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

[2021] HCATrans 218

[2021] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M28 of 2021

B e t w e e n -

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Applicant

and

KARL WILLIAM PARATA

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

Application for special leave to appeal

KIEFEL CJ
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 10 DECEMBER 2021, AT 12.30 PM

Copyright in the High Court of Australia

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

MR C.L. LENEHAN, SC appears with MR C.J. TRAN for the applicant.  (instructed by the Australian Government Solicitor).

MR C.J. HORAN, QC appears with MR M.W. GUO for the first respondent.  (instructed by Victoria Legal Aid).

KIEFEL CJ:   There is a submitting appearance for the second respondent.  Yes, Mr Lenehan.

MR LENEHAN:   Thank you, your Honour.  Your Honour, the specific question that the application presents, whether a no case…..the Minister cancelled the…..is necessarily valid…..notification…..statutory requirements as to the…...but the answer to that specific question is one of general importance, because your Honours will have seen the court below declined to apply the approach enforced by the Full Court of the Federal Court in SZOFE, which in turn followed on the heels of this Court’s decision in SZIZO.  We say that in SZIZO and SZOFE, this Court and the Full Court proceeded on the basis that…..intention as to the validity of…..steps to take…..statutory requirement could be informed ‑ ‑ ‑

KIEFEL CJ:   Mr Lenehan, we are having a bit of audio difficulty.  You are echoing and it is interfering with the quality of your audio.  It is a bit hard to hear.  I think it detracts from your argument, so we might adjourn and see if we can resolve it.

MR LENEHAN:   Thank you, your Honour.  I apologise…..

AT 12.32 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.40 PM:

KIEFEL CJ:   Mr Lenehan, I think we have you on audio only now. 

MR LENEHAN:   Yes, you do, your Honour. 

KIEFEL CJ:   We can hear you clearly.  I think you were up to discussing SZIZO and SZOFE.

MR LENEHAN:   Yes.  I am much relieved you can hear me.  I was just making the point that, of course, in those cases, both this Court and the Full Federal Court proceeded on the basis that Parliament’s intention as to the validity of procedural steps taken in non‑compliance with statutory requirements, as to the validity of those things, could be informed by a consideration of the extent and the consequences of the non‑compliance.  Yet, in the court below, in the joint judgment of Justices Charlesworth and Jackson in particular, your Honours will see at paragraph 70 of the judgment at the book at page 71, their Honours say:

we do not consider the reasoning in SZOFE should be followed -

and we draw attention in particular to the second reason given by their Honours for that approach, which appears in the book at page 72 and paragraph 74.  Your Honours will there see that their Honours likened the approach in SZIZO and SZOFE to a form of materiality analysis and concluded that such an analysis should not be adopted here.  It is in that context that we say there is an issue of general importance warranting the attention of this Court.  On several occasions now, of course, the Court has examined ‑ ‑ ‑

EDELMAN J:   Mr Lenehan, even if that is correct, you have factual findings that were made by Justice Burley as an obstacle to overcome, do you not?

MR LENEHAN:   Your Honour, I do.  Can I deal with those directly now.  Your Honours will have seen that that is put by our friends as a matter that indicates that this is an unsuitable vehicle for leave.  We say, and we have said this in detail in writing, that that is a red herring.  To file a valid application in the Tribunal, of course a person has to file the application in time, and also pay the fee in time – you see that from section 347.

The applicant in this case filed in time, but he did not pay the proper fee ever, let alone in time.  The evidence which was before the primary judge shows that he only turned his mind to the fee question after receiving correspondence from the Tribunal after the time for filing had expired.  There is no evidence, we say, that his trouble with paying fees by the due date was caused by non‑compliance with section 127 in any way.  So, it is true that I have to deal with Justice Burley, but that is the way that we deal with it, and that is also the way that we deal with what our friends say in that regard. 

EDELMAN J:   Do you say that, in circumstances where the Minister chose not to cross‑examine the respondent, there is no evidence or that there is positive evidence that a section 127 notification did not affect his payment?

MR LENEHAN:   Well, your Honour, the evidence given by Mr Parata simply did not intersect with that question.  Your Honours have his affidavit in the book, and the relevant passage is on page 20, and it is about paragraph 4 through to 10.  You see there evidence which really is no more than what I have summarised before, that is, on 4 October, which is after the date for filing, there is the discussion between him, the AAT and his legal representatives, which leads him to various understandings at various points in time.  But ultimately the point of all this seems to be paragraph 10, where he says that:

If the Tribunal had told me that I needed to provide payment of more than $100 before it made its decision, I would have got permission from my mother for authorisation of that other amount. 

