FEDERAL COURT OF AUSTRALIA
Bautista v Minister for Immigration and Border Protection [2018] FCA 1114
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent | |
DATE OF ORDER: |
THE COURT DECLARES THAT:
1. Regulation 4.18A(4) of the Migration Regulations 1994 (Cth) is invalid.
AND THE COURT ORDERS THAT:
3. The judgment and orders of the Federal Circuit Court of Australia (Federal Circuit Court) in Bautista v Minister for Immigration & Anor [2017] FCCA 702; (2017) 318 FLR 205 be set aside.
4. The decision of the Administrative Appeals Tribunal (Tribunal) in relation to the Appellant’s application for review be set aside and remitted to the Tribunal for reconsideration according to law.
5. The First Respondent pay the Appellant’s costs in the appeal and the application for judicial review in the Federal Circuit Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
1 Before the Court is an appeal filed 28 April 2017 from the Federal Circuit Court’s decision in Bautista v Minister for Immigration & Anor [2017] FCCA 702; (2017) 318 FLR 2015. The primary Judge dismissed the appellant’s application to review a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) because the grounds of the application did not reveal jurisdictional error.
Background
2 The appellant, a Philippine citizen, married Mr Bautista, an Australian citizen, on 12 April 2003. She then applied for temporary and permanent partner visas on 15 April 2003. The temporary visa was granted on 19 June 2003.
3 A delegate of the first respondent (the delegate) refused the appellant’s permanent partner visa on 24 May 2011 after finding the appellant was “no longer in a spousal relationship with Mr Bautista” and “her claim that the relationship ended because of domestic violence … was not made out”. Accordingly, the appellant applied to the Tribunal for review of the delegate’s decision on 14 June 2011.
4 The Tribunal affirmed the delegate’s decision to refuse the permanent partner visa on 7 November 2013. The appellant applied to have the Tribunal’s decision reviewed by the Federal Circuit Court on 4 December 2013. The matter was remitted to the Tribunal by consent of the parties on 14 May 2014.
5 After the matter was remitted, the Tribunal wrote to the appellant on 29 July 2014 providing information pursuant to s 359A of the Migration Act 1958 (Cth) (the Act) (the s 359A letter). The Tribunal sent the s 359A letter via facsimile; thus, it was deemed received at the end of that same day: s 379C(5) of the Act.
6 The information in the s 359A letter included a statement from Mr Bautista asserting that he and the appellant “had not been in a relationship … since November 2002” and the appellant asked him to keep some of her clothes at his dwelling “just for the immigration [sic] if ever they do a spot check”. The s 359A letter from the Tribunal also contained an invitation for the appellant to comment or respond to the information (the invitation to reply) by 12 August 2014 – that date being 14 days after the invitation to reply was deemed received by the appellant pursuant to reg 4.17 of the Migration Regulations 1994 (Cth) (the Regulations).
7 On 7 August 2014, the appellant, through her migration agent, requested a 14-day extension of time in relation to the invitation to reply. The appellant sent the request for the extension five days before the expiration of the first deadline prescribed in the invitation to reply. The Tribunal granted an extension that same day, stating that the appellant now had until 21 August 2014 to comment or respond. This was communicated to the appellant via facsimile and was deemed received at the end of the day: s 379C(5) of the Act.
8 The deadline was extended by 14 days from when the appellant requested the extension, rather than 14 days from the end of the first prescribed period. Had the deadline been extended by 14 days in addition to the first prescribed period, the appellant would have had until 26 August 2014 to comment or respond.
9 The appellant’s response to the invitation to reply was received by the Tribunal on 22 August 2014 – a day later than the extended deadline calculated by the Tribunal – but within 14 days from the end of the first prescribed deadline. Nevertheless, the Tribunal invited the appellant to attend a hearing (the invitation to attend) that same day. The Tribunal retracted the invitation to attend and cancelled the hearing by way of letter dated 3 October 2014 which read:
The hearing … has been cancelled as you have lost your entitlement to a hearing under section 359C and 360(3) of the Act as you did not provide a response to the Tribunal’s letter within the prescribed period.
Following this correspondence, the appellant submitted in a letter to the Tribunal dated 7 October 2014 that the cancellation of the hearing was unlawful.
Decision of the Tribunal
10 On 31 October 2014, and in the absence of the hearing originally proposed in the invitation to attend, the Tribunal published two key findings that were summarised in the appellant’s submissions as follows:
(a) The extended time for responding to the s. 359A notice was 14 days after the notice extending time was electronically transmitted. As the transmission occurred on 7 August 2014 and the response was received on 22 August 2014, the appellant has lost her right of a hearing, under s. 363A.
(b) The marriage between the appellant and Mr Bautista was contrived for migration purposes. In reaching that conclusion the Tribunal was influenced by information received from Mr Bautista and others … The information included a letter provided to the Department dated June 2003 from “Ms C” who said that she had been in a relationship with Mr Bautista since 23 November 2002. A video and several photos of Mr Bautista and Ms C were also provided.
(References to the court book and appeal book omitted.)
11 Ultimately, the Tribunal reaffirmed the delegate’s decision to refuse the appellant’s permanent visa on 31 October 2014 (the Tribunal’s second decision).
Application for review in the Federal Circuit Court
12 The appellant filed an application to review the Tribunal’s second decision in the Federal Circuit Court on 28 November 2014. In the application, as was later amended, the appellant relied upon the following grounds of review:
1. The Tribunal’s failed to complete its jurisdiction by not conducting a hearing under s360 of the Act.
Particulars
Either:
(a) The Tribunal misinterpreted the meaning of the term “14 days after the person receives notice of the extended period”; or
(b) The Tribunal acted unreasonably in notifying the Applicant of the extension before the original period had expired; or
(c) Regulation 4.18A(4) of the Migration Regulations 1994 is an invalid exercise of the regulation making power because it is inconsistent with s359B(4) which permits the Tribunal to extend the original prescribed for a prescribed further period, that is, a period in addition to the original period.
2. The Tribunal failed to comply with the requirements of s359A in respect of the information which it considered would be the reason or part of the reason for affirming the decision under review.
Particulars
The Tribunal, at paras [57] to [60], relied on information that was contained in allegations provided to the Department in June and July 2003. This information was not exempt from the provisions of s359A. In the s359A notice sent to the Applicant on 29 July 2014 the Tribunal gave particulars on the July allegations, but not of the June allegations.
(Errors in original.)
13 In relation to the first ground of review, the primary Judge found at [49]-[50] that the appellant’s argument was not made out. The primary Judge found that the Tribunal had not misinterpreted the relevant sections of the Act and the Regulations. The primary Judge rejected the appellant’s proposed interpretation of reg 4.18A(4), which, if accepted, would have meant that the Tribunal was not able to retract the invitation to attend a hearing. Instead, the primary Judge founds as follows:
27. The plain language of s.359B(2) of the Act and reg.4.17(4) of the Regulations on one hand, and s.359B(4) of the Regulations [sic] and reg.4.18A of the Regulations on the other, is that the two regulations are directed to two separate concepts and circumstances. Regulation 4.17(4) is the prescription relevant to s.359B(2). Regulation 4.18A(4) of the Regulations, is the prescription relevant to s.359B(4) of the Act. The meaning of the plain language of each is reinforced by the respective headings which the applicant has reproduced in his written submissions (at [13]).
