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

[2023] HCATrans 126

[2023] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S157 of 2022

B e t w e e n -

JOSEPH MILLER

Applicant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KIEFEL CJ
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 15 SEPTEMBER 2023, AT 1.30 PM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR P.D. HERZFELD, SC appears with MR J.G. WHERRETT for the applicant.  (instructed by Zarifi Lawyers)

MR N.M. WOOD, SC appears with MS K.R. McINNES for the first respondent.  (instructed by Sparke Helmore Lawyers)

KIEFEL CJ:   There is a submitting appearance for the second respondent. 

Mr Wood, we might hear from you in the first place. I take it the position, in summary, is that it is agreed that the Tribunal was in error – in fact, it was guilty of jurisdictional error, but the Federal Court judge held that there was no point to remitter because the Tribunal did not have jurisdiction, and it did not have jurisdiction on the basis that section 29(1)(c) of the Administrative Appeals Tribunal Act requires that an application to the Tribunal must contain a statement of the reasons for the application.  What the application for special leave is concerned with is the question of construction of that requirement, and in particular, the emphasis on the word “must”.

MR WOOD:   Yes, your Honour.  That is a correct summary of the background.  I think it could be put this way:  that the Tribunal, if it had jurisdiction, would have jurisdictionally erred in the manner that was conceded below.  But the threshold question was whether it had jurisdiction – or the question there was whether there was a valid application before it.

Your Honours, the jurisdiction of the AAT is engaged by the making of an application – section 25 of the AAT Act – by a person withstanding, generally – section 27 of the Act.  Section 29 is entitled, “Manner of applying for review”.  The only question, we submit, that arises on the proposed appeal is whether the courts below were correct to conclude that compliance with 29(1)(c) of the AAT Act is a condition to the making of an application, it being clearly the case that an application to the Tribunal is necessary to invoke the Tribunal’s jurisdiction. 

We do say there is no real controversy that we perceive between the parties about interpretive principles, nor contrary to our friends’ submissions do we see any question of broader significance arising, such as the meaning of the word “must” abstractly in any legislative context.  We say it is obviously the case that whether compliance with a rule, as to the manner in which a statutory right here, akin to Forrest & Forrest, or a statutory power, akin to Project Blue Sky, is to be exercised goes to – the validity of the exercise the right or power depends on the particular context. 

It is to the text, context, and purpose of section 29 of the AAT Act to which I now turn.  I make a number of propositions by way of highlight.  The first is that it is critical to start from a proposition that the Court must construe section 29 of the AAT Act in its unmodified form.  The AAT Act contemplates that a principal Act, which provides for the making of application to the Tribunal, can exclude, add to, or modify the operation of any of the provisions of the AAT Act, including section 29.  That accommodation is provided for in section 25(6) of the AAT Act.  But the AAT Act itself and, in particular, section 29, sets a default regime, and that default regime must have a consistent meaning, subject to it being modified by a particular principal Act in a particular context.

KIEFEL CJ:   Mr Wood, could you assist me?  The Full Court – how did deal with the question of the legislative purpose of the provision?  How did it hold that that was engaged?

MR WOOD:   Your Honours, I think the Full Court – similarly to the primary judge – accepted that, having dealt with the threshold question that it does not arise on this application for special leave, accepted that the purpose of 29(1)(c) includes facilitating the Tribunal assessing standing as well as accommodating the identification of issues.

Certainly, that is addressed – I think at paragraph 56 – in the judgment of the primary judge which is also set out, in particular, at paragraph 34.  It is a point that we highlight in response to the application for special leave, that statements of reasons for the making of an application – that that requirement has to be a universal one, and the Full Court accepted that, in some circumstances, there may be little utility in a statement – or little assistance provided by a statement – but, on other occasions, statements may be useful, in particular, we say, in assessing the standing of the applicant to bring the application.

