Federal Court of Australia

BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

THAWLEY AND KENNETT JJ:

1    The issue in this appeal concerns an aspect of what must be done, by an applicant entitled to apply for review of a decision by the Administrative Appeals Tribunal (the Tribunal), in order to invoke the Tribunal’s jurisdiction.

Background

2    The appellant arrived in Australia as an unauthorised maritime arrival in January 2010. He applied for a protection visa, which was granted on 15 April 2010. On 23 July 2015, he applied for and was granted a Return (Residence) (Class BB) visa (the visa).

3    On 7 June 2017, the Department of Immigration and Border Protection (as it was then known) issued to the appellant a Notice of Intention to Consider Cancellation of the visa. That commenced a process which led to a decision by a delegate of the first respondent (the Minister) to cancel the visa, made on 16 November 2017 and sent by email to the appellant’s representative on the same day (the cancellation decision).

4    The appellant’s representative sought to file an application in the Tribunal for review of the decision.

5    The decision was a “Part 5-reviewable decision” for the purposes of the Migration Act 1958 (Cth) (the Act), by virtue of s 338(3) of the Act. Section 347(1) of the Act provided, in relation to decisions of this kind, as follows:

(1)    An application for review of a Part 5 reviewable decision must:

(a)    be made in the approved form; and

(b)    be given to the Tribunal within the prescribed period, being a period ending not later than:

(i)     if the Part 5‑reviewable decision is covered by subsection 338(2), (3), (3A), (4) or (7A)—28 days after the notification of the decision; or

(ii)     if the Part 5‑reviewable decision is covered by subsection 338(5), (6), (7) or (8)—70 days after the notification of the decision; or

(iii)    if the Part 5‑reviewable decision is covered by subsection 338(9)—the number of days prescribed, in respect of the kind of decision in question prescribed for the purposes of that subsection, after the notification of the decision; and

(c)    be accompanied by the prescribed fee (if any).

6    It is not in dispute that the relevant “prescribed period” for the purposes of s 347(1) was 7 working days after notice of the decision was received and that the last day for making an application was therefore 27 November 2017. On that day at 11.33 am, the appellant’s representative lodged an application form with the Tribunal electronically. No issue currently arises concerning the appropriateness of that form or the adequacy of the information inserted into it. Then, at 12.07 pm, he sent an email to the Tribunal attaching the “payment details” section of the application form, which he had filled in.

7    This section of the form noted that “a fee is payable” and directed attention to a part of the form containing information about fees. It then asked “How will you pay your application fee” and provided four options: “cheque”, “money order”, “EFTPOS” and “credit card”. Underneath the last were spaces for filling in the “amount”, card details and the cardholder’s signature. The representative selected “credit card”, filled in his card details and signed the form. In the box marked “amount”, he wrote “$1,673” – the fee that had applied prior to it having been increased a few months earlier.

8    While the point was controversial in the Court below, it is now not in dispute that the correct application fee, at the relevant time, was $1,731. This was the Tribunal’s understanding at the time. The Tribunal was inclined to the view that the application was not valid, as the correct fee had not been paid before the expiry of the time allowed under s 347(1). It sought comment from the representative.

9    The representative responded on 29 December 2017, acknowledging that the correct fee had not been paid and providing payment details for an amount of $1,731. An officer in the Tribunal’s registry took the view that a payment of $1,731 could not be processed because the relevant shortfall was only $58. A further form was submitted on 12 January 2018 authorising payment of the latter amount.

10    However, on 28 February 2018 the Tribunal notified the appellant of its conclusion that his review application was invalid. Although this was described as a “decision”, it was (as discussed below) not an exercise of any decision-making power conferred on the Tribunal. Rather, it stated the Tribunal’s view that it had no jurisdiction to review the cancellation decision and thus provided the explanation for its refusal to carry out a review.

