Somba v Minister for Home Affairs
[2019] FCAFC 150
•30 August 2019
FEDERAL COURT OF AUSTRALIA
Somba v Minister for Home Affairs [2019] FCAFC 150
Appeal from: Somba v Minister for Home Affairs (No 2) [2018] FCA 1537 File number: NSD 2002 of 2018 Judges: LOGAN, STEWARD AND JACKSON JJ Date of judgment: 30 August 2019 Catchwords: MIGRATION - appeal from decision of the Federal Court of Australia - review by Administrative Appeals Tribunal of decision not to revoke mandatory cancellation of visa - Tribunal dismissed application for review for nonappearance - whether reinstatement of application for review futile because of 84 day period for Tribunal decision on review - meaning of 'decision' in s 500(6L)(c) of the Migration Act 1958 (Cth) - appeal allowed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 3(3), 18A, 28, 29, 29AC, 33, 33(1AB), 37, 42A, 42C, 43, Part 4 Division 5
Migration Act 1958 (Cth) ss 476A, 500, 501, 501CA, 501G, Parts 5, 7, 9
Cases cited: Brehoi v Minister for Immigration & Multicultural Affairs [1999] FCA 772; (1999) 58 ALD 385
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Foots v Southern Cross Mine Management Pty Ltd[2007] HCA 56; (2007) 234 CLR 52
Goldie v Minister for Immigration & Multicultural Affairs [2002] FCAFC 367; (2002) 121 FCR 383
Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600
Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96
Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203
Date of hearing: 24 May 2019 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Appellant: Mr JL Cameron Solicitor for the Appellant: AUM Legal Counsel for the First Appellant: Mr PR MacLiver Solicitor for the First Appellant: Australian Government Solicitor Counsel for the Second Appellant: The second respondent filed a submitting notice save as to costs ORDERS
NSD 2002 of 2018 BETWEEN: HANZ CHRISTIAN SOMBA
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGES:
LOGAN, STEWARD AND JACKSON JJ
DATE OF ORDER:
30 AUGUST 2019
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Paragraphs 1 and 2 of the orders of the primary judge are set aside and, in their place, it is ordered that:
(a)The application is allowed.
(b)A writ of certiorari issue directed to the second respondent, quashing its decision made on 5 June 2018.
(c)A writ of mandamus issue directed to the second respondent, requiring it to determine the appellant's application for reinstatement of his application for review according to law.
(d)The first respondent pay the appellant's costs of the application before the primary judge.
3.The first respondent must pay the appellant's costs of this appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from a decision of the primary judge dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal.
The facts are not in dispute and can be stated briefly. The appellant, Hanz Christian Somba, is a citizen of Indonesia. He was in Australia on a visa which, in June 2016, was cancelled under s 501(3A) of the Migration Act 1958 (Cth) because he failed to pass the character test. On 24 October 2017 a delegate of the first respondent (the Minister) made a decision not to exercise the Minister's power under s 501CA(4) to revoke that mandatory cancellation, and Mr Somba was notified of that decision the following day.
On 1 November 2017 Mr Somba applied for review of the delegate's decision by the Tribunal. A hearing of his application was scheduled for 8 January 2018 but he did not appear at that hearing. Due to his failure to appear, the Tribunal dismissed his application for review, under s 42A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
On 6 February 2018 Mr Somba applied for reinstatement of his application. On 5 June 2018 the Tribunal decided not to reinstate the application. That is the decision in respect of which Mr Somba sought judicial review.
Section 500 of the Migration Act and the issue on appeal
The application for review of the Tribunal's decision was made on the ground that the Tribunal fell into jurisdictional error by:
(1)misconstruing and misapplying the provisions of s 500(6L) of the Migration Act; and
(2)failing to have regard to the beneficial and remedial purpose of s 42A(8A) of the AAT Act.
That raised a single issue of statutory construction before the primary judge, which is also the issue on this appeal. The issue arises because the Tribunal dismissed the application for reinstatement on the basis that the time limit in s 500(6L) of the Migration Act had expired, so that reinstatement would have been futile. That subsection reads as follows:
(6L) If:
(a)an application is made to the Tribunal for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
(b)the decision relates to a person in the migration zone; and
(c)the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);
the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.
