ALJ22 v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2024-12-12|Before: Needham J

The Application

By their application, as amended, the applicants seek the following relief (note, the numbering reflects the maintenance of numbering of orders 1 through 3 in the original application, which orders were no longer sought after the amendment):
An order quashing the purported decision of the second respondent and/or declaring that it exceeded the executive power of the Commonwealth;
A declaration that the First Respondent has power under s 417(1) of the Migration Act 1958 to substitute a more favourable decision for that of the Administrative Appeals Tribunal made on 2 March 2021 finding that it lacked jurisdiction;
Costs; and/or
Such further or other relief as the Court deems fit.
The matter was initially case managed by another Judge of this Court, who made timetabling orders, which orders were varied twice by consent, and who set the matter down for hearing. The matter was then allocated to my docket on 16 September 2024.
The timetabling orders made provision for the applicants to file any amended originating application, extracted above at [15], as well as for the filing of submissions by both parties.
During the judgment drafting process, it came to my attention that the second respondent had not filed a notice of address for service, nor a submitting appearance, before judgment was reserved. Upon enquiries being made by my Chambers, the solicitors for the first respondent informed me that it had been their intention for a submitting notice to be filed on behalf of the second respondent by the first respondent, but that this had not occurred due to oversight. I note that a submitting notice has since been filed, and that it is now clear that the second respondent does not wish to be heard in this proceeding.

Conduct of the Hearing

The matter came before me for hearing on 30 September 2024.
At the hearing, I granted leave to the applicants to amend the originating application as accepted for filing on 11 September 2024.
Each of the parties was represented - the applicants by Mr Bhasin and Mr Wilcox of counsel, and the first respondent by Ms Hooper of counsel. Each side provided helpful submissions, both written and oral. The three volumes of the Application Book were marked as exhibits and an affidavit of Sai Priya Sivalohan of 12 March 2024 setting out the grounds of appeal was read by the applicants.
Much of the Application Book contained the underlying material which the applicants sought to have had considered in support of their application for the protection visas. Given the narrow question in this application, it is unnecessary for the purposes of the determination of this application to traverse the substance of that application.
The relevant determinations and correspondence are extracted or referenced above.
I note that following a grant of leave in Orders made following the hearing on 9 October 2024, the first respondent and the applicants filed supplementary submissions with an eye to correcting errors relating to the history of the applicable legislative provisions.

Legislation

Section 417 appears in the then Pt 7 of the Migration Act, entitled "Review of Part 7-reviewable decisions".
Section 410 was an interpretation section. It provides: 410 Interpretation In this Part: decision on a review means any of the following decisions of the Tribunal in relation to an application for review of a Part 7-reviewable decision: (a) a decision to affirm the Part 7-reviewable decision; (b) a decision to vary the Part 7-reviewable decision; (c) a decision under paragraph 415(2)(c) to remit a matter in relation to the Part 7-reviewable decision for reconsideration; (d) a decision to set the Part 7-reviewable decision aside and substitute a new decision; (e) a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm a decision to dismiss the application. member means a member of the Tribunal. officer of the Tribunal has the meaning given by the Administrative Appeals Tribunal Act 1975. Part 7-reviewable decision: see section 411. Registrar means the Registrar of the Tribunal. Note: "Tribunal" means the Administrative Appeals Tribunal. See the definition in subsection 5(1).
Section 411 appeared in Division 2 and defined a "Part 7-reviewable decision" as (relevantly): 411 Definition of Part 7-reviewable decision (1) Subject to subsection (2), the following decisions are Part 7-reviewable decisions: … (c) a decision to refuse to grant a protection visa, other than a decision that was made relying on: (i) subsection 5H(2), or 36(1B) or (1C); or (iii) paragraph 36(2C)(a) or (b); … (2) The following decisions are not Part 7-reviewable decisions: (aa) any decision to cancel a protection visa that is made personally by the Minister; (a) decisions made in relation to a non-citizen who is not physically present in the migration zone when the decision is made; (b) decisions in relation to which the Minister has issued a conclusive certificate under subsection (3); (c) fast track decisions. (3) The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that: (a) it would be contrary to the national interest to change the decision; or (b) it would be contrary to the national interest for the decision to be reviewed.
Section 412 provided that an application for review of a Part 7-reviewable decision must be made to the Tribunal within 28 days, a timeframe additionally prescribed in reg 4.31 of the Migration Regulations 1994 (Cth). Section 414 provided that the Tribunal review valid applications for review of a Part 7-reviewable decision as follows: 414 Tribunal to review Part 7-reviewable decisions (1) Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision. (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).
Section 415 set out the powers of the Tribunal on a review of a Part 7-reviewable decision. That section provided: 415 Tribunal powers on review of Part 7-reviewable decisions (1) The Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision; or (e) if the applicant fails to appear - exercise a power under section 426A in relation to the dismissal or reinstatement of an application. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister. (4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.
Section 417 provided, relevantly: 417 Minister may substitute more favourable decision (1) If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 415 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision. … (3) The power under subsection (1) may only be exercised by the Minister personally. (4) If the Minister substitutes a decision under subsection (1), he or she must cause to be laid before each House of the Parliament a statement that: (a) sets out the decision of the Tribunal; and (b) sets out the decision substituted by the Minister; and (c) sets out the reasons for the Minister's decision, referring in particular to the Minister's reasons for thinking that his or her actions are in the public interest.