Your Honours, we say that the submissions of our friend going to the perceived harshness of the result here are not really the product of the interpretation of the default regime in 29(1)(c) of the Act, because, of course, in the ordinary circumstance, where there is a good reason why a statement of reasons was not included in the application, that can be remedied by the provision of an extension of time and an appropriate circumstance.  The result of this case was driven by the combined operation of 29(1)(c) of the AAT Act, combined with the preclusion of the application for an extension of time by reason of modification by the Migration Act.

GLEESON J:   Is that not itself a contextual matter to the construction of 29(1)(c)?

MR WOOD:   We say, no, your Honour – for the reasons that I indicated at the outset, in that you have to interpret 29, setting default rules, as having a universal construction.  So, 29(1)(c), within the default regime will, universally – where the default regime applies – require the provision of statements as a matter going to the condition of the making of an application or not.In the present circumstance, the Migration Act, modified 29 in some respects – in particular, by disapplying the extension of time provisions and by truncating the period within which an application could be brought, but did not modify 29(1)(c).  So, the submission we would make is that 29(1)(c), not having been modified, would carry with it its usual connotation and significance, being a rule or a condition, satisfaction of which is essential to the making of an application for review.  In terms of ‑ ‑ ‑

GLEESON J:   But why is the criteria for a competent application defined not by section 500(6H)?  Is it (6H) or (6B)?  I am sorry.

MR WOOD:   I think it is 500(6B), your Honour – bear with me.

GLEESON J:   Yes.  It is implicit in that that it must be a written application, and the application has to be lodged within nine days. 

MR WOOD:   I think, your Honour, the answer to that question is that you read the Migration Act together with the AAT Act.  In particular, section 25(6) of the AAT Act says that:

If an Act provides for applications to the Tribunal –

which is the case here in the Migration Act:

that Act may also include provisions adding to, excluding, or modifying the operation of any of the provisions of this Act –

And then if one comes then to Migration Act section 500(6B), what we have there is a modification of, or a disapplication of 29(1)(d) and indeed of 29(7), (8), (9) and (10) and the insertion of a contrary rule, being the identification of a nine‑day period within the application can be made.  But we do not see a disapplication or modification of the provision made by 29(1)(c).  So, reading the two Acts together, we would say that the default rule set by 29(1)(c) not having been modified applies and that the content of 29(1)(c) would have to track the ordinary meaning of the content of 29(1)(c) construing the AAT Act as a separate piece of legislation.

We say there is a clear purpose served by a rule that valid application must contain the statement of reasons.  We say, among other things, it assists the Tribunal in assessing whether the person seeking a review has standing to do so under 27, which provides that:

the application may be made by . . . any person . . . whose interests are affected by the decision.

KIEFEL CJ:   Mr Wood, would a reason stated as the decision was wrong be sufficient?

MR WOOD:   We say that it would.  Certainly, the cases below suggest that.  Mr Herzfeld at the Full Court – but not his colleagues at the primary level – made an argument to the effect that it was implicit from the application that was made that a statement of reasons was provided.  That argument was advanced below and was rejected below by the Full Court in the first part of its reasons for judgment.

That argument has not been pressed.  That was at 29 to 40 of the Full Court’s reasons.  That argument has not been pressed again.  If I can answer – perhaps skipping ahead in my notes to one of the points that Mr Herzfeld makes – we say that there are three pathways that Parliament might have gone down in this respect.  Had a rule that requires a statement of reasons to be given, but not a rule that seeks to ascertain a level of adequacy, or sufficiency, or usefulness of that statement of reasons.  That was the pathway the Parliament went down.

Another pathway is that the Parliament might have required a statement of reasons, but sought to establish a standard of adequacy or usefulness.  If Parliament had done that, it would have been productive of judicial review applications to the Federal Court; it would not have been a rule of clear definition, evaluative choices would have been made, and errors might have been made by the Tribunal assessing the purported adequacy of the reasons.