It is common ground that the conditions in s 500(6L)(a) and s 500(6L)(b) were satisfied here. When it considered the reinstatement application, the Tribunal took the view that the condition in s 500(6L)(c) was also satisfied so that, if it reinstated the application for review, by force of s 500(6L) the Tribunal would automatically be taken to have affirmed the decision under review. The Tribunal reached this view because it read 'decision' where it first appears in s 500(6L)(c) as a reference to a decision that remains in force. The Tribunal considered that if it did decide to reinstate the application, the previous order dismissing the application would cease to have effect for all purposes, including for the purposes of the Migration Act. Hence reinstatement would have been pointless.
Before the primary judge the appellant contended that this was a jurisdictional error, because the Tribunal did make a decision under s 42A of the AAT Act in relation to the decision under review, when the Tribunal dismissed the application for review for non‑appearance. However the primary judge agreed with the Tribunal that if the application for review were to be reinstated under s 42A(9) of the AAT Act, the Tribunal called on to hear the reinstated application would have been bound to dismiss the application by operation of s 500(6L). His Honour considered that the effect of reinstatement would have been that no decision under s 42A of the AAT Act in relation to the decision under review would have been extant. Hence there would not have been a relevant decision made under s 42A in relation to the decision under review within the 84 day period.
At the hearing of the appeal Mr Somba was given leave to file an amended notice of appeal which asserted that the primary judge fell into error in failing to find jurisdictional error on the part of the Tribunal on the grounds of review we have set out above. The appellant's written submissions characterised both of the contentions we have described as interrelated parts of a single ground.
The issue to be resolved on this appeal is therefore whether, for the purposes of s 500(6L) of the Migration Act, the reinstatement under s 42A(9) of the AAT Act of an application for review of a decision under s 501 or s 501CA(4) of the Migration Act not to revoke a decision to cancel a visa means that the Tribunal has not made a decision under s 42A of the AAT Act in relation to the decision under review.
Other relevant provisions
Section 500 appears in Part 9 of the Migration Act, which is entitled 'Miscellaneous'. It provides that applications may be made to the Tribunal for review of certain decisions under the Migration Act, including decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa: s 500(1)(ba). Under s 500(4) such decisions are excluded from the provisions governing review of decisions under the Migration Act that are found in Parts 5 and 7. As a result, procedures to be followed on review of decisions under s 501 and s 501CA(4) in relation to persons in the migration zone are found in s 500 and certain other provisions in Part 9, together with the AAT Act. Other relevant subsections of s 500 which apply in those circumstances include:
(1)s 500(6A), which provides that s 28 of the AAT Act, giving persons who are entitled to apply to the Tribunal for review of a decision the right to obtain a statement of findings and reasons, does not apply;
(2)s 500(6B), which provides that an application to the Tribunal for a review of a decision must be lodged with the Tribunal within nine days after notification of the decision in accordance with s 501G(1), and that accordingly certain provisions about time limits for applications in s 29 of the AAT Act do not apply;
(3)s 500(6D), which provides that the Registrar of the Tribunal must notify the Minister that the application has been made and also provides that s 29AC(1)(b) and s 37 of the AAT Act (regarding notification to the decision maker and lodging of material documents with the Tribunal) do not apply to the decision or the application; and
(4)s 500(7), which provides that in s 500, 'decision' has the same meaning as in the AAT Act.
It is also convenient at this point to set out the text of relevant provisions of s 42A of the AAT Act:
Dismissal if parties consent
(1)Where all the parties to an application before the Tribunal for a review of a decision consent, the Tribunal may dismiss the application without proceeding to review the decision or, if the Tribunal has commenced to review the decision, without completing the review.
…
Deemed dismissal - applicant discontinues or withdraws application
(1A)A person who has made an application to the Tribunal for a review of a decision may, in writing lodged with the Tribunal, at any time notify the Tribunal to the effect that the application is discontinued or withdrawn.
...
(1B)If notification is given in accordance with subsection (1A) …, the Tribunal is taken to have dismissed the application without proceeding to review the decision.
Dismissal if party fails to appear
(2)If a party to a proceeding before the Tribunal in respect of an application for the review of a decision (not being the person who made the decision) fails either to appear in person or to appear by a representative at a directions hearing, or an alternative dispute resolution process under Division 3, held in relation to the application, or at the hearing of the proceeding, the Tribunal may:
(a)if the person who failed to appear is the applicant - dismiss the application without proceeding to review the decision; or
(b)in any other case - direct that the person who failed to appear shall cease to be a party to the proceeding.
Dismissal if decision is not reviewable
(4)The Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal.
Dismissal if applicant fails to proceed or fails to comply with Tribunal's direction
(5)If an applicant for a review of a decision fails within a reasonable time:
(a)to proceed with the application; or
(b)to comply with a direction by the Tribunal in relation to the application;
the Tribunal may dismiss the application without proceeding to review the decision.
…
Reinstatement of application
(8)If the Tribunal is taken to have dismissed an application under subsection (1B), a party to the proceeding (other than the applicant) may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8A)If the Tribunal dismisses an application under subsection (2) (other than an application in respect of a proceeding in which an order has been made under subsection 41(2)), a party to the proceeding may, within the period referred to in subsection (8B), apply to the Tribunal for reinstatement of the application.
(8B)For the purposes of subsections (8) and (8A), the period is:
(a)28 days after the party receives notification that the application has been dismissed; or
(b)if the party requests an extension - such longer period as the Tribunal, in special circumstances, allows.
(9)If it considers it appropriate to do so, the Tribunal may reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
(10)If it appears to the Tribunal that an application has been dismissed in error, the Tribunal may, on the application of a party to the proceeding or on its own initiative, reinstate the application and give such directions as appear to it to be appropriate in the circumstances.
Consideration
The appellant's main contention in this appeal is a simple one. Relevantly, s 500(6L)(c) only operates if 'the Tribunal has not made a decision under section 42A … in relation to the decision under review' within the 84 day period. Here, the Tribunal had made a decision under s 42A in relation to the review of the delegate's decision not to revoke the cancellation of Mr Somba's visa. It had decided to dismiss the application for review under s 42A(2). Hence the condition in s 500(6L)(c) was not satisfied.
In our view, that is consistent with the ordinary meaning of the phrase 'the Tribunal has not made a decision under section 42A'. Those words do not direct attention to whether there is an extant or enforceable decision at the end of the 84 day period, or whether there is a decision that was made that has since been set aside or revoked. They direct attention to the question of whether the Tribunal has performed a particular act, namely the act of making a decision under s 42A.
That view finds support in jurisprudence concerning the meaning of the word 'decision' under the AAT Act, which may be traced back to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338. In that case the New South Wales Collector of Customs had revoked a private warehouse licence which had been issued to Brian Lawlor Automotive Pty Ltd under the Customs Act 1901 (Cth). The Tribunal set the decision aside on the basis that the Customs Act did not authorise the Collector to revoke the licence. The Collector contended that the Customs Act did give him that authority, but that if it did not, then the Tribunal had no jurisdiction to review the decision. That was said to be because the jurisdiction of the Tribunal under s 25(1) of the AAT Act was to review a decision 'made in the exercise of powers conferred by that enactment', relevantly, the Customs Act. If the Collector had no statutory authority to make the decision, then it could not have been a decision made in the exercise of powers conferred by the statute.
Because of the way the matter had been argued, the court found it necessary to proceed on the basis that there was no statutory right to revoke the licence or to revoke it for breaches of express or implied conditions of the licence. Nevertheless, the majority (Bowen CJ and Smithers J, Deane J dissenting) drew a distinction between the fact of a decision having been made and the legal effect of the decision. Smithers J observed (at 368‑369):
It is to be noted also that the subjects of review are decisions. If an administrator makes a particular decision in the course of government administration, then whether or not he is authorized to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.
There is a distinction also between a decision, the steps that may be taken to implement it and the legal effect thereof. It does not appear to me to be sound to regard a decision to take certain action as a nullity because such action if taken will not be legally effective.
… to decide to revoke the licence was also itself a decision according to the natural meaning of that term… It is therefore reasonable to construe the word 'decision' in its natural meaning, namely, 'the action of deciding': see Shorter Oxford English Dictionary.
His Honour thus endorsed (at 370) the observations of the President of the Tribunal that 'A decision is a fact, to be distinguished from its legal consequences. A decision made beyond power but in its intended exercise does not carry the same legal consequences as it would have carried if there had been power to make it.'
Similarly, Bowen CJ observed (at 342), 'In the Administrative Appeals Tribunal Act a wide meaning is given to the word "decision" by s 3(3). In s 25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision.'
In Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16; (2018) 353 ALR 600 at [39], Gageler, Keane and Nettle JJ noted that Brian Lawlor has 'been aptly described as a "landmark decision" in the early history of the Administrative Appeals Tribunal' and that, in the context of that tribunal, the construction found in the case 'has not since been doubted'.
Section 500(6L) was introduced into the Migration Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth), nearly 20 years after Brian Lawlor was handed down. Section 500(7), in saying that in s 500 'decision' has the same meaning as in the AAT Act, suggests that Parliament intended the word to have that established meaning in s 500(6L). (It would also import the extended meaning of 'decision' found in s 3(3) of the AAT Act, but for present purposes nothing turns on that.) There is abundant authority for the proposition that where Parliament repeats words that have been judicially construed, it is taken to have intended the words to bear the meaning already judicially attributed to them: Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106. That presumption is usually applied where the words in question have been re-enacted after judicial interpretation, which is not this situation. It is also a presumption that has frequently been criticised: see e.g. Foots v Southern Cross Mine Management Pty Ltd[2007] HCA 56; (2007) 234 CLR 52 at [63]. However in circumstances where, as here, the legislature has made a point of saying that it is using a word to have the same meaning as it does in another piece of legislation, which meaning has been the subject of long and consistent judicial consideration, in our view the presumption lends support to the construction of the word based on its ordinary meaning at which we have arrived.
It is true that the jurisprudence arising out of Brian Lawlor concerns decisions that are open to review by the Tribunal, and not decisions made by the Tribunal itself. The first reference to a decision in s 500(6L)(c) is to a decision of the latter character. It is also true that the construction adopted by Bowen CJ and Smithers J was informed by the need to give effect to the legislative purpose of the AAT Act to avoid technicality in the conduct of the Tribunal's reviews, and to ensure that decisions made without power, being the decisions most in need of review, were not immune from review: see Plaintiff M174/2016 at [39]. It may be accepted that those statutory purposes do not extend to the effect of decisions made by the Tribunal, as distinct from the decisions it has jurisdiction to review.
Be that as it may, the word 'decision' in s 500(6L) is used to denote both decisions of the Tribunal and decisions of the Minister or the Minister's delegate which the Tribunal is called on to review. There is nothing in the text, context or purpose of s 500(6L) to displace the ordinary presumption that a word used in several places in the same enactment - here, in the same provision - will have the same meaning wherever it is used. Also, as the passages from Brian Lawlor which we have quoted show, the construction there rested on the ordinary meaning of the word 'decision'. We see no reason to depart from that ordinary meaning in the construction of s 500(6L) and so to read the same word in two different ways in the space of the same subsection. Reading them to mean the same thing is also consistent with s 43(6) of the AAT Act, which deems the decision made on review by the Tribunal under s 43 to be a decision of the original decision maker. If s 500(6L) operates, the decision of the Tribunal to affirm which is taken to have been made under s 43 would be deemed to be the decision of the Minister or the delegate. We have already referred to s 500(7). In all those circumstances, Parliament cannot have intended the word 'decision' to mean different things within s 500(6L).
Two other textual indications from the Migration Act support Mr Somba's case.