“4.17 Prescribed periods – invitation to comment or give additional information (Act, s359B(2))
…
4.18A Prescribed periods – invitation to comment or give additional information (Act, s359B(4)).”
28. I agree with the Minister’s submission that the applicant’s argument conflates, if not confuses, the two separate concepts of a “prescribed period” (s.359B(2) and reg.4.17(4)), which the Tribunal is obliged to provide when it initially makes the invitation pursuant to s.359A, and the “prescribed further period” (s.359B(4) and reg.4.18A(4)), which applies if the applicant asks for, and is given, an extended period for that purpose.
29. Section 359B(2) of the Act obliges the Tribunal to give an applicant the “prescribed period” (reg.4.17(4) of the Regulations), within which to respond to an invitation pursuant to s.359A of the Act. Section 359B(4) of the Act separately provides that the initial period may be extended for a further period as described by reg.4.18A(4) of the Regulations. As is made clear in reg.4.18A(4)(a) of the Regulations, that “extended period” commences when the person receives notice of it, and ends “14 days after the day the person receives notice of the extended period” (reg.4.18A(4)(b)(i) of the Regulations).
30. The applicant’s argument relies on a reading of reg.4.18A(4) which ignores the provision of reg.4.18A(4)(a) as to the commencement date of the “extended period”. That is, the “extended period”, as is made plain at reg.4.18A(4)(a) of the Regulations, commences when the person “receives notice” of the extended period.
31. The applicant seeks to read into the relevant provision words that are not there. She argues that reg.4.18A(4) of the Regulations in effect, should be read as being that the extended period commences at the point the initial period has ended. That reading is contrary to the plain language of reg.4.18A(4)(a) of the Regulations.
32. In all, the Tribunal may extend the initial period “for a prescribed further period” (s.359B(4) of the Act), and that period, irrespective of what is separately said at reg.4.17(4) of the Regulations, which is only relevant to s.359B(2) of the Act, commences when the person receives notice of the extended period of (reg.4.18A(4)(a) of the Regulations).
…
(Emphasis added.)
14 Later his Honour continued:
46. Particular “(c)” to ground one, asserts that reg.4.18A(4) of the Regulations is an invalid exercise of the regulation making power because it is inconsistent with s.359B(4) of the Act. The applicant argues that s.359B(4) of the Act permits the Tribunal to extend the initial period for a “prescribed further period”. That is, in addition to the initial period.
47. For the reasons already set out above, the premise underpinning the applicant’s argument is not made out. There is no inconsistency in the way reg.4.18A of the Regulations is interpreted, and the way it is meant to be applied.
48. Section 359B(4) of the Act provides that an applicant may be given a “prescribed further period” within which to respond to an invitation made pursuant to s.359A of the Act. Regulation 4.18A(4) gives effect to that provision in the way set out above. An applicant as in the current case, would receive the full benefit of the “prescribed further period”, here 14 days, which commences from the time the applicant is taken to have received the relevant notice as set out in s.379C of the Act.
15 At [86], the primary Judge held that the second ground was also not made out for the following reasons:
… The Tribunal’s letter of 29 July 2014 made clear, in its terms, that the Tribunal had received information that the relationship was contrived. The applicant was squarely put on notice of this information. The fact that the Tribunal made specific reference only, in its letter of 29 July 2014 to 23 July 2003, did not detract from the conveyance to the applicant in the letter that such an allegation had been made. There is nothing in the evidence before the Court now, to indicate that the allegation received in June 2003 was different to the Tribunal’s description of the allegation as put in its letter of 29 July 2014. That is, the information was that the relationship had been contrived.
16 It followed at [108] that his Honour dismissed the application. The appellant was ordered to pay the first respondent’s costs.
Appeal to the Federal Court
17 The appellant filed a notice of appeal from the Federal Circuit Court’s decision in this Court on 28 April 2017. At the hearing of the appeal on 16 August 2017, I granted leave for the appellant to rely on an amended notice of appeal. This was in circumstances where:
The Minister was able to identify one ground of appeal which had not been raised before the primary Judge, referable to the consequences of a finding that the relevant regulation is invalid and what construction should be placed on the relevant provision (transcript p 3 lln 19-21);
Counsel for the Minister was able to meet the amended notice of appeal; and
The Minister was unable to identify prejudice should leave be granted.
18 In the amended notice of appeal, the appellant sought the following orders:
1. The Appeal be allowed.
2. The judgment and orders of the Federal Circuit Court be set aside.
3. A Declaration that Migration Regulation 4.18A(4) is invalid.
4. A Declaration that the words, [“]or, if no period is prescribed, a reasonable period” are to be implied into s. 358B(4) at the end of that provision.
5. The decision of the Tribunal in relation to the Appellant’s application for review be set aside and remitted to the Tribunal for reconsideration in accordance with law and any directions of the Court.
6. The First Respondent pay the Appellant’s costs in the appeal and the application for judicial review in the Federal Circuit Court.
(Amendment formatting removed.)
19 The appellant relied on the following grounds of appeal:
1. The Federal Circuit Court erred in failing to find that the Second Respondent (“the Tribunal”) had failed to complete is jurisdiction by not conducting a hearing under s 360 of the Migration Act 1958 (“the Act”) on the basis that the Appellant had not responded within the statutory time limit to a notice under s 359A of the Act.
2. The Federal Circuit Court erred in either of the following ways:
a) by incorrectly interpreting reg 4.18A(4) of the Migration Regulations 1994; or
b) by failing to find that reg 4.18A(4) of the Migration Regulations was invalid as being inconsistent with s. 359B(4) of the Migration Act.
3. If reg 4.18A(4) of the Migration Regulations is invalid the Federal Circuit Court further erred by;
a) Failing to construe s. 359B(4) of the Migration Act as including the words, “or, if no period is prescribed, a reasonable period” at the end of that subsection, and,
b) Failing to find that the second respondent had erred by calculating the time by which the appellant’s response to its invitation under s. 359A may be submitted by reference to an invalid provision rather than by reference to “a reasonable period”.
4. The Federal Circuit Court erred in failing to find that the Tribunal had failed to comply with the requirements of s359A of the Act in respect of information which it considered would be the reason or part of the reason for affirming the decision under review.
(Amendment formatting removed.)
Grounds 1 and 2
20 Grounds 1 and 2 are related. They concern the validity of reg 4.18A(4) at the relevant time and the finding of the Federal Circuit Court referable to the failure of the Tribunal to conduct a hearing under s 360 of the Act.
21 To the extent that the claimed failure of the Tribunal to conduct a hearing was, in the appellant’s case, further referable to the alleged invalidity of reg 4.18A(4), it is convenient to first consider ground of appeal 2 and the appellant’s claim of invalidity, and then turn to ground of appeal 1.
22 In respect of these grounds the appellant submitted, in summary, as follows:
The primary Judge’s interpretation of reg 4.18A(4) failed to refer to s 359B(4), which required that there be a “further” period.
The interpretation by the primary Judge could lead to an unusual result because the further period could ultimately be fully or partially co-extensive with the original period prescribed in accordance with s 359B(2) and reg 4.17(4), such that the intention of s 359B(4), which is to give an extension of time, would be defeated. Such a construction would be arbitrary because the length of the effective extension beyond the original period for responding would be dictated by when the Tribunal gave notice of the prescribed further period.
