reasoning of the Full Court in Xie is equally applicable to both subsections.

…

24    With respect, the tenor of Gleeson CJ’s comments is applicable here. Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie leading it to conclude that s 494C(4) did not create a rebuttable presumption ...

(Emphasis added.)

41    Such detailed provision is mirrored almost exactly in the regulations being considered in this case.

42    The Explanatory Memorandum for s 494B and s 494C of the Act was expressly considered in Sainju (at [67]) and in Tay (at [26]). Those passages and the Explanatory Memorandum both emphasised the need for administrative certainty.

43    Certainty would not be achieved under the appellant’s construction as it would be necessary for the Minister to prove whether an email had actually been received or not in order to establish the act contemplated by reg 2.55(3)(d) had occurred. The object of the deeming effected by reg 2.55(8) is to avoid that necessity. If the Minister had to prove receipt to show that the act contemplated by reg 2.55(3)(d) had occurred, then there would be little more for reg 2.55(8) to deem other than the timing of receipt; however, reg 2.55(8) deems both receipt and the time of receipt. The considerable difficulty and high impracticability of proving receipt in order to establish transmission is apparent in the present instance. It is the obvious reason for having the deeming provisions, including reg 2.55(8), in the legislation. The statutory and regulatory presumption that an email will be received by no later than at the end of the business day it is sent (assuming as is part of the assumption that it is sent to the correct email address) accords with common experience. It leaves no room to argue that transmit must include receipt. The regime deems receipt if the act of sending has occurred. Moreover the evidence in this instance accords with that of Sainju where Jacobson J observed (at [35]):

Ms Clifford affirmed an affidavit in the Federal Magistrates Court on 25 November 2009 stating that she sent the email on 13 January 2009 to the email address provided by the appellant in her request for revocation of the cancellation of her student visa. Ms Clifford also said that, whilst she did not request a “delivery receipt” or a “read receipt” of the email, she did not receive a notification that the email had not been delivered.

44    That transmission is achieved by sending is further reflected in the discussion in Singh 231 FCR 573, where Perry J said (at [30]):

It follows, in my view, that, assuming that notification of the decision was transmitted, the appellant is taken to have received it for the purposes of reg 4.10(1)(a) when it was transmitted in the sense of being sent. The very fact that s 494C(5) deems the document to have been received makes it clear that the critical act is the act of transmission in this sense as opposed to actual receipt.

45    As Jacobson J said in Sainju, the provisions of s 494B and s 494C are in very similar terms to reg 2.55 and bear closely upon the construction of that regulation. The provisions form part of a statutory scheme of notification of decisions made under the Act and the use of almost identical expressions in the Act and the Regulations suggest that they have the same meaning in each provision.

46    Jacobson J in Sainju observed (at [68]-[70]):

68    This again emphasises the need for administrative certainty, to which I referred above, as the evident purpose of these provisions.

69    Sections 494B and 494C were introduced into the [Act] on 10 August 2001. Regulation 2.55 was added to the Regulations by the Migration Amendment Regulations 2001 (No 6) (Cth) (No 206), with effect also from 10 August 2001. This suggests that the regulation was enacted for the same purpose as the corresponding provisions of the [Act], and, as I have said, as part of the same statutory scheme.

70    The authorities to which I referred above, in particular the decision of the Full Court in Xie, dealt with non-electronic communications under the [Act]. For reasons stated above, the observations made by their Honours in that case, apply with equal force to reg 2.55(3)(d) and (8).

47    There can be little doubt that “dispatch” in s 494B(4) of the Act, in describing the giving of documents by prepaid post or other prepaid means, pertains to sending something. It does not address whether the document is received or not. Assumptions arise or do not arise depending on how and when the document was dispatched. It is similarly the case that “transmit” refers to sending, rather than sending and receiving. The most obvious reason for using the word “transmit”, rather than dispatch is that “transmit” is a term more commonly used in the context of electronic communications than the word “dispatch”. In contrast, it would not be common parlance to speak of transmitting a letter.