11    The issue that arises is whether or not the Tribunal’s conclusion was correct. The issue is jurisdictional, and therefore not something that the Tribunal could decide authoritatively. It fell for decision by the Court below and by this Court on appeal. If the correct conclusion is that the documents lodged on 27 November 2017 (or those documents together with the later payment) were sufficient to constitute an application in accordance with s 347(1), mandamus will lie to require the Tribunal to perform the duty imposed on it by s 348(1) of the Act to undertake a review.

12    The primary judge decided the issue adversely to the appellant and therefore dismissed the application for judicial review.

The proceedings below

13    The appellant filed an application for judicial review in the Federal Circuit Court of Australia (as it was then known) on 16 March 2018. He identified 26 February 2018 as the date of the relevant “migration decision”. Amongst other relief, he sought a writ of mandamus compelling the Tribunal to determine his application according to law. The grounds of review (as later amended) were as follows:

1.    The Administrative Appeals Tribunal “The Tribunal” erred in deciding that it has no jurisdiction to review the matter , the Tribunal decided that it has no jurisdiction because the prescribed fees was [sic] not paid within the prescribed time set by the legislation , however , the Tribunal asked for the remaining of the balance to be paid ,accordingly, the full fees were paid to the Tribunal , the Credit card details were provided to the Tribunal at the time of lodgement , the Tribunal erred in not considering the reasonableness of it [sic] decision (Pioneer Glass Pty Ltd v Minister for Immigration &Anor (2016) and Park & Anor v Minister for Immigration & Anor (2016).

2.    The term “prescribed fee” in s 437(1)(c) means the amount in reg 4.13(1), ie $1,540. It follows that the applicant tendered to the Tribunal more than the prescribed fee within the prescribed period.

3.    Even if the “prescribed fee” is the “fee in force” within the meaning of reg 4.13B(5), it is not evident that the fee in force in November 2017 was $1,731 as asserted by the Tribunal at CB 114. If the Minister is not able to prove to the court that the prescribed fee or fee in force in November 2017 was $1,731, then the Tribunal fell into jurisdictional error in assuming otherwise.

4.    Whether an application for review is “accompanied by the prescribed fee” within the meaning of s 347(1)(e) is a question of fact and degree. In the present matter, payment of 96.6% of the fee within the prescribed time and the balance within a reasonable time after being asked to do so is sufficient to satisfy the meaning of “accompanied by”.

5.    Section 347 upon its proper construction does not prevent the Tribunal from reviewing an MRT reviewable decision merely because the application for review, given to the Tribunal within the prescribed period, was not accompanied by the prescribed fee.

14    The matter was argued on 9 June 2022 and judgment delivered on 29 June 2022. The primary judge rejected each of the grounds of review.

15    Ground 1 amounted to a contention that payment of the full amount of the relevant fee was implicitly authorised by the appellant’s representative even though he had specified a different, lower, amount in the form. Her Honour regarded the relatively small difference between the amounts, and the consequences of reading the representative’s entries in the form according to their terms, as insufficient reasons to treat him as having implicitly authorised payment of a larger amount than that which he wrote on the form. An argument that the outcome was unfair, because the error had arisen from outdated information still being published on the internet, also appears to have been advanced. It is unclear how this assisted ground 1 and her Honour rejected it.

16    Ground 2 contended that the “prescribed fee” at the relevant time was in fact not $1,731, or even $1,673, but $1,540; so that the representative had actually authorised payment of a larger amount than was required. The argument was based on the construction of reg 4.13B of the Migration Regulations 1994 (Cth) (the Regulations). It was rejected by the primary judge and does not form part of the appeal. Its detail does not need to be set out here.

17    Ground 3 was described by the primary judge, with some understatement, as sitting “uncomfortably” with the onus borne by the appellant in the proceedings. Nevertheless, the Minister had adduced evidence of the process by which the amount of the prescribed fee had become $1,731 which her Honour accepted. The ground was therefore rejected and does not form part of the appeal.