The third pathway is that the Parliament might not have included a requirement at all for reasons.  That could have happened, but that is not the choice that Parliament made.  If Parliament had gone down that route, then what the Tribunal would not have got is the benefits that potentially accrue from requiring persons who seek review to identify at the outset their reasons for so doing.  The standing point is significant because it assists the Tribunal to have the statement of reasons at the very outset, because the statement of reasons will often assist the Tribunal to analyse whether or not the person who seeks review has standing to do so under section 27; so that ‑ ‑ ‑

GLEESON J:   The fact that it is useful does not necessarily mean that it is a precondition to a competent application.

MR WOOD:   Not necessarily.  Obviously, the question of construction has to be answered in context, and here there are multiple factors at play.  We have identified in 29(1), but for one exceptional category which I will come to in a moment, being the provision for the payment of fees, what we see is the articulation of a variety of matters, a number of which are plainly apt to go to standing – sorry, to go to validity.  So, the requirement for it to be in writing, the applicant accepts goes to validity of the application. 

The requirement for the application to be made within a period of time in paragraph (d), we say, quite clearly goes to the validity of the application and, indeed, as the Full Court held, the scheme for provision of an extension of time is built from the very premise that an extension of time would be required in order to make an application brought outside time competent.

We say that paragraph (c), in its context, given not just the mandatory language of “must” that is used, but given the context here is the articulation by Parliament effectively of how an application is made, is naturally understood textually as going to whether an application is made.  In other words, whether the condition is complied with.  What we have sought to do is to interrogate what we perceive to be a discernible purpose that is achieved by requiring the reasons to be provided at the outset.

Now, to come back to the standing point, if the Tribunal is not provided with a statement of reasons at the outset, then it is in a position where it might then embark on the exercise of statutory powers, including by coercive direction under section 33 and so forth, in a circumstance where if it had obtained reasons at the outset, which we say is the scheme, it might have been apparent that the person did not have standing, and so the matter would not have progressed. 

We perceive there to be real utility and purpose achieved not just by requiring reasons to be provided by an applicant but for reasons to be provided at the outset.  Contextually, there are a couple of features of the Act that we submit support the view of the courts below and the Minister’s position.  First of all, 29AB, we submit, provides contextual support for the Minister’s position because it is a provision that is premised on the applicant having already provided a statement of reasons that is pregnant in the very text that is used in that provision.  Contrary to the applicant’s submission, particularly in their reply at paragraph 6, section 29AB cannot be read as a power to request a statement of reasons where no statement has been provided.  That is incompatible with the express language used in the provision. 

Can I address now, if it assists, one point that my learned friends come back to repeatedly, which is their argument that there is no meaningful difference between an application containing no statement of reasons, as was the case here, and an application containing uninformative reasons such as, for example, because the decision is wrong.  The argument is put by our friends that there is no difference in those two scenarios in assisting the Tribunal to perform its function, therefore, it is put, that it is anomalous that an application in column A is invalid and an application in column B is valid. 

We say that argument, whilst it is facially attractive, does not withstand scrutiny.  That is because at a systemic level, there is clear advantage in Parliament requiring a person who seeks to engage the Tribunal’s jurisdiction to include a statement of reasons at the outset, and I have already addressed in part why that is so, including to assist the Tribunal to assess standing.  The rule is useful, therefore, as a systemic measure because it is to be expected that on many occasions, applicants will comply and will provide statements of reasons that are useful, not only to assessing standing but useful in identifying granular issues to some extent at the outset of the manner. 

That is so, even though it may be accepted, as a matter of fact, that a certain proportion of people will not provide useful reasons, will simply say, the decision is wrong, or something somewhat unhelpful to that effect.  As I indicated before, that is where the three pathways were available to Parliament, and it chose one.  It could have required no reasons and therefore not got the benefit.  It could have required reasons but not required a standard of adequacy, which is what it has done, and accommodated then the capacity for the Tribunal to request more useful reasons under 29AB. 