48    As to the appellant’s argument on the principle of legality, it cannot be doubted that non-citizens are not outlaws. They have rights, but they are also liable to be lawfully detained under the Act. Consistent with the need for administrative certainty in circumstances where there are powers to detain non-citizens, the powers should be clearly expressed. The Minister’s constructions in this appeal are clear and precise, even if in some seemingly rare circumstance a person might be excluded from the possibility of merits review. But, in any event, it is doubtful whether merits review is itself a fundamental right. It is something which is made available subject to the time limitations specified in the legislation.

49    In this instance, the legislation is so clear in relation to specifying express time limits that there is no scope for the principle of legality to apply. Further, it is doubtful whether the principle of legality is attracted in the context of this kind of provision. We agree with what Charlesworth J said in Calimoso (at [28]-[30]):

28.    Finally, it was submitted that s 494C(5) should be construed against the principle that legislation is presumed not to in [sic] interfere with fundamental common law rights or significant statutory rights: see Buck v Comcare [1996] FCA 1485; (1996) 66 FCR 359 at 364 – 365 (Finn J). The statutory right to merits review of the Delegate’s decision was submitted to be such a right, justifying an interpretation of s 494C(5) that did not impinge upon the right of review, or the consequent availability of rights of judicial review to the FCC and rights of appeal to this Court.

29.    The time period in which an application for review must be filed is absolute. The Tribunal has no discretion to extend the time in which an application may be made. However, that harsh consequence is one brought about not so much by s 494C(5) of the Act, but rather by s 347(1)(b)(iii) and by the absence of any provision granting a discretionary power on the Tribunal to alter the statutory time frame.

30.    As I have said, s 494C(5) applies in statutory contexts other than the present context. In the present context, it is only by its operation in conjunction with s 347(1)(b)(iii) of the Act and r 4.10 of the Regulations that an adverse consequence is visited upon the appellant. In my opinion, s 494C(5) is, in and of itself, agnostic as to its consequences. Support for that conclusion is found in the array of other provisions in which the phrase “at the end of the day” is used, some of which potentially affect significant statutory rights and others of which do not. The same phrase, for example, is adopted in provisions deeming the time of receipt of documents transmitted electronically by the Migration Agents Registration Authority (s 332H), the Tribunal (s 379C(5) and s 441C(5)) and the Immigration Assessment Authority (s 473HD(5) and s 473HE(4)). Any presumption of construction of the kind relied upon by the appellant is, in my opinion, displaced by the text, context and purpose of the provision itself and the importance of giving the same phrase a consistent meaning throughout the same enactment. The presumption does not operate so as to substitute the ordinary meaning of the text with alternative words that would deem the appellant’s receipt of the Delegate’s decision to have occurred on 24 October 2015, rather than at the end of 23 October 2015.

50    The formulation of the regime reflected in the Regulations, as with s 494C of the Act, is all directed to the ability for the Minister to know the date of notification so that the Minister knows what to put on the notification document as the date by which any review must be sought. These dates depend on which method of giving the notification is chosen. Deeming is essential in those migration decisions as visa holders may have changed contact address several times from the last known physical address or email address. If receipt had to be proven by the Minister, the Minister would not know what date to insert on the notification document because the date the notice was received could not be known by the Minister.

Conclusion – ground 1

51    The reasoning in Sainju and Singh 231 FCR 573 cannot be faulted. They were clearly correctly decided and should be followed.

52    Ground 1 cannot succeed.

GROUND 2

53    Ground 2 concerns the reasoning in the recently delivered decisions of Brown v Minister for Home Affairs [2018] FCA 1643 (Brown No 1) and more importantly Brown v Minister for Home Affairs (No.2) [2018] FCA 1787 (Brown No 2). Brown No 2 effectively embraces Brown No 1, in which it was held that s 29 of the AAT Act applied to an application for review of a Part 5-reviewable decision, specifically the power conferred upon the Tribunal under s 29(7) and s 29(8) to extend the time for the making of an application to the Tribunal for review of a decision. Section 29(7) and s 29(8) of the AAT Act provide as follows:

29    Manner of applying for review

…

(7)    The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

(8)    The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

54    It is common ground that no provision of any statute or regulations conferred a power to extend time where an application was brought to the Migration Review Tribunal or the Refugee Review Tribunal. However, it was held in Brown No 2 that the 2015 amendments to the AAT Act have the effect that such reviews, which are now undertaken by the Tribunal, have the benefit of the provisions in s 29(7) and s 29(8) of the AAT Act.

