FEDERAL COURT OF AUSTRALIA
Hasan v Minister for Immigration & Citizenship [2010] FCA 375
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Citation: |
Hasan v Minister for Immigration & Citizenship [2010] FCA 375 |
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Appeal from: |
Hasan & Anor v Minister for Immigration & Anor [2009] FMCA 1124 |
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Parties: |
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File number(s): |
NSD 1369 of 2009 |
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Judge: |
NORTH J |
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Date of judgment: |
22 April 2010 |
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Catchwords: |
MIGRATION – appeal from Federal Magistrates Court – proper construction of section 66(2)(d)(iv) – whether Minister is required to notify of all places at which a review of a decision to grant a visa may be lodged – effect of failure to include all places at which an application can be lodged on prescribed period for lodging an application for review |
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Legislation: |
Acts Interpretation Act 1901 (Cth) s 15AA Migration Act 1958 (Cth) s 66, s 347 Migration Regulations 1994 (Cth) reg 4.10 |
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Cases cited: |
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 Australian Tea Tree Oil Institute v Industry Research & Development Board [2002] FCA 1127;(2002) 124 FCR 316 Cooper Brookes (Wollongong) Pty Ltd v FCT [1981] HCA 26; (1981) 147 CLR 297 Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424 Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377; (2000) FCR 77 MZXGL v Minister for Immigration and Citizenship (2006) FMCA 1724; MZXGM v Minister for Immigration and Citizenship (2006) FMCA 1723; 204 FLR 480 Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 Patel v Minister for Immigration and Citizenship [2009] FCA 392; (2009) 108 ALD 151 Pomare v Minister for Immigration and Citizenship & Anor [2008] FCA 458; (2008) 167 FCR 494 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28;(1998) 194 CLR 355 Public Transport Commission of NSW v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336 Shao v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 18; (2007) 157 FCR 300 SZKHR v Minister for Immigration and Citizenship (2008) FMCA 138 SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167; (2009) 180 FCR 438 Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841 Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327; (2003) 128 FCR 469 Zhang v Minister for Immigration and Multicultural Affairs[2007] FMCA 594; (2007) 210 FLR 268 |
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Date of hearing: |
1 March 2010 |
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Date of last submissions: |
1 April 2010 |
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Place: |
Sydney |
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Division: |
GENERAL DIVISION |
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Category: |
Catchwords |
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Number of paragraphs: |
59 |
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Counsel for the Appellants: |
G. Kennett |
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Counsel for the Respondents: |
Y. Shariff |
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Solicitor for the Appellants: |
Parish Patience Immigration Lawyers |
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Solicitor for the Respondents: |
Clayton Utz |
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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GENERAL DIVISION |
NSD 1369 of 2009 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
MD KAZI MAHMUDUL HASAN First Appellant
RONY RANI SAHA Second Appellant
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AND: |
MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
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JUDGE: |
NORTH J |
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DATE OF ORDER: |
22 APRIL 2010 |
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WHERE MADE: |
MELBOURNE (VIA VIDEOLINK TO SYDNEY) |
THE COURT ORDERS THAT:
1. The appeal is allowed.
2. Paragraph Two of the orders made by Federal Magistrate Raphael on 12 November 2009 is set aside.
3. A writ of mandamus issue, directed to the first respondent, requiring him to notify the appellants of his decision of 28 October 2008 according to law.
4. The first respondent pay the appellants’ costs of the appeal and the costs of the proceedings before the Federal Magistrates Court.
5. Liberty to the parties to apply in writing by 28 April 2010 to vary the order made in the previous paragraph insofar as it relates to the costs of the proceedings before the Federal Magistrates Court.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
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GENERAL DIVISION |
NSD 1369 of 2009 |
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA |
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BETWEEN: |
MD KAZI MAHMUDUL HASAN First Appellant
RONY RANI SAHA Second Appellant
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AND: |
MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
MIGRATION REVIEW TRIBUNAL Second Respondent
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JUDGE: |
NORTH J |
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DATE: |
22 april 2010 |
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PLACE: |
MELBOURNE (VIA VIDEOLINK TO SYDNEY) |
REASONS FOR JUDGMENT
1 Before the Court is an appeal from orders made by the Federal Magistrates Court on 12 November 2009. The Federal Magistrates Court dismissed an application for review of a decision of the Migration Review Tribunal made on 24 June 2009 in which the Tribunal determined that it did not have jurisdiction to review a decision of the delegate of the first respondent, the Minister for Immigration and Citizenship, to refuse the appellants’ application for Skilled (Provisional) (Class VC) visas, because the application for review was not received by the Tribunal within the mandatory time limit.
