Minister for Immigration and Border Protection v Kumar

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HIGH COURT OF AUSTRALIA

BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

MINISTER FOR IMMIGRATION AND BORDER
PROTECTION  APPELLANT

AND

YOGESH KUMAR & ORS  RESPONDENTS

Minister for Immigration and Border Protection v Kumar

[2017] HCA 11

8 March 2017

P49/2016

ORDER

1.Appeal allowed.

2.Set aside orders 2-4 of the orders of the Federal Court of Australia made on 23 February 2016 and, in their place, order that:

(a)order 2 of the orders of the Federal Circuit Court of Australia made on 14 September 2015 be set aside; and

(b)the appeal to that Court otherwise be dismissed.

3.The appellant pay the first, second and third respondents' costs of the appeal to this Court.

On appeal from the Federal Court of Australia

Representation

G R Kennett SC with P M Knowles for the appellant (instructed by Australian Government Solicitor)

M D Howard SC with D V Blades for the first to third respondents (instructed by Cathal Smith Legal Pty Ltd)

Submitting appearance for the fourth respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Statutes – Interpretation – Acts Interpretation Act 1901 (Cth), s 36(2) – Where first respondent's application for visa received and taken to be made on Monday 13 January – Where first respondent able to meet visa criteria in Migration Regulations 1994 (Cth) if first respondent held valid second visa at time of application – Where first respondent's second visa expired on Sunday 12 January – Whether s 36(2) of Acts Interpretation Act allowed application to be assessed as if it had been made before expiry of first respondent's second visa.

Words and phrases – "an Act requires or allows", "last day", "prescribed or allowed by an Act", "state of affairs", "thing to be done", "time of application".

Acts Interpretation Act 1901 (Cth), s 36(2).
Migration Act 1958 (Cth), ss 31, 45, 46, 47, 65.
Migration Regulations 1994 (Cth), Sched 2, cl 572.211.

  1. BELL, KEANE AND GORDON JJ. Section 36(2) of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act") provides that if an Act "requires or allows a thing to be done" and "the last day" for the doing of the thing is a Saturday, a Sunday or a holiday then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday. The issue in the appeal is whether the Migration Act 1958 (Cth) ("the Act") and the Migration Regulations 1994 (Cth) ("the Regulations"), governing the first respondent's application for a specified class of visa, provide a "last day" for the application to be made.

    The statutory scheme

  2. The Act requires a non-citizen who wants a visa to apply for a visa of a particular class[1]. An application is only valid if it is an application for a visa of a class that is prescribed and conforms to the requirements of the Regulations[2]. Schedule 1 to the Regulations sets out the…

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Details
Case
[2017] HCA 11
Decision Date

CaseChat Overview and Summary

The Minister for Immigration and Border Protection appealed to the High Court of Australia against a decision of the Federal Court of Australia concerning a visa application. The dispute centred on whether section 36(2) of the *Acts Interpretation Act 1901* (Cth) could be applied to deem a visa application made on Monday, 13 January, as having been made on the preceding Sunday, 12 January, thereby allowing the applicant to meet a visa criterion that expired on that Sunday.

The legal issue before the High Court was the proper construction and application of section 36(2) of the *Acts Interpretation Act 1901* (Cth). Specifically, the Court had to determine whether the provision, which addresses the situation where the last day for doing something prescribed or allowed by an Act falls on a weekend or public holiday, could operate to deem a visa application made on a Monday as having been made on the previous Sunday, when the applicant's eligibility for the visa was contingent on holding a valid second visa on that Sunday.

The High Court allowed the appeal, setting aside the orders of the Federal Court. The Court reasoned that section 36(2) operates as an interpretive rule to extend the time for performing an act when the last day falls on a weekend or public holiday, allowing it to be done on the next available day. However, the Court held that this provision does not alter the substantive rights or obligations conferred by the relevant Act. Crucially, section 36(2) cannot be read as deeming the act to have been done on the earlier date, nor as deeming a state of affairs that existed on the earlier date to be in existence on the later date. Therefore, the applicant's visa application, made on Monday, 13 January, could not be retrospectively considered as having been made on Sunday, 12 January, for the purpose of meeting the visa criteria.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 2-4 of the orders of the Federal Court of Australia made on 23 February 2016 and, in their place, order that:

(a) order 2 of the orders of the Federal Circuit Court of Australia made on 14 September 2015 be set aside; and

(b) the appeal to that Court otherwise be dismissed.

3. The appellant pay the first, second and third respondents' costs of the appeal to this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BELL, KEANE AND GORDON JJ (dissent) GAGELER J NETTLE J (dissent)
The operation of s 36(2) as it then stood was touched upon in Associated Dominions Assurance Society Pty Ltd v Balmford[33]. The issue raised by Zangzinchai and by the present appeal was not addressed in Balmford; however, the statements in Balmford are consistent with the majority's analysis in Zangzinchai in reading s 36(2) as an interpretive rule serving to extend time in the stated circumstances and not to otherwise alter or affect rights or obligations under the Act[34]. [33](1950) 81 CLR 161; [1950] HCA 30.[34]Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161 at 181 per Williams J, 181-182 per Webb J, 186-187 per Fullagar J. Conclusion It is not in question that s 36(2) is not confined to statutory provisions that expressly stipulate a "last day" for a thing to be done. As the Minister submits, the last day for doing something under an Act may be calculated by reference to an event such as the service of a statutory notice[35], the presentation of a bankruptcy petition[36], the accrual of a cause of action[37] or other circumstance. Where an Act "requires or allows a thing to be done", whether expressly or by necessary implication, and the last day for doing the thing is a Saturday, a Sunday or a holiday, s 36(2) allows that the thing may be done on the next day that is not a Saturday, a Sunday or a holiday. [35]Associated Dominions Assurance Society Pty Ltd v Balmford (1950) 81 CLR 161. [36]Roskell v Snelgrove (2008) 246 ALR 175. [37]Price v J F Thompson (Qld) Pty Ltd [1990] 1 Qd R 278. As earlier explained, no time limit is imposed expressly or by necessary implication under the Act and the Regulations on the making of an application for a 572 visa. It is common ground that the first and second respondents' application was validly made on 13 January 2014. On that day the first respondent was not the holder of a 485 visa. He did not meet any of the criteria specified in cl 572.211(2) or (3) for the grant of a 572 visa. The last day on which the first respondent might have applied for a 572 visa relying on his status as the holder of a 485 visa was Sunday, 12 January 2014[38]. However, recognition of that fact does not engage s 36(2). Section 36(2) states a rule with respect to the time for the doing of a thing which an Act requires or allows to be done. It does not otherwise alter the rights or obligations conferred or imposed by the Act. The language of s 36(2) cannot be read as deeming the thing to be done as if it were being done on the earlier date, nor as deeming a state of affairs that existed on the earlier date to be in existence on the later date. [38]Since the first and second respondents' application was validly made, one avenue to the grant of 572 visas remained: following unsuccessful review before the Migration Review Tribunal (now the Administrative Appeals Tribunal), the Minister was empowered under s 351 of the Migration Act 1958 (Cth) to substitute a decision more favourable to the applicant whether or not the Tribunal had the power to make that other decision. Orders

Ratio Decidendi

Legal Principle Established

Established by: GAGELER J,

The Minister also contended that North J's construction of s 36(2) is contrary to the way in which s 36(2) was construed in Re Tavella[59] and by this Court in Associated Dominions Assurance Society Pty Ltd v Balmford[60]. Consideration[59](1953) 16 ABC 166.[60](1950) 81 CLR 161; [1950] HCA 30.The effect of the 2011 amendment to s 36(2) With respect, there appears to be some force in North J's conclusion that the 2011 amendment brought about a substantive change to the operation of s 36(2). Standard dictionary definitions of "prescribe"[61] and "require"[62] suggest that prescription involves a more explicit stipulation than requirement; the distinction deriving in part from the etymological root of "prescribe", praescribere, connoting a direction in writing[63]. It appears also to be of significance that the provision as amended no longer refers to a "period" allowed by an Act. As amended, it presents as capable of application to a situation in which an Act has the practical effect of requiring or allowing a thing to be done by a particular "last day" without necessarily setting out a last day before which the thing is to be done. There is some support for that notion, too, in the example of the intended operation of the provision, which appears in the Act immediately below sub‑s (2), and particularly in the general phrasing of the imperative: "Example:If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April." (emphasis added) [61]See, for example, The Oxford English Dictionary, 2nd ed (1989), vol 12 at 390‑391; The Australian Oxford Dictionary, 2nd ed (2004) at 1020; Black's Law Dictionary, 10th ed (2014) at 1373.[62]See, for example, The Oxford English Dictionary, 2nd ed (1989), vol 13 at 681‑682; The Australian Oxford Dictionary, 2nd ed (2004) at 1095; Black's Law Dictionary, 10th ed (2014) at 1498.[63]Partridge, Origins: A Short Etymological Dictionary of Modern English, 4th ed (1966) at 598 [17]-[18]. Admittedly, as the Minister submitted, the Explanatory Memorandum states that the amendment did "not substantively change the existing policy"[64]. But considered changes to the text of a legislative provision cannot be overridden by an executive pronouncement[65]. And, far from supporting the Minister's preferred construction, the Explanatory Memorandum also records that the amendment was "intended to capture a broader range of situations"[66]. Accordingly, as at present advised, I would not exclude the possibility that the changes made by the 2011 amendment were sufficient reason to depart from the reasoning in Zangzinchai. [64]Australia, House of Representatives, Acts Interpretation Amendment Bill 2011, Explanatory Memorandum at 35 [225].[65]Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ; [1987] HCA 12; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 598 [61] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; [2011] HCA 10.[66]Australia, House of Representatives, Acts Interpretation Amendment Bill 2011, Explanatory Memorandum at 35 [224].