Miller v Minister for Immigration, Citizenship and Multicultural Affairs & Anor

[2024] HCATrans 9

[2024] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S120 of 2023

B e t w e e n -

JOSEPH MILLER

Appellant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

GAGELER CJ
GORDON J
EDELMAN J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 14 FEBRUARY 2024, AT 10.01 AM

Copyright in the High Court of Australia

MR P.D. HERZFELD, SC:   Your Honours, I appear with MR J.G. WHERRETT for the appellant.  (instructed by Zarifi Lawyers)

MR N.M. WOOD, SC:   May it please the Court, I appear with MS K.R. McINNES for the first respondent.  (instructed by Sparke Helmore Lawyers)

GAGELER CJ:   Thank you, Mr Wood.  Mr Herzfeld, this is a very short point and your submissions will be proportionate to the point, I am sure.

MR HERZFELD:   I feel that is the second time that this has happened to me in this place, your Honour, but yes, I have had a discussion with Mr Wood, and we are confident that, although the time estimates take us slightly over lunch, in fact we will finish before lunch.

May we begin by seeking to encapsulate the issue in dispute before your Honours.  On 15 March 2021, a delegate of the Minister decided not to revoke the cancellation of the appellant’s visa, which had been mandatorily cancelled on character grounds.  The appellant applied to the Tribunal for review of that decision on 24 March, which was within the nine‑day period for such application specified by section 500(6B) of the Migration Act.

The Tribunal affirmed the delegate’s decision, but it is common ground that in doing so the Tribunal made a jurisdictional error and its decision must be quashed.  Ordinarily, of course, what would happen is that there would then be an undetermined application to the Tribunal which would have to be re‑heard.  But the Minister successfully contended in the courts below that, in fact, the Tribunal never had any jurisdiction at all and so the matter cannot be sent back.

That contention turns upon section 29 of the Administrative Appeals Tribunal Act.  If your Honours would take that up – I should say to your Honours that the version in the volume of authorities is the current version.  There have been some minor and, really, immaterial changes since the application to the Tribunal, but so as to make sure the Court has the correct version at the time of the application to the Tribunal, it has been supplied.  As I say, the changes are immaterial but it was realised that the current version has had some slight changes.

GAGELER CJ:   We are working from an extract from the Federal Register of Legislation taken on 24 January 2024.

MR HERZFELD:   So, that is the current version, I think.

GAGELER CJ:   Best to set that aside, you say?

MR HERZFELD: It will not make a material difference to the outcome, but we did not want your Honours to quote the whole of section 29 from the current version, which has one slight but immaterial change from the version ‑ ‑ ‑

GORDON J:   What was that?

MR HERZFELD: If your Honours have the current version, if your Honours look in section 29, in 29(1)(ca), your Honours will see there a reference to section 83B of the ASIO Act. That section was inserted into the ASIO Act after the application to the Tribunal here, and so in that paragraph and also in the next paragraph, (cb), in the version at the time of the application to the Tribunal, that reference to 83B was not there.

GORDON J:   So, you delete “or 83B(1)” and then, in (cb), “or 83B(2)”?

MR HERZFELD:   Yes.

GORDON J:   Thank you.

GAGELER CJ:   And otherwise, we can work from the current version?

MR HERZFELD:   I think that is right.  I should say, I apologise to the Court, on behalf of all the parties, that we did not pick that up when we were preparing the volume of authorities – we should have done so.

GAGELER CJ:   We have pre‑hearing procedures that are designed to avoid this kind of conversation at the beginning of a hearing.

MR HERZFELD: I do not think I can – I have to move on, to talk about section 29.

GAGELER CJ:   Yes.

MR HERZFELD:   The relevant part, which has not changed, is subsection (1)(c).  Your Honours will see that it requires that the application:

must contain a statement of the reasons for the application –

That is not the reasons for decision of the original decision‑maker.  It is a statement of the applicant’s reasons for making the application to the Tribunal.  What that means, in practical terms, can be seen in this case.  If your Honours take up the appeal book, please, and turn to page 122 – using the pagination at the top of the page – this is the form that ought to have been used for review of the decision at issue here.

BEECH-JONES J:   Mr Herzfeld, as you say that – and the Full Court used the phrase “designed” – these are not gazetted, or anything like that, are they?

MR HERZFELD:   No.  They are put up on the AAT’s website in accordance with a provision of the Act which allows the President to specify forms for use in particular applications.

BEECH-JONES J:   So, it is a form specified for use by the President under the Act.

MR HERZFELD:   Yes.  This was the form that ought to have been used for review of a decision of the kind at issue here.  If your Honours turn over to page 123, your Honours will see down at the bottom of the page, a box – “SECTION 3” – which says:

REASONS FOR THE APPLICATION –

And asks a question:

Why do you claim the decision is wrong?

And then directs attention, your Honours will see, to “the Guide to applying for review”.  That guide begins on page 125 of the appeal book, and on page 126, again down the bottom of the page is the part of the guide dealing with that box.

JAGOT J:   None of this has statutory force.  Does the guide?  Does it?

MR HERZFELD:   No.  I am just explaining to your Honours in practical terms what providing reasons for the application involves.

GAGELER CJ:   Are you going to say it is enough to say, the decision was wrong as a matter of fact?

MR HERZFELD:   Yes.

JAGOT J:   Or:  I do not like the decision.

MR HERZFELD:   Yes, or:  I need the Tribunal’s help; or:  I do not understand the decision; or:  I do not want to be sent back to country X.  All of those would satisfy the requirements.

GORDON J:   Or an unintelligible statement.

MR HERZFELD:   Completely unintelligible.  That is so.

BEECH‑JONES J:   So, it is common ground that gobbledegook would satisfy that.

MR HERZFELD:   I am not sure that the respondent would accept “gobbledegook”, but I think the respondent would accept something entirely uninformative like:  I do not want to be sent back to country X.

GORDON J:   Does that extend to: English is not my second language, and I have included something which, on its face, is not able to be understood?

MR HERZFELD:   It would seem so to us, but that is perhaps a question for the respondent.

GORDON J:   Thank you.

MR HERZFELD:   The issue, then, which is presented for your Honours, is whether a statement of that kind – however anodyne, uninformative, unintelligible, or unintelligent, in fact – is, in a Project Blue Sky sense, an essential condition for the validity of the application to the Tribunal.

GORDON J:   Can I just ask one fact before you keep going.  I had thought that the applicant here used the wrong form. 

MR HERZFELD:   He did, and I was about to show your Honours that.

GORDON J:   I am sorry.

MR HERZFELD:   If your Honours turn to the form that was used – it is at page 5 of the appeal book.  Your Honours will see that, at the top of the page, it refers to this being the form, in the third line, “Application for review to the Migration and Refugee Division”, and so the applicant’s migration agent might have been forgiven for thinking this was the right form, but, in fact, for character decisions it was not the right form because those decisions do not go to that division – or did not go to that division.  They went to a different division.

JAGOT J:   But none of this is relevant, is it, because it is common ground that there was no even unintelligible statement. 

MR HERZFELD:   That is so.  I am just showing to your Honours what in fact happened.  It was this form, it did not include a space for reasons, and that is why no reasons for the application were given.  Such a statement was provided a matter of weeks later, and if your Honours turn to page 137 of the appeal book, your Honours will see, in paragraph 20 of the Full Court’s reasons, the statement that was given by email, and it was really, in substance, simply that the primary decision was wrong.  So, page 137 of the appeal book, paragraph 20:

The Minister erred in concluding that there is not another reason –

So, that is accepted by the Minister – that entirely uninformative statement.  If it had been included in the original application, we would not be here.  The difficulty was that that was after the nine‑day period specified in the Migration Act which cannot be extended, and so we are here because the Minister says that the absence of a statement of that kind, or even one less informative than that, is fatal to the validity of the application.  That has the consequence that the appellant lost the right to merits review, and even though it is common ground that the Tribunal’s decision was affected by jurisdictional error, it cannot go back.

May we make seven points orally as to why that startling conclusion is wrong.  They are the seven points listed as items 2 to 8 in our oral outline.  We have cunningly numbered the points 2 to 8, rather than 1 to 7, just to make sure that everyone is keeping track carefully.  So, the first point, which is numbered 2, is to remind your Honours of the classic statement in Project Blue Sky of the question to be asked.  I will not take your Honours to it; your Honours will know it well.  It is paragraph 91.

