FEDERAL COURT OF AUSTRALIA

Braganza v Minister for Immigration and Multicultural Affairs [2001] FCA 318

MIGRATION – application for review to Migration Review Tribunal – requirement in s 347(1)(c) of the Migration Act 1958 (Cth) that application for review be accompanied by prescribed fee (if any) – application to waive prescribed fee lodged within prescribed period – waiver rejected after expiration of prescribed period - whether failure to pay prescribed fee within prescribed period renders application for review incompetent - whether primary judge erred in holding that late payment of fee necessarily precluded Tribunal from reviewing decision of Minister’s delegate.

STATUTORY INTERPRETATION – whether purpose of Act that an act done in breach of provisions should be invalid – regard to be had to scope and object of whole statute – presumption that “absurd” result not intended – provision not to be construed so as to produce unworkable or impracticable result.

WORDS AND PHRASES – “accompanied by”; “if any”; “is properly made”; “no fee is payable”; “should not be paid”.

Migration Act 1958 (Cth) ss 347(1), 348, 504(1)(b)

Migration Regulations 1994 (Cth) reg 4.13(2), (4)

Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 distinguished

Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446 considered

Coung Van Nguyen v Gerkens (unreported, 8 October 1996) referred to

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391 considered

Hatton v Beaumont [1977] 2 NSWLR 211 considered

Wielgus v Removal Review Authority [1994] 1 NZLR 73 referred to

Helman v Byron Shire Council (1995) 87 LGERA 349 applied

PETER BRAGANZA V MINSTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N791 OF 2000

WILCOX, WEINBERG AND STONE JJ

28 MARCH 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be allowed and the orders of the primary judge set aside.

2.                  The matter be remitted to the Migration Review Tribunal to be determined according to law.

3.                  The respondent pay the appellant’s costs of the appeal and of the proceeding before the primary judge.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     This is an appeal from an order of a judge of the Court dismissing an application for judicial review of three decisions.  The appeal challenges the decision of the primary judge in relation to only one of those decisions: that the appellant’s failure to pay to the Migration Review Tribunal (“the MRT”), within the prescribed period, the prescribed application fee of $1,400, in accordance with s 347 of Migration Act 1958 (Cth) (“the Act”), invalidated his application for MRT review of a decision by a delegate of the Minister. 

Background facts

2                     The appellant is a citizen of India.  Since 1993 he has resided in New Zealand.  He arrived lawfully in Australia and on 5 November 1998 applied for a visa class AO Family (Residence) subclass 806. 

3                     The applicable criteria at the relevant time for such a visa were as follows:

“At the time of application the applicant is an aged dependent relative, an orphan relative, a remaining relative or a special need relative of another person who:

(a)       is a settled Australian citizen, a settled Australian permanent resident or a settled eligible New Zealand citizen; and

(b)       is usually resident in Australia; and

(c)        has nominated the applicant for the grant of the visa.”

4                     Regulation 1.03 of the Migration Regulations 1994 (Cth) (“the Regulations”) defined “settled” in relation to an Australian permanent resident to mean “lawfully resident in Australia for a reasonable period”.

5                     In his application for a visa, the appellant claimed to be a special need relative in relation to his sister, Mrs Jeanne Fernandes, who is an Australian permanent resident. According to the information provided by the appellant, his sister needed assistance in looking after their mother, a visitor to this country, who was extremely ill. 

6                     A delegate of the Minister refused the application.  He notified his decision in a letter to the appellant dated 20 September 1999.  He enclosed with the letter a copy of his reasons for decision.  The appellant received the letter on or about 27 September 1999.

7                     After receiving the decision, the appellant made enquiries of the MRT as to how he should apply to have the decision reviewed.  He was sent a review application form and a form to complete should he wish to seek a waiver of the fee prescribed for an application for MRT review.  The fee waiver form relevantly states:

“The fee for making an application for review to the Migration Review Tribunal may be waived if payment of the fee would cause the review applicant severe financial hardship.

A fee waiver may be requested when making an application for review, or a refund of the application fee may be sought at a later date.  It is important to note that an application for review is not valid unless the fee has been paid within the relevant time limit or payment of the fee has been waived.