Submissions of the parties

The applicants seek judicial review of the decision of the second respondent (the delegate) that the first respondent (the Minister) lacked power to exercise the power to substitute, for the Tribunal decision, a decision more favourable to the applicants. The submissions were based on the contention that the respondents misapprehended the scope of the Minister's power under s 417, and so committed a jurisdictional error.
The applicants submit that this is a "narrow point of statutory construction" and in their written submissions contend that the construction of s 417 permits the Minister to substitute a more favourable decision under s 417(1) in circumstances where the Tribunal has declined to consider an out of time application for review. They say "there is no question that the visa refusal decision is a 'Part 7-reviewable decision' as defined in s 411(1)(c)".
The first respondent on the other hand puts the question as being whether the exercise of the discretion in s 417(1) of the Migration Act is conditional on the Tribunal first having made a decision pursuant to s 415 of that Act. The first respondent says that it is so conditional, and that not proceeding to conduct a review and not proceeding to make a decision under s 415 on the basis of a lack of jurisdiction means that "a prerequisite to the exercise of the discretion in s 417(1) was and is missing".
In support of their position, the applicants say that a generous construction should be given to s 417, given that it is an expansive discretionary power. The power to substitute a more favourable decision may be exercised "whether or not the Tribunal had the power to make that other decision" (s 417(1)). In making that substitutionary decision, the Minister is not bound by various subdivisions of the Migration Act which relate to visas (s 417(2)), nor by the Migration Regulations which prescribes the limit for the filing of applications to the Tribunal: (see reg 4.31(2)). They contrast that expansive power with the limited scope of the power conferred upon the Tribunal under s 415 (citing SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91 at [29]-[30] per Black CJ, Moore and Allsop JJ). They further point to the nature of the power under s 417 as being an unusually broad power, which is non-delegable (s 417(3)) and was described by French CJ and Kiefel J in Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 at [30] as providing the Minister: … a degree of flexibility allowing him or her to grant visas which might not otherwise be able to be granted because of non-satisfaction of substantive or procedural requirements. The powers so conferred are conditioned upon a ministerial judgment of the "public interest". See also Minister for Immigration and Multicultural Affairs v MZXGJ [2006] FCA 1594 at [17]-[20] (Sundberg J) and the cases referred to therein, which include NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506, where at [58] the Full Court (Wilcox, Lindgren and Bennett JJ) referred to the power under s 417 as "a general humanitarian power". The applicants submit it would be an "unreasonable construction" for the expansive power of s 417 to be constrained by "a very strict procedural requirement".
I was also referred to SAAK v Minister for Immigration and Multicultural and Indigenous Affairs (No 4) (2004) 136 FCR 482; [2004] FCA 104 where the Court held that the exercise of the discretionary power under s 417(1) was not a review of an application for a substantive visa. In relation to the extent of s 417, Mansfield J said (at [24]): The power to substitute a decision for a decision of the Tribunal is qualified only by the limitations preserved in s 417(2) and by the respondent having the opinion that the grant of the visa is in the public interest. The power to substitute a more favourable decision is not one which readily fits into the concept of a review. The power may be exercised independently of the Tribunal's decision, and irrespective of the reasons for the Tribunal's decision. The respondent may exercise the power even where the Tribunal had no power to have made the more favourable decision, for example where the application to the Tribunal for review was made outside the period specified in s 412(1) of the Act. (emphasis added).
The first respondent contends that Mansfield Js' statement in SAAK is obiter, and does not bind me (see Herzfeld P and Prince T, Interpretation, (3rd ed, Lawbook Co, 2024, p 725), or in the alternative, should not be followed as it is, they submit, plainly wrong.
The applicants, on the other hand, say that the statement in SAAK was part of the dispositive reasoning of the Court, and that as such, I would need to be persuaded that it was appropriate to depart from Mansfield J's position that a s 417 review is available even where the Tribunal has no power to make a decision on a review made out of time.