The better construction of the legislation is that the period of 14 days prescribed by reg 4.18A(4)(b)(i) applies from the end of the period calculated pursuant to reg 4.17(4). Validity would be preserved if the words, “commences when the person receives notice of the extended period” were construed as meaning that the commencement was calculated from the time that the reg 4.17(4) period ended.
In the event that this construction can be supported by the language of the instruments, the Tribunal erred by failing to provide the appellant with the further time she was entitled to have to respond to the s 359A letter.
Alternatively, reg 4.18A(4) is invalid as being inconsistent with s 359B(4), and therefore contrary to regulation-making power under s 504 of the Act. If interpreted strictly, as the primary Judge did, reg 4.18A(4) could also be invalid for being unreasonable in that it leads to manifest arbitrariness.
23 In summary the Minister submits:
The combined effect of s 359B(4) and reg 4.18A(4) is clear and unambiguous.
Where a visa-claimant is granted an extension of time in which to respond to a s 359A invitation, the visa-claimant will have 14 days to respond, with time commencing to run from the day after he or she is taken to have received the invitation under s 379C of the Act.
In the circumstances of this case the appellant was notified on 7 August 2014 that an extension of time had been granted for her to respond, which would expire on 21 August 2014. As the appellant did not respond until 22 August 2014, she lost her right to attend an oral hearing because of the operation of s 359C(2).
Section 363A of the Act would prevent the Tribunal from allowing the appellant to attend a hearing, because that entitlement had been lost.
The primary Judge’s characterisation of s 359B(2) and reg 4.17(4) operating together, and s 359B(4) and reg 4.18A(4) operating together but separately from the two former provisions, was correct.
The appellant’s submission relying on the meaning of “further” in s 359B(4) should not be accepted. This is because the “further period” is not prescribed by s 359B(4) and the section is silent on how the period is to be calculated.
Consideration
Legislative framework
24 Part 5 Div 5 of the Act deals with reviewable decisions under the legislation, including provisions empowering the Tribunal to obtain information it considers relevant, and to invite the visa applicant to give information: s 359.
25 Section 359A of the Act provides, inter alia, that the Tribunal must give the visa applicant particulars of information the Tribunal considers would be the reason (or part thereof) for affirming the decision under review, and invite the visa applicant to comment or respond to it. At material times s 359A provided:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
26 Section 359B of the Act sets out (inter alia) the requirements for a written invitation by the Tribunal, the time frame within which the visa applicant must respond to the invitation, and the power of the Tribunal to extend that time frame. At material times s 359B provided:
359B Requirements for written invitation etc.
(1) If a person is:
(a) invited in writing under section 359 to give information; or
(b) invited under section 359A to comment on or respond to information;
the invitation is to specify the way in which the information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place:
(a) at the place specified in the invitation; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, the Tribunal may extend that period for a prescribed further period, and then the response is to be made within the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, the Tribunal may change that time to:
(a) a later time within that period; or
(b) a time within that period as extended by the Tribunal for a prescribed further period;
and then the response is to be made at an interview at the new time.
27 Section 359C(2) of the Act empowers the Tribunal to make a decision on the review in the absence of a response by the visa applicant, in the following terms:
359C Failure to give information, comments or response in response to written invitations
…
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.
28 Section 360 of the Act provided:
360 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
29 Importantly for the purposes of the relevant decision of the Tribunal, s 363A of the Act provides:
363A Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.
30 Section 5 of the Act defines “prescribed” as meaning “prescribed by the regulations”. The “prescribed” periods to which s 359B(2) and s 359B(4) refer are defined, respectively, in reg 4.17(4) and reg 4.18A(4). Regulation 4.17 provides:
4.17 Prescribed periods – invitation to comment or give additional information (Act, s 359B(2))
(1) This regulation applies, for subsection 359B(2) of the Act, if a person is invited to give additional information, or to comment on information, other than at an interview.
(2) If the invitation relates to an application for review of a decision that applies to a detainee seeking review of a decision under subsection 338(4) of the Act, the prescribed period for giving the information or comments:
(a) commences when the detainee receives the invitation; and
(b) ends at the end of:
(i) 2 working days after the day the detainee receives the invitation; or
(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(3) If the invitation relates to an application for review of a decision that applies to a detainee who is not seeking review of a decision under subsection 338(4) of the Act, the prescribed period for giving the information or comments:
(a) commences when the detainee receives the invitation; and
(b) ends at the end of:
(i) 7 days after the day the detainee receives the invitation; or
(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(4) If the invitation relates to any other application for review of a decision, the prescribed period for giving the information or comments:
(a) commences when the person receives the invitation; and
(b) ends at the end of:
(i) 14 days after the day the person receives the invitation; or
(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(6) A response to the invitation is taken to be given to the Tribunal when a registry of the Tribunal receives the response.
(Notes omitted.)
31 Regulation 4.18A provides:
4.18A Prescribed periods – invitation to comment or give additional information (Act, s 359B(4))
(1) This regulation applies, for subregulation [sic] 359B(4) of the Act, if:
(a) a person is invited to give additional information, or to comment on information, within a period prescribed in regulation 4.17; and
(b) the invitation is to give the information or comments other than at an interview; and
(c) the prescribed period is to be extended by the Tribunal.
(2) If the invitation relates to an application for review of a decision that applies to a detainee seeking review of a decision under subsection 338(4) of the Act, the period by which the Tribunal may extend the prescribed period:
(a) commences when the detainee receives notice of the extended period; and
(b) ends at the end of:
(i) 2 working days after the day the detainee receives notice of the extended period; or
(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(3) If the invitation relates to an application for review of a decision that applies to a detainee who is not seeking review of a decision under subsection 338(4) of the Act, the period by which the Tribunal may extend the prescribed period:
(a) commences when the detainee receives notice of the extended period; and
(b) ends at the end of:
(i) 14 days after the day the detainee receives notice of the extended period; or
(ii) if the detainee agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(4) If the invitation relates to any other application for review of a decision, the period by which the Tribunal may extend the prescribed period:
(a) commences when the person receives notice of the extended period; and
(b) ends at the end of:
(i) 14 days after the day the person receives notice of the extended period; or
(ii) if the person agrees, in writing, to a shorter period of not less than 1 working day—the shorter period.
(6) A response to the invitation is taken to be given to the Tribunal when a registry of the Tribunal receives the response.
(Notes omitted.)
Ground of appeal 2
32 It is settled law that delegated legislation cannot be repugnant to the Act which confers the power to make it: French CJ in Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; (2012) 251 CLR 1 at [54], Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582, and see the discussion in Pearce DC and Argument S, Delegated Legislation in Australia (5th ed, LexisNexis Butterworths, 2017) at 311, 371 et seq.
33 Regulation 4.18A(1) specifically provides that it applies in respect of s 359B(4) of the Act if a person is invited to give additional information, or to comment on information, within a period prescribed in reg 4.17, if the invitation is to give the information or comments other that at an interview, and if the prescribed period was to be extended by the Tribunal. This is consistent with s 359B(4) which empowers the Tribunal to extend the period of response to an invitation within a prescribed period by a “prescribed further period”.
34 Pursuant to reg 4.18A(4), the period by which the Tribunal may extend the prescribed period commences when the person receives notice of the extended period and ends either at the end of 14 days after the day the person receives that notice or earlier if the person agrees.