It is strongly recommended that requests for fee waivers be made well before the time limit for lodging an application for review expires.  If the end of the time limit is approaching, it is strongly recommended that consideration be given to paying the fee.  A decision on a fee waiver can be made after the time limit expires and any fee paid can be refunded.  However, an application for review will not be valid where a fee waiver is not granted and the fee was not paid within the time limit.” (emphasis shown appears on the form)

8                     The appellant completed both forms on 7 October 1999 and returned them to the MRT.  The MRT received the forms on 11 October 1999.

9                     In a letter dated 14 October 1999, and received by the appellant at about 5pm on 18 October 1999, he was notified that his application for waiver of the $1,400 application fee had been rejected.  So far as is relevant, the letter read as follows:

“After carefully considering all available information, including the information you provided in support of your request, I am of the opinion that payment of the fee will not cause you severe financial hardship.

The reasons for my decision are as follows:

·        You seek to remain in Australia as the “special need relative” of your sister, Ms Jeanne Fernandes.  It is therefore reasonable to consider her financial situation in relation to your fee waiver request.  From the information you have provided, it appears that your nominator, Mrs Fernandes, could assist you with the review fee.

·        Ms Fernandes and her spouse are currently in paid employment.  In August 1999, they had $6300.80 in a cash management account and $8001.67 in a fixed term deposit.  At the end of September 1999, Ms Fernandes also had $5589.41 in a savings account.

Accordingly, for your application for review to proceed you must now pay the $1,400 application for review fee before the time limit expires.  If you fail to pay the fee within the time limit, your application for review will not be valid.  The fee can be paid by cash, cheque or money order at the New South Wales office of the Tribunal.” (original emphasis)

10                  On receiving the notification, the appellant telephoned the MRT and spoke to an officer there, Ms Green.  According to the appellant, Ms Green said to him: “Don’t worry, you still have one week from today” to pay the fee.  She also told him that he should ask for the decision rejecting his request for a waiver of the fee to be reconsidered, and an extension of time to pay the fee.  It appears the appellant acted on that advice.  He sent a letter to the MRT on 19 October 1999 seeking both reconsideration of the decision and an extension of time.

11                  On 25 October 1999 the MRT wrote to the appellant rejecting his application for reconsideration and informing him that, as the fee had not been paid within the prescribed time, his application for review was not valid and had been “finalised as ineligible”.

12                  On 26 October 1999, prior to the appellant having received notification of the MRT’s decision of the previous day, the appellant paid the prescribed fee.  The appellant did not learn of the fact that his application for reconsideration had been rejected until 29 October 1999 when he received the MRT’s letter of 25 October 1999.

The primary judge’s decision

13                  The primary judge dismissed the application to review the decision of the MRT that the application for review was invalid.  In doing so his Honour followed Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99, in which Lehane J held that the requirements of what is now s 347 of the Act, for both lodgment of an application for review and payment within the prescribed time, were mandatory, and that failure to fulfil those requirements necessarily resulted in the MRT lacking jurisdiction to entertain the review.

14                  Section 347(1) is in the following terms:

“(1)     An application for review of an MRT-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 MRT-reviewable decision is covered by subsection 338(2), (3) or (4) – 28 days after the notification of the decision; or

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

(iii)             if the MRT-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).”

15                  Section 348 provides:

“(1) Subject to subsection (2), if an application is properly made under section 347 for review of an MRT-reviewable decision, the Tribunal must review the decision.

(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under section 339.”

The present is not a case to which s 339 would apply.

16                  In Kirk, the facts were as follows.  The applicant had been refused a particular visa.  He sought review of that decision by the Secretary of the Department of Immigration and Multicultural Affairs.  His solicitor, within the prescribed period, sent to the Department of Immigration and Multicultural Affairs an application for review, together with a cheque for the application fee which was drawn on the solicitor’s trust account.  The cheque was dishonoured.  On being informed of that fact, the solicitor delivered another cheque to the Department.  However, this occurred after the expiration of the 28-day period prescribed for applications for review.  Lehane J held that a cheque is to be treated as paid on the date that it is given, but only if it is met on presentation.  A dishonoured cheque does not constitute a valid payment.  Consequently, the fee did not “accompany” the application. 