18    Ground 4 contended for a degree of elasticity in the expression “accompanied by” in s 347(1)(c). Whether the requirement in that paragraph had been met was said to involve a question of fact and degree. It was stressed that 96.6% of the prescribed fee had been paid within the prescribed time and the balance within a reasonable time after being asked to do so. The primary judge regarded payment of part of the prescribed fee within the prescribed time (rather than “the prescribed fee”) as insufficient to distinguish the case from Dahi v Minister for Home Affairs [2019] FCA 784 (Dahi), where it was said (at [23]):

Whilst it can be accepted that there is some elasticity in the meaning of the words “accompanied by”, that elasticity is with respect to the payment of the fee before the expiration of the prescribed period. In other words, provided the fee is paid within the period by which an application must be made, the application is “accompanied by” payment of the prescribed fee. [Anand v Minister for Immigration and Citizenship [2013] FCA 1050; 215 FCR 562] does not advance the appellant’s case because it concerned a different statutory provision which did not contain a temporal limit by which the relevant evidence must be furnished.

19    Ground 5 contended, in effect, that s 347(1) does not require the prescribed fee to be paid before the end of the prescribed period as a necessary condition for an application to trigger the Tribunal’s obligation to conduct a review. It can be observed that that construction gives s 347(1)(c) a substantially greater degree of “elasticity” than was accepted in the passage from Dahi set out above. It was also, as the primary judge noted, contrary to the authority of Kirk v Minister for Immigration and Multicultural Affairs [1998] FCA 1174; 87 FCR 99 (Kirk), which was binding on her Honour.

The appeal

20    The grounds of appeal are as follows:

1.     The appellant contended in the Federal Circuit and Family Court of Australia (“FCFCA”) that the appellant’s agent, in completing Part I of the visa application form, “placed ... the Department in a position from which payment of the visa charge could be required by it ... from [the agent’s] credit provider”: Vumentala v Minister [2004] FCA 744 at [15]. The appellant contended that the Administrative Appeals Tribunal (“Tribunal”) erred in finding in its decision dated 26 February 2018 that it “does not have jurisdiction in this matter”. The FCFCA found at [22]-[28] of its decision dated 29 June 2022 that the Tribunal did not fall into jurisdictional error on this basis. The FCFCA erred in this aspect of its decision.

2.     The appellant contended in the FCFCA that whether an application for review is “accompanied by the prescribed fee” within the meaning of s 347(1)(c) of the Migration Act is a question of fact and degree and, in the present matter, payment of 96.6% of the fee within the prescribed time and the balance within a reasonable time after being asked to do so was sufficient to satisfy the meaning of “accompanied by”. The FCFCA found at [40]-[45] that the application was not accompanied by the prescribed fee in the present case. On the proper construction of s 347(1)(c), the FCFCA erred in this aspect of its decision.

3.     The appellant contended in the FCFCA that s 347 of the Migration Act, upon its proper construction, did not prevent the Tribunal from reviewing an MRT reviewable decision merely because the application for review, given to the Tribunal within the prescribed period, was not accompanied by the prescribed fee. The FCFCA found at [46]-[49] that this ground was unable to succeed. On the proper construction of s 347(1)(c), the FCFCA erred in this aspect of its decision.

Ground 1

21    Ground 1 covers the same ground as the first ground of review in the Court below. It is contended that the primary judge erred in rejecting the argument that the appellant’s representative had placed the Tribunal in a position from which payment of the application fee (ie, $1,731) could be required by it from the representative’s credit provider.

22    The argument appears to be that, by identifying “credit card” as the way he would pay the “application fee” (and then filling in the necessary card details and signing), the representative authorised payment from his credit card of whatever amount that “application fee” might be. Reliance is placed on Vumentala v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 744 (Vumentala), where Branson J held that an application charge should be regarded as having been paid if, by completing the relevant form, the payer put the recipient in a position where payment could be required by it, through its banker, from the payer’s credit provider (at [15]).