The question is whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. That is ascertained in the usual way by a process of statutory construction, the language of the provision, subject‑matter and objects, and the consequences for each party of holding void every act done in breach of the condition. So, applied here, the question is: can there be discerned a legislative purpose to invalidate any application to the Tribunal that fails to comply with the condition in paragraph (c) of section 29(1) – the first point.

Your Honours will have noticed that I focus particularly on paragraph (c), and it is not simply because that is the paragraph at issue here but because as a matter of principle the answer to the Project Blue Sky question may be different for different parts of a single question.  That is the second point that we would seek to make orally, which we have numbered 3 in the oral outline.

Could I take your Honours to the decision of Justices Davies and Gummow in Formosa (1988) 46 FCR 117, which is joint book of authorities volume 4, tab 27, page 117. Your Honours will see in their Honours’ reasons, starting at page 120 of the Federal Court Reports print, the provision at issue down the bottom of the page, which was section 159(1) of the Social Security Act, and your Honours will see it set out a number of requirements:

shall be made in writing in accordance with a form approved . . . and shall be lodged –

at certain places.  One of the issues before their Honours was whether making a claim in writing was essential to the validity of the application.  Their Honours held that it was.  But in the course of doing so, their Honours discussed the other requirements of section 159, and your Honours will see that at page 123 of the Federal Court Reports print.  In the second full paragraph of the page beginning “Other difficulties”, their Honours identified difficulties that might arise with complying with the other requirements.  That is, the requirements other than the writing requirements not of the claimant’s making.  Their Honours explained it in the next paragraph:

The answer may be suggested by those authorities which show that given requirements may be mandatory as to some of the integers therein and directory as to others –

Your Honours will notice the decision in Howard mentioned there, which I will come back to.  Therefore, the claim would not fail to be valid simply because it was lodged at something other than was an approved place.  That was so, even though the requirement that it be in writing was essential to validity.

Then, returning to section 29 of the AAT Act in this case, there is no disagreement that the requirement in paragraph (a), that the application to the Tribunal be made in writing, is essential to validity. There is, likewise, no disagreement between the parties that the requirement to pay a fee – which is in paragraph (b) – is not essential to validity. But that, really, tells one nothing about whether the requirement in paragraph (c) is essential to validity. That requires a much more specific inquiry relating to paragraph (c).

With that in mind, may we turn to the third broad point we wish to address orally, which is the features of section 29(1)(c) and its context, which support the conclusion that compliance was not essential to the validity of the application. That is, why it was not a purpose of the legislation to render invalid an application to the Tribunal which lacks a statement of the applicant’s reasons for making the application. May we address four features which are the four subparagraphs of item 4 on our oral outline.

The first is that the provision of a statement of reasons in accordance with paragraph (c) is, really, a most insignificant step in the process of Tribunal review in accordance with the Act.  As I have already observed, nothing in the provision specifies anything about the content of the statement.  There is nothing about the level of detail or whether it should even be directed to errors perceived with the primary decision.  Given that applicants in the Tribunal will often be unrepresented and may, as your Honour Justice Gordon observed earlier, not have English as a first language, and given the informality of statements expected – rather, of conduct of proceedings in the Tribunal, statements by applicants will frequently be short, informal, legally unsophisticated and uninformative of anything other than the applicant’s feelings about the decision.

That is exactly what the guide contemplates, as your Honours have seen, and it is exactly what the Tribunal has long accepted.  We have provided your Honours in our written submissions with references to Tribunal decisions from 1979 to 2015 to the effect that these statements can be entirely uninformative, short and really are of no moment whatsoever.  Those statements have been made throughout a period where the Act has, of course, been amended many times without amending the requirement in paragraph (c), and the Minister accepts this to be so.

The point is actually a bit more fundamental than that.  Because the Tribunal is a de novo decision‑maker, it is not necessary for the Tribunal or applicants to identify error with the primary decision‑maker.  So, all of that tends towards the insignificance for the scheme of Tribunal review of the applicant’s statement about why they are applying to the Tribunal.  That tends against the conclusion that it was a purpose of the Act to condition the validity of an application on whether such a statement is supplied.

Without going to it, in paragraph 64 of the Full Court’s reasons, it suggested that a well‑prepared statement of the applicant’s reasons for making an application may assist in the early identification of the issues in dispute.  Again, without going to it, at paragraph 75 of the primary judge’s reasons, his Honour said that:

There are rational reasons why the legislature would require –

applicants to state why:

the primary decision is in error –

Those statements are both true, but they are beside the point.  The question is not:  might it be useful to have an early statement of the reasons for making an application?  The question is not:  will that be useful in some cases?  The question is whether it was a purpose of the Act to invalidate any application that does not include such a statement in circumstances where an application which includes a brief and utterly informative statement would be valid.  That is the first feature.

The second feature we identify, really, consistently with the first, is to draw attention to the powers of the Tribunal in section 33 of the Act, if your Honours would take that up, please.  Your Honours will see that in section 33(2A) there are various specific kinds of directions that the Tribunal is empowered to make and one of them, as your Honours will see in paragraph (c) is to:

require any person who is a party to the proceeding to provide a statement of matters or contentions upon which reliance is intended to be placed –

In practice, the Tribunal invariably manages proceedings so as to require the statement of facts, issues and conditions.  But the significant point is that the Act itself, in this provision, gives the Tribunal ample power to require the articulation by an applicant of their case.

There is no need to take the grave step of invalidating any application which does not include a statement of the applicant’s reasons for applying because the Tribunal can direct an applicant to articulate what their grievance is.  Any lack of clarity about the applicant’s standing, or the issues in dispute, or whether the application is an abuse of process because of the purpose for which it is being made, anything like that can be the subject of a direction made under section 33(2A), and, significantly, a failure to comply with such a direction by an applicant may lead to dismissal of their application pursuant to section 42A(5).  That is the second feature.

The third feature we identify is the power in section 29AB, if your Honours would turn to that. Your Honours will see that it is a power in terms dealing with the circumstance where:

the Tribunal considers that an applicant’s statement . . . does not clearly identify the respects in which the applicant believes the decision is not the correct or preferable decision –

What it empowers the Tribunal to do is to:

request the applicant to amend the statement –

BEECH‑JONES J:   I think Mr Wood and you disagree as to whether this can be invoked if it is blank.  Is that right?

MR HERZFELD:   We do, and I will come to that momentarily.  The first thing to notice, though, is that it is a power to “request”, not a power to direct.  And so, it does not – if an applicant fails to comply with the request – engage the power to dismiss for failing to comply with a direction.  That immediately casts doubt on the importance of a clear statement by an applicant of the reasons for their application to the Tribunal.

That is consistent with the purpose of the introduction of this provision as revealed by the extrinsic material concerning its immediate predecessor.  Would your Honours turn to that, please, in volume 5 of the authorities.

BEECH‑JONES J:   What tab is that?

MR HERZFELD: This is tab 40. Your Honours will see that this is the explanatory memorandum to a 2004 Amendment Bill. If your Honours turn to page 585 of the bundle of authorities, which is internal page 26 of the explanatory memorandum, your Honours will see item 95, and that was to introduce the immediate predecessor provision which was then numbered section 29(1B). Your Honours will see from the second paragraph that it was directed to the practice of applicants submitting their statements in a very uninformative form.

But it is clear that the amendment was not so as to render invalid applications with uninformative statements.  In fact, the next paragraph makes that completely clear.  The last sentence of that paragraph is:

if the application has met the other requirements for a valid application in subsection 29(1) . . . the application would not be found to be invalid for failure to comply with paragraph 29(1)(c) –

That is, indeed, precisely our point.  But further, would your Honours notice that, as stated in the next paragraph, deliberately, no sanction was set out for non‑compliance with a request.  That was because:

The provision is intended to encourage applicants to make more detailed statements . . . It is not intended to disadvantage applicants with few resources.

All of that is utterly inconsistent with the provision of a statement of reasons being essential to a valid application.  In fact, it is to the opposite effect.

BEECH‑JONES J:   If there was no valid application, the Tribunal would not have any power under 29AB, would it?  Because there would be nothing before it.

MR HERZFELD:   That is so.  Now, the Minister seeks to turn 29AB to the Minister’s advantage.  The way that is done is to say, well, it assumes the existence of a statement of reasons, even if it is completely uninformative.  Now, on its face, that does not imply that an inadequate statement, as opposed to no statement, is essential to validity.