17                  Lehane J said at 102:

“Once it is seen that it is essential to give the application to the Secretary within the prescribed period, it must be concluded, in my view, that it is equally essential that the application ‘be accompanied by the prescribed fee (if any)’.  The requirement that the application be ‘accompanied’ by the prescribed fee must mean, at least, that that fee is to be paid before the end of the period within which the application must be ‘given’: similar words were so construed by the High Court of New Zealand (Fisher J) in Wielgus v Removal Review Authority [1994] 1 NZLR 73.  Fisher J held also that the requirement that an appeal be ‘accompanied by the prescribed fee’ meant that, if an appeal were validly to be brought, both the notice of appeal must be lodged and the fee must be paid within the period provided for lodgment of the notice.  In the present context, where s 339(1) [now s 347(1)] provides that each step ‘must’ be taken, both (giving effect to the word ‘accompanied’) within the prescribed period, there is no ground to conclude that one requirement is any less essential than the other in order to invoke the jurisdiction to review.”

18                  Although the issue was not raised in Kirk, Lehane J referred to the circumstances which prevailed where an application was made to the Minister to waive the prescribed application fee.  At the time Kirk was decided the relevant regulation pursuant to which such an application could be made was reg 4.04(3) of the Regulations.  Lehane J said at 102-103:

“…that limited power to waive the fee, given by the Regulations, does not affect the mandatory requirements of s 339(1).  Of course, those mandatory requirements apply only where a fee is payable (“the prescribed fee (if any)”).  Thus if, before the expiry of the time for giving a review application to the Secretary, the Secretary has already made a determination under reg 4.04(3), no payment need be made.  Unless and until a determination is made, however, the prescribed fee is payable, so that if an applicant for review has applied for a determination under reg 4.04(3) but the Secretary has made no determination before the expiry of the prescribed period, it is probably necessary for the applicant to pay the fee, relying on the prospect of a refund should the Secretary make a favourable determination.”

19                  In the course of his reasoning, Lehane J referred to Tabet v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 446.  In that case the applicant, after making an application for a visa, changed her address without having notified the respondent.  She arranged with Australia Post for her mail to be redirected, but a letter dated 5 December 1996 notifying her of the fact that her application had been refused was held by the post office for a month with the result that she did not receive the letter until 10 January 1997.  She applied on 13 January 1997 for review of the decision.  The respondent contended that by reason of the operation of reg 5.03(2) the visa refusal decision was taken to have been received by the applicant seven days after it was sent, which was 12 December 1996.  The time within which to seek review therefore expired 28 days after that date, namely on 9 January 1997.  The application for review made on 13 January 1997 was therefore brought out of time. 

20                  In dismissing the application for review in Tabet, Mansfield J followed an earlier decision of Ryan J in Coung Van Nguyen v Gerkens (unreported, 8 October 1996), in which Ryan J observed at pages 9-10:

“…in each case the right to review the decision complained of is a creature of statute. Had it been intended to confer on the Court a discretion to extend time within which to appeal from a decision of the Tribunal, a drafting formula was readily at hand…. If a statute conditions a right upon compliance with some time limit or other mandatory requirement, a Court cannot remove that fetter by pointing to a policy consideration which it perceives would be better effectuated were the mandatory requirement not imposed…”

21                  Mansfield J concluded at 455 that the application must be dismissed given “the clear words of the relevant provisions, and other decisions”.  His Honour observed, nonetheless:

“I do so recognising the hardship to the applicant which the construction of the relevant provisions produces in the particular circumstances, and especially so where it is common ground that it was the error of Australia Post which, at least to some extent, has caused that hardship.”

22                  Returning to the present case, it was submitted before the primary judge on behalf of the appellant that Kirk could be distinguished on its facts.  It was submitted that, although the time limit specified in s 347 was mandatory in respect of an application which was accompanied by the prescribed fee, it was inapplicable in circumstances where the application was lodged together with an application to have that fee waived.  The primary judge rejected that submission upon the basis that the language of ss 347 and 348 did not allow for such an interpretation.  His Honour observed at par 28:

“The legislation contemplates that, whether or not an application for waiver of a fee is made, the fee has to be paid within the prescribed time.  If an application to waive the fee is made, [reg 4.14(1)(c)] of the Migration Regulations 1994 provides that any fee paid in connection with the application for review is to be refunded where the waiver is granted.  Thus reg 4.13 recognises the intention manifest in the mandatory language of the Act that, should a prescribed fee be payable (and that will be the case where an application for waiver has been rejected), payment must be made within the prescribed time.  Failure so to do brings about the result that the Tribunal lacks jurisdiction to entertain a review.”