23    As Branson J went on to observe (at [16]), whether or not that has been done in a particular case is a question of fact. Depending on the circumstances, it may be a mixed question of fact and law involving issues concerning contractual relationships. Nothing said in Vumentala resolves the question in this case, as to whether the appellant’s representative armed the Tribunal with the necessary authority to obtain payment of the relevant amount from the representative’s credit provider.

24    To the extent that the answer depends on construction of the application form as completed by the representative, the reading proposed by the appellant is strained. The form allowed for four payment methods, two of which (cheque and money order) necessarily involve a specific dollar amount being specified by the payer – on the cheque and the money order, respectively. The third payment method (EFTPOS), which is stated to be available only for payments made in person, also involves a dollar amount being specified and an act by the payer which authorises the transfer of that amount. In all of these cases the transaction is effected separately from the form. It would be somewhat unusual if the fourth method (credit card) were intended to provide for payment of a sum which is unknown to the payer when the payment is effected. Thus, in the case of credit card payment (where the transaction is initiated by inserting details in the form itself), the form includes a space for the amount being paid to be specified. That space was filled in by the cardholder. The natural reading is that it was only the amount specified there ($1,673) that he was authorising the Tribunal to claim to be paid by his credit provider.

25    The question is not purely one of construction of a document. The appellant needed to prove, as a fact, that the Tribunal’s banker and the representative’s credit card provider were more likely than not to respond in a particular way to the instruction conveyed by the form. That depends on the understandings and practices of those entities and the contractual relationships between them and their respective clients. No evidence was adduced on these matters. In some cases (of which Vumentala was one), common experience of the behaviour of financial institutions may allow the inference to be drawn that an attempt to require payment from the credit provider would succeed. However, common experience is not a sufficient basis to find that, with the representative having specified $1,673 as the “amount” to be paid from his credit card, the Tribunal was authorised to demand – and the credit provider directed to pay – a larger amount.

26    The primary judge therefore did not err in rejecting the argument that the correct fee was paid on 27 November 2017. Ground 1 is rejected.

Grounds 2 and 3

27    These grounds raise interrelated issues and are dealt with together. Both concern the extent to which there is “elasticity” in the requirement of s 347(1)(c) that an application be “accompanied by” the prescribed fee and the point at which the requirement must be satisfied.

28    Ground 2 emphasises that an amount only slightly less than the prescribed fee was paid within the prescribed time, and the shortfall was made good within a reasonable time. It thus raises two questions: whether the prescribed fee is required to be paid within the prescribed period; and, if that is the effect of s 347(1)(c), whether payment of an amount only slightly less than the prescribed fee is sufficient. In oral submissions, counsel for the appellant disclaimed any “standalone” argument that s 347(1)(c) could be satisfied by payment of an amount less than the prescribed fee. However, he continued to rely on aspects of the written submissions that appeared to treat the payment of most of the fee within the prescribed time as a factor relevant to whether, as a matter of “fact and degree”, there had been compliance.

29    Ground 3 contends that it was simply not necessary for the fee to be paid within the prescribed time (or, it would seem, at all) in order to authorise the Tribunal to conduct a review of the cancellation decision. It relies on the “broader” of the two arguments advanced for the appellant in Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318; 109 FCR 364, which the Court in that case did not find it necessary to resolve (at [28]-[38], [49]).

30    Section 347 must be read with s 348. Section 348(1) provides that, if an application is “properly made” under s 347, the Tribunal must review the decision to which it relates. This indicates the sense in which s 347(1) uses the word “must”: that is, compliance with its requirements (as well as the other aspects of s 347) is necessary in order to trigger the duty of the Tribunal to conduct a review. Importantly, also, it is necessary in order to trigger the Tribunal’s power to review a decision, since the Tribunal has no function to perform in the absence of an effective application: Fahme v Minister for Home Affairs [2019] FCAFC 41; 268 FCR 394, [20]-[21] (Perram J, Rares and Farrell JJ agreeing). Thus, although it is not inapt to describe s 347(1) as “mandatory” when viewed from the review applicant’s perspective, it is more accurate to describe it as a “jurisdictional” provision applicable to the Tribunal (in that, absent compliance, there is no power or duty to review).