35 This is not a case where, for example, the effect of the regulation is to impose a different requirement than that permitted by the Act (cf, for example, Grech v Bird (1936) 56 CLR 228) or where the regulation imposes an unlawful qualification of rights given by the Act (cf, for example, Ira L & AC Berk Ltd v Commonwealth (1930) 30 SR (NSW) 119). It is also clear that the Court must exercise care not to impose its own untutored judgment on the legislator: South Australia v Tanner (1989) 166 CLR 161 at 168. However as Lockhart J explained in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 384:
Delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality; but the underlying rationale is that legislation of this offending kind cannot be within the scope of what Parliament intended when authorising the subordinate legislative authority to enact laws.
See also discussions in Guo v Minister for Immigration and Citizenship [2009] FCA 356; (2009) 176 FCR 83 and Quarm v Minister for Immigration & Citizenship [2008] FCA 1156; (2008) 171 FCR 307.
36 Particular assistance in respect of the case before me can be found in the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377; (2000) 98 FCR 77.
37 In Singh the relevant visa applicant had applied for a protection visa. The delegate of the Minister refused that application on 15 September 1997, and a letter informing the visa applicant of the decision was posted by registered pre-paid mail to the respondent (at the address specified in the application) on 17 September 1997. The visa applicant claimed that he did not receive the letter until 13 November 1997. There was evidence supporting this claim.
38 On 17 November 1997 (which was more than the requisite 28 days after the delegate’s decision) the visa applicant applied to then Refugee Review Tribunal to review that decision. The Tribunal ruled that, because the letter of notification was deemed to have been received by the respondent by 24 September 1997, it had no jurisdiction to review the decision as it had not been brought within the time prescribed by s 412(1) of the Act and reg 4.31 of the Migration Regulations.
39 The relevant issue question was whether sending the letter by registered pre-paid mail was notification “in the prescribed way” for the purposes of reg 2.16(1) of the Migration Regulations. The visa applicant also contended that those regulations dealing with the calculation of the time by which notice of decisions had been received were so capable of producing manifestly absurd results as to render them invalid. The manifest absurdity was said to arise because, in summary:
A document sent by the Minister is taken to have been received seven days after the date of the document, provided that the document was sent within seven days of the date of the document.
A document could be posted on the seventh day after it is dated and be deemed to have been received on that very day, even if posted from a capital city to a remote address in Australia.
Postage and delivery are not contemporaneous in fact.
40 At first instance the primary Judge found in favour of the visa applicant. That decision was upheld by the majority of the Full Court.
41 As O’Connor and Mansfield JJ observed:
47 As noted above, because reg 4.31(4) requires that the Tribunal actually receive the review application before it is taken to have been given to the Tribunal, and the application for review may be posted to the Tribunal: reg 4.31(3)(a), the period prescribed must be sufficient to accommodate that step in the process of exercising the right of review. The inevitable shortening of the seven day period fixed by reg 4.31(2)(a) in respect of visa applications in immigration detention has the effect, in our judgment, of significantly diminishing the actual period allowed between actual notification of the decision of the Minister (in the ordinary course) and the time by which notice of the application for review must be given to the Tribunal. In some circumstances, it may mean that the right of review is lost before notice of the decision is received in the ordinary course. In some circumstances, it may mean that the time actually available between receipt of the notice of the decision and the time by which the Tribunal must be given notice of the application for review is so short that the right of review is, in a practical sense, meaningless or can only be met with very great and undue haste and inconvenience.
48 We do not consider that a regulation which has those effects in relation to the time limits imposed by reg 4.31 in accordance with s 412 is, in reality, a regulation which is consistent with the Act. It is not consistent with the existence of the right of review which ss 411 and 414 of the Act grants, albeit to be exercised within the time limits to be fixed by prescription (and so fixed by reg 4.31), to provide for circumstances where that right of review may in reality be non-existent or in practical terms be incapable or almost incapable of being properly exercised.
(Emphasis added.)
42 I do not accept the submission of the appellant that reg 4.18A(4) must be construed such that any further period of time granted by the Tribunal in accordance with s 359B(4) must follow on from the end of the prescribed period as defined by reg 4.17. As the primary Judge properly found at [31], by this construction the appellant seeks to read against the plain language of reg 4.18A(4)(a).
43 However, the consequence of reading s 359B(4) with reg 4.18A(4) as plainly drafted is that it may lead to absurd results, including the result identified by the appellant where the “further” period would expire on the same date as the “prescribed period”.
44 Both before the primary Judge and in this Court the appellant submitted that, in circumstances where the Tribunal had granted an extension of the period in which to respond to the invitation, s 359B(4) clearly contemplated that the extended period be 14 days additional to the prescribed period, and that to the extent that reg 4.18A(4) provided to the contrary it was clearly inconsistent with s 359B(4). The primary Judge rejected this argument. However the appellant identified the potential situation where, if the appellant had, for example, on 29 July 2014, sought a “prescribed further period” of time in which to respond to the Tribunal’s s 359A letter, and the appellant had received notice of the extended period on the same day:
the literal application of s 359B(4) and reg 4.18A(4) would have meant that the appellant would have been required to respond by 12 August 2014, and
this, in effect, would have meant that the “prescribed further period” completely overlapped the original default period of response accorded to the appellant under s 359B(2).
45 In this situation, although s 359B(4) allowed the Tribunal to extend the period for response, and the visa applicant to respond “within the extended period”, there would have been no possibility of any extension to the prescribed period, and this result is caused by the operation of reg 4.18A(4). I also note that the prospect of a visa applicant seeking an extension of time in which to respond on the first day of the “prescribed period” for response is perfectly plausible, in the sense that the visa applicant may recognise at an early point that he or she would require further time.
46 It also follows that the period of “extension” beyond the original prescribed period for the purposes of s 359B(4) could be measured on a sliding scale depending on the point during the original prescribed period that the visa applicant seeks an extension from the Tribunal. The result of this construction is that, practically, a visa applicant who requires a meaningful extended period of time in which to respond to the Tribunal’s invitation should not seek an extension of that time until close to the end of the period prescribed by reg 4.17(4), because a prompt response by the Tribunal (even in circumstances where the visa applicant believed early on that they would require more time) could allow only a short additional period in which to respond (or, depending on the day of application by the visa applicant and the swiftness of the Tribunal’s response, no additional period at all).
47 The primary Judge agreed at [28] with the submission of the Minister that the appellant’s argument conflated, if not confused, the
two separate concepts of “a prescribed period” (s.359B(2) and reg.4.17(4)) which the Tribunal is obliged to provide when it initially makes the invitation pursuant to s.359A, and the “prescribed further period” (s.359B and reg.4.18A(4)) which applies if the applicant asks for, and is given, an extended period for that purpose.
48 In my view, however, it is not surprising that the appellant linked these concepts in its submissions both before the primary Judge and in this Court. The word “further” in s 359B(4) and reg 4.18A(4) must have work to do. That work must be referable to the original “prescribed period” in s 359B(2) and reg 4.17(4). To that extent, the concepts of “a prescribed period” and a “prescribed further period” are not separate as his Honour found. The intention of the legislature appears to be that, in circumstances where the visa applicant needs more time to respond to the Tribunal’s inquiries, he or she can apply to the Tribunal and receive more time from the Tribunal – that is a “prescribed further period” in addition to the existing “prescribed period”. Section 359B(4) clearly contemplated that the Tribunal be empowered to give the visa applicant a “further” period of time to respond, in addition to the prescribed period.