23                  It was also submitted before the primary judge on behalf of the appellant that the Minister was estopped from denying that the appellant was entitled to have the payment of the fee treated as having been made within time.  The basis of that submission was the representation made by Ms Green that, even if the fee was not waived, the appellant had until 26 October 1999 to pay it.  It was submitted that, acting in accordance with that advice, he had paid the fee on that date.  The primary judge concluded that the evidence did not found any estoppel.  That finding is not challenged in this appeal.

24                  Finally, it was submitted before the primary judge that the MRT had erred in taking into account the financial situation of the appellant’s sister and her family when determining that the appellant would not suffer serious financial hardship in paying the fee.  His Honour rejected that submission.  That finding too is not now challenged.

The appellant’s contentions

25                  The only ground of appeal pressed in the submissions to this Court is that Kirk was wrongly decided, and that, as a result, the primary judge’s conclusion regarding the consequences of failure to comply with s 347 was also erroneous. 

26                  Dr John Griffiths, who appeared on behalf of the appellant on a pro bono basis, submitted that s 347, upon its proper construction, did not prevent the Tribunal from reviewing an MRT-reviewable decision merely because the application for review, which was made in the approved form, and which was given to the MRT within the prescribed period, was not accompanied by the prescribed fee.  He submitted that, although a failure to comply with the requirements of ss 347(a) or (b) would have that effect, a failure to comply with s 347(c) (within the prescribed period) would not. 

27                  Dr Griffiths put his case on two separate bases.  He submitted firstly that, provided the prescribed fee was paid prior to the time fixed for the hearing of the review, there was no impediment to the MRT proceeding to determine the application.  Alternatively, he contended that, provided the applicant sought a waiver of the prescribed fee within the prescribed period, the MRT could hear the matter, even if the waiver was refused after the expiration of the prescribed period but the prescribed fee was paid within a reasonable time thereafter. 

28                  In support of his first and broader submission, Dr Griffiths contended that the primary judge erred in principle; he had failed to undertake the task of construing s 347 in accordance with the approach laid down by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391.  There McHugh, Gummow, Kirby and Hayne JJ criticised the continuing use of the “elusive distinction between directory and mandatory requirements”.  Their Honours approved, as “the better test” for determining the issue of validity, the approach which New South Wales courts had taken in recent years, namely:

“…whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid…. In determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute.”

29                  Dr Griffiths submitted that, although the mandatory/directory distinction arose for consideration in Project Blue Sky in the context of the exercise by a public authority of a statutory power in breach of a condition, rather than in the context of the necessity for compliance with a procedural requirement, there was no reason to doubt that their Honours’ comments concerning the mandatory/directory distinction were of general application.  He submitted it was significant that several of the New South Wales cases cited with approval by their Honours in Project Blue Sky, as identifying and applying “the better test”, were “procedural requirement” cases, for example Tasker v Fullwood [1978] 1 NSWLR 20; Hatton v Beaumont [1977] 2 NSWLR 211; and National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400.

30                  Dr Griffiths referred to the following passage in Project Blue Sky at 390:

“The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds.  The classification is the end of the enquiry, not the beginning.  That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory, and, if directory, whether there has been substantial compliance with the provision.”

31                  Dr Griffiths submitted that the primary judge’s attention had apparently not been drawn to Project Blue Sky and its approval of “the better test” as applied in New South Wales.  He said the same was true of the judgment of Lehane J in Kirk.  Dr Griffiths also asserted the primary judge in the present case had focused exclusively upon the question whether s 347(1)(c) imposed a mandatory, rather than a directory, requirement.  Having concluded that the requirement was mandatory, his Honour had assumed that non-compliance invalidated the application for review. 

32                  Dr Griffiths challenged the primary judge’s finding that the requirement in s 347(1)(c) was mandatory.  He submitted that his Honour had been unduly influenced by the use of the word “must” in the opening line of s 347(1).  He submitted that the use of that word was a relevant but not determinative consideration.  He referred to the observations of Hope JA in Hatton v Beaumont at 215:

“…although the language used in the statute or subordinate legislation must always be considered, most of the cases concerned with the distinction between mandatory and directory provisions have been cases where the language has not resolved the question.  Although the statute uses the words ‘shall’, or appears to require the fulfilment of some condition, it does not say expressly what is to happen if the requirements are not complied with.  In order to decide whether ‘nullification’ is to be implied, the courts have looked to the scope and object of the statute and in so doing have considered, inter alia, the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the legislation.”