The appellant’s contentions

55    The appellant contends that Brown No 2 was correctly determined and, as the Tribunal in this case did not consider exercising or understand that it had a power under s 29 to extend time, it therefore failed to exercise the jurisdiction conferred upon it and its decision should be quashed.

56    The debate revolves around, essentially, two main provisions, s 24Z and s 25(6) of the AAT Act. The former provides:

24Z    Scope of operation of this Part

(1)    Except for the provisions specified in subsection (2), this Part does not apply in relation to a proceeding in the Migration and Refugee Division.

Note 1:    For the conduct of proceedings in the Migration and Refugee Division, see Parts 5 and 7 of the [Act].

Note 2:    Enactments that authorise the making of applications for review to the Tribunal can add to, exclude or modify the operation of this Part.

(2)    The following provisions of this Part apply in relation to a proceeding in the Migration and Refugee Division:

(a)    section 25;

(b)    section 42.

57    Noting that there is an exception under s 24Z, relevantly, for s 25 of the AAT Act, following the line of reasoning in Brown No 2, the appellant relies upon the content of s 25(6) of the AAT Act, which is in these terms:

25    Tribunal may review certain decisions

…

Enactment may add to, exclude or modify operation of certain provisions

(6)    If an enactment provides for applications to the Tribunal:

(a)    that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 29AB, 29AC, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and

(b)    those sections and subsections have effect subject to any provisions so included.

(Emphasis added.)

58    The reasoning in Brown No 2 (at [21]) was to the following effect:

The [Act] provides for applications to be made to the Tribunal of the kind made by Mr Brown in this case. The [Act], in respect of such applications, does not adopt any provisions which either exclude or modify the operation of s 29(7), (8), (9) and (10) in relation to such applications and therefore s 29(7), (8), (9) and (10) have effect as expressly preserved provisions by s 25(6) consistent with s 24Z(2) of the [AAT] Act, in relation to a proceeding in the Migration and Refugee Division of the Tribunal. This construction of the statutory provisions is entirely consistent with Note 2 to s 24Z(1) and, of course, is consistent with the continuing operation of s 25 by reason of s 24Z(2) which, by reason of s 25(6), continues to engage with s 29 of the AAT Act subject to the power in the Parliament in a relevant enactment to add to s 29 or to exclude or modify s 29. So far as Mr Brown’s application is concerned, the Parliament has not elected, in the relevant enactment, that is, in the [Act], to exclude or modify s 29(7), (8), (9) and (10).

(Emphasis in original.)

59    At [24] of Brown No 2, his Honour said:

The submissions of the Minister seem to assume that the new Division 1A comprising s 24Z has the effect of excluding the application of s 29 of Part IV in relation to proceedings in the Migration and Review Division because s 29 is not expressly recited in s 24Z(2). However, as already explained, s 25 is described, at least so far as the Explanatory Memorandum is concerned, as the core provision that empowers the Tribunal to review a decision where, as in this case, jurisdiction is conferred upon it under another enactment which in this case, is the [Act]. The Explanatory Memorandum also makes it clear that the procedures that apply to the review of decisions in the Migration and Review Division would continue to be set out in the [Act]. The conjunction of that approach, together with the centrality of the core provision of s 25, but particularly the text of s 24Z(1) and (2) and s 25(6), brings about the result that unless and until the Parliament (consistent with s 25(6) or by other amendments) elects to exclude in the relevant enactment (in this case, the [Act]) the power to extend time contained in s 29(7), (8), (9) and (10), those subsections of s 29, in respect of Mr Brown’s application, continue to “have effect”.

(Emphasis in original.)