49 That this is so is also apparent from the provision in s 359B(4) that, when the Tribunal extends the period, “the response is to be made within the extended period”.
50 The terms of reg 4.18A(4) inevitably lead to the conclusion that, depending on when the visa applicant applies to the Tribunal for more time, the “prescribed further period” granted by the Tribunal would be, in a practical sense and as explained in Singh, meaningless, by operation of that regulation. This is a serious issue in circumstances where failure to respond within the period mandated by s 359B, the combined effect of ss 360 and 363A is that the visa applicant loses the right to a hearing before the Tribunal. It further follows that the terms of reg 4.18A(4) are such that, in certain circumstances, its operation effectively denies the Tribunal the power to extend the period by when a visa applicant is to respond to an invitation by the Tribunal.
51 The primary Judge found that this aspect of the appellant’s case focused on the conduct of the Tribunal, and when the Tribunal “chose” to notify a visa applicant of a further period in which to respond, rather than on the language of the regulation with its focus on when the visa applicant received the notice. In my view, with respect, this analysis misses the point that it is reg 4.18A(4) itself which creates potentially arbitrary results, rather than any intentional conduct on the part of the Tribunal.
52 A regulation which has that effect is, in reality, a regulation which is inconsistent with s 359B(4).
53 I consider the primary Judge erred in finding that reg 4.18A(4) was valid and I am prepared to make a declaration to that effect. The appellant succeeds in respect of ground of appeal 2.
Ground of appeal 1
54 Ground 1 raises the question whether the Tribunal erred in revoking the invitation to the appellant to appear before it pursuant to s 359C(2) of the Act, and proceeding to make a decision in respect of the appellant’s application without a hearing.
55 The appellant submitted that, in the absence of reg 4.18A(4), the Tribunal had power under s 359B(4) to extend the period by when the visa applicant was entitled to respond to the Tribunal’s s 359A letter in exactly the same terms as that contemplated by s 359B(2) and s 359B(3), namely the prescribed further period:
… or, if no period is prescribed, a reasonable period.
56 The primary Judge correctly observed at [26] that any question of legislative interpretation must, in the first instance, be resolved by having regard to the language of the subject legislation and the statutory and regulatory context within which it exists. Absent any ambiguity, there is no need to look further: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 and Visy Paper Pty Ltd v Australian Competition and Consumer Commission [2003] HCA 59; (2003) 216 CLR 1, and see also Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) FCR 150 at [174] and Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 250 CLR 523 at [47].
57 Section 359B(4) contemplates that the Tribunal may extend the period of response, and that the response is to be made within the extended period. Of course, s 359B(4) also refers to a “prescribed further period”, and I have found that reg 4.18A(4) (which defines “prescribed further period”) is not valid.
58 The immediate question which then arises, of course, in whether the Tribunal erred in cancelling the hearing scheduled for 8 October 2014, because the Tribunal believed that the appellant had lost her entitlement to a hearing as a result of the terms of reg 4.18A(4).
59 The appellant relies in particular on ground of appeal 3, claiming that words she proposes can be read into s 359B(4). Before turning to this ground of appeal, however, it is necessary to consider whether the Tribunal nonetheless had power under s 359B(4) to conduct a hearing, as claimed by the appellant in ground of appeal 1. In this respect it is helpful to consider case law examining circumstances where a power is created by legislation, subject to a prescribed qualification which is defective. Relevant authorities in this context are Downey v Pryor (1960) 103 CLR 353 at 360-363 and Woods v Bate (1986) 7 NSWLR 560 at 568.
60 At the material time in Downey v Pryor, s 215 of the Local Government Act 1919 (NSW) provided:
Any elector may at the council’s office inspect the books of account and the report of the auditor or of the inspector of local government accounts without fee as prescribed.
61 No method of inspection was prescribed. The appellant submitted that what was to be prescribed was only a matter of procedure, and the right of inspection remained unaffected notwithstanding the absence of a prescribed method of inspection. The respondent submitted that the right given by s 215 was merely a right to inspect as prescribed, that no right to inspect existed until something was prescribed, and the addition of the words “as prescribed” had left the existence of the right and its nature to the discretion of the Executive.
62 Dissenting, McTiernan J held that the words “as prescribed” were an essential part of what s 215 enacted for giving a right to an elector to inspect the books of account of the relevant Council and reports; no complete right of inspection arose until the ordinance was duly made; that, in effect, s 215 was only an inchoate enactment; and that no intention was manifested in the legislation that s 215 was to give a right of inspection which, if no ordinance is made, the elector could exercise in a reasonable manner.
63 However, the majority (Kitto and Windeyer JJ) upheld the appeals. At 361-362 Kitto J observed:
No doubt the introduction, into a provision conferring a right, power or authority (it will suffice to speak of an authority), of words requiring that in exercising the authority a prescribed method (to use the word in a comprehensive sense) shall be observed, may have either of two results. Upon consideration of the words themselves, the context, and the nature of the provision, the intention may appear that a prescribed method is of the essence of the authority, so that there is no authority capable of exercise at any given time unless at that time a valid prescription of a method is in force: see, for example, Cameron v. Deputy Federal Commissioner of Taxation (Tas.); Gramophone Co. Ltd. v. Leo Feist Incorporated; Browne v. Commissioner for Railways; and Ex parte Greenfield; Re McCulloch. But on the other hand the meaning may be that the authority is to be subject to a power in the Executive to regulate its exercise and that in the reference to the prescribed method the words” if any” are to be implied: see Commissioners of Inland Revenue v. Joicey [No.1]. In the latter class of cases, a person exercising the authority must observe any method which is prescribed for the time being; but if none is prescribed the authority is exercisable by any appropriate method. Illustrations of this kind of provision may be found in Commissioners of Inland Revenue v. Joicey [No.1] and Moate v. Dartnell.
(Footnotes omitted)
64 His Honour found that s 215 fell into latter class of cases. In particular at 362:
The broad intention clearly appears that a council’s books of the kinds referred to shall be open to inspection by the electors. To the Executive is committed the responsibility of regulating the right of inspection, by making such provisions by ordinance as may seem proper. But there is no definable category of matters to be covered by ordinance, and the section can hardly mean that provided some aspect of inspection, however insignificant, is governed by a prescribing ordinance the right exists, and, save on that one aspect, is exercisable at large, but that unless there is some prescription there is no right of inspection at all. The view seems much sounder that the function of the expression “as prescribed” is to link an authority which the section intends by its own immediate operation to confer on electors with the power elsewhere entrusted to the Executive to regulate the exercise of that authority. The availability of a council’s books for inspection by electors is so potentially important a feature of the system of local government which the Act sets up that nothing but the clearest language could justify the conclusion that Parliament intended that the Executive not only might decide whether and how the right of inspection should be regulated but might, by preferring silence, deny to the section all operation. It has been argued for the defendants that “as prescribed” must be given some force in the section, and that it cannot be intended to be the source of power to regulate the right to inspect, for s. 218 (m) specifically includes, among the subjects upon which the Governor is empowered (by s. 575) to make ordinances, the inspection by electors of the books of account and of the reports of auditors and inspectors of local government accounts. Both propositions may be conceded; but the informant’s contention does not treat the expression either as meaningless or as creating a power of prescription: it treats it as requiring compliance with any prescription that there may be.