33                  Dr Griffiths noted that the decision of the New South Wales Court of Appeal in Hatton v Beaumont had been upheld by the High Court - see Hatton v Beaumont (1978) 20 ALR 314 at 319 where Jacobs J, with whom Gibbs ACJ, Stephen and Aickin JJ agreed, referred to the reasons of Hope JA with approval. 

34                  Dr Griffiths submitted that the primary judge had also failed to appreciate the significance of s 348.  Section 348(1) provides that the MRT is obliged to review an MRT-reviewable decision “if an application is properly made under s 347 for review”.  Section 348(2) provides that the MRT is prohibited from reviewing, or continuing to review, a decision in one specified circumstance only, namely where the Minister has issued a conclusive certificate under s 339.  Section 348 is silent as to the effect of a failure to comply in a timely manner with s 347(1)(c).  That was said to be in stark contrast with the provisions which were considered in Wielgus v Removal Review Authority, referred to in Kirk.  The legislation there relevant expressly provided that the review body must not consider an appeal unless, inter alia, the notice of appeal was accompanied by the prescribed fee.  It was submitted that the Commonwealth legislature could have adopted that approach, but had conspicuously failed to do so.

35                  Dr Griffiths invited this Court to have regard to the scope and object of s 347(1)(c), as well as the Act as a whole.  He submitted that the primary judge ought to have had regard to the importance of timely payment of the prescribed fee to the entire legislative scheme, and to the relationship between that requirement and the general objects intended to be served by the Act.  That approach, he submitted, might mean that different consequences would flow from a failure to comply with different procedural requirements, notwithstanding the fact that each of those requirements was prefaced by the word “must”.  Thus in Hatton v Beaumont it was held that the requirement in reg 14(a) of the Liquor Act Regulations (NSW) that an appellant “shall” lodge a notice of intention to appeal within 21 days of the date of adjudication was mandatory, but the requirement in reg 14(e) that an appellant “shall” within 7 days of lodging his appeal pay a deposit of $20.00 or give a recognisance in that amount was not mandatory. 

36                  Dr Griffiths submitted that it is one thing to conclude that an appeal is invalid if the appellant fails to give notice of intention to appeal within a prescribed period – that reflects the legislature’s evident concern that migration appeals be brought promptly.  It is quite another thing to say that an appeal is invalid if the appellant fails to pay a fee within the stipulated period – that requirement serves a different purpose.  The purpose was explained in the Second Reading Speech to the Migration Legislation Amendment Act 1989 (Cth) which made provision, for the first time, for the making of regulations to permit the charging and recovery of fees for review applications.  The then Minister said that the new provision for the charging of fees was intended to implement what he described as the “user pays principle”.  Dr Griffiths submitted that payment of a prescribed fee within the prescribed time for lodging an application for review was not essential to give effect to that principle, provided only that the fee was paid before the review was conducted.  He referred to the observation of Hope JA in Hatton v Beaumont at 223 to the effect that the importance of timely compliance with the requirement of a deposit – which Dr Griffiths said was a requirement of the type contained in s 347(1)(c) - “to the appeals procedure, to the interests of the respondent or to the Licensing Court is small indeed”. 

37                  Dr Griffiths also referred to the Second Reading Speech to the Migration Reform Act 1992 (Cth), which introduced s 117(1)(c) into the Act, that being the statutory precursor to s 347(1)(c).  He submitted that it was evident from that speech that a central purpose of the new provisions, in both the 1989 and 1992 amendments, was to establish a system of review of migration decisions which was independent, fair, economical, informal and quick.  The legislative reforms were said to constitute “an enhanced scheme of independent merits review” and to broaden review rights for visa applicants.  He submitted that, in the light of such statements of purpose, the scope of the review regimes established by those Acts would be unduly restricted if non-timely compliance with fee requirements were permitted to nullify an otherwise valid review application. 

38                  Finally Dr Griffiths submitted that to attribute to the legislature an intention to nullify review for late payment of fees would sit uncomfortably with the fact that the legislature itself must have contemplated the possibility of late payment of fees when it enacted s 504(1)(b) of the Act, empowering the making of regulations concerning “the remission, refund or waiver of fees”.  Regulations have been promulgated in accordance with this provision – see reg 4.13 of the Regulations.  Dr Griffiths submitted it would have been obvious to the legislature that the processing of applications for waiver of fees would inevitably take up some, if not all, of what is a relatively short prescribed period.  He submitted that the fact that Mr Braganza was given advice in the letter of 14 October 1999 to lodge the prescribed fee within the prescribed period, even though he might have an application for waiver pending, could not bear upon the proper construction of s 347(1)(c). 