That simply seems to tie back to what happened on 4 October, again after the time for filing a payment of a fee had passed and so, has no connection to non‑compliance with section 127.  Does that answer your Honour’s question?

EDELMAN J:   Is that right?  Were the filing fees not different according to whether it was under Part 5 or Part 7?

MR LENEHAN:   Yes, the fees are different, your Honour. 

EDELMAN J:   Does that not then feed back into the defective notification?

MR LENEHAN:   No, for this reason, your Honour.  By 4 October, he had not sought to make any form of payment of any fees.  It was not that the fees were – the fact that the fees were different simply did not bear upon what it was that he did in terms of payment of the fee.  I am sorry, it is difficult not seeing your Honour - have I answered your Honour’s question in that regard?

EDELMAN J:   Yes, thank you.

MR LENEHAN:   Returning to the matter that we say is of general importance, of course on a number of recent occasions now this Court has looked at materiality and jurisdictional error and so we say that the case is an opportunity to revisit what we describe as an adjacent and closely‑related topic of the occasions when an error in procedure results in the invalidity of an anterior act or step on which later decision‑making rests.

It might have been thought, in light of what I have said about SZIZO and SZOFE that the proper approach to that kind of question was settled, but we say that this case reveals that that is not so.  I should also say that the correct approach and answer in this case is relevant not only to other decisions about non‑compliance with this specific provision but also potentially to other provisions in the Act imposing notification obligations.

Your Honours will have seen that a recurring example appears to be section 66 of the Act, which deals with notification for grant or refusal of a visa and we have cited some of the cases dealing with that area in footnote 9 of our application, which appears at page 99 of the book. 

The position that we contend for and which we advance below is that a notification that fails to comply with section 127 is invalid if the invalidity caused or contributed to the former visa holder failing to apply to the Tribunal for review in time – that is, looking at the events that occurred, did the non‑compliance prejudice the person in any way.  For the reasons I have given in answering Justice Edelman, we say that is not so in this case.

EDELMAN J:   Mr Lenehan, why would it be put in that way rather than simply saying that according to the language of section 127 any failure to notify strictly in accordance with section 127(2) would lead to invalidity under section 347, unless of course that failure to notify was immaterial?

MR LENEHAN:   Your Honour, we would embrace that and so it may be simply another way of asking – consistent with the materiality authorities – could the non‑compliance have realistically made a difference.

EDELMAN J:   Yes.

MR LENEHAN:   So, that is very much the position for which the Minister contended for below and contends for here.  There is, perhaps, a subtle difference between what we have labelled as the SZIZO approach and the notion of materiality.  That really rests on the idea that the approach in SZIZO and SZOFE looks not to the validity of the decision under review – here, the Tribunal’s decision that it had no jurisdiction to determine the review – but really to the validity of some antecedent step which is, if you like, functionally almost collaterally reviewed – whereas materiality, by way of contrast, looks to the validity of the decision under review itself.  But as I have indicated in answer to your Honour, we see close resemblance ‑ ‑ ‑

KIEFEL CJ:   Mr Lenehan, how would you describe the holdings in each of SZOFE and SZIZO?

MR LENEHAN:   Your Honour, in the way ‑ ‑ ‑

KIEFEL CJ:   As relevant here.

MR LENEHAN:    ‑ ‑ ‑that I have indicated before – that is, the inquiry is did the invalidity cause or contribute to the former visa holder failing to apply to the Tribunal for review in time, that is, looking at whether non‑compliance with the statutory requirements could realistically have made a difference, looking at the language used in SZIZO at the extent and consequences of that non‑compliance.  That is certainly what the Full Court below did not do. 

We have made various criticisms inviting of the approach taken by their Honours and I do not propose to elaborate extensively on that now.    Can I draw attention to a particularly confounding aspect of the authors of the joint reasons which perhaps reveals the problem here?  If your Honours look to page 77, in paragraph 92, after rejecting the submissions put by the Minister, their Honours then hasten to say that it is not the case that:

any degree of non‑compliance will invalidate the notification, no matter how trivial –

Indeed, their Honours were at pains to say they had not rejected an argument based on the extent of non‑compliance.