Consideration – ground 2

60    The starting point on the face of the legislation is that s 24Z of the AAT Act rendered the entire Part (Pt IV), within which s 29 is contained, inapplicable to a proceeding in the Migration and Refugee Division, with two exception: s 25 and s 42. Section 42 of the AAT Act, concerning resolving differences of views in a Tribunal constituted by 3 members, is irrelevant to this case. Section 25 remains applicable to such proceedings in the Division and is the focus. Section 25 authorises other enactments to provide for applications to be made to the Tribunal for review of decisions made under that enactment. Section 25 also stipulates various matters in relation to the process of determination by the Tribunal. Section 25 was arguably unnecessary altogether as subsequent legislation would be deemed to apply without s 25(6) but it was ultimately retained for a different purpose explained below.

61    Nothing in s 24Z expressly preserves s 29 as an exception to the non-application of Pt IV to decisions in the Division. Were it intended that s 29 be excepted, with the result that a general power to extend time be re-introduced in these types of cases in the Tribunal, nothing would have been easier to express by listing it between s 25 and s 42 in s 24Z(2).

62    With respect, we do not consider that the preservation of s 25 and thus s 25(6) does the work for which the appellant contends. It does not, in effect, resuscitate s 29 simply because reference to s 29 appears in s 25(6). Section 29 has “effect” regardless in the general sense because it is contained in a statute that is in force. It is true that the provisions of a statute can be limited by the terms of that statute or by the terms of another statute, usually a later one. In this case, s 24Z of the AAT Act did just that. Equally, the provisions in s 25(6)(a) can be limited, not only by other provisions in the AAT Act and provisions of later statutes, but also by provisions in later delegated legislation. As the secondary materials discussed below reveal, this was the legislative purpose of retaining s 25(6) of the AAT Act. Its function is not to give s 29 effect. Rather, it is to confirm that s 29 may be added to, excluded, or modified by other enactments, such that where other enactments make such provision which can be seen as excluding or modifying its application, s 25(6) ensures that the other enactment is given priority so that the provisions of both statutes can be read together. This purpose was recognised in Coshott v Federal Commissioner of Taxation (2013) 96 ATR 967, where Tamberlin DP stated:

… s 25(6) of the [AAT Act] is an empowering provision and not a restricting provision and operates to enable enactments such as the TAA to include provisions “adding to,” “excluding” or “modifying” the operation of s 41(1) and therefore this provision does not in any way assist ...

63    Nothing in the relevant provisions of the Act (we say something about s 500(6B) below) says anything about s 29 with the result that s 25(6) of the AAT Act has no work to do in relation to s 29. As discussed in the context of ground 1, the Act exhaustively stipulates specific time limits for all relevant actions to which matters in the Division relate. That, as indicated above, has been deemed essential by the legislature so as to achieve certainty in this very high volume area of administrative decision-making.

64    It is entirely unnecessary for the Act to make provision for s 29 of the AAT Act not to apply in respect of proceedings in the Division. This would be superfluous because s 24Z(1) of the AAT Act directly does that work by excluding, in relation to such proceedings, the operation of Pt IV, being the Part in which s 29 is located in the AAT Act. This is save for two provisions identified in s 24Z(2), neither of which is s 29. If s 29 was also to be saved, s 24Z(2) would have expressly included reference to s 29 as it did for s 25 and s 42.

65    Provisions in the AAT Act which are not affected by other provisions in another “enactment” are not the subject of s 25(6) at all. In this instance, the application of s 29 of the AAT Act was excluded in the relevant context only by s 24Z and not by provisions in any other statute.

66    Further, it is clear, when looking at the legislative history and the surrounding secondary materials that there was no legislative intention to permit extensions of time in the area of operations to which s 24Z of the AAT Act was directed.

67    The reforms introduced by the Tribunals Amalgamation Act 2015 (Cth), including s 24Z were described in the Minister’s Second Reading Speech: see Senate Hansard, 3 December 2014 (at 10070-10072). Those reforms did not confer a right in persons seeking merits review to an extension of time. In the Second Reading Speech, the Minister stressed that the Bill involved “no material change to the substantive rights of tribunal users”. Further, he said that “[i]n practice, review of migration and refugee matters in the amalgamated tribunal will be virtually identical to review in the MRT-RRT”. At no time was there any relevant power conferred upon the former Migration Review Tribunal and the Refugee Review Tribunal to extend time. In light of the references to “virtually identical” review, such a significant change would have to be clearly identified in the statutory materials or the extrinsic secondary materials in order to conclude that in the new Division a power to extend time had actually been introduced.