39                  In support of his second and narrower submission, Dr Griffiths contended that s 347(1)(c) should be construed in the context of the Act as a whole, and in light of the fact that the legislature had made express provision, in s 504(1)(b), for the making of regulations governing waiver of fees.  He submitted that, when it enacted s 504(1)(b), the legislature must have recognised that it might not be possible in every case for the MRT to determine an application for waiver within the prescribed period.  He submitted that s 347(1)(c) should be construed in a manner which recognised that fact, provided that the language of the section was open to that construction.

40                  Dr Griffiths submitted that s 347(1)(c) could be so construed without doing violence to its terms.  He submitted that the construction for which he contended was justified by the words in brackets “if any” in that paragraph .  These words allowed for the possibility that, within the prescribed period, there would be an application lodged with the MRT to waive fees which could not be determined immediately, and which might only be determined after the expiration of that period.  Whether or not that occurred was a matter entirely outside the control of the applicant. 

41                  Dr Griffiths submitted that, in construing the words of a statute, “the grammatical and ordinary sense of the words is to be adhered, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest” of the Act - Grey v Pearson (1857) 6 HLC 61 at 106 per Lord Wensleydale; see also Australian Boot Trade Employes’ Federation v Whybrow & Co (1910) 11 CLR 311 at 341-342 per Higgins J; and Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 371 per Dixon J.  To construe s 347(1)(c) as the primary judge had done would produce just such an inconsistency, since the legislature could hardly have intended to confer upon an applicant a right to seek a waiver of fees which was incapable, in any practical sense, of being exercised.  It was said to be highly unlikely that the legislature had intended that an impecunious applicant seeking review of an MRT-reviewable decision should be denied the right to that review unless he or she somehow procured the not insubstantial sum of $1,400, and paid it to the MRT within the prescribed period.  It was also unlikely that the legislature intended that an application to the MRT for waiver of the fee, because it had caused or was likely to cause “severe financial hardship”, should itself be accompanied by the fee which the applicant claimed not to be able to pay.  It would be of little solace to an applicant in that position to be told that he or she might recover the fee later, if the waiver were granted.

42                  Finally, Dr Griffiths referred to s 15AA of the Acts Interpretation Act 1901 (Cth) and submitted that the construction for which he contended promoted the underlying purpose or object of the Act and was therefore to be preferred to one which did not.

The respondent’s submissions

43                  Mr G T Johnson, senior counsel for the respondent, submitted that the word “must” in s 347(1) meant precisely what it said.  He submitted there was no warrant for reading the requirements of s 347(1)(a) and (b) as being “imperative” or “invalidatory” (what might once have been described as mandatory) while treating the requirements of s 347(1)(c) as merely being “directory”.  He submitted the fact that neither Lehane J in Kirk, nor the primary judge in the present case, had referred specifically to Project Blue Sky was of no consequence.  The issue to be considered was whether the construction of s 347(1)(c) which their Honours favoured was correct, having regard to the language of that section and the scope and object of the Act. 

44                  Mr Johnson conceded that the interpretation for which he contended might lead to hardship in individual cases.  He submitted, however, that it was open to the legislature to enact provisions which were capable of resulting in hardship.  He contended that any hardship would be significantly ameliorated by the provision of advice, in the form proffered to Mr Braganza in the present case, that he pay the prescribed fee prior to the expiration of the prescribed period, and seek to recoup it at a later date if his application for a fee waiver were successful.  He submitted that it was open to the legislature to make the requirement that the prescribed fee be paid before the expiration of the prescribed period “invalidatory”, and that the legislature could hardly have chosen plainer language to express that intent.  He submitted that little, if any, assistance was to be gained from the extrinsic material. 

45                  Mr Johnson initially submitted that the judgment of Lehane J in Kirk also operated to ameliorate what might otherwise have been regarded as an unduly harsh interpretation of s 347(1)(c), by adopting a broad and commonsense interpretation of the requirement that an application for review must be “accompanied by the prescribed fee (if any)”. Lehane J interpreted the expression “accompanied by” as allowing for the payment of the prescribed fee at any time prior to the expiration of the prescribed period.  Mr Johnson recognised that his Honour’s interpretation avoided the consequences which might flow from giving these words their literal meaning.  To treat an application for review as a nullity merely because the cheque, which was intended to meet the prescribed fee, was delivered a few minutes after the application was filed, and did not therefore “accompany” it, would not only render the operation of this provision harsh, but would be generally perceived to provide an absurd result.

