Where application made by appellant's migration agent contained no statement of reasons for application, does non-compliance with requirement of Section 29(1)(c) Administrative Appeals Tribunal Act 1975 (Cth) result in invalidity?

Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13 (17 April 2024)

Intro:-

This is an appeal from the Full Court of the Federal Court of Australia

Facts:-

Mr Miller is a Fijian national whose Resident Return (Subclass 155) visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) ("the Migration Act"). A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs ("the Minister") decided under s 501CA(4) of the Migration Act not to revoke that original decision on the basis that the delegate was not satisfied in terms of s 501CA(4)(b)(ii) that there was "another reason why the original decision should be revoked".

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Calculating the period so fixed by s 500(6B) of the Migration Act in accordance with s 36 of Acts Interpretation Act 1901 (Cth), the last day for Mr Miller to make an application to the Tribunal for review of the decision of the delegate was 25 March 2021.

Mr Miller's migration agent made an application to the Tribunal for review of the decision of the delegate on 24 March 2021. Apparently because the migration agent mistook the form approved by the President of the Tribunal to be used for making such an application, the application made by the migration agent contained no statement of the reasons for the application.

The Tribunal held a directions hearing on 1 April 2021 at which the Tribunal requested that Mr Miller provide reasons for the application. In response to that request, Mr Miller's solicitors emailed the Tribunal on 9 April 2021. Under the heading "Why do you claim the decision is wrong?", the email stated, "[t]he Minister erred in concluding that there is not another reason why the original decision to cancel the applicant's Resident Return (Subclass 155) visa should be revoked". There is no dispute that this statement would have been sufficient to comply with s 29(1)(c) of the AAT Act had it been contained in the application made on 24 March 2021.

Tribunal and decision of the Federal Court & Full Court

The Tribunal considered the application to have engaged its jurisdiction to review the decision of the delegate despite the application's non-compliance with s 29(1)(c) of the AAT Act and proceeded to review the decision of the delegate. The Tribunal ultimately decided to affirm the decision of the delegate.

Mr Miller applied to the Federal Court of Australia under s 476A of the Migration Act for judicial review of the decision of the Tribunal. On the hearing of the application for judicial review, the Minister conceded that, if the jurisdiction of the Tribunal was engaged, then its decision was affected by jurisdictional error, but contended that the non-compliance with s 29(1)(c) of the AAT Act meant that the application failed to engage the jurisdiction of the Tribunal at all.

The primary judge (Derrington J) accepted the contention of the Minister that the non-compliance with s 29(1)(c) of the AAT Act meant that the application failed to engage the jurisdiction of the Tribunal. His Honour ordered that a writ of certiorari be issued quashing the decision of the Tribunal and that the application for judicial review be otherwise dismissed. The Full Court of the Federal Court (Thawley, Halley and O'Sullivan JJ) dismissed an appeal from those orders. This appeal is by special leave from the decision of the Full Court.

Issue:-

Did non-compliance with the requirement of s 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") – that an application to the Administrative Appeals Tribunal ("the Tribunal") for review of a decision "must contain a statement of the reasons for the application" – results in invalidity of the application such that the jurisdiction of the Tribunal to review the decision is not engaged?

Consideration:-

Project Blue Sky

In Project Blue Sky Inc v Australian Broadcasting Authority,[18] McHugh, Gummow, Kirby and Hayne JJ explained:

"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."

The explanation continued:

"Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue."

Their Honours went on to observe that breach of a condition regulating the exercise of a statutory power which does not result in invalidity might nevertheless result in an unlawful act capable of being restrained by injunction.

Section 29(1)(c)

The answer to the ultimate question whether non-compliance with the condition of the making of an application to the Tribunal in s 29(1)(c) of the AAT Act – that an application contain a statement of the reasons for the application – results in invalidity of the application accordingly turns on the answer to the Project Blue Sky question whether there is to be discerned a legislative purpose to invalidate an application that fails to comply with that specific condition.

The starting point of the requisite analysis is to recognise that the circumstance that s 29(1)(c) of the AAT Act provides that an application "must" contain a statement of the reasons for the application is little more than that which poses the Project Blue Sky question. The use of that imperative terminology does not in the context of the AAT Act necessarily point to an affirmative answer.

Multiple considerations point inexorably to a negative answer. Unlike s 29(1)(a) of the AAT Act, which sets out how an application "must be made", s 29(1)(c) sets out information that an application which is made "must contain". The information to be provided in compliance with s 29(1)(c) is not as to any objective circumstance but is limited to the subjective reason of the applicant for making the application. In the language of s 29AB, it is at most information as to why the applicant believes that the decision sought to be reviewed is not the correct or preferable decision. That information is to be provided in the application notwithstanding that the very fact of the making of the application carries with it the necessary implication that the applicant is dissatisfied with the decision sought to be reviewed.

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To discern within this overall context a legislative purpose to invalidate an application and thereby to deprive the Tribunal of jurisdiction for want of compliance with a condition which requires the provision of information entirely subjective to the applicant, compliance with which might be entirely inutile and non-compliance with which would be readily remediable by directions made by the Tribunal within jurisdiction, would be to attribute to the legislature an intention which would be arbitrary to the point of being capricious. Hardly needing to be repeated is that attribution of a legislative intention to produce a consequence which appears to be "absurd" or "capricious" or "irrational or unjust"[27] is to be avoided where the statutory text is not intractable.

Conclusion:-

Appeal allowed.