The applicants' submissions as to the nature of the power given to the Minister under s 417 are not substantially contradicted by the first respondent, who indeed provides many of the same references, including to relevant extrinsic material. The point of difference is that the first respondent submits that the phrase a "decision of the Tribunal under section 415" operates to limit, not the extent of the power, but the kind of decisions for which the Minister may substitute a more favourable decision.
It is common ground that the application was not a valid one, having been made out of time. The first respondent points to s 414(1) which requires that the Tribunal review "a valid application …made under section 412". The first respondent submits that the Tribunal's duty to review a Part 7-reviewable decision, and thus the ability to make a decision on it, is contingent on there being a valid application before it.
The first respondent submits that what is needed is not just a decision of the Tribunal, but "a decision of the Tribunal under section 415" and that that is a composite phrase which is a jurisdictional precondition to the exercise of the discretion in s 417(1). The first respondent submits that the decisions under s 415 are "identified exhaustively" in s 415(2). As the Tribunal found that it did not have jurisdiction, it did not proceed to conduct the review, and it did not make a decision under s 415. The first respondent therefore submits that "the foundation for any exercise of the discretion in s 417(1) was and is absent".
The first respondent illustrates the point by noting that the Tribunal has the power to make "procedural" decisions (see ss 424(2) and 427 of the Migration Act) which would not, on the construction contended for, result in a power to substitute a more favourable decision by the Minister. Section 415 provides a reference point for the kind of decisions which are susceptible to substitution of a more favourable decision. Additionally, multiple refusals for a jurisdictional ground (or that the Tribunal was functus officio) could result in multiple repeat applications for a s 417 decision. To this the applicants say that it would be open to the Minister to make a procedural decision not to consider cases that meet particular objective criteria specified by the Minister, relying on Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214; [2023] HCA 10 at [14]-[17] per Kiefel CJ, Gageler and Gleeson JJ).
The first respondent too calls in aid the High Court decision in Plaintiff S10 to ground the submission that a condition of invocation of s 417 is that it has been enlivened by a decision on an application for review which has been determined. In that case, French CJ and Kiefel J said, at [29]:- As was pointed out in the written submissions filed by the Minister and the Secretary, ss 48B and 417 cannot be invoked in favour of a non-citizen unless the non-citizen has applied for a protection visa and had that application determined. A further condition upon the invocation of s 417 is that the non-citizen has applied to and been the subject of a decision by the RRT. Section 351 only applies to a non-citizen who has made an application for a visa, had the application determined, applied for review before the MRT, and had that application determined. … (emphasis added by the first respondent in his written submissions).
The applicants contend in their written submissions that: A decision by the Tribunal that it lacked jurisdiction is, properly construed, "a decision of the Tribunal under s 415". While s 415(2) expressly sets out certain powers that the Tribunal may exercise upon review, the Tribunal also has an implied power to determine whether it has jurisdiction [and here the applicants cite the High Court's decision in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [21] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ].
The applicants submit that a decision that the Tribunal does not have jurisdiction is impliedly a decision under s 415, given that s 415 is "the sole provision governing the Tribunal's powers upon review". Further or alternatively, the applicants contend that "a decision of the Tribunal under section 415" should be taken to mean any decision made by the Tribunal in relation to the review of a Part 7-reviewable decision, including a decision of lack of jurisdiction. Additionally, they say that in determining that the Minister had no power to intervene under s 417, the second respondent denied jurisdiction. The applicants submit that this was a Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 error (a mistaken denial of jurisdiction) or that it exceeded the executive power of the Commonwealth, given that there was no evidence that the decision not to intervene was made by the Minister (citing Davis).
In their written submissions, the applicants note that if there is an error, it is a material one and cite LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152; [2024] HCA 12 at [10]-[14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ; Beech-Jones J agreeing) to submit that if the decision was in error, there is a realistic, as opposed to fanciful or improbable, possibility that the decision-maker's exercise of power could have been different. They submit that there is no evidence that the Minister was personally aware of the application.