Read literally, it simply supplies the Tribunal with an additional non‑compulsive and unenforceable power to request a clearer statement if one is supplied.  But a purposive reading would actually suggest that 29AB can be understood to apply where a statement does not clearly identify the respects in which the applicant believes the decision is not the correct or preferable one, because a statement does not exist, and the one could readily read “amend” to say amend by providing a statement; go from blank to not blank.

Even if that is not the case, the Tribunal – given this is a power to request with no enforcement or sanction – would have that power to make a request of an applicant who has not supplied a statement at all by reference to other provisions, which we have identified in our written submissions.

GAGELER CJ: Mr Herzfeld, which came first: section 29AB or section 33(2A)?

MR HERZFELD:   I do not know the answer to that question definitively.  I think it is 33(2A), but I will have that checked.  Be that as it may, the whole purpose, the whole thrust of 29AB is against making the provision of a clear statement or, indeed, any statement, a hurdle for applicants to overcome in order to institute a Tribunal review.

That really leads on to the fourth feature to which we point, which is the objects of the Tribunal to provide a mechanism of review that is “accessible” and “informal”.  And your Honours will see that, in terms, in section 2A.  Your Honours will see that:

In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:

(a)is accessible;

(b)is fair, just, economical, informal and quick –

That is (a) and (b).  And there is a similar statement in the directions power in section 33 of the Act.  If your Honours turn back to section 33, your Honours will see that in subsection (1)(b), that in any proceedings:

the proceeding shall be conducted with as little formality and technicality –

And so on.  Now, those provisions form part of the context in which the other provisions of the AAT Act are to be interpreted, and they discourage an interpretation of the provisions of the Act which frustrates applicants from obtaining review because of technicalities.  To say that the difference between a valid and an invalid application is whether the applicant writes on their form, I think the primary decision was wrong, that is hollow technicality of an extreme kind which is entirely discordant with those objects of the Act.

So, drawing those features together, may we summarise them in this way.  On the Minister’s approach, where an applicant provides a statement which says, simply, the decision was wrong, or I need the Tribunal’s help, or I do not want to be sent to a particular country, or I do not understand the decision, it would be unclear why the applicant says that the primary decision was wrong, but the Tribunal would have jurisdiction and could direct a clearer articulation by the applicant of their case.  But on the Minister’s position, where the applicant fails to provide a statement of that kind, it will be equally clear that the applicant is seeking a different decision, but equally unclear why.  And yet, on the Minister’s case, the Tribunal would lack jurisdiction.  And that is entirely irrational.

It is the case that a statement of reasons which is not helpful at all is functionally equivalent to an absent statement of reasons.  And there is just no rational purpose for invalidating an application which omits a statement of reasons when that requirement can be fulfilled by an entirely uninformative statement such as, the decision is wrong.

Can we then move to the fourth point we seek to address orally.  It is to direct your Honours’ attention to various English authorities which are analogous to the present case.

EDELMAN J:   These are cases after Anisminic.

MR HERZFELD:   Yes.  I will, again, I will just – I think that is right, but I just need to check that for all of them.  I was only going to take your Honours to one ‑ ‑ ‑ 

GAGELER CJ:   What are we going to get out of an English case, when we are construing an Australian statute against principles that are very clearly articulated in a decision of this Court?

EDELMAN J:   Especially when you have already taken us to the explanatory memorandum.

MR HERZFELD:   All I will do, then, then is to say this.  Your Honours will have seen that in Formosa the decision of Howard was mentioned.  It is a decision which bears striking resemblances to this case.  We have summarised it in our written submissions and there are various features of it – certain requirements being mandatory, certain being directory – the fact ‑ ‑ ‑

GORDON J:   It is that any more than one example of a possible approach to construction in a different statutory context?  It does not get any higher than that, does it?

MR HERZFELD:   It does not, but your Honours will see the resemblances are quite striking.

BEECH‑JONES J:   Howard was 1975 and I think Anisminic was the late 1960s.

MR HERZFELD:   Yes, I am being told from all directions that my initial answer to your Honour Justice Edelman’s question was correct, that the timing is that these after Anisminic.

Your Honours, can we then move to the fifth broad point we would seek to make orally.  The Project Blue Sky question is, of course, directed to whether it was a purpose of the legislation to render invalid a step which does not comply with the statutory requirement. That question will only arise if there has first been a non‑compliance with the statutory requirement. Here, it arose because section 29(1)(c) uses the word “must”. But where a statute does not specify the consequences of non‑compliance with such a provision, it is illogical and indeed circular to place emphasis on the mere fact that the provision uses the word “must”. It is only the use of that word which leads to the question being posed at all.

So, to place emphasis on the mere use of the word “must” is to start every case involving a Project Blue Sky question with weight on the scales tipped in favour of the conclusion that the requirement is essential to validity.  Yet, with great respect, that is exactly what the primary judge did in paragraph 38 of his Honour’s reasons, which the Full Court endorsed in paragraph 45 of its reasons.

Doing so is contrary to both principle and authority.  It is contrary to principle because the word “must” simply indicates that the legislature sought to impose a requirement.  It says nothing about what the consequence is for the validity of a step of failing to comply with that requirement.  The use of the word “must” is not a point to the solution of the problem, it is, in fact, the origin of the problem.

Emphasising the mere use of the word “must” is also unsupported by the authorities of this Court.  No emphasis was placed on the provision being a requirement in Project Blue Sky.  In fact, the purport of the reasons in Project Blue Sky was to say that that necessitated the inquiry to which their Honours referred, not that it supplied any part of the answer.

Of course, it is true that if one has a statute where the use of the word “must” is used by the legislature in very careful contradistinction with another word like “may”, that might support a conclusion that the provision using “must” was essential to validity, and without going to it, that was the reasoning of this Court in SAAP, to which your Honour Justice Edelman referred in MZAPC at paragraph 174.

But that was not the reasoning employed by the primary judge here.  The Minister points to no authority of this Court where the mere use of the word “must” was said to be a pointer to a conclusion that the requirement was essential to validity.  Insofar as the Minister relies on the decision of the Full Federal Court in BXS20, we have addressed this in our reply submissions at paragraph 5, and I do not seek to say anything further about it orally in‑chief, we would simply rely on what we have said about it there.

JAGOT J:   Can I just raise a – it may be shortcutting things, but the authorities that underlie Project Blue Sky, back to Tasker v Fullwood, and then back to Woods v Bate, and Hatton v Beaumont – contain a lot more information than Project Blue Sky itself about the relevant thinking about this.  For example, in Woods v Bate, Justice McHugh’s version was that there will not be invalidity:

unless the purpose of the provision can only be achieved –

by invalidity in all cases for any non‑compliance, no matter how insignificant:

irrespective of the circumstances of the case resulting injustice –

So, the way he put it was that you really, to reach a conclusion of invalidity – that consequence has to be really the only way you can achieve the statutory purpose.  That is, if you go for valid, that it would defeat the statutory purpose.  Hatton v Beaumont, and all those earlier cases that inform what was picked in Project Blue Sky – and was cited in the footnotes – all seem to be to the same effect.

MR HERZFELD:   Certainly, if that were the approach, it would plainly assist us.

JAGOT J:   Because there are a multiplicity of ways in which the statutory purpose could be protected.

MR HERZFELD:   Yes.  That is so.

JAGOT J:   The other issue is, you are thinking only of the Tribunal, assuming it does not have jurisdiction.  Part of the inconvenience that might result is the Tribunal might get an application, and it says “ick” or “ugh” or something like that, and there is then a contestable question as to whether or not it does or does not have jurisdiction.  Is that enough?  It is obviously some kind of expression – or an emoji with a teardrop, or something.  All of these are possible.

The question is – that raises questions of public convenience as well, does it not, about a contestable issue as to whether that is enough to enliven the Tribunal’s jurisdiction or not enliven the Tribunal.  These are all factors.  There is a whole range of factors that the earlier cases would direct you to considering, all of which were picked up in Blue Sky, anyway.

MR HERZFELD:   All of which is entirely supportive of our position, and so of course we embrace it.  But, in fairness, it is possible that the reasons in Project Blue Sky do not take quite as uncompromising a view as the passage from Justice McHugh’s reasoning that your Honour read out, and so it may not be the doctrine stated in Project Blue Sky that one has to reach quite such an extreme position.

JAGOT J:   That might be right, but is it not greatly inconvenient for the Tribunal to be confronted with a contestable thing, even though it has the power to cure it and obtain whatever information it ultimately wants at whatever point, even if it be within the hearing itself?  Does that not raise your – what is it – is it, I do not know, Parisienne Basket or something?  Are there all those kinds of things in play?

