Federal Court of Australia

Sang v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1572

ORDERS

THE COURT ORDERS THAT:

1.    The application for an extension of time in which to bring an application to review the decision by the second respondent that it did not have jurisdiction be refused to the extent that it seeks to raise ground 1 as set out in the draft originating application.

2.    The application for an extension of time be otherwise adjourned to a date to be fixed.

3.    There be a case management hearing on a date to be fixed on application of any party after the delivery of the decision by the High Court in the appeal against the decision in Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 183.

4.    The costs to date of the application for an extension of time be reserved.

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

REASONS FOR JUDGMENT

COLVIN J:

1    Mr Lal Din Sang's visa was cancelled and his request for revocation of the cancellation was refused by a delegate of the Minister. As provided for by s 500 of the Migration Act 1958 (Cth), Mr Sang was entitled to seek merits review in the Administrative Appeals Tribunal. As to the availability of merits review, the Minister accepts that he was obliged to give Mr Sang a notice that conformed to the requirements of s 501G(1) which applied to the decision by the delegate not to revoke the visa cancellation. Section 501G(1) required the Minister to give Mr Sang a written notice that, amongst other things, set out the effect of s 500(6B) of the Migration Act.

2    Section 500(6B) provides:

If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.

(emphasis added)

3    Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) sets out the manner in which a person must apply to the Tribunal. Amongst other things, it specifies the time within which an application must be made. Section 29 confers upon the Tribunal a power to entertain an application that is out of time if the Tribunal 'is of the opinion that there are special circumstances that justify it in doing so': see s 29(6) and (7).

4    Therefore, s 500(6B) required any application by Mr Sang (or any other person in his circumstances) to lodge an application for review within 9 days and excluded the Tribunal's express power to extend time for lodging an application in the Tribunal.

5    Mr Sang was notified of the delegate's decision by letter dated 26 May 2022. The letter referred to his review rights. As to those rights, it stated:

As the decision not to revoke the original decision was made by a delegate of the Minister, you are entitled to have that decision reviewed by the Administrative Appeals Tribunal.

If you wish to have the decision reviewed, you must lodge your application for review within nine (9) days after the day on which you are taken to be notified of the decision. If you have an authorised recipient who is authorised to receive documents relating to the revocation of the original decision on your behalf, you are taken to be notified when your authorised recipient is taken to be notified of the decision.

As you do not have an authorised recipient who can receive documents on your behalf, and as this letter was given to you by hand, you are taken to be notified of the decision when this letter was handed to you.

Enclosed is an information sheet about ‘How to Apply for Merits Review by the AAT', together with… [copies of the statement of reasons and documents considered by the decision maker]

Enclosed is also some further information about the effect of s500(6A) to s500(6L) of the Migration Act, which the Department is required by law to provide to you.

As you are an unlawful non-citizen in Australia, you are subject to immigration detention and removal from Australia.

(original emphasis)

6    The letter enclosed a document headed 'The effect of section 500(6A) to section 500(6L) of the Migration Act 1958'. The document included the following (as the second of 11 dot points each of which concerned a subsection of s 500):

Section 500(6B) of the Migration Act provides that if a decision under s501 or s501CA of the Migration Act relates to a person in the migration zone then the application for review with the Administrative Appeals Tribunal (AAT) for review of the decision must be lodged within nine days after the day on which the person was notified of the decision in accordance with s501G(1) of the Migration Act. Accordingly, s29(1)(d) and s29(7), (8), (9) and (10) of the AAT Act (which allow the AAT to extend the time within which an application for review may be made) do not apply to the application.

7    It can be seen that the document enclosed with the letter to Mr Sang follows closely the text of s 500(6B). However, there are two differences. First, the Tribunal as referred to in the statute is described as 'the Administrative Appeals Tribunal (AAT)'. Second, there is the addition of the words in parenthesis in the second sentence which provide an explanation that the relevant provisions in s 29 of the Administrative Appeals Tribunal Act are those allowing the Tribunal to extend time.

8    Mr Sang lodged materials with the Tribunal within the 9 day period. He lodged further materials after the 9 day period. In those circumstances, an issue arose as to whether he had made an application to the Tribunal within time.

9    The Tribunal determined that Mr Sang's application was out of time. It did so without having regard to the fact that Mr Sang had lodged materials with the Tribunal within the 9 day period.

10    Mr Sang now seeks an extension of time in which to apply to review the Tribunal's decision on the basis of alleged error by the Tribunal in denying jurisdiction. He seeks to advance two substantive grounds. They are to the following effect:

(1)    as the document enclosed with the letter to Mr Sang did not state that an applicant who fails to lodge their application within the 9 day period loses their right of review, it did not set out the effect of s 500(6B) and accordingly time had not commenced to run; and

(2)    by the materials lodged within the 9 day period Mr Sang had made a valid application for review

11    As to ground 2, Mr Sang accepts that the materials that were lodged within 9 days of receiving the letter did not contain a positive statement by him as to the reasons for making the application to the Tribunal. He furthers accepts that, in those circumstances, on the reasoning in Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 183; (2022) 295 FCR 254, this Court is bound to find that there was no application within time.