First, in stipulating that a deemed decision under s 500(6L) will arise when no decision has been made under s 42A (among others), the legislature must be taken to have been conscious that an application that is dismissed in a decision under s 42A is susceptible to reinstatement. That is so not just for decisions like the one that the Tribunal made here to dismiss for default in appearance. Section 42A also authorises the Tribunal to dismiss an application without completing the review if the parties consent (s 42A(1)), where the application is discontinued or withdrawn (s 42A(1A)), where the Tribunal is satisfied that the decision under review is not reviewable by the Tribunal (s 42A(4)), and if the applicant for review fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal in relation to the application (s 42A(5)). Under s 42A(10) it is open to the Tribunal to reinstate an application that has been dismissed for one of those reasons if it appears to the Tribunal that the dismissal is in error. Yet the legislature has not expressly removed or restricted that possibility for the purposes of s 500(6L).
That is in marked contrast to the attention that the legislature paid to varying the operation of other provisions of Part 4 Division 5 of the AAT Act when those provisions were inconsistent with the scheme of review for which s 500 of the Migration Act provides. We have given examples above, specifically: s 500(6A), which excludes s 28 of the AAT Act; s 500(6B), which excludes provisions about time limits in s 29 of the AAT Act; s 500(6C), which supplants the requirements for documents accompanying an application which usually apply under the AAT Act; and s 500(6D), which excludes s 29AC(1)(b) and s 37 of the AAT Act. The contrast in approach between those provisions and s 500(6L) suggests that Parliament did not intend that subsection to limit the Tribunal's power to reinstate an application for review in a practically effective way.
Bearing that in mind, it is worth noting that our preferred construction avoids any conflict between the 84 day time limit in s 500(6L) of the Migration Act and the 28 day time limit in s 42A(8B)(a) of the AAT Act for making reinstatement applications under s 42A(8) or s 42A(8A). The Minister sought to address this by submitting that an applicant for reinstatement must be mindful of the 84 day limit, but it is implicit in that submission that there is a conflict between the two provisions, which is to be resolved in favour of s 500(6L). That is unlikely to be so where, as here, the legislature has used express words to resolve other potential conflicts between s 500 and the AAT Act.
The second textual indication is that in s 501CA(5) of the Migration Act (decisions under s 501CA being ones to which s 500 applies), where the intention is for a decision to be taken to never have been made, the terminology of revocation is used, and it is expressly stated that the original decision is taken not to have been made. That is to be contrasted with the silence on the topic apparent in s 500(6L).
The legislative history of s 500(6L) does not give any reason to depart from our preferred construction. As we have said, the provision was introduced as part of the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). There are some differences between s 42A of the AAT Act as it stood then and s 42A as it stands now, but only one of them is potentially material. In 1998, s 42A(6) read as follows: 'If, under this Act, the Tribunal dismisses an application or an application is dismissed on its behalf, the proceeding to which the application relates, unless it is reinstated under subsection (9) or (10), is taken to be concluded.' So, when s 500(6L) was introduced, it was clear that the reinstatement of an application under s 42A(9) and s 42A(10) reversed the 'conclusion' of the proceedings, from which it follows that dismissal of the application under s 42A(2) entailed such 'conclusion'.
But this is only potentially material, because that outworking of s 42A(6) does not add anything to what one would take to be the effect of 'dismissal' for the purposes of s 42A(2) in any event. Section 42A(6) was removed by the Tribunals Amalgamation Act 2015 (Cth). That the purpose of the provision was obscure is confirmed by the explanatory memorandum to the 2015 Act, which said (at [538]) that s 42A(6) 'is unnecessary to state explicitly and can be removed to simplify the section'. So the presence of s 42A(6) when s 500(6L) was introduced sheds no light on the meaning of the phrase 'has not made a decision under section 42A …'. Given that s 42A(9) and s 42A(10) have not been amended since 1998, nothing useful can be gleaned from the interaction between s 42A and s 500(6L) at the time the latter provision was introduced.
It may be that in the event of any inconsistency between the two, established canons of construction would require s 500(6L) to prevail, as it is both later in time than s 42A and more specific in its subject matter, since it only applies to a limited category of decisions under a specific enactment. However it is not necessary to take that any further because, on the construction we have outlined, there is no inconsistency which requires resolution in that way. Each of s 42A and s 500(6L) operates according to its ordinary meaning, and harmoniously with the other.