Disposition

This application for review, as is clear from the summary of the parties' submissions, turns on the meaning of the words "a decision of the Tribunal under section 415" in s 417(1) of the Migration Act.
It is helpful to set out the section once more (as at the time of the Tribunal decision): 415 Tribunal powers on review of Part 7-reviewable decisions (1) The Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter - remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision; or (e) if the applicant fails to appear - exercise a power under section 426A in relation to the dismissal or reinstatement of an application. (3) If the Tribunal: (a) varies the decision; or (b) sets aside the decision and substitutes a new decision; the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister. (4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

Statutory Construction

The principles surrounding construction of statutes are fairly well settled. The focus is the text, and the context of the legislation. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34, Kiefel CJ, Nettle and Gordon JJ emphasised the importance of starting with the statutory context and text (at [14]): The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose [citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 with approval]. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
Additionally, the first respondent drew my attention to the construction of a composite phrase (in this case, "a decision of the Tribunal under section 415") as explained by Gordon J in Sea Shepherd Australia Ltd v Federal Commissioner of Taxation (2013) 212 FCR 252; [2013] FCAFC 68 at [34] (with whom Besanko J agreed): The general principles of construction of a statute were not in dispute. For present purposes, it is sufficient to record that they were identified by the Tribunal and may be summarised as follows:
The task is to construe the language of the statute, not individual words: St George Bank Ltd v Federal Commissioner of Taxation (2009) 176 FCR 424 at [28]; see also XYZ v Commonwealth (2006) 227 CLR 532 at [102]; R v Brown [1996] AC 543 at 561 quoted in Agfa-Gevaert at 397 and Metropolitan Gas Company v Federated Gas Employees' Industrial Union (1925) 35 CLR 449 at 455.
The task is not to pull apart a provision, or composite phrase within a provision, into its constituent words, select one meaning, divorced from the context in which it appears, and then reassemble the provision: Lorimer v Smail (1911) 12 CLR 504 at 508-10; R v Carter; Ex parte Kisch (1934) 52 CLR 221; Biga Nominees Pty Ltd v Federal Commissioner of Taxation (1991) 21 ATR 1459 at 1468-1469. Indeed, it is rare that resort to a dictionary will be of assistance in searching for the legal meaning of a provision in a statute: R v Campbell (2008) 73 NSWLR 272 at [49].
As Gleeson CJ said in XYZ v Commonwealth at [19]: There are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts. See also General Accident Fire & Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax [1982] 2 NSWLR 52 referred to by Gleeson CJ where Lord Wilberforce remarked, in the course of argument, that an Australian who looked up the words "commission" and "agent" in a dictionary would probably be surprised to be told that, in England, a commission agent is a bookmaker.
The text of the provision is to be construed according to the context "by reference to the language of the instrument viewed as a whole": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] (citations omitted). In the present case, the word "care" is to be construed in the context of the composite phrase of which it forms part, being "short-term direct care", in the context of the rest of the specific paragraph and in the context of para (b) of Item 4.1.6. Similarly, the phrase "animals without owners" is to be construed in context.

Questions to be determined

The process I must follow in determining whether to grant the relief under s 39B is as follows:-
Was the decision to refuse a protection visa a "Part 7-reviewable decision"? (the answer is not disputed and is "yes - s 411(1)(c)").
Were the applicants entitled to seek a review of the Part 7-reviewable decision? (the answer is not disputed and is "yes - s 412").
Was a valid application made for a review by the Tribunal under s 414? (the answer is not disputed and is "no - it was out of time having regard to the Migration Regulations").
In determining that the Tribunal had no jurisdiction to review the decision because of the invalidity of the application, was there a "decision of the Tribunal under section 415"?
If so, is that a Craig v South Australia error by way of denial of jurisdiction? (the answer is not disputed and is "yes", if the answer to (d) is "yes", otherwise it does not arise). And/or
Was the error a material one? (the answer is not disputed and is "yes", if the answer to (d) is "yes", otherwise it does not arise).
In order to provide an answer to question (d), I have, with the assistance of the parties' helpful submissions, distilled the process into the following stages.

Was the application an "application for review of a Part 7-reviewable decision"?