65 His Honour concluded at 363:
The conclusion to which I come, therefore, is that the elliptical expression “as prescribed” means “observing any regulatory provisions which may be contained in the ordinances for the time being in force”.
66 Windeyer J said:
In my view the words” as prescribed” that appear, somewhat clumsily, in s. 215 of the Local Government Act 1919 do not make that section depend for its effectual operation on something being prescribed. This is not, it seems to me, a case where a prescription of something pursuant to a statute is necessary to complete a statutory right. It is rather a case of the statute recognizing that a right given by it may be further defined, or its exercise regulated, by ordinance. The distinction between the two classes of cases is clear. But sometimes, as here, a question can arise as to which result the language of a particular enactment produces. Where it is said that something is to be done in a prescribed manner, and there are several ways in which that very thing can be done, then, prima facie, the enactment is ineffectual until one of those ways be prescribed (Browne v. Commissioner for Railways; Cameron v. Deputy Federal Commissioner of Taxation (Tas.)). In such cases life and vigour is only given to the statute when what is to be prescribed has been prescribed – for example, a prohibition against travelling at a speed greater than the prescribed maximum could not be contravened until a maximum had been prescribed. There are several provisions of the Local Government Act in which the words “as prescribed” have that result – for example s. 90 (1), which requires a council to appoint an engineer, “who shall hold a certificate as prescribed”. But that does not mean that wherever the words “as prescribed” appear in the Act in connexion with a right or duty, no right is created or duty imposed until something be prescribed. For example, s. 425 (3) provides that when an animal is impounded “the poundkeeper shall give such notices by post, exhibition, or advertisement as shall be prescribed, and shall feed and care for such animal as prescribed”. If, in fact, nothing were done to prescribe what notices should be given, then the poundkeeper might have no obligation under the statute to give any notice; but, in my view, he would be under a statutory obligation to care for and feed the animal even if nothing about this were prescribed: cf. Graham v. Fennell.
(Footnotes omitted.)
(I note that Downey v Pryor was followed by the Full Court of this Court in SCI Operations Pty Ltd v Commonwealth (1996) 69 FCR 346. I further note that although an appeal against the decision of the Full Court in SCI Operations was allowed by the High Court in Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285, no adverse finding was made in respect of the application of Downey v Pryor, which in my view remains good law.)
67 In Woods v Bate the Court of Appeal of New South Wales considered a finding of the Full Bench of the Licensing Court that it had no jurisdiction to hear an appeal brought by an objector against the conditional transfer of a licence. Section 148(1) of the Liquor Act 1982 (NSW) provided:
(1) Except where an appeal lies by reason of section 146 or 147, a person aggrieved by an adjudication of the court constituted by less than 3 magistrates may appeal therefrom, as prescribed, to the court constituted as provided by section 10.
68 Regulation 29 of the Liquor Regulation 1983 (NSW) provided:
(1) An appeal under section 148 of the Act shall be made by –
(a) lodging written notice of the appeal with the Principal Registrar not later than 21 days after the adjudication appealed against; and
(b) serving a copy of that notice –
(i) in the case of an appeal by an applicant — on each objector to the application to which the adjudication relates; or
(ii) in the case of an appeal by an objector — on the applicant and any other objector to the application to which the adjudication relates, that service being effected not later than 7 days after compliance with paragraph (a).
(2) The fee payable on lodgment of an appeal is $100.”
69 The relevant notice of appeal was lodged out of time, and the relevant question was whether as a result of the operation of reg 29, the appeal to the Full Bench was invalid.
70 At 568 McHugh JA said:
It is true that both s 148(3) and s 149 are concerned with appeals against the suspension or cancellation of licences and not appeals generally. But they each proceed on the assumption that it is the lodging of the notice of appeal and not its service which brings the appeal under s 148 (1) into existence. This assumption is consistent with the terms of s 148(1). The expression “may appeal” is to be construed, therefore, as meaning “may lodge an appeal”.
Accordingly, when s 148(1) states that a person aggrieved “may appeal… as prescribed, to the court”, it is the section and not the prescription which give him the right of appeal. If no procedure had been prescribed, the appeal of a person aggrieved would come into being on the lodging of the appeal: cf Downey v Pryor (1960) 103 CLR 353 at 363.
71 Turning now to s 359B(4), where a person is to respond to an invitation within a prescribed period, the Tribunal is empowered to extend that period for a prescribed further period, and in those circumstances the response is to be made within that extended period. I am satisfied that s 359B(4) is of similar ilk to the legislative provisions considered in Downey v Pryor and Woods v Bate. In summary – s 359B(4) confers the power on the Tribunal to extend the time for a person to respond to an invitation. It is not reg 4.18A(4) which conferred that power.
72 It is one thing to say that, when a period of time to extend the opportunity for response is prescribed by the regulations, the Tribunal must conform with that prescription – it is, however another thing to say that in the absence of that prescription the Tribunal lacks power to extend the time of response (see Hamilton LJ in Commissioners of Inland Revenue v Joicey (No 1) [1913] 1 KB 445 at 455). To paraphrase Windeyer J in Downey v Pryor, the prescription of the further period of time to respond was not necessary to complete the power conferred on the Tribunal – rather it was a case of the statute recognising that a right given by it could be further defined, or its exercise regulated, by regulation. In the absence of a prescription of a further period for response, the Tribunal nonetheless has power to extend time to respond.
73 Further, the existence of a power in the Tribunal to extend time to respond to an invitation is an important aspect of its power to conduct hearings. Section 357A of the Act provides that Pt 5 Div 5 must be taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with, however this does not mean that the power given to the Tribunal by s 359B(4) is subject to a prescription in the regulations. As Kitto J observed in Downey v Pryor, nothing but the clearest language could justify the conclusion that Parliament intended that the Executive not only might decide whether and how the right of inspection should be regulated but might, by preferring silence, deny to s 359B(4) all operation. I am not satisfied that, in the absence of a valid prescription in the regulations of the “prescribed further period”, the legislature intended s 359B(4) to have no operation, or the Tribunal to lack the power to extend time pursuant to that section.
74 Finally, there is no material before the Court to support a finding that, in the absence of the prescription of a “further prescribed period” in reg 4.18A(4), s 359B(4) is an inchoate enactment.
75 Section 359B(4) was enacted by the Migration Legislation Amendment Act (No 1) 1998 (Cth). Paragraph 36 of the Explanatory Memorandum issued with the Bill provided:
Item 22 Sections 359 and 360
…
36. This item also inserts six new sections in the Migration Act. Of these, sections 359, 359A, 359B and 359C provide a code of procedure which the Tribunal is to follow in conducting its review:
…
- new subsection 359B(4) allows the Tribunal to extend the prescribed period for giving additional information, or commenting on information, for a further prescribed period. The further period will be prescribed by the Regulations;
76 Regulation 4.18A(2)-(5) was introduced in its current form by the Migration Legislation Amendment Regulation 2013 (No 1) (Cth). In respect of reg 4.18A(4) in particular, the Explanatory Statement to that Regulation stated:
Subregulation 4.18A(4) provides that, if an invitation relates to any other application for review of a decision, the period by which the MRT may extend the prescribed period commences when the person receives the notice of the extended period and ends at the end of 14 days after the day they receive the notice. However, if the person agrees, in writing, to a shorter period of not less than one working day, then the prescribed period ends at the end of that shorter period of time.