We acknowledge that a contrary view as to the meaning of 'decision' in s 500(6L) is arguable. As we have said, in holding that reinstatement of Mr Somba's application for review would have been futile, the Tribunal was satisfied that a reference to the Tribunal not having made a decision under s 42A of the AAT Act is a reference to a decision under that section which remains in force. The Tribunal found support for that conclusion in the words of s 42A(9), which gives the Tribunal a discretion to decide whether a dismissed application should be reinstated, and held that if it is reinstated, the previous order dismissing the application ceases to have effect for all purposes including those of the Migration Act.
But with respect, the words of s 42A(9) do not go nearly that far. They confer on the Tribunal a power to 'reinstate the application and give such directions as appear to it to be appropriate in the circumstances' if the Tribunal 'considers it appropriate to do so'. This operates on the application, not on the decision to dismiss under s 42A(2). It says nothing about the effect of reinstatement on that decision. In contrast, in s 42C of the AAT Act, concerning decisions made with the consent of the parties, the terminology used is that of revocation of the decision. The different terminology used in s 42A suggests that a different result is intended.
The legislative history of s 42A(9) was traced in Brehoi v Minister for Immigration & Multicultural Affairs [1999] FCA 772; (1999) 58 ALD 385 at [25]‑[27]. Relevantly, in the Report of the Review of the Administrative Appeals Tribunal of November 1991, which prompted the introduction of the power to reinstate applications dismissed under s 42A(2), the amendment was proposed on terms that 'the applicant may apply to the tribunal within 28 days of receipt of notification of dismissal for a direction that the dismissal be vacated'. That wording is closer to the construction adopted by the Tribunal than s 42A(9) as ultimately enacted. Yet that wording was not adopted by Parliament.
In Goldie v Minister for Immigration & Multicultural Affairs [2002] FCAFC 367; (2002) 121 FCR 383 at 399, Carr J described s 42A(9) as empowering the Tribunal 'to set aside the dismissal if it considers it appropriate to do so'. But his Honour was the only member of the Full Court to describe it that way, and nothing turned on any distinction between setting aside a dismissal and reinstating an application.
The Minister submitted that reinstatement under s 42A(9) or s 42A(10) has the effect that the application for review proceeds on the basis that the application was not dismissed. Similarly, the primary judge considered (at [47]) that the effect of reinstatement 'would be that no decision under s 42A of the AAT Act in relation to the decision then under review would be extant'. With respect, that does not follow. Counsel for the Minister rightly acknowledged that there were at least two different possibilities as to the effect of reinstatement: that the decision to dismiss is void ab initio, or that the original decision subsists but a right to proceed with the application for review is given. For present purposes, all that need be said is that while either of these possibilities may rob a decision made under s 42A(2) of any legal effect, they do not render the decision non-existent in point of fact. In Brian Lawlor the majority considered that a decision which was one the Collector of Customs had no authority to make would still exist in fact for the purposes of review. If that is so for 'a decision that lacks legal foundation and is properly regarded, in law, as no decision at all' (see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [51], [53]), then there is no reason why a decision that the Tribunal made within power should be taken to be non‑existent because the application is subsequently reinstated.
In Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387, Finkelstein J set aside a decision of the Tribunal to dismiss an application under s 500 of the Migration Act for want of jurisdiction and remitted the matter to the Tribunal for consideration. At [30]‑[31] his Honour considered the effect of s 500(6L) on the remitted application and concluded that the decision he had set aside was a decision for the purposes of s 500(6L), so the decision under review could no longer be affirmed by default. While the report of Hall does not identify the provision under which the Tribunal had originally dismissed the application, it appears that it was done under s 42A(4) of the AAT Act, which we set out above. That being so, Finkelstein J's conclusion is consistent with the view we have reached as to the proper construction of s 500(6L). It would be incongruous if s 500(6L) were not engaged when a decision of the Tribunal under s 42A of the AAT Act had been set aside, but did apply when an application has been reinstated.