31    Paragraphs (a), (b) and (c) of s 347(1) form parts of a composite requirement, all introduced by the word “must” in the chapeau and all relating in the same way – textually at least – to the condition specified in s 348(1). Reading these provisions according to their terms, there is no basis to treat some but not all of them as jurisdictional in the sense mentioned above.

32    The task of statutory construction must begin and end with the text: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]. The text is always to be read in context, including in the light of such indications of the statute’s purpose as emerge from its structure and relevant extrinsic materials. However, regard is had to the context only in order to assist in fixing the meaning of the text. While regard may be had in choosing between competing interpretations to irrational or unjust results that flow from one or the other (eg Public Transport Commission v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336, 350), it is a mistake to begin with one’s own idea of the desirable policy and impute that to the legislature as a purpose of the statute or a particular provision: Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [26] (French CJ and Hayne J). The reverse is also true. To identify a result that one considers undesirable, and assume that the legislature intended to avoid it, risks error. Legislative purpose emerges from the statutory text itself, read in context (see eg Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47]; Lacey v Attorney-General (Qld) [2011] HCA 10; 242 CLR 573 (Lacey) at [44]). Thus, the conclusion that a particular consequence of a proposed construction is one that Parliament is unlikely to have intended (and therefore to be avoided) needs to be grounded in the text and structure of the statute, albeit the process may be assisted by common law and statutory rules of construction (Lacey at [44]).

33    Nothing in the context of s 347(1) requires it to be given a strained construction in which the words of the chapeau have different effect in relation to para (c) from that which they have in relation to para (b). The most that can be said is that making payment of a fee (of the magnitude currently prescribed in the Regulations) a prerequisite for review by the Tribunal tends to limit access to merits review, in relation to decisions that are likely to be personally very important to applicants. However, it is not to be assumed that wider availability of merits review is always Parliament’s purpose – especially in construing provisions whose central function is to define and limit the availability of such review. On the other hand, if payment of the prescribed fee were not a prerequisite for review, there would be no reason for anyone to pay the fee; and s 347(1)(c) would serve little if any purpose.

34    The proper understanding is that all of the requirements set out in s 347(1) must be satisfied in order for the Tribunal’s jurisdiction to be engaged. This conclusion requires the rejection of ground 3.

35    It will be noted that ss 347 and 348 use the word “application” in two senses (an observation that has been made in relation to other provisions in the Act: Nader v Minister for Immigration and Multicultural Affairs [2000] FCA 908; 101 FCR 352 at [54] (Hill J)). Section 347(1)(a), (2) and (3), and s 348(1), refer to the making of an “application”: an act or series of acts that have a legal consequence (requiring the Tribunal to conduct a review). In s 347(1)(b), however, the “application” is a physical thing that is “given” to the Tribunal. When the predecessor of s 347 (s 117) was inserted into the Act by the Migration Reform Act 1992 (Cth), that would usually have been done by lodging a paper form at an office of the Department. However, the language also accommodates transmitting an electronic form by email or via a website.

36    The term “accompanied by” in s 347(1)(c) also denotes a physical act or relationship. It does not make grammatical sense if para (c) is understood to be speaking about an “application” in the sense of an act with legal consequences. The paragraph is therefore to be understood as speaking of the “application” referred to in para (b). Thus, the physical application form (whether on paper or in the form of digital information transmitted electronically) needs to be “accompanied by” the prescribed fee in order to achieve the proper making of an “application” for the purposes of s 348(1).