The effect of subregulation 4.18A(4) is that it removes the distinction between the prescribed extended period for giving comments or information for applicants seeking review of a decision to cancel, or a decision not to revoke the cancellation of, a visa and any other applicants that are not in detention. This means that the MRT may extend the prescribed period for all applicants who are not in detention to provide comments or additional information by 14 days.
This amendment increases the prescribed extended period for applicants who are not in detention seeking review of a decision to cancel, or a decision not to revoke the cancellation of, a visa from 5 working days to 14 days. This amendment also decreases the prescribed extended period for applicants who are not in detention seeking review of any other decision from 28 days to 14 days.
The amendments in subregulation 4.18A(2), 4.18A(3) and 4.18A(4) also allow for the extended prescribed periods under regulation 4.18A to be shortened to a period of not less than one working day, where the person agrees in writing to a shorter period. The purpose of these amendments is to provide the MRT with greater flexibility for the management of its caseloads and to ensure that applicants are not required to wait unnecessarily for the prescribed time period to pass.
77 The Explanatory Memorandum issued with the relevant Bill acknowledged the conferral of power on the Tribunal to extend time in accordance with the procedure created by the new legislation, anticipating that the “further period” would be prescribed by the Regulations. To the extent that, as explained by the Explanatory Statement issued with the relevant regulations, the terms of reg 4.18A(4) are dictated by the administrative purposes of providing the Tribunal with flexibility, giving the visa applicant some choice in the length of the period for response, and standardising the prescribed extended period for applicants in, or not in, detention, such matters do not support a finding that the power conferred on the Tribunal by s 359B(4) is in any way subordinate to the prescription set out in that regulation.
78 In circumstances where there is no valid “prescribed further period” under reg 4.18A(4), the power of the Tribunal pursuant to s 359B(4) to extend time to a visa applicant to respond to an invitation appears to be at the discretion of the Tribunal. The Tribunal erred on 3 October 2014 in cancelling the hearing scheduled for 8 October 2014 in the belief that the appellant had lost her entitlement to a hearing. That belief was attributable to the Tribunal’s reliance on the terms of reg 4.18A(4), which I have found to be invalid.
79 It follows that the appellant succeeds on ground of appeal 1.
Ground 3
80 Although I am satisfied that the appeal should be upheld on the basis of grounds 1 and 2, in light of the submissions made by the parties in relation to ground 3, I make the following observations.
Submissions of the parties
81 The essence of the appellant’s claim in ground of appeal 3 is that, if reg 4.18A(4) is invalid, it would be necessary for the Court to read the following words into s 359B(4) so that the section would remain operative even where no time period had been prescribed by regulation. The appellant contends that this is a clear but unexpressed intention of the legislature:
82 The Minister disagreed that the additional words proposed by the appellant should not be read in to s 359B(4) in the event of invalidity because:
The inclusion of the additional words would skew the operation of s 359B(4) as it presently stands, which contemplates that the prescription of the extended period is a matter to be dealt with by regulation.
The proposed additional words did not have the simple effect of amending a drafting or grammatical error but rather would operate to fill a theoretical gap disclosed in the legislation: Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [39].
Consideration
83 As Mason and Wilson JJ explained in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320:
On the other hand, when the judge labels the operation of the statute as “absurd”, “extraordinary”, “capricious”, “irrational” or “obscure” he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.
(Emphasis added.)
(See also, for example, Esso Australia Pty Ltd v The Australian Workers’ Union [2017] HCA 54; (2018) 350 ALR 404 at [52].)
84 In Taylor v The Owners - Strata Plan No 11564, the High Court observed as follows:
37 Consistently with this Court’s rejection of the adoption of rigid rules in statutory construction, it should not be accepted that purposive construction may never allow of reading a provision as if it contained additional words (or omitted words) with the effect of expanding its field of operation. As the review of the authorities in Leys demonstrates, it is possible to point to decisions in which courts have adopted a purposive construction having that effect. And as their Honours observed by reference to the legislation considered in Carr v Western Australia, the question of whether a construction “reads up” a provision, giving it an extended operation, or “reads down” a provision, confining its operation, may be moot.
38 The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is “too big, or too much at variance with the language in fact used by the legislature”.
(Footnotes omitted.)
85 In Tokyo Mart Pty Ltd v Campbell (1988) 15 NSWLR 275 at 283:
Legislative inadvertence may consist, inter alia, of either of two things. The draftsman may have failed to consider what should be provided in respect of a particular matter and so fail to provide for it. In such a case, though it may be possible to conjecture what, had he adverted to it, he would have provided, the court may not, in my opinion, supply the deficiency. In the other case, the legislative inadvertence consists, not in a failure to address the problem and determine what should be done, but in the failure to provide in the instrument express words appropriate to give effect to it. In the second case, it may be possible for the court, in the process of construction, to remedy the omission.
In Wentworth Securities Ltd v Jones [1980] AC 74 at 105-106, Lord Diplock said:
“My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1971] AC 850 provides an instance of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. It becomes a usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts.”
86 The principles articulated by Lord Diplock in Wentworth Securities Ltd v Jones [1980] AC 74 have also been applied in many other cases in this country, including Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, Taylor v Centennial Newstan Pty Ltd (2009) 76 NSWLR 379, Rail Corporation New South Wales v Brown (2012) 82 NSWLR 318, Grain Growers Ltd v Chief Commissioner of State Revenue (NSW) (2016) 93 NSWLR 415, Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196; (2016) 337 ALR 647, and DPP v Leys [2012] VSCA 304; (2012) VR 1.
87 As I explained earlier, the appellant submits that the statutory purpose of s 359B(4) is preserved by implying the words “… or, if no period is prescribed, a reasonable period” into the section, akin to the terminology used in s 359B(2) and s 359B(3). Examining the proposal of the appellant in light of the principles explained by Lord Diplock in Wentworth Securities however, I am not satisfied that either Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that was required to be dealt with if the purpose of the Act were to be achieved, or that it is possible to state with certainty that the additional words proposed by the appellant would have been inserted had Parliament’s attention been drawn to the defect in reg 4.18A(4) before the regulation was passed into law. No basis for such a finding has been advanced by the appellant in circumstances where:
The eventuality required to be dealt with is that the period prescribed by the regulation is arbitrary, such that the relevant regulation is itself invalid,
Although both s 359B(2) and s 359B(3) include the words “or, if no period is prescribed, a reasonable period”, both subsections address the “prescribed period” rather than “a prescribed further period”. It is not possible to find inadvertence on the part of Parliament in respect of s 359B(4) in these circumstances – rather the presumption must be that the additional words referable to a “reasonable period” were deliberately omitted.
88 It follows that the ground of appeal 3 is not substantiated.
Ground 4
89 In ground of appeal 4, the appellant contends that the Tribunal failed to discharge its obligation under s 359A(1) of the Act to give clear particulars of information it considered would be the reason or part of the reason for affirming the decision under review.
Submissions of the parties
90 The appellant submitted that the Tribunal did not give sufficient particulars pertaining to the identity of the source of adverse evidence in its s 359A letter to the visa applicant. It appears that the Tribunal had received a written communication from “Ms C”, together with some photographs which showed intimacy between Ms C and Mr Bautista. The appellant submitted further, in summary, that:
knowing the source of adverse evidence could assist an applicant to respond to that evidence;
in the absence of this information meant that the appellant possibly lost an opportunity to adduce evidence in response to the photographs;
had copies of the relevant photographs been given to her, the appellant have may have been able to comment on Mr Bautista’s demeanour from her knowledge of him.