MR HERZFELD:   It is, it is entirely inconvenient.  It is also a farce, because ‑ ‑ ‑

JAGOT J:   Well, that too.

MR HERZFELD:   ‑ ‑ ‑ whatever the statement means, it does not matter.  So, we would go further than it merely being inconvenient. 

GORDON J:   It does not matter because it is de novo.

MR HERZFELD:   That is right.  That is exactly right.

EDELMAN J:   Mr Herzfeld, do you accept that some provisions, the question may not be one of whether, on its face, non‑compliance leads to validity or invalidity, but there may be a question of whether in the circumstances it led to invalidity?

MR HERZFELD:   I think your Honour is positing a circumstance where the provision might be, to use the old language, mandatory in some factual circumstances and directory in others.

EDELMAN J:   Well, no, without even that language – materiality, for example, might be a circumstantial factor that leads to a provision either being valid in some cases or invalid in others.

MR HERZFELD:   Yes, what your Honour says about materiality is, of course, correct.

EDELMAN J:   But your submission about this provision, as I understand it, is that this provision is one that a breach of which – if I could use the word “breach” in that sense – will never in any circumstance lead to validity.

MR HERZFELD:   Invalidity.

EDELMAN J:   Invalidity, yes.

MR HERZFELD:   Yes.

GAGELER CJ:   Some of the older planning cases, for example, would interpret a provision of a procedural kind as requiring substantial compliance.  You will find that sort of language in pre‑Project Blue Sky decisions of this Court, but that is not suggested to be this case.

MR HERZFELD:   No.  Some of the cases might now be materiality cases, some might now be dealt with by the Acts Interpretation Act provision concerning substantial compliance with forms.  So, I am going to try to steer clear of those complexities and, in our case, it is, if I may say, blunt and simple.

To continue with the theme of being blunt and simple and short, can I make two final points. They are the sixth and seventh points we make orally. The sixth point is this: as we have explained, the fact that some paragraphs of section 29(1) may be essential to the validity of an application, while others are not, is unobjectionable as a matter of principle. So, as I said earlier, it is common ground that paragraph (a) is essential and it is common ground that paragraph (b), concerning fees, is not.

To the extent that it matters, we have addressed the question of whether compliance with the other paragraphs – that is (c), (cb), and so on – we have addressed whether those paragraphs following subsection (c) are essential to validity in our written submissions in‑chief at paragraphs 41 to 47 and in reply at paragraphs 6 to 7.  For the reasons we have given, we submit that compliance with those paragraphs is not essential to validity and if that is right, it gives contextual support to our contention that compliance with paragraph (c) is not.

GAGELER CJ:   But it does not help much, does it, if it is contested?

MR HERZFELD:   It does not.

GAGELER CJ:   It is just creating another issue of an identical kind.

MR HERZFELD:   Which is why I about to say, even if it is not right – even if your Honours do not enter that particular field – the points we have made about paragraph (c) are quite sufficient to dispose of the case favourably to us.  So, we do not seek to expand, orally, on the question of whether the other paragraphs are essential or inessential to validity.

The seventh and final point is this: your Honours will have appreciated that our submissions concerning section 29 of the AAT Act are not limited to decisions to revoke, or not to revoke, character cancellations. That is because the way that the Migration Act operates upon the AAT Act is to modify the AAT Act in certain respects but not others.  Without going to it, your Honours will find the relevant provisions in section 500 of the Migration Act.

But none of the modification in section 500 of the Migration Act says anything about the section with which we are concerned – that is, section 29(1)(c). So, our primary position is that whether one is operating within the context supplied by the Migration Act or not, paragraph (c) is not a condition essential to validity.  In particular, nothing in the Migration Act transforms it into being a condition essential to validity.

We have, in our written submissions, directed some submissions more specifically to the Migration Act context.  We have done that in‑chief at paragraphs 50 to 56 and in reply at paragraphs 12 to 13.  We have explained there how the Migration Act context actually supports our primary position but, further, leaves open a narrower position that, at least in the Migration Act context, compliance with paragraph (c) is not essential to validity.

Again, those are more complex submissions which, in our submission, your Honours will not need to get to because the simple, blunt

and short submissions that we have already made orally are sufficient and, for that reason, also, we do not seek to expand on those parts of our written submissions orally.

Just before I sit down, I understand that section 33(2A) was first.  It was inserted in 1993 by the Administrative Appeals Tribunal Act 1993, and then the predecessor to 29AB was inserted in 2005.

GAGELER CJ:   Thank you.

BEECH‑JONES J:   Mr Herzfeld, if at some stage you just would be able to refer to or identify the power of the President to designate the forms?

MR HERZFELD:   Yes.  I will do that ‑ ‑ ‑

BEECH‑JONES J:   Take it on board.

MR HERZFELD:   ‑ ‑ ‑ but I do not think I can do it while I stand here.

BEECH‑JONES J:   No, I understand.  Yes.

MR HERZFELD:   Thank you.

GAGELER CJ:   Thank you, Mr Herzfeld.  Mr Wood.

MR WOOD:   If it please the Court, I will try to be brief as well.  At a high level, we will focus on the text of the Act.  We have said a bit about the cases BXS20, Forrest – I will not dwell on those.  I will pick up a couple of aspects of the reasoning.  But we accept that the question here is one of construction of the AAT Act and the focus of the Court ought, therefore, be on the terms and structure of that Act.

At a high level, we say that various aspects of the text and the structure of the AAT Act make reasonably clear that compliance with 29(1)(c), just like compliance with 29(1)(a) – which is agreed – and 29(1)(d) – which, although in dispute, we say it is just incontrovertible that that must be a condition of a making a valid application – that there is no relevant point of distinction between those three elements.  The various features of the text and structure of the Act would suggest that compliance with each of them is a condition of the making of a valid application to the Tribunal.

Now, I have heard some exchanges about a materiality‑type idea, whether there might be a question of whether compliance with 29(1)(c) in some circumstances might or might not bear on validity.  That has never been part of the case.  It is not part of the argument today.  I can try to grapple with that interesting question, if you like, but it is not really part of the argument that has ever been developed.

GAGELER CJ:   So, your framing of the question in the first paragraph of your outline of submissions is slightly more specific than the way you have just put it.  Rather than:

is a condition of making an application for review of a decision –

to the Tribunal, which is the way I think you put it orally, you have there:

under s 501CA of the Migration Act.

Are we concerned with the more general question?  Was there a nuance that you want to put to us about ‑ ‑ ‑

MR WOOD:   Yes.  We say if there is a nuance, it is only because the appellant flirts with the idea without ever really explaining how ‑ ‑ ‑

GAGELER CJ:   This is the last paragraph of Mr Herzfeld’s outline, I think.

MR WOOD:   It is paragraph 55, as I recall it, of the appellant’s submissions, that flirts with the idea that although the appellant accepts that 500 of the Migration Act does not disapply 29(1)(c) of the AAT Act, there is the flirtation with the idea that somehow, although 29(1)(c) is therefore a requirement in its express terms, that somehow section 500, by some implication that is not explained, suggests that in the context of review of decisions under 501CA, even if 29(1)(c) has a default rule, the Minister’s position would be accepted, it would not be accepted in its intersection with the Migration Act.

That is the only point – as we have said in our submissions, it is utterly opaque how the appellant says, if he maintains this proposition, that section 500 does work some modification.  So, we think the short answer to your Honour’s question is, this question, this case, is all about 29(1)(c) as a default rule.  What is the ascertained parliamentary intent as to the consequences of non‑compliance?  It is the same for the Migration Act, it does not modify it.

GAGELER CJ:   Thank you.

MR WOOD:   We say that a particular point that we wish to emphasise is that an oddity of the appellant’s case is the acceptance that 29(1)(c) is a requirement but cavilling with the proposition that it is a condition of the making of a valid application has the functional consequence that 29(1)(c) is otiose.

JAGOT J:   But there are plenty of statutory provisions that say “must”, “shall” – there is still a duty if you have not complied with it.  The only question is, what is the consequence?

MR WOOD:   I want to come back to that.  Our proposition is that 29(1)(c) does not impose a requirement on anyone to do anything.  It simply describes what the is process for compliance.  And in Project Blue Sky, this Court said non‑compliance by the ABA with a particular provision did not bear on the validity of the decision in issue, but it was still an obligation that was amenable for an enforcement by other means like declaration, injunction and the like.  We say that it is completely inconceivable that 29(1)(c), if it is merely a requirement that does not go to the validity of the application, would be amenable of any kind of enforcement at all.