We have said in our application that it is difficult to understand how that – I will call it the negative limit about triviality – is to be applied otherwise than by considering the consequence of the non‑compliance.  It may be it is not at all clear that their Honours had in mind something akin to the now discarded substantial compliance test which was firmly rejected in Project Blue Sky.  But as was said in Project Blue Sky – and consistent with the recent authorities on materiality, a better test for determining the issue of validity, is to ask whether it was the purpose of the legislation that an act done in breach of the provisions should be invalid. 

That is the approach – consistent with SZIZO and SZOFE - for which we contend and when it is applied here we say the result is consistent with those cases.  The notification in this case was valid.  Those are the submissions that the Minister seeks to make, your Honours. 

KIEFEL CJ:   Yes, thank you, Mr Lenehan.  Yes, Mr Horan.

MR HORAN:  If the Court pleases.  We respond to the application on two separate bases.  The first is in relation to prejudice and that on the facts of the present case we say the defective and invalid notification was material and did lead to adverse consequences for the respondent.  In particular, the respondent was prejudiced by the failure to comply with the statutory conditions in section 127 because he was deprived of the opportunity properly to make a valid application within time that was accompanied by the prescribed application B.

The second basis is that, in any event, we say the Full Court’s conclusion turned on the question of statutory construction, applying the principles that this Court has laid down in cases such as Project Blue Sky, Hossain and SZMTA – and more recently in MZAPC.  So that the construction of sections 127 and 347 of the Migration Act and the associated regulations we say does not raise any general question of principle in relation to materiality and jurisdictional error.

EDELMAN J:   So, Mr Horan, is the only difference then between the applicant and the respondent as to the application of a materiality constraint upon invalidity in sections 127 and 347.  In other words, you accept the approach that Mr Lenehan has suggested, which is that it is not a requirement of strict compliance with section 127, because that is tempered by the fact that if it could not realistically have made any difference, then there would not be invalidity?

MR HORAN:   As a matter of construction we say that the Full Court, both the plurality and Justice Burley, were clearly applying those principles of statutory construction, including the common law principle referred to in Hossain and MZAPC, that ordinarily a statute is to be construed as not – a statutory condition is to be construed as not intended to lead to invalidity, where the error is immaterial. 

But, as the Court recognised in Hossain, that threshold of materiality can be higher or lower, depending upon the particular provision in question; so that the application - the content of that threshold of materiality is itself a question of statutory construction.  We say the Full Court were conscious of that and looked at both the purpose of the notification provisions and their effect on the facts of this case in concluding that materiality was in fact met on this case, both as a matter of construction of the section, but also in the particular circumstances of this case.

KIEFEL CJ:   Mr Horan, in relation to the question of materiality, do you adopt the approach of Justice Burley?

MR HORAN:   Yes.  In relation to the construction point – or both in relation to the construction and in relation to the factual findings that his Honour made ‑ ‑ ‑

KIEFEL CJ:   I am talking about factual findings.  Did his Honour take that the applicant had been told that the amount that he would have to pay was $100, and that he was functioning under a misapprehension?

MR HORAN:   Yes.  Essentially, the chronology is important, we are saying, and it does not – the focus on 4 October being outside the prescribed time itself is premised upon an incorrect assumption that the defective notification was valid and effective and had force to commence the time running.

The defective notification was received on 21 September.  On 1 October, the respondent applied within the seven working days to the Tribunal, but without the prescribed application fee.  On 4 October, having received from the Tribunal a copy of the correct application forms, which essentially made clear what was missing from the defective notification – namely that the decision was reviewable under Part 5 of the Act – the respondent then, the following day, sought advice from the Prisoner Legal Helpline, as a result of which he returned the completed forms together with payment of that $100 fee in the form of the authority to charge his mother’s credit card.

The explanation for the incorrect fee was that it was based upon incorrect advice from the Prisoner Legal Help service, which was in turn based upon erroneous assumptions that the decision was reviewable under a different part of the Act, namely Part 9.  As a result of that, the respondent was given advice that the fee was $100, and also that he was already out of time – again based upon that erroneous assumption that the initial notification complied with the statutory requirements.

EDELMAN J:   So, your submission basically then comes down to the fact that if he had been given a correct notification, then an inference could be drawn that he would have been advised – or might have been advised differently by the Prisoners’ Advice Bureau?

MR HORAN:   Yes.  I mean, on the facts he did not in fact seek advice until after the Tribunal had provided the correct forms, but we say that he clearly sought to invoke his rights to review by making an application to the Tribunal within time and at that stage he was denied the information necessary to ascertain the correct form and the correct fee that was payable in respect of the application.

Once he received that information from the Tribunal rather than from the Minister, he then received incorrect advice based upon the effective notification, but the critical point, which I think is in answer to your Honour Justice Edelman’s question, is that if he had received the correct notification he could have made an application with the prescribed fee because he would have been armed with the information necessary to do so and could have obtained advice and assistance to enable him to do so.

The Full Court essentially concluded that that was sufficient to demonstrate an adverse consequence or prejudice or materiality of the non‑compliance in that he was deprived of the possibility of a different outcome, namely the opportunity to pay the prescribed fee either within the time or within a reasonable time thereafter.

EDELMAN J:   What do you say to the submission that in declining to follow the reasoning in SZOFE the joint judgment was effectively abandoning a materiality requirement?

MR HORAN:   We say that insofar as it disagreed with SZOFE, the principal or at least the first basis of disagreement was on a different question which is to do with whether or not one can apply validly before time starts to run, in other words, whether the time limit has a window or envelope of time concept or whether it simply prescribes an end date. 

The second aspect is in relation to the operation of materiality, but the significant difference, both with SZOFE and SZIZO was that in those cases there were no adverse consequences at all because the reviewer had in fact applied within time and had been afforded a full hearing, notwithstanding the errors in the relevant notice. 

In SZIZO it was a notice of hearing, rather than notice of decision at that anterior step.  In SZOFE it was a notice of decision, analogous to this case, but importantly it did not actually prevent in fact.  The historical fact was that the applicant did apply within time and had a full review and then was seeking after the event to use that technical non‑compliance to challenge the Tribunal’s decision on the merits.

Here, it is clear that the non‑compliance has operated to prejudice the respondent at that anterior step because it resulted in an inability to invoke the Tribunal’s jurisdiction.  We say that led to the erroneous refusal of jurisdiction which the Full Court correctly observed was sufficient without more to lead to jurisdictional error. 

But it is all based on the starting point, which his Honour Justice Burley clearly inferred at paragraph 135, at application book 90, that there was a realistic possibility that the respondent would have determined the correct fee to tender by the time he filed his review application had he been armed with the information that the Parliament has determined is material in order for review applicants to exercise their rights under the very strict provisions laid out in the relevant part of the Act.

We say also that the plurality, Justices Charlesworth and Jackson, made findings that were perhaps not as explicit as Justice Burley, but they were consistent, at paragraphs 87 to 89, application book 76, noting that the respondent:

was confused “by the forms” he received from the Tribunal on 4 October 2018 –

was given legal advice that it was too late to do anything about it but also, that on the basis of, firstly, the information in the notice, which was incorrect and non‑compliant; secondly, the Tribunal’s correspondence; and, thirdly, the advice from the legal service, the plurality, their Honours, concluded that:

it would not be unreasonable for Mr Parata to form a belief that the Minister’s notice was valid, that his application lodged on 1 October 2018 was invalid and that there was nothing more that he could do.

Each of those assumptions into which he was misled did significantly affect his rights and his ability to invoke the process of review by paying the prescribed fee within the time required by the statute, whether that be by the end of the seven‑day period or, as I think some authority does suggest, within a reasonable time thereafter.  So, in those circumstances, we say that all of the judges below proceeded on the basis that the respondent was – there were adverse consequences from the deficiencies in the notice. 

Finally, on that point, in the preceding paragraph, 86, in which Justices Charlesworth and Jackson set out what they called the “multitude of questions” that arose from the provision - the belated provision of the correct forms and information on 4 October, one of those questions was expressed in these terms:

And if that defect in that notice is not remedied, would that not leave Mr Parata labouring under the impression (wrongly conveyed in the notice) that the time to apply has expired so that “late” payment of the prescribed fee could make no difference?

So, he was directly led into a situation where he failed properly to invoke his rights to merits review.  On those facts it was clear that there were adverse consequences which would satisfy all of the ordinary tests as to materiality, including the realistic possibility of a different outcome.  Another way of putting that is to say the respondent was not required to put on any – to establish what the Minister calls causation, that the non‑compliance caused or contributed to his failure to pay the prescribed fee within time, or within a reasonable time.

As we have noted in our response at paragraphs 8 to 10, that is compounded by the Browne v Dunn points, in that the Minister did not cross‑examine the respondent on his affidavit and did not put to him that he could or could not have paid the correct fee even if the notification complied with section 127. 

So, we say that is essentially the first basis on which this case is – the decision below was both correct, and this case is not a vehicle which gives rise to any general question about the operation of materiality at a level of principle.  The second submission that we make is that even if there is a question of principle, it is really one that is resolved by the Full Court in a manner consistent with existing authority, looking at what their Honours identified as the single question of statutory construction which was essentially, what threshold of materiality was required by section 127 of the Migration Act. 