46                  During the course of argument, the Court raised with Mr Johnson an apparent inconsistency in his approach.  It seemed Mr Johnson was prepared to accept that s 347(1)(c) could be construed so as to permit the prescribed fee to be paid at any time before the expiration of the prescribed period, notwithstanding that there was nothing in the section to suggest that result.  Mr Johnson was asked why the respondent was prepared to countenance a departure from a literal interpretation of the words “accompanied by”, but not from the requirement that the prescribed fee be paid prior to the expiration of the prescribed period.  At that point Mr Johnson resiled from his support for the reasoning of Lehane J in Kirk, in so far as it dealt with the meaning of “accompanied by”.  He submitted that his Honour erred in construing that expression as permitting the prescribed fee to be paid at any time prior to the expiration of the prescribed period.  Mr Johnson said that, upon its proper construction, the paragraph required that the filing of the application and the payment of the prescribed fee take place at precisely the same time.

Conclusions

47                  Dr Griffiths’ broader submission may require that the words “if an application is properly made”, in s 348(1) of the Act, be read as referring only to paras (a) and (b) of s 347(1).  Such an approach might be justifiable.  It might be said that an application for review is “made” when the approved form (para (a)) is given to the Tribunal within the prescribed period (para (b)); payment of the fee (para (c)) being an ancillary act that is separate from the act of making the application.

48                  One problem about such an approach is that it may be difficult to accommodate to it Dr Griffiths’ concession, in relation to his broader submission, that the fee must either be waived or paid before the hearing of the review.  Why should this be so?  If the application is “properly made under section 347” simply by the timely lodgment of the appropriate form, why would the command of s 348(1) – “the Tribunal must review the decision – not take effect, regardless of whether or not the fee was subsequently paid?”

49                  We do not find it necessary to resolve those questions in this case.  It is possible, and we believe preferable, to resolve this case by reference to Dr Griffiths’ alternative argument.

50                  It will be recalled that the narrower argument accepts that the applicant for review must do something about the prescribed fee within the prescribed period, but contends it is sufficient that the applicant for review has sought waiver of the fee.

51                  In our view this argument should be accepted.  The effect of doing so is to hold that, where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with reg 4.13, and that application is made within the prescribed period, the application for review may be entertained; provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected.  That is, s 347(1)(c) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.

52                  We have reached this conclusion largely because of the inclusion of the words “if any” in s 347(1)(c).  We are unable to accept Mr Johnson’s submission that those words were included in order only to accommodate those cases where no fee is payable for the application to review the particular MRT-reviewable decision under challenge; for example applications for review of primary decisions of a kind referred to in s 338(4) and applications made by persons in immigration detention (reg 4.13(2)(a) and (b)).  For one thing, the expression “no fee is payable” in reg 4.13(2) is not apt to describe a situation where the MRT determines in accordance with reg 4.13(4) that the fee on an application for review “should not be paid” because of severe financial hardship.  The former expression is an exemption from any requirement to pay fees while the latter constitutes a waiver.  Given that the words “if any” are applicable to a situation where an application is to be made for a decision that the fee “should not be paid”, and not merely to a situation where “no fee is payable”, Dr Griffiths’ narrower construction argument is plainly tenable. His contentions are also broadly consistent with the provisions of the Act when read as a whole.  We consider that s 347(1)(c) ought to be so construed. 

53                  In our opinion s 347(1)(c) must be read in conjunction with s 504(1)(b) of the Act.  The legislature is hardly likely to have introduced a provision which requires an application for review of an MRT-reviewable decision “to be accompanied by the prescribed fee (if any)”, in conjunction with a provision which authorises the making of regulations which allow for the waiver of any such fee, without recognising that applicants who seek waiver may not be in a position to pay the fee, even on a refundable basis, within the prescribed period.  Many applicants for review would struggle to raise a sum of $1,400 at short notice, or at all.  If Mr Johnson’s contention were to be accepted, an application for review lodged without payment of the prescribed fee, but accompanied by an application for waiver, would necessarily be dismissed as incompetent as soon as the prescribed period expired. Assuming that the operation of reg 4.13(4) is predicated upon a competent application for review being extant, it is arguable that it would be wrong for the MRT to continue its consideration of whether or not the fee should be waived, from the very moment that the prescribed period has expired. The legislature could hardly have intended to bring about that result.