91 In its reasons for affirming the decision under review, the Tribunal indicated that it had disregarded Ms C’s written allegation and that it placed “little weight” on the photographs submitted by Ms C. From this the appellant extrapolates that by giving “little weight” to the photographs, the Tribunal logically gave some weight to them, such that the photographs were part of the reason for affirming the decision under review.
92 The appellant further submitted that the primary Judge incorrectly drew a distinction between “part of the reason for affirming the decision under review” and “part of the reason for affirming the delegate’s decision”, which, in the appellant’s submission, is a distinction without a difference.
93 In written submissions, the Minister identifies two “limbs” of argument by the appellant in relation to ground 4:
The appellant contends that the Tribunal should have expressly referred to Ms C’s statement in the s 359A letter of 29 July 2014.
The s 359A letter contained inadequate particulars.
94 As to the first identified limb, the Minister noted that the statement provided by Ms C is “non-disclosable information”, which is defined in s 5 of the Act as information
whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence … and includes any document containing, or any record of, such information or matter
Section 359A(4)(c) provides that the requirement in s 359A does not apply to “non-disclosable information”, which in turn is defined by s 5 as information or matter:
(a) whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:
(i) prejudice the security, defence or international relations of Australia; or
(ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
(b) whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or
(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
95 The Minister submitted that, in the case of non-disclosable information, the Tribunal is only required to put to the appellant the gist of the allegations in the non-disclosable information: see Minister for Immigration and Citizenship v Kumar [2009] HCA 10; (2009) 238 CLR 448 at [34].
96 The Minister submitted that the evidence from Ms C was corroborated by the appellant’s sponsor, Mr Bautista, who admitted that his relationship with the appellant had ceased in November 2002 by emails dated 22 and 23 July 2014. The allegation about November 2002 was sufficiently particularised in the s 359A letter, and the Minister submitted that as a result, the Tribunal’s obligation under s 359A with respect to the non-disclosable information provided by Ms C was properly discharged.
97 The Minister also relies on the authority of SZLPJ v Minister for Immigration and Citizenship [2008] FCA 1721 at [15] for the proposition that the question of whether the Tribunal considers that information “would be the reason, or part of the reason, for affirming the decision under review” requires an assessment of the Tribunal’s state of mind prior to the making the decision. To this end, the Minister submitted that the primary Judge correctly recognised that the Tribunal disregarded Ms C’s written allegation and, as such, that statement was not considered by the Tribunal to be the reason of a part of the reason for affirming the decision under review. Instead, the Tribunal preferred to rely on the emails of the appellant’s sponsor.
98 As to the second contention, the Minister submitted that the Tribunal had discharged its obligation under s 359A(1)(a) and had provided sufficient information to the appellant in the circumstances. The s 359A letter that was sent to the appellant referred to the photos, and so the letter sufficiently disclosed to the appellant the nature of the allegation being made, being that the appellant and her sponsor were not in a genuine relationship.
Consideration
99 In my view this ground of appeal is not substantiated for the following reasons.
100 First, the submission of the appellant concerning the language used by the Tribunal – namely that the Tribunal placed “little weight” on the photographs submitted by Ms C – invites the Court to examine the reasons of the Tribunal with an eye finely attuned to error, contrary to the views of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30].
101 The relevant passage in the decision of the Tribunal is at [60] of the Tribunal’s reasons for decision:
60. The Tribunal had regard to the fact that the allegation made by Ms C was an allegation of a contrived relationship and that this allegation may have been made for a variety of personal reasons. The Tribunal therefore only placed weight on the independent documentary evidence such as travel receipts for their joint holiday in April 2003 and the applicant sponsor’s telephone bills dated from April to June 2003 which clearly indicates he was residing at a different address from that which he had provided to the Department at the time of the application and at the time of his marriage to the applicant. Phone calls to Ms C ceased over the Anzac Long weekend for the period that Ms C stated that they were on holiday together in Coffs Harbour. The photographs indicated that there was some degree of intimacy between the applicant’s sponsor and Ms C, however as the dates of the photographs were provided by Ms C, the Tribunal places little weight on these is [sic] evidence that she was in a relationship with the applicant’s sponsor during the period in question.
102 As the primary Judge observed:
76. The Tribunal noted that in relation to the photographs, which were part of the “independent documentary evidence” to which the Tribunal said it had generally given weight, that it gave “little weight” to these photographs as evidence Ms C was in a relationship with Mr Bautista in the relevant period, because the dates were provided by Ms C herself.
77. Before the Court, the applicant sought to emphasise that the Tribunal stated it placed “little weight” on the photographs, rather than “no weight”, to argue that Ms C’s allegations were a part of the reason for affirming the delegate’s decision.
78. However, as is clear on a fair reading of the Tribunal’s decision, the Tribunal placed no weight on the statement made by Ms C, and in relation to the documentary evidence of which it said it placed some weight, the photographs received only “little weight”.
79. What remains is that it cannot be said that Ms C’s allegations were “part of the reason for affirming the delegate’s decision” as argued by the applicant now. Rather, the photographs, as part of the documentary evidence only, can be said to be a “part of the reason for affirming the delegate’s decision”. In this circumstance, the photographs, and what they relevantly depicted, and their dates, were all put in the Tribunal’s letter of 29 July 2014.
80. It must be said that the applicant’s argument relied on a selective reading of the totality of the Tribunal’s reasoning. The applicant’s approach was not a fair reading. Nor was there any satisfactory attempt to put [59] (at CB 172) to [60] (at CB 172 to CB 173) of the Tribunal’s decision record, in the context of the entirety of the analysis at [54] (at CB 171) to [69] (CB 174), on the issue of the nature of the applicant’s and her sponsor’s commitment to each other.
103 I endorse his Honour’s reasoning in respect of the weight – or, more precisely, lack thereof –attributed by the Tribunal to the allegations of Ms C. Insofar as concerns the photographs provided by Ms C the Tribunal notes, as his Honour points out, that although the photographs may have indicated some level of intimacy between Ms C and Mr Bautista, this can be of little relevance because the alleged dates of the photographs were inserted by Ms C herself, and to that extent were unreliable. In my view it is clear that, notwithstanding the language used by the Tribunal, the photographs were actually given no weight by the Tribunal in assessing the appellant’s claims.
104 Second, as the primary Judge observed at [105], the appellant was put on notice by the Tribunal’s s 359A letter of 29 July 2014 that allegations had been made by virtue of information provided by Ms C and Mr Bautista, that went to the proposition that the claimed relationship was a “contrivance” for immigration purposes. While the relevant photographs may have been informative, the allegations as put by the Tribunal to the appellant were clear, namely that the appellant and Mr Bautista were not in a genuine relationship, and invited a response. His Honour observed that the letter contained clear particulars and sufficient detail as required by s 359A(1). I am not persuaded that this reasoning of his Honour exhibits error.
105 In my view ground of appeal 4 is not substantiated.
Conclusion
106 The appeal should be allowed on the basis of grounds 1 and 2 of the amended notice of appeal. I will make a declaration that reg 4.18A(4) of the Regulations is invalid and remit the matter to the Tribunal for consideration according to law. Costs should follow the event.
We certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associates:
