Minister for Immigration and Border Protection v Kumar & Ors

[2016] HCATrans 197

[2016] HCATrans 197

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P8 of 2016

B e t w e e n -

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Applicant

and

YOGESH KUMAR

First Respondent

PRIYANKA ARORA

Second Respondent

HARSHAD SHARMA

Third Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Fourth Respondent

Application for special leave to appeal

KIEFEL J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 2 SEPTEMBER 2016, AT 10.40 AM

Copyright in the High Court of Australia

____________________

MR  G. R. KENNETT, SC:   May it please the Court, in that matter I appear with MR P.M. KNOWLES, for the applicant.  (instructed by Australian Government Solicitor)

MR M.D. HOWARD, SC:  May it please the Court, I appear with MR D.V. BLADES, for the first to third respondents.  (instructed by Cathal Smith Legal Pty Ltd)

KIEFEL J:   Yes, Mr Kennett.

MR KENNETT:   Your Honours, as your Honours will have seen from the submissions, this case involves the application of section 36(2) of the Acts Interpretation Act which, as we understand it, at least on this point, has not been previously considered by the Court.  The provision can be seen at page 64 in the application book.  Your Honours will have noted that it has three requirements that trigger its operation.  One is that:

an Act requires or allows a thing to be done; and

The second is that there is:

the last day for doing the thing –

and the third is that that last day falls on the Saturday or Sunday or public holiday.  In those circumstances, subsection (2) has operation and the operation it has is to authorise the thing to be done on the next working day.

The first respondent here had applied for a visa.  It was Class TU, Subclass 572.  Included in the material, although your Honours do not need to go to it, are the provisions that govern the validity of a visa application, in particular section 46 of the Migration Act and then the provision in Schedule 1 of the Migration Regulations that applies to an application for a visa in this class.  The short point to make about those provisions is that the respondent’s visa application satisfied all of them.  He did not fall foul of any of those requirements and it has always been common ground that he had made a valid visa application that the Minister was obliged to consider.

The problem arises with the criteria for grant of the visa, an application having been made for it, in particular clause 572.211, which your Honours can see at page 80 of the application book.  It needed to be satisfied by an applicant at the time of application.  Subclause (1) allowed it to be satisfied by meeting requirements of one of the succeeding subclauses.  Subclause (2) would have been satisfied by this applicant by reason of paragraph (d)(iia), which is over on page 82, had his visa application been made while his previous visa was still in effect.

But if, as is common ground, his visa application was received by the Department only after that last visa had expired then, on the face of it, he could not meet subclause (2), he could only succeed by meeting one of the other subclauses in this provision.  And, as the Tribunal found – and there is no challenge to its reasoning in this respect – he did not meet any of those other provisions so that his ‑ ‑ ‑

NETTLE J:   Mr Kennett, even allowing that Justice North’s construction is what you might say constructive construction, why is it productive of injustice in this case or generally to so construe this provision?

MR KENNETT:   It is productive of an operation for section 36(2) which we say is against its text and against its intention.  When one comes to injustice, there are two sides to every story, of course.  An applicant in a case like this clearly benefits from having it apply.

NETTLE J:   You might say it is against the text, at least on one view of it, but why is it against the intention or purpose of this legislation to construe it as Justice North did?

MR KENNETT:   Well, it is not only a beneficial provision, we would say.  It can have operations that are beneficial for individuals, but it could work the other way as well.  If, for example, ASIC was entitled to suspend a director within a – I am not saying this is the case but one posits that ASIC is entitled to take action against a company director within six months after a certain event, the six‑month anniversary falls on a Sunday, ASIC could rely on this provision just as an individual can rely on it against the Commonwealth in some circumstances.  But we say it is a mistake to begin with the proposition that this is beneficial and seek to construe it from there with breadth to assist individuals.

KIEFEL J:   It is your case that it is a matter of public importance to correct and that the respondent concedes the public importance of it.

MR KENNETT:   Yes, your Honour.

KIEFEL J:   But, as I understand the respondent’s position, it is that Justice North adopted a correct approach.

MR KENNETT:   That is as we understand it, your Honour, and we say that, with respect, that cannot be right.  I will just go quickly to what his Honour says, the core of his Honour’s reasoning is at pages 40 to 41.

NETTLE J:   It is at least a contestable analysis, Mr Kennett. 

MR KENNETT:   Yes, that is putting it mildly.  Paragraph 12, on its face, when his Honour says:

the last day for the appellant to apply for the 572 visa was Sunday, 12 January 2014.

As a description of the Migration Act we say that is just wrong, and plainly so, which might make the case not very interesting but then it seems to appear from paragraphs 14 and 15 that what actually lies behind that proposition is a proposition about the effect of section 36(2) when his Honour says at paragraph 14:

In order for “the thing” to be “done”, the circumstances existing on the Saturday, Sunday or holiday are, by operation of the section, regarded as existing on the extended date.

Then in the following paragraph, he says it is not just:

an extension of time for doing a thing.  Rather –

he says at the end of the paragraph:

it allows for the thing to be effectuated on the later date as if it were being done on the earlier date.

So there is a proposition embedded in what his Honour says about section 36(2) which, if it be right, applies across the whole field of – bundle of legislation.  We say it is not right for reasons we have articulated in

writing, principally because I took your Honours to what section 36(2) actually says and it does not say anything about engaging in counterfactuals or imagining things to have been done earlier.  It just says there is a thing that you can do on a particular day.  Unless there is anything else, your Honour, those are the submissions for the Minister.

KIEFEL J:   Thank you, Mr Howard.

MR HOWARD:   May it please the Court, we say two things in answer to the application.  The first is that the question that is sought to be articulated is not sufficiently important and, secondly, that the decision is not attended with sufficient doubt.

In terms of the question of it being not sufficiently important, your Honours will have noticed that there have been, since the Act was passed in 1901, two versions of section 36(2).  The first one reached one appellate court in 110 years.  The second version has reached one appellate court, albeit a single judge, in five years.  So there is no evidence that the provision or its interpretation is causing any particular difficulty.

The earlier decision of the Full Federal Court in Zhangzinchai is cited from time to time but usually by reference to the dissenting judgment of his Honour Justice Burchett in relation to the beneficial reading which ought to be given to remedial provisions.  So it is a question that has general application because the Act applies generally to Commonwealth legislation, but it has not caused, or it does not seem to have caused, any particular difficulty, as I say, in its interpretation or its application.

Indeed, when one looks at the State provisions which the Minister referred to yesterday, one sees that only Western Australia and the ACT have an interpretation provision which is similar to the new 36(2).  The other five are similar or to very much the same effect as the old section 36(2).  So it may be that it is incontestable, that it has a general application of Commonwealth statutes, but there is hardly a crisis of how these provisions ought to be interpreted that we say should require this Court’s attention.  Secondly, we say that ‑ ‑ ‑

KIEFEL J:   I suppose the question is that, if there is error in this approach, the fact that this Court leaves it unaddressed might be problematic.

MR HOWARD:   If it was sufficiently apparent that there was error, then I would accept, with respect, the force of your Honour’s observation.

KIEFEL J:   I recognise that it is your submission that there is not, that his Honour’s approach was orthodox.

MR HOWARD:   And what is put against us in that respect is that there has not been an identification of why the two decisions ought live together.  If I can perhaps address that point.  Your Honours will see the original version at page 61 of the application book.  If one just looks at the first line, there is, in our submission, a tethering of prescribed or allowed to the particular provisions of the Act in the first line and that is very much how the Full Federal Court in Zhangzinchai addressed the matter, which is that one is looking for a day or a period prescribed or allowed, in effect, on the face of the Act itself and in that sense one can understand, with respect, the decision of the majority in that case.

If one turns over then to the new provision, if one can call it that, on page 64, what occurs is that there is a splitting between subparagraphs (a) and (b), between what the Act requires or allows, and the last day.  Our submission is that, in effect, what is sought to be achieved in the new provision is an effect, to look at the effect of the Act or the provision in question, rather than requiring the day to be apparent on the face of the legislation as such.

NETTLE J:   You have got to read the Act as allowing an applicant to apply for a visa within the period that he holds the previous visa, do you not?

MR HOWARD:   Yes, your Honour.

NETTLE J:   Which is a big read in.

MR HOWARD:   Well, far be it from me to take issue with that, but what I would say, your Honour, is that the effect ‑ and we would say, with respect to the Minister ‑ it is not very convincing to say, well, the Act allows him to make an application, he just does not satisfy the criteria.  With respect, that seems somewhat facile.

The only day he had to make, given the common ground as to what he satisfied, the last day on which he could make an application which was going to be considered on its merits was Sunday, 12 January 2014.  So, what is put against us is well, no, no, no, he can make a valid application.  He just has to satisfy other criteria in circumstances where it is common ground that he could never satisfy the other criteria.