37    Whatever is the precise content of “accompanied by”, it is clear that what must accompany the application is the prescribed fee. It is difficult to see how a requirement to pay a prescribed amount could be taken to be satisfied by the payment of some lesser amount, at least in a case where the provisions for waiver or reduction of the fee (see s 504(1)(b) of the Act and reg 4.13(4) of the Regulations) have not been invoked. It was not sufficient, in order for the appellant’s application to be “properly made”, for his application form to be accompanied by a sum of money that was less than the prescribed fee.

38    Thus, the second question raised by ground 2 is to be answered negatively. That is to say, if payment of the fee within the prescribed time was a condition of the Tribunal’s jurisdiction, it does not matter that a smaller—even a slightly smaller—amount was paid within that time. Nor does it matter how soon after the prescribed time the shortfall was made good. Ground 2 can succeed only if the first question that it raises (ie, whether s 347(1) requires the fee to be paid within the prescribed period) is answered favourably to the appellant.

39    Clearly enough, s 347(1)(c) does not include a reference to the prescribed period. It would not have been difficult to draft a provision expressly requiring both that the application form be given to the Tribunal, and that the fee be paid, within that period. However, that point can nearly always be made where the correct construction of a provision is contested, and does not take the matter very far.

40    In support of the construction contended for by the appellant, it must be accepted that it is not unknown in the case law surrounding the Act for an application form to be lodged but the application to remain “inchoate” (that is, not yet engaging any decision-making power) unless and until it is perfected by the provision of some further material: see, eg, Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; 100 FCR 495 (Yilmaz) at [19]-[21] (Spender J), [72] (Gyles J). That approach could be applied to s 347(1) and 348(1), so as to accommodate a construction that did not require the fee to be paid within the prescribed period: the requirements for an application to be “properly made” (and thus engage the Tribunal’s jurisdiction) would be (i) lodgement of the application form within the prescribed period, and (ii) payment of the prescribed fee either within that period or later. (Beyond that, however, Yilmaz and the line of cases of which it forms part do not assist the construction of ss 347 and 348. In so far as those cases concerned the scope for an incomplete application to be perfected they considered s 46 of the Act, which is in quite different terms and does not involve any prescribed period for making an application.)

41    The argument for construing s 347(1) in a way that does not require para (c) to be satisfied before the end of the prescribed period rests in large part on the potential for the contrary construction to lead to unfortunate and potentially unfair outcomes in cases such as the present one. A requirement for the fee to be paid by an inflexible deadline creates significant potential for people to be deprived of merits review as a result of mistakes or accidents such as relying on outdated information as to the amount of the fee (as occurred here), a credit card being too close to its limit or a sudden loss of internet access. Of course those risks can be reduced by not leaving payment until the last available day; however, that may be easier said than done where the prescribed period is only seven days from notification of the decision. The difficulty with this argument, however, is that, in the light of the authorities referred to at [32] above, observations about the undesirability of these outcomes do not translate in any orthodox way into a proposition about legislative intention. Read together, ss 347 and 348 confer a right to merits review and draw boundaries around its availability. As part of that regime, s 347(1) imposes a deadline for a review application to be made (together with a requirement for payment of a fee) and delegates power to the Executive, within limits, to determine what the deadline is to be. No provision is made for extensions of time. The provisions thus impose hard (and potentially very short) deadlines, despite the harsh results that they can have in individual cases. A proposition that the Parliament could not have intended such results to arise thus finds no foundation in the statutory text and structure.

42    There are statements in some migration cases that suggest a degree of flexibility or “elasticity” in the expression “accompanied by”: Anand v Minister for Immigration and Citizenship [2013] FCA 1050; 215 FCR 562 (Anand) at [27] (Katzmann J); Dahi at [23].

43    Anand concerned a criterion for the grant of a visa that required the visa application to be “accompanied by evidence” that the applicant had applied for a certificate from the Australian Federal Police (AFP). The criterion was underneath a heading indicating that it needed to be satisfied at the time of the application. Satisfaction of the criterion was not a jurisdictional requirement, but a matter for determination by the decision-maker. The appellant did not supply the relevant evidence with his application, or in response to an inquiry from the Department some months later. Two days after the delegate’s decision was made, his representative emailed to the Department a copy of the certificate, which he said had been sent to the Department by post some time earlier. The Tribunal found that the criterion was not satisfied.