THE STATUTORY CONTEXT
2 The Migration Act 1958 (Cth) (the Act) provides for a right to apply to the Tribunal for review of a delegate’s decision in cases such as the present (s 347(1)(b)(i)). The section provides:
(1) An application for review of an MRT‑reviewable decision must:
…
(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), (3A), (4) or (7A)--28 days after the notification of the decision;
3 Regulation 4.10(1)(a) of the Migration Regulations 1994 (Cth) provides:
For paragraph 347(1)(b) of the Act, the period in which an application for review of an MRT – reviewable decision must be given to the Tribunal:
(a) if the MRT – reviewable decision is mentioned in subsection 338(2) or subsection (7A) of the Act – starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received: …
4 Section 66(2) of the Act provides:
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa – specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa specify that provision; and
(c) unless subsection (3) applies to the application – give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500 – state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
5 The first issue in this appeal concerns the meaning of s 66(2)(d)(iv) and the scope of the requirement that the notification state where the application for review can be made. Applications sent by post, fax, or other electronic means are taken to be given to the Tribunal when they are received at a registry of the Tribunal (reg 4.10(5) and (6)).
THE FACTS
6 Notice of the decision of the delegate to refuse the visa application was sent by letter to the appellants’ authorised recipient from the delegate by email on 28 October 2008. No issue arises in this case as to the method of notification. The letter included the following information:
Applications for review can be lodged in person at any registry of the Migration Review Tribunal (MRT).
Applicants in New South Wales, Queensland, the Australian Capital Territory or the Northern Territory can post or fax their applications to the New South Wales registry of the MRT. Applicants in Victoria, South Australia, Western Australia or Tasmania can post or fax their applications to the Victorian registry of the MRT.
Applicants in immigration detention may also lodge their application by giving the completed application form and any applicable fee to a departmental officer at a detention centre or at an office occupied by an officer of the department at an airport. This must be done at least one working day before the expiry of the applicable time limit.
The enclosed brochure Migration Review Tribunal provides more information about the review processes and where applications for review can be lodged. Information about merits review is also available from the MRT on their website at www.mrt.gov.au.
Lodgement of applications
Applications for review can be lodged at the following registries:
Registries of the MRT
New South Wales Victoria
Level 11, 83 Clarence Street Level 12, 460 Lonsdale Street
Sydney NSW 2000 Melbourne VIC 3000
Telephone (02) 9276 5000 Telephone (03) 8600 5900
Fax (02) 9276 5599 Fax (03) 8600 5801
7 The federal magistrate found that the brochure referred to was not enclosed with the letter. He accepted evidence that the brochure which should have been enclosed included a section as follows:
Applications can be lodged in person at the New South Wales or Victorian registries of the Migration Review Tribunal, or at the Queensland, South Australian or Western Australian registries of the Administrative Appeals Tribunal. Applications can be lodged between 9am and 4.30pm in all locations.
Registries of the Migration Review Registries of the Administrative
Tribunal Appeals Tribunal
New South Wales Queensland
Level 11, 83 Clarence Street Level 4, Harry Gibbs
Sydney NSW 2000 Commonwealth Law Courts
GPO Box 1333 Building
Sydney NSW 2000 119 North Quay
Phone (02) 9276 5000 Brisbane QLD 4000
Fax (02) 9276 5599
Victoria South Australia
Level 12, 460 Lonsdale Street 11th Floor, 91 Grenfell Street
Melbourne VIC 3000 Adelaide SA 5000
P O Box 14158
Melbourne VIC 8001 Western Australia
Phone (03) 8600 5900 Level 5, 111 St Georges Street
Fax (03) 8600 5801 Perth WA 6000
Phone (08) 9327 7200 (metropolitan area)
1300 366 700 (country areas)
Fax (08) 9327 7299
8 It was common ground that there were five places at which the application for review could have been lodged by the appellants, namely, the registries of the Tribunal in Melbourne and Sydney, and the registries of the Administrative Appeals Tribunal (the AAT) in Brisbane, Adelaide and Perth. As shown above, the letter from the delegate indicated just two of the five places at which an application could be lodged.