So, I apprehend that there is an attempt on the Minister’s part to split, if you like, the difference ‑ the application made and the satisfaction of the criteria.  Whereas in fact, the last day on which he could make an application which he had any chance of succeeding in was Sunday, 12 January.

And to go back to the point your Honour Justice Nettle put to me, I do understand why your Honour says, it is a big reading, but there is ‑ on the face of the amendments, or on the face of the new provision, there is a splitting of, we would say, what the Act requires or allows and then the last day in that it is consistent with that provision, as Justice North found, that looks to the effect rather than looking to the face of the legislation for that particular period.

So, for those two reasons, that it is not sufficiently important and the decision below is not sufficiently attended with doubt, our submission is that there ought not be a grant.  May it please the Court.

KIEFEL J:   Thank you, Mr Howard.  Anything in reply, Mr Kennett?

MR KENNETT:   Your Honours, as to the first issue, frequency of an issue arising in the appellate courts is not a reliable indicator of importance, we would say, and the expansion which, in our submission, has been wrought by Justice North’s judgment is a matter of, at least, potential importance and importance across – as I have said, the field of Commonwealth legislation.  Our friend mentioned the analogous provisions of State Interpretation Acts and the fact that five of them are similar in form to the old – what can be called the “old” version of section 36(2).  We submit, though, that there is no difference of substance between those two versions of the provision.

NETTLE J:   Well, it does mean that there is only two other jurisdictions where Justice North’s analysis would be applicable, those with the new legislation.

MR KENNETT:   It would need to be followed because, I think, your Honour is right because in other jurisdictions people would still look to the old – the Full Court decision.

NETTLE J:   The Commonwealth could pass an amendment to this Act to make clear what it says is clear.  It does not really require a decision of this Court to do it.  There are two other jurisdictions affected, I suppose, that is in your favour.

MR KENNETT:   Yes, your Honour.  As to the comparison between the two provisions – the two versions of the provision ‑ the earlier one at page 61 of the application book refers to the last day of any period “prescribed or allowed by an Act”.  The reference to something being allowed by an Act, we would say, indicates that this is not concerned merely with things expressly stipulated.  It is capable of – in its language – reaching situations where the last day for doing something arises from

circumstances and from an interaction of provisions as well as from just being set out in a particular section. 

So, there is not the point of distinction, we say, between the earlier and later iterations of this subsection that his Honour below indicated or that our friend relies on.  If the proposition is that the splitting out of these matters into subparagraphs according to modern drafting practice creates a difference of meaning then that in itself may be an issue that is worthy of this Court’s attention because it certainly does not seem to have been the intention of the redrafting to create a difference in operation. 

The distinction that we make between the validity of the application – of the visa application and its prospects of success, is not one that is of great comfort to the applicant, of course, but it is a distinction that the Act makes.  He was able to make a valid application which is the thing provided for.  The application was considered on its merits and it failed in the Tribunal for reasons I have indicated.  There is a difference, though, between an application…..on its merits which fails and which may go to the Tribunal and, ultimately, to the Minister for an exercise – possible exercise of his discretion.  There is a difference between that and an application which is invalid.  If the Court pleases.

NETTLE J:   Mr Kennett, you mentioned right near the end of the submission in reply, or suggested what I took to mean that there is still capacity within the Minister in the exercise of his discretion to grant a visa notwithstanding the fact that the applicant did not have a visa at the time the application reached the Department.  Is that correct?

MR KENNETT:   I was going from memory, your Honour, which is sometimes a dangerous thing to do, but there is, as I understand it, still provision in section 351 of the Act for the Minister to substitute a more favourable decision for that of the Tribunal.  It is one of the non‑compellable discretions that the Minister has under the Migration Act.

NETTLE J:   Yes, I see.  Evidently, no thought has been given to its invocation in this case?

MR KENNETT:   As far as I understand it, no, your Honour.  I do not want to suggest that it is regularly used as a way home for applicants, but in principle, at least, it is a possible end point of a visa application, even though on the criteria, it might be doomed to fail.

NETTLE J:   Yes, thank you.

KIEFEL J:   Yes, there will be a grant of special leave in this matter.  The Court notes that the Minister will not seek to disturb the costs order made below and agrees to pay the respondent’s costs in this Court, in any event.  It should take no more than half a day?

MR KENNETT:   That is certainly my understanding, your Honour.

KIEFEL J:   Would you agree with that, Mr Howard?

MR HOWARD:   Yes, your Honour.

KIEFEL J:   Yes, thank you.  The Court will now adjourn to reconstitute.

AT 11.03 AM THE MATTER WAS CONCLUDED