JAGOT J:   But that might be an indicator of its true insignificance in the context of the legislation – the fact that it can be cured at so many stages, and the fact that the Tribunal – it is not like a tax appeal or something where you are bound by the grounds of objection.  It performs no potential function whatsoever in the scheme, so it does not seem, to me, surprising that you would not be able to get other kinds of relief from it.  So, anyway, I guess the otiose nature of it may cover ‑ ‑ ‑ 

MR WOOD:   Yes, I will elaborate – I mean, your Honour has put to me some propositions which, if accepted, would be challenging for my argument generally.  We do not accept them, and I will seek to persuade your Honour that it is not right, as Mr Herzfeld says, that compliance with 29(1)(c) is of no significance.  We say that is wrong, and to give a prelude of where we are going with this, we think the easiest way to understand the rationale of the inclusion of 29(1)(c) in the Act – at all, let alone whether it is a condition of validity – is to facilitate early assessment by the Tribunal of the question of standing.

Again, just to give a prelude of where I am going here, one has to appreciate, in that context, that the AAT Act default rules are written to apply across a diverse range of decision‑making; in many decision‑making contexts, questions of standing will not be as easy as they typically but not always are in the context of this decision‑making under 501CA of the Migration Act, and an early identification in the application itself by the person purporting to apply for review for their reasons for applying may well be highly useful ‑ ‑ ‑ 

GAGELER CJ:   It is not really the right question, though, is it?  If it is directed to standing, it would be asking what is your interest in applying?

MR WOOD:   If we call up 29(1)(c) – bear with me – what it says is “reasons for the application”, which I would actually suggest are readily reconciled with the notion of, in other words, why you are applying.  One of the – I do not want to dwell on English cases, including in light of the exchange earlier – it does not require some prescriptive statement of the grounds, the reasons why the delegate was wrong, the facts upon which the applicant intends to rely.  These are matters that could be included, they may assist.  If they are not included, the Tribunal might see fit to issue a request under 29AB.  But, no, we think that it is a category error to focus on the requirement in 29(1)(c) to think that it is only directed to, in other words, why the decision was wrong.

BEECH‑JONES J:   Did you just accept that if they are not included, they can be the subject under 29AB?

MR WOOD:   No.  What I said is that if you have a statement of reasons in the application that simply says something like, because I think the decision is wrong, that would then satisfy the requirement and that could elicit a request.

BEECH‑JONES J:   What if it said, in Justice Jagot’s terms, “ugh”.  You could go onto 29AB then?

MR WOOD:   No, probably not, is my answer ‑ ‑ ‑

JAGOT J:   Why?  What is the distinction to be drawn between those two examples just put?

MR WOOD:   I would answer it this way:  conceptually, meaning must be attributed to the requirement.  It cannot be so lacking in content, the requirement, that merely providing an exclamation mark, or a hashtag, or something like that; there will be some de minimis requirement here.  This case has not been one where it is necessary to mine the concepts to explore how low it might go.

GORDON J:   The problem about that submission is – in effect, to pick up what Justice Jagot put to Mr Herzfeld – about convenience.  Not only is there inconvenience in terms of determining whether the Tribunal has jurisdiction, it has to make some judgment call, then, about whether or not what we have passes the test.  Where is the line to be drawn?  Is the emoji with the teardrop good enough?  It is not very practical, is it, or useful, when you have a Tribunal that is trying to deal with these kinds of applications, as you say, across a whole range of areas of the law, a whole range of statutes.

MR WOOD:   Well, the convenience point cuts both ways, and this is why we say it is not – I will come back to this when I am talking briefly about the BXS20, about the approach the Court should take to Parliament’s choices.  But to put the other side of the equation, we say it is most definitely not convenient for the Tribunal, particularly cognisant of the diverse fields in which it is review jurisdiction is invoked, to not know, at the outset, anything about why the person is applying.

Now, in many cases the standing will be obvious.  If a person has attached the decision of the delegate, and they are indeed the same person who is applying for review, a statement of reasons that says, I am unhappy with the decision, will not be very useful, but that is because it will be obvious that person has standing.  But think about the default rule in another setting.  If a person who is not the subject of a decision – a company, let us say – applies for review of a decision of a government official, an articulation of why that company who was not, let us say, the subject of the decision is applying for review, in other words, the reasons for the application, is highly useful for the Tribunal at the outset to be able to ascertain whether that person has standing by reference to section 27 of the Act, which is a requirement of the Tribunal’s jurisdiction, the touchstone there being whether the person’s interests are affected by the decision.  So, there is evident ‑ ‑ ‑

BEECH-JONES J:   Mr Wood, that submission about standing does – to pick up the Chief Justice’s point, is undermined by 29AB, because 29AB suggests that what 29(1)(c) is directed to – or is why they disagree, not why they are challenging it.

MR WOOD:   Yes, I agree that there is a tension of some kind between 29(1)(c) and 29AB, but one does not find in 29(1)(c) the same language used in 29AB ‑ ‑ ‑

EDELMAN J:   Why does there need to be any tension?  Why would one not see 29AB as the cognate of 29(1)(c), that what 29(1)(c) is asking for, in shorthand, the statement of the reasons, is a clear identification of the respects in which the applicant believes the decision may not be correct.

MR WOOD:   Because if one was to construe 29(1)(c) as requiring that, one would expect it to be expressed in that language.  The fact that it is not indicates that it casts a broader domain in terms of what may be identified as a reason for applying.  Now, what 29AB does is to recognise that it was inserted at a time when the Tribunal, in fact, was getting statements that were not assisting it in one respect, in that they were not helping it to have an early identification of issues, and so 29AB is inserted to enable eliciting of a more useful statement in that respect, but it does not suggest ‑ ‑ ‑

EDELMAN J:   One gets very, very close, if you have the usual implication that you see in many, many provisions of reasonableness.  So, if there is an obligation, perhaps one that the breach of which does not lead to invalidity, but if there is an obligation to provide, in a reasonable way, a statement of the reasons by which the application has been made, then one might read “reasonableness” as picking up exactly the requirements of 29AB.

MR WOOD:   Parliament had a range of choices available to it.  So, in Howard, for example, the requirement there was to state the grounds and the facts.  If Parliament had done that here it would have created a particular burden for applicants, particularly those who are not English‑speaking, and so forth.  We say Parliament has – by the language that it has chosen – not done that.  It has, therefore, set a more general and reasonably low bar – the precise lowness not needing to be ascertained here because it is agreed that most statement of reasons were contained.  It has then – in terms of the legislative history, that was there.  Then, later, 29AB was added so as to enable the Tribunal to elicit a more useful statement in particular respects, but we do not see that as cutting across the proposition that 29(1)(c) in the way that it is crafted, and in light of its legislative history, is – an aspect of its utility is to elicit a statement that may assist the Tribunal in an early assessment of standing.

GORDON J:   Can I challenge that not by reference to (c) but by reference to (d)?  Is not the lodging of the document, either in terms of the decision – either in terms of the document itself – which the forms both anticipate – or, in effect, setting out, in a sense, what the decision is going to provide, I would have thought, much more direct identification of standing?

MR WOOD:   Can I say a couple of things about that?

GORDON J:   Maybe you are going to come back to it, but it seems to me that you have the document, you have the application, in the sense that this thing is filed – the Tribunal can turn its mind directly to the standing question in most cases because the applicant will be subject to the decision and where – even in the company’s case, were you not – one can, at least, assess, or make it a preliminary assessment, of some identification of the question.

MR WOOD:   So, a couple of things to say about that – for a start, the question about the form.  The form that Mr Herzfeld took the Court to in the Migration and Refugee Division, the form that was, in fact, used by this appellant – that is a form that is required to be used, the Federal Court has held, as a condition of making a valid application under the Migration Act, where Part 5 and Part 7 – there has been a wholesale modification of this application of the AAT Act.  I think I will pick up the precise references for your Honours. 