12    Special leave has been granted by the High Court to appeal the decision in Miller. The appeal is yet to be heard. In those circumstances, the application for an extension of time to advance ground 1 and any review based upon ground 1 was heard on the basis that the balance of the application concerning proposed ground 2 would be addressed, if necessary, when the outcome of the appeal to the High Court in Miller is known.

Outcome

13    For the following reasons, leave should be refused to raise ground 1 and the balance of the application for an extension of time should be adjourned until the outcome of the appeal in Miller is known.

Matters in issue on ground 1

14    As to the merits of the claim that Mr Sang seeks to raise by ground 1. The Court has jurisdiction under s 476A(1)(b) of the Migration Act. The parties joined issue on the basis of competing contentions as to whether the document enclosed with the notice conformed to the requirements of s 500G(1) in respect of the effect of s 500(6B). Both parties proceeded on the basis that a failure to conform with those requirements would mean that the required notice had not been given and the relief sought by Mr Sang should be granted. Therefore, ground 1 raises a short point of statutory construction.

Relevant principles of statutory construction

15    The general principles of statutory construction are well known. They were expressed in the following terms in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

(footnotes omitted)

16    Further, 'attribution of meaning to the text in context must be guided so far as possible by statutory purpose on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means': SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137 at [41] (Gageler J); quoted with approval in ENT19 v Minister for Home Affairs [2023] HCA 18 at [87] (Kiefel CJ, Gageler and Jagot JJ).

Evident purpose in the present case

17    Section 501G applies to a number of instances where decisions are made under the Migration Act to refuse or cancel or not to revoke a decision to cancel a visa. It requires the Minister, in such cases, to give a written notice and is quite detailed as to what must be included in that notice. In addition there is a requirement that the notice must be given 'in the prescribed manner': s 501G(3). It was not suggested that the form of the document enclosed with the letter to Mr Sang was defective by reason of some failure to meet some prescription pursuant to that provision.

18    Relevantly for present purposes, the matters that must be stated in the notice are expressed in the following terms:

the Minister must give the person a written notice that:

(c)    sets out the decision; and

(d)    specifies the provision under which the decision was made and sets out the effect of that provision; and

(e)    sets out the reasons (other than non-disclosable information) for the decision; and

(f)    if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:

(i)    states that the decision can be reviewed by the Tribunal; and

(ii)    states the time in which the application for review may be made; and

(iii)    states who can apply to have the decision reviewed; and

(iv)    states where the application for review can be made; and

(v)    in a case where the decision relates to a person in the migration zone--sets out the effect of subsections 500(6A) to (6L) (inclusive); and

(vi)    sets out such additional information (if any) as is prescribed.

19    Having regard to the subject matter, it may be concluded from the context that the purpose of the provision is to inform the person concerned of the decision, of the reasons for the decision and of the availability of a statutory right to seek review of the decision by the Tribunal and the provisions concerning the characteristics of that right to seek review insofar as they depart from the usual practice and procedure of the Tribunal.

20    Section 500(6A) to (6L) (referred to in s 500G(1)(f)(v) as quoted above) modifies the procedures of the Tribunal in a number of material respects including, as has been mentioned, the time within which an application may be made and the exclusion of any power to extend that time. Plainly, the purpose of that requirement is to put in place a mechanism by which a person who has been the subject of a decision covered by those provisions may be made aware of their effect. The evident purpose is, at least, informative.

21    The provisions in s 500(6A) to (6L) were introduced as part of a group of changes the purpose of which was to streamline the merits review process in the Tribunal. This is apparent from the provisions themselves as well as the terms of the Explanatory Memorandum for the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 (Cth), the passage of which introduced the provisions.

22    I have considered whether it is appropriate to conclude from the text of s 501G(1), considered in context, that the purpose of the requirement expressed in s 501G(1) for a notice to be given is to be protective of the interests of the person affected by the relevant decision beyond requiring notification. In my view, it is not possible to discern such a purpose from the statutory language nor from the Explanatory Memorandum. Indeed, regard to the latter indicates a concern for removing ways in which applicants might delay proceedings before the Tribunal rather than some form of concern to ensure that affected parties might be made aware of the consequences for them if they did not conform to the procedures that were to be notified.

23    It is not for the Court to construct its own idea of the policy behind the provision: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 at [28] (French CJ, Hayne, Kiefel and Bell JJ).

24    For those reasons, I have concluded that the obligation to set out the effect of the s 500(6A) to (6L) does not require the Minister to explain the consequences of those provisions for the interests of the recipient of the notice or to provide some form of warning or disclosure as to how those provisions might operate adversely to those interests. Rather, the requirement is to give notice of the effect of the provisions in the sense of informing the recipient of the way those provisions operate when it comes to seeking review in the Tribunal of the decision being notified.