9 On 19 March 2009, nearly five months after the letter referred to above was sent, the appellants lodged an application for a review of the delegate’s decision in the Tribunal. On 24 June 2009, the Tribunal held that it did not have jurisdiction to review the delegate’s decision because the application was received outside the period prescribed by reg 4.10(1)(a), that is to say, after the end of that period.
The decision of the federal magistrate
10 The appellants then applied to the Federal Magistrates Court for a review of the Tribunal’s decision. They argued that the failure to state all five registries in the letter from the delegate rendered the letter ineffective as a notification under s 66(2)(d)(iv). The argument continued that the prescribed time for lodging the application for review had not begun to run because no notification conforming with the requirements of the Act had been given to start the period. On 12 November 2009, the federal magistrate dismissed the application, finding that the inclusion of these two places was sufficient to comply with the requirement that the notification state where the application for review could be made. Consequently, the application for review given to the Tribunal by the appellants was out of time and the federal magistrate held that the Tribunal had correctly refused to hear the reviews.
11 On 30 November 2009 the appellants filed a Notice of Appeal in this Court. The ground of appeal was that the federal magistrate erred by failing to find that section 66(2)(d)(iv), correctly construed, required the delegate to notify an applicant of all locations at which an application for review could be lodged, and not simply some of the locations at which an application could be lodged. Consequently, the appellants claim that the Tribunal erred in finding that it did not have jurisdiction to hear their application on the basis that the application had been lodged outside the prescribed period.
12 Accordingly, it is necessary to determine the proper construction of section 66(2)(d)(iv).
THE MEANING OF SECTION 66(2)(d)(iv)
13 The first step in determining the meaning of s 66(2)(d)(iv) is to determine what the language means (Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 per Higgins J at 161 – 162). The natural and ordinary meaning of the text of the provision is the starting point. The construction which would promote the purpose or object of the provision should be preferred over one that would not promote such object or purpose (s 15AA Acts Interpretation Act 1901 (Cth)). Where two meanings are open it is proper to adopt the meaning which would produce a fairer or more convenient operation (Cooper Brookes (Wollongong) Pty Ltd v FCT [1981] HCA 26; (1981) 147 CLR 297 at 320) or would avoid consequences that appear irrational or unjust (Public Transport Commission of NSW v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336 at 350).
14 The ordinary and natural meaning of s 66(2)(d)(iv) is that the notification must state all places where an application for review may be lodged. There is no restriction or limitation stated in respect of the places where an application may be lodged. Consequently, the text of the section indicates that all available locations for giving an application must be included.
15 The purpose or object of s 66(2) is to arm the disappointed applicant with full information to allow them to challenge the delegate’s decision. The information includes any criterion which the applicant did not satisfy, any provision on which the refusal is based, the reasons why the criterion was not satisfied or the provision prevented the grant of a visa, that the decision can be reviewed, the person who can apply for a review, the time in which the application for review may be made, and where the application for review can be made. The ordinary and natural meaning of section 66(2)(d)(iv) promotes the purpose or object of providing the applicant for a visa with the fullest information about the opportunity to bring an application for review.
16 To adopt the alternative meaning, namely, that the notification need only stipulate any place where an application for review may be lodged, would have some possibly unfair, inconvenient, irrational or unjust results.
17 First, an interpretation which permitted the Minister to refer to any place at which an application for review could be lodged would allow the Minister to refer at random to any of the five registries without regard to the address of the applicant or any of the characteristics of the applicant. The Minister could notify an applicant living in Perth of the address of the Brisbane registry.
18 Second, this interpretation would allow the Minister to send notices to people in the same states specifying a different registry for lodgement in each notice. Thus, one applicant in Perth might be told that the application may be lodged in Brisbane, and another applicant in Perth might be told that the application may be lodged in Melbourne. In this way applicants in the same circumstances would be treated differently for no reason.
19 Further, in some circumstances a person may be effectively denied an opportunity to apply by reason of a notice which did not disclose all the places where an application might be lodged. The applicant in Perth who is notified that lodgement may be made in Brisbane, who is forced by circumstances to file by mail, and who leaves it too late to post the application to Brisbane might fail to lodge in Perth because the notice did not give that option. Such an applicant is effectively denied the opportunity to apply.
20 Finally, a notice which includes some but not all places where an application may be lodged is apt to mislead unless the notice explains that there are other places where the application may be lodged. Without such explanation the recipient may conclude that the notice includes all places available for the lodgement. Such a construction has the capacity to cause significant inconvenience and possibly injustice to applicants.
21 The construction which requires the Minister to notify the applicant of all places at which an application for a review may be lodged avoids such confusion, inconvenience or injustice, with little extra burden placed on the Minister. Indeed, counsel for the Minister indicated that the practice is to include all registries at which an application can be made. The present circumstances arise from a departure from the usual practice.
22 The issue raised in this case has not been determined previously. Whilst the parties referred to several cases, in the end they recognised that these cases provide little assistance in the resolution of this case. In Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327; (2003) 128 FCR 469 the letter from the delegate said that an application for review could be lodged at a registry of the Tribunal but did not provide an address. Allsop J held that s 66(2)(d)(iv) required some direction as to the location where the act of making the application might be done, holding that there had been no valid notice under the section. Those facts distinguish that case from the present.
23 In Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424, Jagot J upheld the finding of the federal magistrate that the brochure annexed to the letter from the delegate included the addresses of all the places where an application could be lodged. Consequently, the notice was held to comply with s 66(2)(d)(iv). However, her Honour went on to say in obiter (at [21]):
Section 66(2)(d)(iv) does not say that the notice must identify all places where an application for review can be made. It states only that the notice must state “where the application for review can be made”. I do not accept the appellant’s submissions to the contrary. Even if the section were construed as requiring all locations where an application can be made, having regard to the principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]-[93], I am not satisfied that any breach of s 66(2)(d)(iv), no matter how trivial, would operate to invalidate a notice. However, as I did not receive detailed submissions on that question I say no more about it.”
24 For the reasons explained earlier, I do not agree with her Honour’s construction of the section. However, I agree with her Honour (at [21]) that Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841 and Shao v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 18; (2007) 157 FCR 300 were decided in a statutory context so different to the present that these cases are of no assistance in the resolution of this case.
25 Finally, in Pomare v Minister for Immigration and Citizenship & Anor [2008] FCA 458; (2008) 167 FCR 494 , Lindgren J (at [26]) expressly left the present issue open in relation to s 501(2)(iv) which is in the same terms as s 66(2)(d)(iv). Consequently, the case law referred to by the parties in this matter provides little guidance as to the proper construction of the relevant section.
26 Having determined that s 66(2)(d)(iv) requires the Minister to include in the notification of the decision every place at which an application for a review may be lodged and, in view of the fact that the notification in this case failed to do so, the question then arises as to the appropriate relief which the Court should order.
Relief
27 The appellants seek orders which, in effect, would compel the Tribunal to hear and determine the application for review which they filed on 19 March 2009.
28 There is a possible obstacle to the grant of this relief. Regulation 4.10(1)(a) prescribes the period for the purpose of s 347(1)(b) within which an application for review must be given to the Tribunal. The period “starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received”.
29 The regulation appears to establish an envelope of time with a beginning and an end. It seems to require that the application be given to the Tribunal within that envelope. On this view, an application given after the end of the period would not comply with the requirement. Similarly, an application given before the start of the period would not comply with the requirement. On this construction (the plain meaning construction), in the present case the period for giving an application to the Tribunal has not commenced to run. It will only do so when the Minister notifies the appellants in accordance with s 66(2)(d)(iv). It would follow that, the application which has been filed by the appellants does not comply with the requirements of the regulation in that it was given before the time for lodging had commenced.