As I have earlier submitted, that was informed by the purpose of the provision, to ensure that the notification contains the information that was important to enable the applicant to make an application in a correct form with the correct fee.  It is a case which both in facts and in law was different from the scenario that was addressed in each of SZIZO and SZOFE because those cases were dealing with situations in which the non‑compliance had – on the historical facts which were found – the non‑compliance could have made no difference because in fact the applicants in those cases had a full opportunity to obtain merits review of the relevant decision.

Now, ultimately, we say those earlier cases are not unsettled in any way by the decision of the Full Court.  They were properly distinguished by reference both to the facts of those cases and the issues that were presented by those cases, and they do not really govern a case such as the present where the Tribunal refuses to exercise jurisdiction on the basis of failure to pay a prescribed fee within the time fixed by a defective or invalid notification.

EDELMAN J:   Is that, in your submission, what is being said in paragraph 92?

MR HORAN:   Essentially one has to take that paragraph in the context of the judgment as a whole, but what their Honours are saying is that the question that was being addressed was not one of substantive non‑compliance, it was about the fact the non‑compliance had had an effect, and that the argument that the validity or effect of that notification should require proof of causation was problematic because it would then lead to these inquiries into subsequent events and it would essentially give the Tribunal a function of determining whether or not the facts of the particular

case justified either an extension of time or a dispensation from compliance with the strict time limits under section 347.  Their Honours had, two paragraphs earlier, noted that particular problem, at paragraph 90. 

So, for those reasons we say both at a level of fact and at a level of principle, there is no question that would have any prospect of success on appeal or that would warrant further consideration of the authorities and principles in the context of a case such as the present.  May it please the Court.

KIEFEL CJ:   Thank you, Mr Horan.  Anything in reply, Mr Lenehan?

MR LENEHAN:   Yes, your Honour.  Your Honours, again on the question of facts, Mr Parata applied within time on 1 October without any fees.  It is only on 4 and 5 October that he seemingly thought about fees, apparently prompted by the fee‑relief form.  What is singularly lacking in the evidence and why Mr Tran was entirely entitled to proceed on the basis that there was no evidence on this point is any connection between the non‑compliance in the notice and Mr Parata’s failure to pay the fee by 2 October.

In terms of Mr Horan’s creative re‑reading of the judgment below and the point of principle, we for our part simply cannot see how the Full Court’s reasons can be read in that way.  In terms of the joint judgment, their Honours start with the submission that we put – see paragraph 60 of their Honours’ reasons on page 67 of the book.  Then, in the two passages to which I have already directed your Honours’ attention, first on pages 70 and 71, you see at paragraph 70:

Regretfully, however, we do not consider the reasoning in SZOFE should be followed -

Then 74, very clearly:

it ought not depend on the different or additional materiality test about the consequences of a non-compliant notification –

that being my client’s submission.  The first part of paragraph 74 has in mind, seemingly, that all of this may rest upon some form of jurisdictional fact.  What is meant by that is not at all clear.  It seems to have in mind the notification with certain characteristics, but it also seemingly assumes the answer to the questions that we posed, and it plainly eschews, compare with SZIZO and SZOFE, any consideration of the consequences.

Then when one gets to paragraph 92, the paragraph that your Honour Justice Edelman took our friend to, you cannot read the last sentence of that:

It was an argument that the legal consequences of non-compliance depended on events subsequent –

in any way than eschewing that kind of consequences‑based focus that clearly emerges from SZIZO and SZOFE, and for which we contended below.

In terms of Justice Burley’s approach, if your Honours look to paragraph 123 of his Honour’s reasons, which appear at page 87 of the book, you will see that he seemingly accepts that materiality may be an available approach and leaves that open, but he does not seem to be deciding that, presumably because when one gets to page 90, a few pages later, one sees that he gets there on the factual approach that we have said is wrong.

For those reasons, we say your Honours would not accept the submissions made by Mr Horan and for all of those reasons we do seek a grant of leave.  May it please the Court.

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

AT 1.15 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.18 PM:

KIEFEL CJ:   In our view, the proposed grounds of appeal do not raise any point of principle.  They raise only a question as to the application of the principle of materiality in the circumstances of this case.  Special leave is therefore refused, with costs.

The Court will now adjourn.

AT 1.18 PM THE MATTER WAS CONCLUDED