Proper construction of s 501G(1)(f)(v) as applied to s 500(6B)

25    The effect of s 500(6B) when it comes to seeking review in the Tribunal is that it expresses a mandatory requirement for any application to be lodged within 9 days after notification of the relevant adverse decision and that the provisions in the Administrative Appeals Tribunal Act allowing for time to be extended do not apply to such applications.

26    The consequence is that a person who does not lodge an application within the 9 day period will not be able to seek merits review in the Tribunal and will be confined to review for alleged jurisdictional error. This is a significant consequence. However, for reasons that have been given, it is the effect of s 500(6B) that must be included in the notice given by the Minister not an explanation of the significance of that effect.

Application of proper construction in the present case

27    In the present case, the notice in the document enclosed with the letter to Mr Sang did say that the provisions in the Administrative Appeals Tribunal Act allowing for time for making an application to be extended do not apply to such applications. In doing so, it conformed to the requirements of s 501G(1)(f)(v) insofar as they concerned s 500(6B).

28    It was submitted for Mr Sang that there was an issue with the notice that was given because it was substantially identical to the provision it was supposed to methodically explain. I do not accept that submission. The notice did identify the Administrative Appeals Tribunal as the Tribunal referred to in the provision. It also identified the substance of what was addressed by the provisions in the Administrative Appeals Tribunal Act that were excluded.

29    It was further submitted that there was an issue with the notice because it did not expressly state that the consequence of not lodging an application with the Tribunal within the 9 day period was that the person's right to merits review would be lost. For reasons that have been given, it was not necessary for the notice to explain that consequence.

30    It was further submitted that there was an issue with the notice because it did not explain that an invalid application lodged within time could not be regularised after time had expired. This submission appeared to be directed to the circumstances of the present case where Mr Sang lodged materials with the Tribunal within time but the lodgement of those materials, on the current state of the law, was not the lodgement of an application with the Tribunal for the purposes of s 500(6B). There is no language in the legislation to support such a requirement.

31    I have considered whether the requirement to notify obliged the Minister to state, in terms, that there was no power to extend the time for lodging an application with the Tribunal beyond 9 days. Arguably, a requirement of that kind arises because the effect of the relevant provisions of the Administrative Appeals Tribunal Act concerning extension of time not applying is that there is no power to extend. In the result, I am persuaded that the form of notice in the present case did notify that effect by stating that the application must be lodged in 9 days and that the requirement to that effect meant that the provisions in the Administrative Appeals Tribunal Act that allowed time to be extended did not apply. The notice made clear that the effect of s 500(6B) was that it was mandatory for any application to be lodged within the 9 day period and that was the reason why the extension of time provisions did not apply.

32    It follows that Mr Sang has failed to demonstrate that proposed ground 1 should be upheld.

Extension of time

33    The proper approach to be applied in considering whether to grant an extension of time in which to bring an application to review a decision of the Tribunal in migration cases was recently addressed by the High Court in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28. As explained by Kiefel CJ, Gageler, Keane and Gleeson JJ at [12]-[18], the power is unfettered beyond the statutory requirements of a written application specifying why the applicant considers that it is necessary in the interests of the administration of justice for there to be an extension and the Court's satisfaction that it is necessary in the interests of justice to make the order. Other than the interests of justice, there are no mandatory relevant considerations. However, it is proper to refer to the well-established principles stated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348-349.

34    Therefore, matters that may be taken into account include (a) the length of the delay; (b) whether an acceptable explanation has been given for the delay; (c) whether the respondent has suffered any prejudice; and (d) the merits of the application for review if leave were given. As to the merits, it will often be appropriate to assess the merits of the proposed grounds at a reasonably impressionistic level. However, where the delay is lengthy or unexplained the applicant may need to show that the case is strong or even exceptional in order to satisfy the Court that an extension in necessary in the interests of justice. As to these matters, see Tu'uta Katoa at [18].

35    For Mr Sang it is accepted that the delay in bringing the application (being six months) is relatively lengthy and that the explanation for the delay is not compelling. On the other hand, the Minister points to no particular prejudice and the subject matter is of considerable personal significance to Mr Sang who has deposed that he has no family in his country of citizenship to where he will be removed if he is unable to reinstate his status as the holder of a visa. Even so, given the length of unexplained delay I consider that this is an instance where a strong case on the merits would need to be demonstrated. For reasons I have given, although the case as presented is reasonably arguable, I am not persuaded that it has sufficient merit to justify an extension of time to advance ground 1.

Conclusion and orders

36    For the reasons given, the appropriate orders are for the application for an extension of time to be refused insofar as it concerns ground 1 and the application to be otherwise adjourned to a case management hearing to be convened upon application of any party after the delivery of the decision of the High Court appeal in respect of the decision in Miller.

37    Both parties accepted that it would be appropriate for costs to follow the event. It seems to me that the discretion as to costs should be exercised once the outcome of the whole of the application is known. Therefore, at this stage I propose to reserve the costs of the proceeding to date.

Associate:

Dated:    12 December 2023