In Part 5 of the Migration Act, your Honours will see, in section 347(1)(a), the first requirement that the Federal Court has held for years – and this Court is not bound, but that is a reality – that the first condition is that the application is made in the approved form.  The approved form – and there is a similar provision when it comes to Part 7 – requires the decision to be attached, and so forth.  Pausing there for a moment.  In the world of migration decisions, in Part 5 and, particularly, in Part 7, what the Migration Act does is to radically confine standing.  So, if you look at Part 7, for example – and if we turn to section 412, subparagraph (1)(a) says an application must:

be made in the approved form –

The Federal Court has long held that is a condition of making a valid application.  Subparagraph (2) says:

An application for review may only be made by the non‑citizen who is the subject of the primary decision.

and the form, as a matter of fact, requires the decision be attached.  In the world of migration refugee decisions, that is Part 5 and Part 7, there is no requirement like there is in 29(1)(c) for a statement of reasons.  A rational explanation for that may very well be because, in Part 5 and Part 7 land, given the highly restrictive standing rules – particularly Part 7, only for the subject – and given the requirement for the forms which can include, therefore, attachment of the decision, there will never be any doubt about standing.

When you come to general divisions – in other words, where 29(1)(c) operates, including in the present context – there is no requirement for a form.  That is a non‑issue.  Instead, what there is a requirement for is a statement of reasons.  Your Honour Justice Gordon puts to me, as I understand it, well, in many cases will it not be obvious where, even though not required, the President has issued a form in fact that assists people to make applications, and when the form encourages people to attach decisions, well, in many cases it may be obvious, but not all.  Even in the present context, if we go to section 500 of the Migration Act ‑ ‑ ‑

GORDON J: But section 29(1)(d) says that it:

shall be lodged with the Tribunal within the prescribed time.

i.e., the document:

and set out in a document that was given to the applicant or the decision is deemed to be made –

et cetera. That is not a formal requirement, that is a section 29(1)(d) requirement.

MR WOOD:   Yes, I accept that.  But, nevertheless, section 27 contemplates that the scope of people who may apply for review of a decision are not necessarily, if you like, the subject of the decision.  So, not akin to the ruling Part 7 of the Migration Act, and it simply will not always be apparent from the terms of a document, or a decision document – particularly if it does not have reasons attached to it – that the person who is purporting to apply for review has standing, assessed by reference to section 27.

That is one explanation for why we say a rational explanation for the inclusion of the requirement in 29(1)(c) not replicated, with respect to Part 5 and Part 7, picks up the utility of an explanation of the reasons in order to enable the Tribunal to make an early assessment of standing.  Which, of course, it is useful, for a range of reasons, for that to be conducted early in the process.

GAGELER CJ:   Is section 27 of the AAT Act modified by the Migration Act in respect of review under section 501CA?

MR WOOD:   My answer to that is it is not.  That has not been suggested, I do not think, by my learned friend.  So, if one comes back to section 500 of the Migration Act, and if you look at section 500(2) and (3), what you see there is an effective modification of the rule about standing in section 27 of the AAT Act, but not for decisions of this kind.  Subparagraph (2) says:

A person is not entitled to make an application under paragraph (1)(a) –

Which are decisions not at issue here:

unless –

The conditions are there set out.  Similarly, subparagraph (3) says:

A person is not entitled to make an application . . . for review of a decision referred to in paragraph (1)(b) or (c) unless –

X and Y, but it does not ‑ ‑ ‑

GORDON J:   Sorry, can I just stop you.  Unless they satisfy Part 5 or 7, and I thought you took, after the fact, that 5 or 7 identifies limits only to the person who is the noncitizen, subject to the primary decision.

MR WOOD:   For Part 7 that is true, but Part 5 is a slightly broader set of people who can apply.  The point I am seeking to make is that subsections (2) and (3) are constraining the scope of standing when it comes to making applications for review of certain kinds of migration decisions, but not this kind.  So, this kind of decision is set out in 500(1)(ba):

decisions of a delegate . . . under subsection 501CA(4) –

We do not have a special rule about standing; section 27 is not disapplied.  So, therefore, for example, what you could have is the spouse, or child, or friend, or employer, or whatever, of a person who has been cancelled.  It will not be necessarily apparent from the face of the document who that person even is or why they have interests.  The statement of reasons is apt for all this  That is an admittedly ‑ ‑ ‑

BEECH‑JONES J:   Mr Wood, but on your argument that person could then apply by saying, I disagree with the decision, and the Tribunal would be none the wiser about their standing.

MR WOOD:   One will approach, in circumstances like that, an issue that we have not ever in these proceedings had to grapple with, which is:  when will the statement be so uninformative that it is not a statement of reasons?  We have accepted that the Tribunal has said, I think the decision is wrong, we will comply.  What we have not done is track through the circumstances, because typically, of course – at least in the migration cases – that is done by the subject.

In which case, if you have the subject and you say, I think the decision is wrong, that is a useful statement.  Now, I am not positively contending that a statement by, if you like, a third party, not the subject of the decision, who simply says, I think it is wrong, is not an adequate statement, but that is just a debate that does not arise here.

GAGELER CJ: So, Mr Wood, your big point here is that the purpose of section 29(1)(c) is to assist the Tribunal at an early stage to determine whether the applicant is a person within the scope of section 27.

MR WOOD:   Yes.

GAGELER CJ:   And that is it, really.

MR WOOD:   Well, it is the most obvious – it is an obvious example of the utility of a statement at the outset.

GAGELER CJ:   Is there another one, though?

MR WOOD:   Well, yes.

GAGELER CJ:   I mean, you put that as the rationale, I think – that is your language – but is there a better explanation, fuller explanation?

MR WOOD:   There are other useful characteristics of getting an early statement.

GORDON J:   Can I say, from having spent many years as a trial judge, one of the things is you are picking up an application and you want to see what the issues are.  I mean, that is one obvious purpose, but that question just begs the question:  does the failure to provide it in a form which is intelligible give rise to invalidity?  That is where you have to deal with the interaction between that and 29AB, et cetera.

MR WOOD:   Absolutely, but I think I was asked by your Honour – perhaps I was asked by Justice Jagot – it was put strongly to me that there is no point to this, there is no utility.  What I am seeking to say is there is utility.  Now, the distinction I am making about standing sought to explain the rationale or the difference between the absence of the 29(1)(c) rule in the Migration Act – its presence here and so forth.

The other point I am trying to draw out of the standing feature is that Mr Herzfeld says the Tribunal can exercise its power under section 33 at an early stage to get a statement of facts, issues and contentions and so forth.  We say that when it comes to standing it is obvious because it bears on the Tribunal’s jurisdiction – it is obvious why there is utility in having a meaningful assessment of that conducted as soon as possible.  In other words, not weeks or months down the track when directions might be made about provision of submissions and so forth.  So, that is the other feature that I am trying to make about the standing point, but it is not the only feature of the utility of it.

The final point I would like to make about utility is this. The question of construction is not usefully assessed by reference to the possibility that in certain cases you can have a statement of reasons given that complies with 29(1)(c) but it is not of much use. Section 29AB is Parliament’s solution to that problem; that the question of utility has to be addressed at the systemic level. Parliament plainly has included 29(1)(c) because it is apt to introduce efficiency.

That is not to say that the efficiency cuts all one way.  Yes, of course, there could be extreme examples where a statement says “ugh” and the Tribunal is therefore having to deal with the annoying question of whether that is a compliant statement, but the rule has plainly been introduced to facilitate efficiency.  It does facilitate efficiency at a systemic level, even if, in particular cases, particular statements are not particularly useful.  That is what 29AB is Parliament’s solution for.  Can I, having had that discussion, focus on some features of the text?

GAGELER CJ:   If you are moving to the text now, we will take the morning adjournment.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

MR WOOD: Your Honours, I just wanted to pick up on an exchange I had with Justice Gordon about section 29(1)(d), and I think I need to correct a concession I might have made. If we look at section 29(1)(d), I think what your Honour was putting to me, but I might be wrong about this, was that 29(1)(d) would require the decision, if it were recorded in writing, to be lodged with the application. That is not so.

GORDON J:   It says:

shall be lodged with the Tribunal within the prescribed time.

MR WOOD:   No.

GORDON J:   No?

MR WOOD:   So, if you look at 29(1)(d), it sets up a premise, and then a conclusion.  The premise is:

if the terms of the decision were recorded in writing –

And so forth.  Then, if you read 29(1)(d) with the chapeau in (1), it is the application that must be lodged within the prescribed time.  So, 29(1)(d) is just ‑ ‑ ‑ 

GORDON J:   I see.

MR WOOD:   The way that works is that when you track, then, through to subsection (2), and so forth, which deals with prescribed time for making applications, subparagraph (2)(a) calculates the prescribed time by reference to the date that that document was given to that person.  The way that the Tribunal ultimately gets the decision record, if we can call it that, is through section 37, from the respondent, but only when a valid application for review has in fact been made, which, of course, might be the live question as to whether someone has standing, and so forth.  So, the Tribunal does not necessarily get the written decision record, even assuming there were to be one, through 29(1)(d).