The Minister sought to deal with this by drawing a contrast between the effect of the court granting judicial review of a decision of the Tribunal, quashing that decision, and a decision of the Tribunal reinstating an application pursuant to its own legislation. In the former situation s 500(6L) could not be construed to impinge on the court's power to order that the decision be set aside and considered again, including because s 476A of the Migration Act provides for judicial review of decisions of the Tribunal made under s 500. In the latter situation, the Migration Act is capable of limiting the review that the Tribunal conducts pursuant to that legislation. We acknowledge the contrast but, for the reasons we have given, we do not consider that on its proper construction s 500(6L) does limit the Tribunal's powers of reinstatement in that way.
For the reasons we have given our view is that whatever the status, after reinstatement of an application, of the original decision to dismiss, for the purposes of s 500(6L) that decision is one which has in fact been made so s 500(6L)(c) is no longer engaged. We see no cause to read in to s 500(6L) a requirement that the decision be one that has continuing legal effect.
The Minister sought to refer us to the second reading speech of the then Minister for Immigration, the Hon Philip Ruddock MP, when introducing the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998, where he said:
During this time, the non-citizens involved, many of whom have committed serious crimes, will either be in detention at great cost to taxpayers or will be at liberty in the community. Quite frankly, this must stop. This bill introduces more streamlined procedures for dealing with such cases. It also introduces a strict 84-day time limit for the conduct of merits review cases involving character where the non-citizen is in Australia.
The appellant objected to reliance on this as, it was submitted on his behalf, there was no ambiguity in s 500(6L) which would permit recourse to such extrinsic material. It is not necessary to resolve that objection because in our view, the second reading speech adds nothing to the purpose behind s 500 which can be discerned in its text. The short, nine day time limit for instituting an application for review under s 500(6B) and the 84 day time limit in s 500(6L) itself evince a policy to truncate strictly the time that is taken for the Tribunal to review decisions to which s 500 applies. That is consistent with the description by the plurality in Uelese v Minister for Immigration and Border Protection [2015] HCA 15; (2015) 256 CLR 203 at [58] of the apparent purpose of s 500(6H), which was introduced at the same time as s 500(6L), as 'to prevent applicants from manipulating the system in an attempt to delay deportation'.
However in our view the construction of s 500(6L) which we prefer is consistent with that purpose. Each of s 42A(9) and s 42A(10) give the Tribunal a discretion as to whether to reinstate an application and a discretion as to what directions to make in the circumstances. The policy evident from the 84 day time limit is a matter that is appropriate for the Tribunal to take into account in the exercise of both of those discretions, as are the provisions of the AAT Act which require swift determination of applications for review (see for example s 2A, s 18A, s 33(1)(b) and s 33(1AB)). There is little chance that the flexibility given to the Tribunal in those circumstances will be exploited by applicants wishing to delay their departure from Australia. It would be a brave, or rather foolhardy, applicant who would deliberately fail to appear at a hearing (or do any of the other things which can lead to dismissal under s 42A of the AAT Act), as well as somehow seek to manufacture the necessary explanation for delay or default, solely in order to seek to circumvent the 84 day time limit.
In Uelese at [77] the plurality observed that s 500(6H):
should not be given an operation beyond that warranted by its language in order to pre-empt the hypothetical possibility that the Tribunal might grant adjournments, supinely or unreasonably, to an applicant seeking to take cynical advantage of surprises occasioned by information introduced late in support of his or her case.
The same may be said of giving s 500(6L) an operation beyond its language in order to seek to pre-empt supine or unreasonable exercise of the Tribunal's discretion under s 42A(9) of the AAT Act. Counsel for the Minister, with respect sensibly, did not seek to make any floodgates argument to the contrary.
Orders
The appeal should be allowed.
Paragraphs 1 and 2 of the orders of the primary judge should be set aside and, in their place, it should be ordered that:
(a)The application is allowed.
(b)A writ of certiorari issue directed to the second respondent, quashing its decision made on 5 June 2018.
(c)A writ of mandamus issue directed to the second respondent, requiring it to determine the appellant's application for reinstatement of his application for review according to law.
(d)The first respondent pay the appellant's costs of the application before the primary judge.
The first respondent should also be ordered to pay the appellant's costs of this appeal.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Logan, Steward and Jackson. Associate:
Dated: 30 August 2019
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