54                  We can see no reason why s 347(1)(c) should be construed in a manner that is likely to produce consequences such as these.  In Mr Braganza’s case, it is not necessary to do any violence to the language of the section in order to avoid that outcome.  The words “if any” in that section allow for a sensible interplay with s 504(1)(b) and with the regulations made thereunder.

55                  In seeking to avoid a construction that produces an absurd result, the Court acts upon a presumption that such a result is unlikely to have been intended by the legislature.  In Bennion, Statutory Interpretation (3^rd ed, 1997), the learned author comments at page 751 that this is one of the interpretative presumptions based on “the nature of legislation”.  He observes that the Court seeks to avoid a construction of an enactment that produces an “unworkable or impracticable result” unless there are overriding reasons for applying such a construction.  He refers to a number of authorities which illustrate this principle including Delaney v Staples [1992] 1 AC 687 at 696.  Of particular significance is an observation of Lord Reid in Federal Steam Navigation Co v Department of Trade and Industry [1974] 1 WLR 505 at 509 where his Lordship said that cases where it has properly been held that one word can be struck out of a statute and another substituted include the case where, without such substitution, the provision would be “unworkable”.  In Wills v Bowley [1983] AC 57, Lord Bridge said at 102 that he preferred a strained construction which was nonetheless tenable to a literal construction which imposed an “unreasonable dilemma” upon a person subject to the Act.  The present case illustrates such a dilemma.  How does a person who has no money, and therefore seeks to be excused from payment of a fee, pay that fee in order to ensure that the application for waiver is considered? 

56                  A recent decision of the New South Wales Court of Appeal illustrates the flexibility that attaches to the words “shall be accompanied by”.  The case was Helman v Byron Shire Council (1995) 87 LGERA 349.  It concerned the validity of an application for development consent in respect of extension of a quarry.  Section 77(3)(d) of the Environmental Planning and Assessment Act 1979 (NSW) required an application in respect of such a development to be accompanied by an environmental impact statement.  A further paragraph (cl d1), added in 1991, provided that where such an application is in respect of a development that is likely to significantly affect the environment of endangered fauna, it should be “accompanied by” a fauna impact statement complying with certain standards.  The subject development application was accompanied by an environmental impact statement, which was advertised and placed on public exhibition.  However, despite the fact that the quarry extension would adversely affect endangered fauna, no fauna impact statement was lodged with council until after the exhibition period.  The fauna impact statement was never advertised or exhibited.

57                  The Court of Appeal unanimously held that the development consent was invalid.  In the present context, it is interesting to note this was not because the fauna impact statement was lodged later than the development application and environmental impact statement, but because it was not advertised or exhibited.  The Court thought the lack of contemporaneity was not important.  Handley JA (with whom Kirby ACJ and Priestley JA agreed) said at 353:

“A fauna impact statement was lodged in May 1993 but the Council did not give fresh notices to adjoining owners and others and the application was not readvertised.  The application could not be accompanied by the fauna impact statement until the latter was lodged, but thereafter it was accompanied by the fauna impact statement: see Wielgus v Removal Review Authority [1994] 1 NZLR 73 at 77, 79.  The same result is reached if one construes s 77(3) as requiring substantial rather than strict compliance.  This was achieved when the fauna impact statement was lodged but the Council’s obligation in s 86 to have all the documents accompanying the development application available for public inspection was never performed.”

58                  The second sentence of this paragraph indicates a view that a requirement that an application be “accompanied by” something else is met if the latter thing is provided prior to the processing of the application.  Such an approach supports Dr Griffiths’ narrower argument, at least.  It is not necessary to determine whether it also supports the broader submission.

59                  Given the basis upon which we determine this appeal, it is not appropriate that we decide whether Kirk was correctly decided.  In that case no application for waiver of fees was lodged within the prescribed period.  On Dr Griffiths’ broader submission, Kirk should be overruled.  On the narrower construction for which he contended, however, that decision is simply distinguishable from the present case.

60                  In our view the primary judge erred in determining that the MRT lacked jurisdiction to entertain the appellant’s application for review.  We would allow the appeal, and set aside the orders made by his Honour.  The matter should be remitted to the MRT so that it may be determined according to law.  The respondent should pay the appellant’s costs of both the appeal and the proceeding before the primary judge. 

Associate:

Dated:              28 March 2001