Now, can I make some points about the text and structure of the Act, as I have been threatening to do.  The first point is that, of course, we accept and have never suggested otherwise that the mere fact that a provision is framed using mandatory language like “must” or “shall” does not necessarily answer the question of whether non‑compliance with the requirement goes to the validity of a particular decision or action.

That has never been our case, it was not that of the reasoning of the courts below, either. We do say, however, that where you have, here, in section 29(1) of the AAT Act, mandatory language in this context, it is significant, but not necessarily the end of the enquiry. The context is identified neatly by the heading: “Manner of applying for review”, and it says an application must (a), (b), (c) and (d). Now, it is an undisputed premise, I think, of both parties’ positions, that the Tribunal gets jurisdiction by an application.

Section 29(1), therefore, read fairly and simply, would suggest these are the rules that Parliament has written for how you make an application. If you do this, you have made an application; if you do not, you have not. That being quite important to know whether one is looking at an application or not, that being the ultimate touchstone of the Tribunal’s jurisdiction – the other condition of the Tribunal’s jurisdiction, of course, being standing under section 27 – or 27AA, in the case of certain decisions under the ASIO Act.

So, we do say that, in this particular context – in light of the very subject to which section 29 is addressed – the use of mandatory language strongly points to the conclusion that the requirements set out therein are the requirements to make an application subject to context which suggests a different answer – and I will come back to that shortly, when I come to subsection 29(1)(b) and the situation of fees.

Secondly, and relatedly, if one zooms in, then, on paragraph (c), it is some relevance that 29(1)(c) in its very terms describes what an application “must contain”.  In other words, the particular role here is to the very content of the thing that we all agree – that is, an application – must exist in order for the Tribunal to have jurisdiction.  There is a contrast, therefore, with 29(1)(b), which is expressed as a rule that the application:

must be accompanied by any prescribed fee –

which, in its ordinary natural meaning, is therefore more amenable to a suggestion that there is a distinction between the application itself, necessary to engage the jurisdiction of the Tribunal, on the one hand; on the other hand, that which must accompany it.

Now, obviously, this Court in Forrest, faced with a provision that also used the language “accompany”, held that in that case the rule did go to the condition of the making of valid applications – I am not making some universal proposition here, but if anything, the very language of (c), which is the only paragraph directly at issue, would, in its terms, suggest it goes to the validity of an application, because it speaks to what it must contain, rather than accompany it.

The third point – and I wish to elaborate now on an exchange I had with Justice Jagot – is that section 29(1) is not framed as imposing an obligation on anyone to do anything. It does not say a person must do X, it says an application must –it has “an application” in the chapeau, and then you have the conditions. That, naturally, again, tends to suggest what you have here are the rules for how an application is made. What is, in other words, an application. The significance of that, which I sought to advert to earlier, is that we are therefore in a world quite distinct from that which the Court confronted in Project Blue Sky.

In Project Blue Sky there plainly was, under section 160 of the Broadcasting Services Act, an obligation on the ABA.  It had to perform its functions in a manner consistent with Australia’s obligations under treaty.  Ultimately, this Court concluded that for numerous reasons – none of which have any cogency here – that compliance with that rule did not go to the validity of decisions by the ABA in terms of developing program standards.  But in so explaining, what the Court held at paragraph 100, is – if you take up paragraph 100 from the second sentence, the Court held that:

Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. Failure to comply with a directory provision “may in particular cases be punishable”.

There was reference made to the possibility of:

a person with sufficient interest –

being:

entitled to sue for a declaration . . . obtain an injunction.

Now, it is simply inconceivable that 29(1)(c), if it does not write the rule as to the condition of making a valid application, which is our case, could ever in any meaningful sense be enforced by anyone in any way.  So, if an application – if Mr Herzfeld is right and a valid application is made by complying with 29(1)(a), perhaps (d) – which is plainly the case, we say – but not (c), if an applicant thumbs their nose and does not provide a statement of reasons, there will never be any occasion for that rule to be enforced.  The application will be valid, on Mr Herzfeld’s view, despite that it does not contain – it will therefore be too late.  No occasion arises now for ‑ ‑ ‑

GAGELER CJ:   So, Mr Wood, this is really saying that the words “must be” are to be read as “needs to be”?

MR WOOD:   Yes.

GAGELER CJ:   Granted that, the question remains, does it not?

MR WOOD:   No, because the point I am making is that if Mr Herzfeld’s contention were to be accepted, 29(1)(c) would be completely pointless.  It could be ignored.  It could never be enforced.  It would therefore ‑ ‑ ‑

GORDON J:   But one cannot read that – is the answer to that not, Mr Wood, though that you have 29AB, and so you have a statutory scheme where one has to look at this ability of enforcement, where the Parliament has turned its mind to it and said, listen, we recognise that there might be some problems because we have seen it in the past and we have now enacted a provision which enables the Tribunal to give rise to a proper statement or better clarification of the statement of reasons.

MR WOOD:   No.  First of all, because 29AB is just simply not available because ‑ ‑ ‑

GORDON J:   You do not have a valid application?

MR WOOD:   No, because you do not have a statement.  So if you look at ‑ ‑ ‑

GORDON J:   That is what I meant, because you do not have a statement.

MR WOOD:   Yes, you do not have a statement, and so we cannot see how 29AB – I mean, 29AB says:

If the Tribunal considers that an applicant’s statement under paragraph 29(1)(c) does not clearly identify –

It plainly requires A, that there be in fact a statement that was given, good or bad; and B, the Tribunal to form a particular view about that.  That is the condition for the exercise of the power.  That is why 29AB contextually supports our position.  In any event, after the application has been made, it is too late.  There can never be occasion for saying, your application must contain it because it has gone in, and it is valid.  If the Tribunal were to ask for a statement after the fact, it would not be under 29AB.  If they did ask for it under section 33, 33 would be the source of the power, not 29(1)(c).  The Court could never conceivably grant declaratory or injunctive relief in these circumstances, particularly if it does not go to the validity of the application.  So, the functional effect of all that is that 29(1)(c) is a waste of space.

Now, it may well be that an underlying grievance of the appellant and an underlying concern of his here, is why is 29(1)(c) in the Act at all?  But that is not the question that is amenable to answer by this Court.  It is a matter for Parliament.  The Act is, of course, being reviewed at the moment and no doubt this is one of the features of the Act that might be considered.  But it is there, and on the appellant’s contentions, it does no work.  It is otiose.

Now, that was a point that was well made by Justice Derrington at paragraphs 65 to 66 of the primary judgment, to which the appellant does not deal.  It is also a point well made by the Full Court in BXS20 – which I do not need to take the Court to, but it is joint book of authorities, tab 24, at paragraph 33 – in a relevantly, therefore analogous, context.  So, if 29(1)(c) could be wilfully ignored by applicants, the net result of all of that is that the Tribunal is not getting the potential efficiency gains that are plainly able to be obtained by the rule being a condition of the making of valid application, which is ‑ ‑ ‑

BEECH-JONES J:   But that is all predicated on a narrow reading of the words “does not clearly identify”, so that it does not include an example where they did not identify?

MR WOOD:   Sorry, I am not sure I have understood.

BEECH-JONES J: Well, the argument that you have made predicated on section 29AB, the words “does not clearly identify”, not embracing a case where there is no identification?

MR WOOD: No, because it would need a fundamental level. Section 29AB is not engaged, unless there is a statement of any kind.

BEECH-JONES J:   Well, that is the argument that you are asserting, but we have to read them together.

EDELMAN J:   And in context where 29AB, presumably, is formulated with the expectation that there would be some form that would be completed – and the form would usually contain the requirement for a statement of reasons.  But one could easily read a “statement” under 29(1)(c) to include a blank box; the statement is an absence of a statement.

MR WOOD:   I would not agree with your Honour that the Act in any way contemplates a form; and indeed, noting the intersection of this Act with other Acts that do require forms like the Migration Act, it is quite clear that there is no requirement for a form at all. And one would not read the incidental fact that the President might have issued a form to facilitate efficient application, so that people do not have to make up for themselves how to write a letter, that does not have any bearing on the construction of sections 29AB or 29(1)(c), I do not think.

The fourth point about the text that we want to make is concerning congruence.  Setting aside for a moment the particular considerations that might bear on 29(1)(b) – that is, fees – there would appear little reason to construe the Act such that compliance with (a) is a condition on the making of a valid application, conceded; compliance with (d) is a condition of the making of the application, not conceded, but we cannot understand how it can be asserted that compliance with (d) could not be a condition.