68    Similarly, in the Explanatory Memorandum, it was said (at [18]): “Importantly, the Bill would preserve existing applicant rights of access to merits review ...” (emphasis added).

69    The Explanatory Memorandum also indicated (at [356]) that the “procedures that apply to review of decisions in the [Division] would continue to be set out in the [Act]”. This is not consistent with the procedure in s 29(7) being applied in that context.

70    The clear intent was that Pt IV, in which s 29 is contained, would have no application by virtue of s 24Z to matters in the Division.

71    There are further indications that s 25(6) of the AAT Act was not intended to have the operation contended for by the appellant (and as held in Brown No 2). The history leading up to the Tribunals Amalgamation Act, reveals that the Bill, as presented and first read, proposed to repeal s 25(6) of the AAT Act entirely (as indicated by item 40 of Sch 1 to the Bill). The Explanatory Memorandum explained the reason for this repeal in the following terms (at [360]-[361]):

360.    Existing subsection 25(6) provides that other enactments conferring jurisdiction on the Tribunal may contain provisions that add to, modify, or exclude the operation of sections 27, 29, 32, 33 and 35 or subsection 41(1) or 43(1) or (2) in relation to applications under that enactment. Several other enactments include provisions to this end and also add to, modify or exclude other provisions of the AAT Act. It is a general principle of statutory interpretation that a later Act of Parliament overrides an earlier Act to the extent of any inconsistency. Accordingly, subsection 25(6) can be misleading and should be repealed. However, its repeal does not diminish the general position that any modifications to the AAT’s procedures should be kept to a minimum and only made where special circumstances warrant it.

361.    The repeal of these provisions would not change the existing scope of the Tribunal’s jurisdiction or powers.

(Emphasis added.)

72    On the initial introduction of the Bill, s 24Z was intended to remove the operation of s 29 of the AAT Act, amongst other provisions, from review of migration and refugee decisions and s 25(6) was also to be repealed as it was considered superfluous.

73    However, a Supplementary Explanatory Memorandum made clear that there was to be an amendment according to which s 25(6) would not be repealed but would be amended. The explanation was as follows (at [17]):

17.    New Item 40A would amend subsection 25(6) of the AAT Act, which permits other enactments to modify certain provisions of the AAT Act. The Bill proposed to repeal subsection 25(6) on the basis that the general principle of statutory interpretation that a later Act of Parliament overrides an earlier one to the extent of any inconsistency makes it redundant (see paragraph 360 of the Explanatory Memorandum). However, because the definition of ‘enactment’ in section 3 of the AAT Act is broad and includes (for example) Regulations, subsection 25(6) serves the purpose of preserving the validity of enactments that would not otherwise be permitted to modify the AAT Act. It is desirable to preserve the status quo that the AAT Act may be modified where appropriate in relation to particular types of applications. As a result, new Item 40A would retain subsection 25(6) and amend it to also include new sections 29AB and 29AC in the list of provisions that may be modified by other enactments. This is a technical amendment made necessary because the matters dealt with in new sections 29AB and 29AC were previously dealt with in section 29 of the Act, which is a provision that may be modified under existing subsection 25(6).

(Emphasis added.)

74    This explanation indicates that the purpose of retaining s 25(6) was not to preserve s 29, or somehow revitalise it after s 24Z (in the case of migration review decisions) had excluded its application. Rather, s 25(6) was kept in order:

(a)    not to disturb the validity of existing regulations; and

(b)    to enable future regulations, as distinct from statutes, to contain valid provisions

that add to, exclude or modify the sections and subsections referred to by s 25(6)(a) of the AAT Act.

75    Additionally, the Court was taken to one of the transitional provisions in the Tribunals Amalgamation Act, namely, item 15AD(2) of Sch 9, which provided:

(2)    A person may not make an application to the [Tribunal] for review of a decision on or after the commencement day if:

(a)    the time for the person to apply to a discontinued Tribunal for review of the decision had expired before the commencement day without such an application having been made; and

(b)    there is no enactment that permits the [Tribunal] to extend the time for making the application.