44    Katzmann J accepted that it would not be inconsistent with the purpose reflected in the criterion for the necessary evidence to be supplied soon after the application was lodged, and considered that the Tribunal and the Federal Magistrates Court had construed the criterion too narrowly. Her Honour continued (at [28]):

For the above reasons I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged. Still, there must be some temporal connection with the application. Evidence supplied around the time of the application may be sufficient. I doubt, for example, if the accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that. Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made. Language cannot be stretched so far that it snaps (cf Wielgus v Removal Review Authority [1994] 1 NZLR 73 at 79).

45    Her Honour’s conclusion that there was some elasticity in the expression “accompanied by” was thus strictly obiter. It may be that the relevant elasticity or flexibility is better understood to lie in the reference to the “time of application” in the heading above the criterion. Be that as it may, for present purposes Anand does not establish anything more than that the exact meaning and operation of “accompanied by” depends on context.

46    Dahi was a case about s 347(1). The appellant was unrepresented when he submitted his review application, and appears to have mistakenly used a form intended for a category of applicants for whom no fee was payable. It was only after the prescribed period had ended that the Tribunal noted that no fee had been paid.

47    Davies J was referred to the observations in Anand but did not find them helpful. She rejected a submission that, in the circumstances, s 347(1)(c) should be taken to have been satisfied. Her Honour’s observations at [23] have been set out at [18] above.

48    Dahi thus stands against the appellant’s position. So too does Kirk, which dealt with a provision in relevantly identical terms to s 347(1) and which Davies J applied in Dahi. The question was left open by the Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 45; 284 FCR 62 at [98] (Charlesworth and Jackson JJ (Burley J did not canvass the point but agreed with the orders proposed by their Honours)).

49    In the end, the answer to the present question probably does not lie in the words “accompanied by”. That expression can be accepted to have some flexibility in that it does not require the application form and the prescribed fee to arrive at the Tribunal’s offices in the same envelope, attached to the same email or otherwise at the same moment. If the Tribunal is simultaneously in possession of the form and the funds (or the means of obtaining the funds from a credit provider, as in Vumentala), and made aware of the connection between the two, they can properly be said to “accompany” each other. The question is whether, in order to satisfy s 347(1), that state of affairs needs to exist before the expiry of the “prescribed period”.

50    That question should be answered affirmatively, and Kirk and Dahi should be regarded as correctly decided, for the following reasons.

51    First, as noted earlier, the three paragraphs of s 347(1) form part of a composite criterion and should be read together. There is a clear interaction between paras (a) and (b), in that what must be “given” to the Tribunal (within a specified time) is the application embodied in the “approved form”. There is also an interaction between these paragraphs and para (c), in that the prescribed fee and the application given to the Tribunal need to “accompany” each other. Implicitly at least, that accompaniment must happen either when the application form is given to the Tribunal or soon afterwards, when both are in the Tribunal’s possession: co-location at an earlier time (and in someone else’s possession) is irrelevant. The three paragraphs thus inform each other to some extent. Given these interactions, it is at least open to read the temporal stipulation in para (b) as applicable to the subsection as a whole.