30 The original hearing of this appeal occurred on 5 March 2010. The present issue was not adverted to at that hearing. It was raised by the Court at a hearing conducted on 5 March 2010 specially convened for the purpose. As a result of that hearing the appellants filed a supplementary written submission on 9 March 2010 addressing the issue. The first respondent filed a supplementary written submission in response on 12 March 2010. A further hearing was convened on 25 March 2010 by videolink to address the inadequacy of the first respondent’s supplementary submissions. It appears that Mr Stephen Lloyd SC was then engaged by the first respondent and a further supplementary submission signed by him was filed on 29 March 2010. On 1 April 2010 the appellants filed further supplementary submissions in reply.
The Parties’ Submissions
31 The appellants and the first respondent did not accept the plain meaning construction raised by the Court and contended for an alternative construction of reg 4.10(1)(a) (the alternative construction). They argued that the regulation was concerned only with an end date for the giving of an application for review to the Tribunal. The purpose for stating a start date was merely as a reference point to fix the end point. On this view, an application given to the Tribunal before the start date, as in this case, complied with the regulation and gave the Tribunal the basis for hearing the application for review.
32 The appellants and the first respondent accepted that this construction of reg 4.10(1)(a) departed from the literal reading of the language of the regulation.
33 The first respondent argued that the reference in s 347(1)(b) to the period ending not later than the nominated time disclosed a concern with the end point of the period in which the application for review must be given to the Tribunal. The legislative intention was that the ability to seek review would not be open ended. It was said that this construction was supported in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377; (2000) FCR 77 where the Court said at [32]:
The purpose of the provisions under consideration is to provide a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications, and as to the expiry date for any application to review such decisions.
34 Next, the first respondent argued that there was no sensible reason for excluding review applications lodged prior to the end point simply because no valid notification of the decision was given. This is particularly so where the Tribunal in reviewing a decision is not bound by technicalities or legal forms (s 353(2)(b)).
35 Then, the first respondent argued that Parliament would not have intended that an application for review lodged prior to receipt of a valid notification but after receipt of some notification of the decision would be invalid and of no effect because such a construction would have extreme consequences in the administration of the system. The written submissions dated 29 March 2010 described the possibilities thus:
Assume that there was some systemic error in the content of the notice required under s 66, as there was at least in relation to the notices considered in the Srey [[2003] FCA 1209]decision. There were many people, perhaps thousands, who received actual notification albeit defective notification. Most of those people who wished to seek review of their decisions in fact applied for and had their applications for review considered and determined by the relevant review body. Some were too late. The Minister accepted that the persons who had missed out on review needed to be notified validly and that they could still validly apply for merits review. This requirement and outcome is not contested by the Minister. However, if there is a starting time before which a valid application for review could be made, then it would mean that all persons who in fact had received flawed notifications and who in fact had sought and received merits review did so without power. This would cast doubt on the validity of all decisions of such tribunals on the merits of all the review applications. If the review applications were unsuccessful, the applicants could ask for a valid notification of the delegate’s decision and just start again, even though there was no error in the processes of merits review. Conversely, if the review application were successful for the applicants, any favourable decision by the tribunal would likewise be in doubt. While such persons may be able to go back to the tribunal to again review their initial refusal, their circumstances may have changed and they may no longer be successful in any review.
The same argument would apply to the Refugee Review Tribunal (s 412(1) reg 4.31), and to the AAT (s 500(6)(B)).
36 The first respondent then addressed the effect which the plain meaning construction would have on the duration of a bridging visa A. The first respondent contended that the effect showed that it was unlikely that Parliament intended the plain meaning construction of reg 4.10(1)(a).
37 A bridging visa A ceases to have effect:
If the substantive visa application is refused and the holder applies for merits review of that refusal – 28 days after notification of the decision of:
(A) the review authority; or …
(Migration Regulations 1994 (Cth), schedule 2, cl 010.511(b)(iii))
38 Where the Tribunal determines that it will not hear the review application because the application was given before the start date stipulated in reg 4.10(1)(a), the Tribunal will have made a decision for the purposes of cl 010.511(b)(iii). As a result the bridging visa A would cease to have effect 28 days after notification of that determination. The first respondent argued that it was unlikely that Parliament intended that a person would become an unlawful non-citizen, and hence liable to detention and removal, when the Tribunal had determined only that the period within which an application for review could be lodged had not yet commenced.
39 The appellants disagreed that the determination by the Tribunal not to hear the application for review would be a decision within the meaning of cl 010.511(b)(iii). They said that the determination was simply an expression of the Tribunal’s opinion about the meaning of the provision, but that it did not have legal effect. On the other hand, the appellants agreed that if the determination of the Tribunal was a decision within cl 010.511(b)(iii), then the first respondent was correct that the result indicated that the plain meaning construction was not likely to have been intended.
40 The first respondent then relied on a number of authorities in which the Court or the Federal Magistrates Court made orders requiring the Tribunal to hear and determine a review application even though the notification of the decision did not comply with the regulation: Pomare v Minister for Immigration and Citizenship [2008] FCA 458; (2008) 167 FCR 494; Zhan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 327; (2003) 128 FCR 469; Patel v Minister for Immigration and Citizenship [2009] FCA 392; (2009) 108 ALD 151; MZXGL v Minister for Immigration and Citizenship (2006) FMCA 1724; MZXGM v Minister for Immigration and Citizenship (2006) FMCA 1723; 204 FLR 480;SZKHR v Minister for Immigration and Citizenship (2008) FMCA 138.
41 The first respondent and the appellants advocated the same construction of reg 4.10(1)(a). The arguments relied upon by the appellants were substantially the same as those relied upon by the first respondent. Some arguments initially advanced by the appellants were abandoned in the course of the filing of the supplementary submissions. What follows describes those arguments which remained and which differed from those advanced by the first respondent.
42 The appellants contended that a “strained construction” of the regulation was warranted. They relied on the judgment of McHugh Jin Newcastle City Council v GIO General Limited [1997] HCA 53; (1997) 191 CLR 85 (Newcastle City Council) where he said at 113:
Nevertheless, when the purpose of a legislative provision is clear, a court may be justified in giving the provision “a strained construction” to achieve that purpose provided that the construction is neither unreasonable nor unnatural. If the target of a legislative provision is clear, the court’s duty is to ensure that it is hit rather than to record that it has been missed. As a result, on rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose.
43 The appellants then drew attention to some consequences which would follow from the adoption of the plain meaning construction. They argued that these consequences were unlikely to have been intended by Parliament and would be avoided if the alternative construction applied.
44 The first concerned the obligation of an officer to detain and remove an unlawful non-citizen from Australia (as, for example, is required by s 198(2) and (6)). The obligation arises where a person has applied for a visa and that application has been “finally determined”. An application is finally determined when the decision is not subject to any form of review, or is no longer subject to any form of review (s 5(9)(a)), or was subject to review but the period in which such a review could be instituted has ended without a review having been instituted (s 5(9)(b)). The appellants argued that if a decision was made and not properly notified, so that the period for instituting an application for review had not commenced, it might be said that the decision was not subject to any form of review pursuant to s 5(9)(a) and was thus finally determined. The officer would then be obliged to remove the visa applicant because the time for bringing the application had not been activated by the Minister giving the visa applicant proper notice of the decision.
45 The first respondent agreed that if the appellants were correct that the application for review was finally determined in these circumstances then the outcome was unlikely to have been intended and hence supports the alternative construction. However, the first respondent said that it was an open question whether the application was finally determined in these circumstances: SZKUO v Minister for Immigration and Citizenship [2009] FCAFC 167; (2009) 180 FCR 438 (SZKUO) at [32]. On the other hand, the first respondent contended that the language of s 5(9) supported the alternative construction. It envisages that the decision of the Minister falls into one of four categories, namely, a decision not at all subject to review, a decision which could have been subject to review but the period within which a review application could have been made has ended, a decision which is no longer subject to review, and a decision currently being reviewed. The first respondent observed that there was no category to cover a decision which was made but not yet subject to review. This supports the first respondent’s contention that the Act is concerned only with the end point of the period for lodging an application for review.