Section 412 defines that an application for such a review "must" (s 412(1)(b)) "be given to the Tribunal within the period prescribed". It was not. As set out in the first respondent's submissions: It is common ground that the Tribunal had authority to decide, in the sense of forming an opinion about, whether it had jurisdiction [and here the first respondent refers to Citta] (or, put differently, whether it had before it a valid application under s 412 and specifically here, s 412(1)(b)).
As set out above in paragraph [44], the applicants say that the decision as to whether the Tribunal has jurisdiction is a decision under s 415. The first respondent, on the other hand, says: The Tribunal resolved that question as a preliminary step to potentially embarking on a review and proceeding to do one of the things it was authorised by s 415(2) to do.
While the application was not made within time, it was still an application for review; the decision under review was one specified as a Part 7-reviewable decision. While the Tribunal did not move beyond the step of determining whether it had jurisdiction or not, it is still the case that the application itself was "an application for review of a Part 7-reviewable decision" within the meaning of s 412.

Am I bound by Mansfield J's statement in SAAK?

The applicants contend that the issue of whether an application made out of time is a decision amenable to an application under s 417 has been determined, as part of the ratio decidendi, by Mansfield J in SAAK.
The position when a single judge of this Court is asked to depart from an earlier single judge's decision of this Court is helpfully set out by Perry J in the recent decision of Ho v Minister for Health [2024] FCA 657, a decision on statutory construction of a not dissimilar provision in the National Health Act 1953 (Cth) whereby a pharmacist may request a relevant Minister to substitute an approval for a rejection by the Secretary of the relevant Department. In that decision, her Honour reminds me (at [24]) that I must independently consider the issues of the decision, and not follow the previous decision if I am of the view that the ratio decidendi of the previous decision was "clearly" or "plainly" wrong (see Undershaft (No 1) Ltd v Federal Commissioner of Taxation (2009) 175 FCR 150; [2009] FCA 41 at [70]-‍[74] (Lindgren J).
In SAAK, the question was whether an application to the Minister made pursuant to s 417, while unresolved, meant that the application was still "subject to any form of review under Pt 5 or 7". The applicant in that case submitted that the application for a protection visa had not been finally determined because it was still subject to a form of review - the application under s 417. Accordingly, his Honour was engaged in construing the words of s 417 to determine whether the process under that section was part of the review process, or not.
In refusing the application, Mansfield J said (at [24]):- The [Minister] may exercise the power even where the Tribunal had no power to have made the more favourable decision, for example where the application to the Tribunal for review was made outside the period specified in s 412(1) of the Act.
Both the applicants and the first respondent cited this passage. However, paragraph [24] of SAAK continues: Burchett J explained in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 62-63 why the legal meaning of "review" involves some judicial or administrative rehearing. I shall not repeat the references his Honour there made. However, as his Honour said at 63: It may be conceded that, in an appropriate context, the word "review" could have a quite amorphous meaning; but the word is here used in an Act to describe a challenge, to be brought by "application", to administrative action … And at [25]: The context of s 417 tends also to confirm that it is not a form of review of a visa application.
Accordingly, the context of Mansfield J's determination was whether an application under s 417 was a form of review or not, relevant to whether the applicant in SAAK could be removed from Australia because his application had been finally determined (s 198(6)(c) of the Migration Act). As it was not a determination as to whether the s 417 process was available on applications to the Tribunal which had been rejected for a lack of jurisdiction, I do not consider I am bound by his Honour's statement. The words in paragraph [24] of SAAK relied on by the applicant were obiter, in that they were not "the principle upon which the case was decided" (see Osborne v Rowlett (1880) 13 Ch D 774 at 785 (per Jessell MR)). While statements of other judges of the Court are of course persuasive, I do not consider that this question has been considered and determined by Mansfield J in SAAK.

Did the Tribunal make its determination as to jurisdiction "under section 415"?