It would plainly render the whole scheme for applying for extensions of time completely otiose.  If you did not need to apply within time, you would not need the mechanics in subparagraph (7) through (10).  So, we rely on our argument in writing as to why (d) plainly is a condition of making a valid application.  So, if you start that (a), yes, condition; (d), yes, condition – it is at the very least incongruent to introduce the proposition that compliance with (c), being a paragraph within the same structure, is not.

BEECH-JONES J:   Is not the answer to that just the sheer inconvenience?  You could not run a tribunal that does merits review unless you have applications for review in writing.  You could not have everyone running up making oral applications.  It would be completely unwieldly.  But where you have a tribunal that does merits review, it is a different thing as to whether you need a formal statement, I disagree, is it not?  It is all about how to practically operate a tribunal.

MR WOOD:   You could have a tribunal that does not have time limits.  So, you could have a tribunal with a merits review function with no time limits.  So, 29(1)(d) might not have been there.  It is there – (7) to (10) clearly illustrate that it is a condition going to validity.  So, you have a net result that you have a collection of rules all expressed in the same structure.  The question is, is the rule in (c) – does not compliance with it have any difference?  We say it is at the very least incongruent to form a different conclusion about that proposition.

The appellant draws on Formosa, where I think Justice Gummow, perhaps with Justice Davies – if my memory is right – accepts that one can potentially have a requirement mandatory as to some integers and directory as to others, but the actual substance of the reasoning in Formosa reveals that there were very particular contextual considerations that drove that result.  I can grab the case, if you like, but just very briefly I can explain what that is.  The rule there was that a social security claim was required to be made in writing – this is tab 27 of the joint book – and I am looking at page 120 of the judgment that sets out the provision.  So, the claim was required to:

be made in writing in accordance with a form . . . and shall be lodged . . . at a place . . . approved for the purpose by the Secretary.

What their Honours held was that was that this was a Normandin kind of situation, which assumed some significance in Project Blue Sky, where the point is that the individual in the community is in no position to ascertain whether or not officials have complied with the requirements to approve particular places or, indeed, what places have been approved, and so forth.

So, the point about convenience there was drawn to say, in circumstances where applicants are at that disadvantage, you would work considerable inconvenience to conclude that they might, therefore, be the victim of oversight or the like by government. That is the point made at page 123 of the judgment, which is page 401 of the bundle. Now, that is fine. So, we can accept there can be contextual features of the scheme that drive a different conclusion, but we say those features are not present in section 29(1)(c).

With respect to 29(1)(b) – I think we have probably made our case sufficient in writing – but the point is that plainly it is to be construed contextually in light of 69C.  The terms of section 69C plainly reflect a recognition that the fee might be paid after the deadline for the making of the application.  The legislative history to date is set out in writing, so we accept that it could not be concluded that an application where the fee did not accompany it within the deadline would be an invalid application.  It need not be concluded that if the fee was never paid – if you had a recalcitrant applicant that refused to pay – whether the Tribunal could have ever exercised its substantive power on the review.

EDELMAN J:   Do that mean that (b) is not an essential requirement? Or does that mean that (b) becomes a condition subsequent?

MR WOOD:   I think that is a good question.  I think we accepted below that it was not a condition, but I can see a different way of thinking about that, which is that it is.  But it is a condition subsequent such that the fee must accompany at some stage, but temporally, disconnected because of 69C, from the timing rule that was a problem for the appellant here with respect to the provision of a statement of reasons.

I do not think I need to address (ca) and (cb).  We rely on what we have said in writing – suffice to say that particularly (ca), in light of section 54(2) of the ASIO Act, it makes perfect sense why it would be a condition of the making of a valid application for review of decisions of those kinds, because 54(2) of the ASIO Act only allows for applications on a particular ground, and 29(l)(ca) requires the application therefore to state the grounds.  So, it is evidently sensible why that would be a condition of the making of a valid application.

I think I have made the point about 29AB, and I do not need to go back to that.  I think I have made the point about the rationale or the utility of the rule.

GORDON J:   By that, you really mean 29(1)(c)?

MR WOOD:   Yes, sorry.

GORDON J:   Do you accept that you can have something that ought to be complied with, and therefore it has a purpose, without it being mandatory?

MR WOOD:   Abstractly, yes, I accept that as a possibility. But the point I have tried to make is that here, if it were not mandatory, it could be simply ignored.  Having a rule of that kind would serve no rational purpose.  It would also collide with the mandatory form, because effectively, 29(1)(c) would be an applicant could, if they wished, provide a statement of reasons.  That would be the effect of setting out the conditionality of it.

GAGELER CJ:   An unenforceable rule can still have normative effect.

MR WOOD:   Yes, your Honour.  And indeed, that point – Mr Herzfeld says, well, look at all these statements of reasons that might not be very useful.  Our point is to say when you make the requirement a condition of the making of a valid application, you require people to give reasons.  Some of those reasons will not be useful, but they have to give them; the normative effect of making the rule a condition of the making of a valid application is you are going to have to get statements of reasons.  If they are not particularly useful, 29(a)(b) supplies a resolution.  But they may be useful, and the rule in itself, when expressed as a condition, is apt to assist the Tribunal, particularly with respect to standing.

Your Honours, I think we have made the point about harsh consequences as well.  I do not think I need to elaborate on that.  Unless the Court has any further questions, I think I can rely on our written submissions.

GAGELER CJ:   Thank you, Mr Wood.  Mr Herzfeld.

MR HERZFELD: Can I start with a non‑reply point. The general power of the President to approve forms is in regulation 7 of the Administrative Appeals Tribunal Regulation 2015. That is then subject to any more specific provisions, such as in the Migration Act, as your Honours have already been shown.  Can I then make three points in reply.

The first point is to address the submission that section 29(1)(c) facilitates the early assessment of the applicant’s standing. Assume that that is right, for a moment. Assume that that is a purpose of it. All that that means is that a statement of the kind for which it provides may be useful. But that is the wrong question. It does not show that the failure to provide a statement is intended to lead to invalidity.

Further, the assumption is wrong, because the requirement can be complied with by someone writing:  bad decision, exclamation point – and that will not reveal anything about the applicant’s standing.  It will comply with the section – the reason that the person is making the application is that they think it is a bad decision.  So, the requirement is wholly inapt to give an early indication of standing.  On the assumption that that is right, it does not get the respondent to where the respondent needs to go, but the assumption is wrong, in any event.

The second reply point is that 29(1)(c) is not otiose, on our submission.  It should be complied with.  But again, that is not the question.  The question is the consequence of non‑compliance.  It is not a requirement to construe something as directory only that there is some other way of enforcing it.  In any event, here, substantively, it can be enforced in another

way.  It is accepted that the Tribunal under section 33 has the power to direct a statement of issues and contentions.

That will and could be the subject of express direction by the Tribunal, must include anything that the Tribunal is concerned about, including the question of standing. Also, on our construction, of course, the power to request in section 29AB is available, but that is still only a power to request, which again highlights the insignificance of this requirement. Either way, certainly it is the case that as a matter of substance, the requirement to state your case – including, if necessary, standing – can be enforced by the Tribunal as a matter of substance through section 33.

The third and final reply point is this.  At no time, in writing or orally, has the Minister answered this question:  why would it be a purpose of the Act to render invalid an application which lacks a statement of the reasons the applicant has made the application while rendering valid an application that contains an utterly uninformative statement?

GAGELER CJ: In relation to section 29AB, can I put to you the question that Justice Beech-Jones put to Mr Wood: would section 29AB be available in a case where an applicant simply said nothing about the reasons for the application in writing initially?

MR HERZFELD:   On our submission, the answer is yes.

GAGELER CJ: And how do we read section 29AB to achieve that result?

MR HERZFELD:   Because a statement that is absent is one that does not clearly identify the reasons; that is particularly graphically illustrated if a form has been prescribed and what there is, is a blank box; and it is true that the word “amend” would ordinarily connote alter your wording, but it can be read more broadly to include “amend” by supplying where there was previously nothing.

GAGELER CJ:   Thank you.

MR HERZFELD:   Regrettably, my intention to end with a rhetorical question has been frustrated, but those are our reply submissions.

GAGELER CJ:   Thank you, Mr Herzfeld.  The Court will reserve its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 11.56 AM THE MATTER WAS ADJOURNED