46 Then, the appellants referred to the operation of s 48(1)(b)(i) which has the effect that where the Minister refuses a visa application, the applicant is only entitled to apply for visas in a prescribed class but not for a visa of any other class. It thus limits the rights of visa applicants where their application for a visa has been refused. Mr Kennett, who appeared as counsel for the appellants, explained that the provision demonstrated that the refusal of a visa had significant consequences. It was unlikely that Parliament intended to prevent the applicant from instituting a review of a decision which had such consequences.
47 It is convenient to reject this argument immediately. The plain meaning construction does not prevent the applicant from bringing an application for review. Rather it confines that capacity to the envelope of time prescribed and prevents an application being brought before the start date of the period.
Consideration
48 The language of s 347(1)(b) and reg 4.10(1)(a) is, in truth, open to no real debate. Section 347(1)(b) requires that the application for review be given within a period which is prescribed. The section provides for the calculation of the end point of the period, but this is necessarily within the context of the prescription of a start date as well. If Parliament had intended only to set a cut off date for the lodging of an application for review it could easily have done so. It chose a different mechanism. To read the provisions as fixing only an end date is to give the language a meaning which it does not have. The grammatical reading of the provisions require that an application for review be given to the Tribunal after the start of the prescribed period and before the end of that period.
49 In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28;(1998) 194 CLR 355 at 384 McHugh, Gummow, Kirby and Hayne JJ said:
… the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
It is necessary to examine whether any of these factors militate against the grammatical meaning in this case.
50 The strongest argument against the adoption of the plain meaning of the provisions is the apparent lack of any purpose for stipulating a start date for the giving of the application for review. Specification of an end date for the giving of an application for review can be explained as a requirement which assists administrative certainty. However, the same reason may explain the purpose for stipulating a start date. The absence of an obvious purpose for the provisions, without any additional element of irrationality or unreasonableness, does not justify departing from the grammatical meaning of the provisions.
51 The first respondent contended that the plain meaning construction would create serious problems and extreme consequences in the administration of the system of review of ministerial decisions. The argument rested on an assumed factual setting which involved systemic error in the content of the notifications sent under s 66(2). In other words, it assumed that the Minister acted contrary to his statutory obligations. This is not a legitimate basis upon which to test whether the words of the provisions reflect the intention of Parliament. Rather, it should be assumed that the Minister would act lawfully.
52 If the first respondent meant to suggest that, in the context of the administration of these provisions, there were inadvertent breaches of the law and the extent of the consequences was inevitably widespread, then that suggestion was not supported by any evidence. The Court could not act on such a suggestion unless the circumstances of the administration of these provisions were explained in material filed in support of the case. This is particularly so in light of the submissions made by counsel for the first respondent, referred to above, to the effect that it was the usual practice for the Minister to include in the notice all the addresses at which an application for review may be lodged.
53 The operation of cl 010.511(b)(iii) does not stand against the plain meaning construction. The clause is activated where two conditions are met, namely, the substantive visa application is refused and “the holder applies for merits review of that refusal”. On the plain meaning construction, the holder may not apply for a review before the start of the period prescribed by reg 4.10(1)(a). A purported application before that time is no application at all for the purposes of the law. Consequently, in those circumstances, the time fixed by cl 010.511(b)(iii) does not begin to run for the cessation of the effect of a bridging visa A.