52    Secondly, the contrary view is inimical to certainty of operation and involves consequences tending to undermine the orderly administration of the Act. On the understanding that all of the elements of s 347(1) go to the Tribunal’s jurisdiction, a construction that allows para (c) to be satisfied at some unspecified time after the end of the prescribed period means that an “inchoate” application (to use the language of Spender J in Yilmaz) could remain on the Tribunal’s files for an indeterminate period after the expiry of the prescribed period. The Tribunal’s decision-making power would not be engaged while the fee remained unpaid; nor would any of its procedural or information-gathering powers under Part 5 of the Act. Further, if s 347(1)(c) is uncoupled from the temporal element expressed in para (b), it is difficult to see any basis for implying a requirement that payment be made within a reasonable time. An application might therefore be perfected, so as to commence the Tribunal’s review, months or even years after the expiry of the prescribed period. The application might never be perfected, but the Tribunal would not be able to send the papers back and treat the case as closed. These consequences are not unmanageable, but they are incongruous. They are incompatible with a legislative intention to establish a merits review regime that deals quickly and efficiently with issues genuinely in dispute, while allowing decisions that are not challenged within defined time limits to be regarded as settled. Such an intention is reflected in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth), which sets out the objective of the Tribunal, and implicit in the provisions for time limits and fees in s 347. A construction that is at odds with that intention is to be avoided if possible.

53    The appellant sought to avoid the potential incongruities mentioned in the previous paragraph by proposing that the Tribunal would contact the review applicant in relation to the unpaid fee, allow an appropriate time for payment to be made, and then at some stage (if no payment was made) “decide” that it did not have jurisdiction to conduct a review. That submission, however, misses the fundamental point that the Tribunal cannot authoritatively determine issues going to its own jurisdiction (see eg Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [127] (Gummow J)). Whether an application is “properly made” for the purposes of s 348(1) depends on the application of s 347 to the events that have occurred, not on any opinion formed or discretion exercised by the Tribunal. There is no scope for action by the Tribunal to overcome the consequences of the appellant’s construction mentioned in the previous paragraph.

54    For these reasons, subject to one qualification which does not affect the present case, the preferable construction of s 347(1) is that it requires both lodgement of an application (in the approved form) and payment of the prescribed fee to occur within the prescribed period.

55    The qualification is that, in Braganza at [51]-[55], this Court accepted that s 347(1) did not require the prescribed fee to have been paid within the prescribed period if an application for waiver of the fee, under reg 4.13 of the Regulations as it then stood, was made within that time. Regulation 4.13 has since been amended and now provides for the Registrar of the Tribunal to reduce the applicable fee by 50% rather than for outright waiver. Dispensation of that kind was not sought in the present case, and no issue therefore arose as to the correctness of Braganza or its applicability to the current provisions.

56    Ground 2 in the Notice of Appeal must therefore also be rejected.

Disposition

57    The appeal must therefore be dismissed. Costs should follow the event.

Associate:

Dated:    28 February 2023

REASONS FOR JUDGMENT

STEWART J:

58    I have had the considerable advantage of reading the reasons of Thawley and Kennett JJ in draft. I agree with those reasons and the orders that their Honours propose. I wish to add one observation.

59    It was not part of the appellant’s case that the application form in which the erroneous amount for the payable fee was recorded should be, or should be regarded as (as to which, see Hamed el Chiaty & Co (t/a Travco Nile Cruise Lines) v Thomas Cook Group Ltd (The Nile Rhapsody) [1994] 1 Lloyd’s Rep 382, CA), rectified to correct the error. Had such a case been advanced, and had the facts of the case as might then have been presented and examined supported such rectification, it may have had the effect that payment was within time because rectification acts retrospectively; it relates back to the time at which the document was executed: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 76 NSWLR 603 at [644] per Campbell JA, Allsop P and Giles JA agreeing; Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21; 47 WAR 547 at [168] per Buss JA, McLure P and Newnes JA agreeing.

60    As mentioned, the possibility of rectification was not canvassed and I express no view on whether, if the facts supported the document being rectified, payment would under the statutory scheme have been regarded as being within the prescribed time period. The only point that I make is that in a future case dealing with whether a payment was made within time, the facts with regard to the payment, including the terms of the contractual relationships underpinning the system of payment by credit card, may be a fruitful area of inquiry. In that regard, see In re Charge Card Services Ltd [1989] Ch 497 (CA) at 509 and Tyree AL, “Payment by credit card” (2004) 15 JBFLP 221 and the cases discussed there.

Associate:

Dated:    28 February 2023