The third pathway of requiring reasons, but requiring those reasons to be helpful, would have been problematic because it would have given rise to debates that not being a rule of clear application or one the compliance with which could be readily ascertained.  So far as my learned friends seek to take advantage of the anomalous position of 29(1)(b) concerning the requirement that an application be accompanied by a fee, we say this.  That paragraph is in an anomalous position.  In truth, it is the only paragraph in 29(1) that can be seen as not going to the validity of the application.  The context is provided by section 69C of the Act, which implies that a failure to pay fees at the outset is not fatal to the validity of the application.  But 69C contextually only bears directly on 29(1)(b).  It reflects a particular legislative history and choice that we have outlined in writing. 

GLEESON J:   Mr Wood, when you look at the other subparagraphs of section 500, particularly 500(2), (3), (4) and (4A), do not they indicate that the question of the Tribunal’s jurisdiction is determined under section 500? 

MR WOOD:   We say, your Honour, that – I think, I would be giving the same answer effectively that I gave before, which is that section 25(6) accommodates the principal Act, here being the Migration Act, adding to, excluding, or modifying the default rules in section 29, amongst other things. 

GLEESON J:   Do we have section 25 in the application book?

MR WOOD:   I am not sure about the answer to that, your Honours, but I can read it out.  It says that:

If an Act provides for applications to the Tribunal –

which is the case here –

(a)that Act may also include provisions adding to, excluding or modifying the operation of any of the provisions of this Act in relation to such applications; and

(b)those provisions have effect subject to any provisions so included.

So, we think the better view is that the Migration Act has made provision for the making of applications – that is what the AAT Act contemplates happens.  It has also made provisions in various respects adding to disapplying or modifying, but particularly in light of the way that 500(6B) is framed, we see it would be an unlikely interpretation that express disapplication is made of 29(1)(d) and 29(7) through to (10), and yet it might be thought that by some implication Parliament has intended to disapply or modify 29(1)(c).  We do not perceive that to have been achieved, and I do not understand that to have been an argument that the applicant has advanced to date, to the extent that that matters.

So, we say that the fees rule is a distinct one – it is a product of legislative history and choice.  Indeed, there is a textual difference between 29(1)(c) concerning reasons and (b) concerning fees as well.  Subparagraph (c) speaks of a statement of reasons to be contained in an application – which by its text implies it is part of the application, which is the very thing that engages jurisdiction – whereas (b) speaks of fees accompanying an application.  And what section 69C makes clear is that that which accompanies the fees can be provided for a period of time after the application is made, being a period of six weeks, which of course is a

longer period than that which the Act in its default operation allows for the making of a valid application – being 28 days.  Hence that is an exceptional paragraph, but it is the only one within the scheme.

I think in the interests of time – I am not sure I have sufficient time to address satisfactorily on 29(1)(ca) and (cb).  Suffice to say they deal with quite discrete regimes concerning applications for review of decisions under the ASIO Act.  There is particular utility in requiring what (ca) and (cb) suggest in order to enable the Tribunal to assess standing and identify a particular assessment that is subject to review.  There is no occasion for an equivalent to the 29AB power in those respects because if a person complies with (ca) by providing the assessment, as long as they have provided their name, there will be no further standing inquiry arising – there will be no need for the Tribunal, in effect, to request further reasons.

Your Honours, we say it is a narrow question of construction, no question of principle is involved.  We say both the Court ought to conclude that it has insufficient prospects and, indeed, also conclude that it is not a question of sufficient importance for this Court’s attention.  Thank you.

KIEFEL CJ:   Thank you, Mr Wood.  The Court will adjourn to determine the course that it will take.

AT 1.51 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.54 PM:

KIEFEL CJ:   We need not trouble you, Mr Herzfeld.  There will be a grant of special leave in this matter.  Do I take it that it would comfortably be concluded within a half day?

MR HERZFELD:   Yes, your Honour.

MR WOOD:   Yes, your Honour.

KIEFEL CJ:   Yes, thank you, gentlemen.  The Court will then adjourn to 10.00 am on Tuesday 10 October.

AT 1.54 PM THE MATTER WAS CONCLUDED