54 In the authorities referred to in [40] of these reasons orders were made requiring the Tribunal to hear and determine applications for review even though the notification of the Minister’s decision did not comply with the Act. However, the potential obstacle raised by reg 4.10(1)(a) was not raised in any of those cases. Consequently, they do not stand in the way of the adoption of the plain meaning construction. On the other hand, in Zhang v Minister for Immigration and Multicultural Affairs[2007] FMCA 594; (2007) 210 FLR 268 the issue was addressed by way of obiter consistently with the plain meaning construction. The Federal Magistrate said at [35]:
Interestingly, the applicant’s argument also throws up a further conundrum. As I understand it, the applicant argues that time did not start to run until he received the email of the letter and decision. That occurred on 7 April. Yet he filed his application for review on 5 April. As reg 4.10(1)(b) [which is relevantly the same terms as reg 4.10(1)(a)], set out above, makes plain, the time for making an application “starts” when notification is received. Section 347(1)(b) of the Act is also in terms that sets outer limits “after the day” on which the notification is received. Here, if the applicant’s argument about the email notification is accepted, the consequence would be (subject to determination of the payment of the fee argument, addressed below) incompetent, and must be dismissed.
55 The reliance by the appellants on Newcastle City Council is misplaced because McHugh J there allowed for a strained construction of the statutory language where the purpose of the provision was clear. Despite the submissions of the appellants to the contrary, it is not clear that the purpose of s 347(1)(b)(i) and reg 4.10(1)(a) was to establish only a cut off point after which the filing of an application for review will not be accepted. On the contrary the reference in s 347(1)(b) to a prescribed period envisages a slice of time between a start and an end point. That language explains the purpose of the section, namely, to require the regulations to prescribe an envelope of time within which an application for review must be given.
56 Further, the operation of s 198(2) and (6) does not support the alternative construction. When notification of the Minister’s decision is not given in accordance with s 66, the period within which an application for review must be given does not start to run. The Minister remains obliged to give that notification. When he does so, the visa applicant becomes entitled to apply for a review of the decision. The application for review is not “finally determined” if the Tribunal proceeds on the basis of an invalid application lodged outside the prescribed period. The application remains subject to review once the Minister gives notification of the decision in accordance with s 66. The critical factor is that the opportunity for the visa applicant to bring an application for review remains open.
57 In SZKUO the Full Court held that an application for review was “finally determined” within the meaning of s 198(6)(c)(i) because this opportunity had been foreclosed to the visa applicant. The Refugee Review Tribunal rejected his application for a protection visa. The decision was affected by jurisdictional error in that the applicant had been denied the opportunity to be heard. However, the Federal Magistrates Court withheld relief on discretionary grounds because the applicant, knowing of his right to challenge the decision of the Refugee Review Tribunal, waited for six years to take any action. The applicant argued that a decision of the Refugee Review Tribunal having been made without jurisdiction was in law no decision at all. The Refugee Review Tribunal could still determine to make the decision or the Attorney-General could apply to the Court for orders compelling the Refugee Review Tribunal to fulfil its statutory obligations. The effect of the refusal of discretionary relief to the applicant did not validate the decision. It simply prevented him from compelling the Refugee Review Tribunal to perform its statutory duty. The Full Court held that the application for review had been finally determined within the meaning of s 198(6)(c)(i) because although a decision made without jurisdiction is in law no decision, the decision maker is not required to treat it as void until so declared by a court. The Full Court said at [31]:
[I]f the person most interested in the decision, the appellant, has no capacity to compel the Tribunal to perform its statutory duty and the Tribunal has no obligation to treat its decision as no decision at all, it cannot be said that the delegate’s decision is other than not, or no longer, subject to any form of review under part 7 of the Migration Act.
The operation of s 198, therefore, does not support the rejection of the plain meaning construction.
Conclusion
58 In the result, the plain meaning construction should be adopted. That means that the application for review given by the appellants on 19 March 2009 was given before the prescribed period commenced. The Tribunal was not entitled to embark on the hearing. It was correct not to hear the application although for reasons other than those upon which it relied.
59 The appellants and the first respondent agreed that if the Court so concluded then it should order that a writ of mandamus issue to compel the first respondent to provide the appellants with notice in accordance with s 66(1) and (2) and that the first respondent should bear the costs of the appeal. The parties did not address the issue of the costs of the hearing in the Federal Magistrates Court. However, it is consistent with the agreement that the first respondent pay the appellants’ costs of the hearing the Federal Magistrates Court. Should the parties wish to apply to vary this later costs order, an application should be filed by 28 April 2010.
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I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. |
Associate:
Dated: 22 April 2010