(Emphasis added.)

76    There were three discontinued tribunals, the Social Security Administrative Tribunal, the Migration Review Tribunal and the Refugee Review Tribunal. This transitional provision assumed there will be instances where there is no enactment that would permit the Tribunal to extend time for the making of applications. This was then so for review applications made from migration and refugee decisions. Prior to the reforms, there was no scope for an extension of time and then because of s 24Z of the AAT Act there was, likewise, no enactment permitting this after the reforms. The Revised Explanatory Memorandum explained item 15AD as follows (at [2030]):

The purpose of Item 15AD is to ensure that the Bill does not introduce additional rights to seek review that would not otherwise be available. It is not intended that any existing rights to seek review are curtailed…

(Emphasis added.)

77    Again, it must be concluded that this explanation is not consistent with a view that the reforms created a new right to extend time for review of migration and refugee decisions, where no such right existed in the past.

78    That this was the legislative intention is supported by other aspects of the Act. Section 347(1)(b) of the Act provides that an application “must” be given to the Tribunal within the prescribed period (being a period not fixed by s 29 of the AAT Act).

79    In Brown No 2, the Court did not accept that the word “must” in this context was sufficient to exclude the power to extend time, observing (at [3], repeating Brown No 1 at [62]) that the same word was used in the same context in s 500(6B) of the Act and was not, therefore, thought by Parliament to be sufficient to exclude ss 29(7), 29(8), 29(9) and 29(10) of the AAT Act as that effect had to be specifically spelt out. Section 500(6B) provides:

If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the [AAT Act] do not apply to the application.

(Emphasis added.)

80    It is true that s 500(6B) does state that those subsections do not apply. It also states, however, that they do not apply “Accordingly”, that is, as a consequence of the previous sentence. This is simply an explanation such that if anything s 500(6B) supports the notion that the use of the word “must” in this context excludes any power to extend. But, in any event, this subsection is dealing with “character” decisions under s 501 of the Act. These decisions are not in the Part to which s 24Z of the AAT Act refers.

81    An important consideration in the context of examining the legislative purpose is the definition of when an application under the Act is “finally determined”. This definition depends upon the existence of a finite period within which to seek review under Part 5 or Part 7 of the Act: see s 5(9):

5    Interpretation

…

(9)    For the purposes of this Act, subject to subsection (9A), an application under this Act is finally determined when:

(a)    a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

(b)    a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed; or

(c)    in relation to an application for a protection visa by an excluded fast track review applicant—a decision has been made in respect of the application.

(Emphasis added.)

82    The Act works on the principle, as reflected in this section, that Part 5 and Part 7 reviewable decisions are subject to prescribed periods within which a review can be instituted. If s 29(7) of the AAT Act allowed for an extension of time within the Tribunal’s discretion, this would cause uncertainty as to when decisions that have not been the subject of review applications are “finally determined”. That uncertainty would undermine the working of several provisions in the Act, including ss 50, 74, 198(2) and 198(6) (concerning the power to remove persons) and s 336F(5), as well as many provisions in the Regulations. It is highly improbable that Parliament intended to allow important removal powers to be able to be defeated by removing fixed periods within which persons can seek merits review.

Conclusion – ground 2

83    The Tribunal, as held by the Federal Circuit Court, was correct to conclude that ss 29(7), 29(8), 29(9) and 29(10) of the AAT Act did not apply to the proceeding which was before it by virtue of s 24Z of the AAT Act. No part of s 25 of the AAT Act or other sections had the effect of applying s 29 to such proceedings. It also follows from this reasoning, with great respect, that we are firmly of the view in the meaning discussed in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 (at [190]-[191] by Allsop J as the Chief Justice then was) that Brown No 2 was wrongly decided and should not be followed.

84    This second ground of appeal, therefore, must also fail.

CONCLUSION

85    The appeal must be dismissed with costs.

Associate:

Dated:    14 December 2018