If the first respondent's argument is correct, and s 415(2) "exhaustively" defines the powers of the Tribunal under s 415, then the applicants will fail, because s 415(2) does not include a reference to an application for review not accepted by the Tribunal, because it was out of time.
Two matters arise from the terms of s 415 which are relevant to the first respondent's simple answer. The first is whether the Tribunal's decisions under s 415(2) are indeed "exhaustive", given that the list is a power of the things that the Tribunal "may" do - "may" being generally seen as permissive and not restrictive (see Acts Interpretation Act 1901 (Cth) s 33(2A); Ward v Williams (1955) 92 CLR 496 at 505 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ). When read with sub-s (1), which provides the Tribunal with "all the powers and discretions that are conferred by this Act on [the decision-maker]" for the "purposes of the review of a Part 7-reviewable decision", it is arguable that the list in s 415(2) is a list of permitted outcomes, albeit a list that is in addition to "all the powers and discretions that are conferred by this Act".
The word "may" in s 415(2) is, in my view, permissive. It gives the Tribunal a discretion to do the things listed in that section, or not. It is not necessary for me to determine whether the discretion includes a duty to consider whether or not it should do any one of those things but I would incline to the view that it did (see for example Yasmin v Attorney-General of the Commonwealth of Australia (2015) 236 FCR 169; [2015] FCAFC 145 at [76]-[79] per Kenny, Robertson and Mortimer JJ).
Accordingly, it seems to me that s 415(2) is not an exhaustive list of the powers of the Tribunal on an application for review of a Part 7-reviewable decision, but it is a list of the matters which the Tribunal can do in the light of the matters included in s 415(1).
The second matter is whether, if s 415(2) is not exhaustive, a decision by the Tribunal to determine its own jurisdiction is a decision under s 415.
As Logan J said in Federal Commissioner of Taxation v Apted (2021) 284 FCR 93; [2021] FCAFC 45 at [17], it is crucial to identify "with precision the decision under review", which is "critical to the identification of the powers and any discretions exercisable by the Tribunal on the review" (citing Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31, at [43] per Kirby J (Crennan J, at [118] agreeing) and per Kiefel J, at [132] (not in dissent on this point). Accordingly, it is necessary to identify the source of the power to determine the jurisdiction to reject the application.
In doing so, it is also necessary to bear in mind the submissions as to construction of a composite phrase. The word "decision" in s 417 does not encompass any and all decisions of the Tribunal in relation to the application by the applicants. Section 417 is only able to be invoked if the decision is "a decision of the Tribunal under section 415". The phrase is limited further by the description of the function of the Tribunal in making a decision under s 415 "for the purposes of the review of a Part 7-reviewable decision". That phrase, too, cannot be regarded as merely a series of words which must be construed individually. The phrase has meaning as a composite phrase. A decision of the Tribunal may only be presented to the Minister for a substituted decision under s 417 if it meets all of the requirements of being a decision under s 415, not on the basis that it is merely "a decision of the Tribunal".
The (now repealed) Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) is "not the original repository of powers and discretions under an enactment" (Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167 at 175, per Brennan J, then President of the Tribunal). Those powers in the present case are found under the Migration Act. However, a consideration of the Tribunal's powers in relation to the decision as to jurisdiction is helpful, as it informs the kind of decision which was made.
I was not taken by the parties to any authorities which assist with the extent of the Tribunal's power to determine its own jurisdiction. Section 25 of the AAT Act provides for the kinds of decisions which are subject to the review powers of the Tribunal, and s 43 of the AAT Act sets out the powers of the Tribunal on that review. Section 43(1) of the AAT Act reflects to some extent the powers of the Tribunal set out in s 415(2) of the Migration Act. Section 43(1) of the AAT Act provides: (1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing: (a) affirming the decision under review; (b) varying the decision under review; or (c) setting aside the decision under review and: (i) making a decision in substitution for the decision so set aside; or (ii) remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.
Section 43(1) of the AAT Act reflects to a great degree the powers in s 415(2), on which there is very little judicial reflection in this context. It is, accordingly, helpful to look at the cases on s 43(1) in order to determine whether a determination that there was no jurisdiction to review a decision is a "decision" for the purposes of s 417.
In Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation (2005) 148 FCR 427; [2005] FCAFC 244, Finn, Emmett and Edmonds JJ considered the role of s 43 in determining whether the Tribunal could, in dealing with an application under s 14ZZ of the Taxation Administration Act 1953 (Cth), exercise a discretion conferred on the Commissioner of Taxation by s 8(5)(b) of the Superannuation Contributions Tax (Assessment and Collection) Act 1997 (Cth) (decisions under this Act, referred to as the Surcharge Act, were contended to be an administrative function and so not part of the assessment function of the Commissioner). Their Honours said (at [29]-[30]); Ultimately, the question turns upon the proper construction of s 43 of the AAT Act. Section 43 empowers the Tribunal to exercise all the powers and discretions conferred upon the original decision maker, provided it does so for the purpose of reviewing a decision. Provided the necessary purpose is present, the power conferred upon the Tribunal is not otherwise limited. It is neither necessary nor permissible to put a gloss upon s 43 that would permit the Tribunal to exercise the decision-maker's powers and discretions only when those powers or discretions are necessarily interdependent with the decision under review, or where the power or discretion to be exercised by the Tribunal is necessarily involved in the making of the decision under review - see Department of Social Security v Hodgson (1992) 37 FCR 32 at 39-40. Thus, so long as the exercise of powers and discretions by the Tribunal is for the purpose of reviewing a decision, all of the powers and discretions conferred by any relevant enactment on the decision maker who made the decision, can be exercised by the Tribunal. (emphasis in original)
The question of whether the Tribunal has jurisdiction to review a decision can involve, as in Commonwealth Bank Officers, a decision under an enactment covered by s 25 (the Taxation Administration Act), or an enactment which confers powers and discretions on a decision maker (in the above example, the Surcharge Act). The Tribunal has a power to reject an application if it is an application for review of a decision which does not fall within s 25 of the AAT Act. Section 412 of the Migration Act also confines the Tribunal in Part 7 to considering "Part 7-reviewable decision[s]" - a restriction which necessarily includes consideration of whether the decision falls within that description. The determination of whether a decision is one which is a s 25 decision or a Part 7-reviewable decision involves a consideration of the extent of the Tribunal's statutory remit and whether an application falls within it, prior to and separately from an undertaking of any review functions.
The next question to be answered is - is the power to determine its own jurisdiction by rejecting an application as being out of time a decision made pursuant to s 415? Section 415 is the provision which gives the Tribunal the power to review a decision under the Migration Act. But it is a combination of s 412 and the Migration Regulations which prescribes a time in which the application is to be made, and a failure to comply with those provisions is what triggers the Tribunal's decision whether to accept it or not. Accordingly, the steps which the Tribunal was required to take in determining whether to accept the application must have been made by exercising an implied power, but not one which resided in s 415. I am strengthened in this view by the opening words of s 415, which are "the Tribunal may, for the purposes of the review of a Part 7-reviewable decision, exercise …" (emphasis added).
I am further strengthened in this view by the passage extracted above from Commonwealth Bank Officers and the focus in that passage on the "purpose of reviewing a decision". A determination as to whether an application has been made within time in accordance with s 412 and the Migration Regulations, and thus within or outside jurisdiction, is not part of the process of "reviewing a decision".
Accordingly, in rejecting the application for review as being out of time, the Tribunal was, rather than exercising a power or discretion conferred by the Migration Act, exercising its implied power to determine its own jurisdiction. As Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ said in Citta at [21]: Having a judicially enforceable duty to comply with the limits of its own jurisdiction, a court or a non-court tribunal must have power to take steps needed to ensure its own compliance with that duty. If not expressed in the legislation establishing the court or non-court tribunal or in the legislation conferring jurisdiction on it, that power is necessarily implied on the basis that "everything which is incidental to the main purpose of a power is contained within the power itself" [citing Burton v Honan (1952) 86 CLR 169 at 177].
Once the Tribunal made a determination that it did not have jurisdiction, it did not proceed to conduct a review. The decision as to jurisdiction was made under the Tribunal's implied power, and accordingly, no decision was made under s 415. The power to invoke s 417 requires a review of a valid decision under s 415 (see s 414(1)), not merely a decision which has some relationship to a Part 7-reviewable decision. As the application was not a valid one, and no review under s 415 was undertaken, the decision as to jurisdiction does not act to enliven the power of the Minister to substitute a more favourable decision under s 417.

Is the application saved by the words in s 417(1) "whether or not the Tribunal had the power to make that other decision"?

Given that I have found that the determination as to jurisdiction was not a decision of the Tribunal under s 415, section 417 was not able to be invoked by the applicants, and the words "whether or not the Tribunal had the power to make that other decision" in s 417(1) do not function to bring the jurisdiction decision within s 415.
The statement of French CJ and Kiefel J in Plaintiff S10 at [29] underline the correctness of this approach. In reference to a similarly worded section of the Migration Act, s 351, and the predecessor Tribunals, their Honours said: As was pointed out in the written submissions filed by the Minister and the Secretary, ss 48B and 417 cannot be invoked in favour of a non-citizen unless the non-citizen has applied for a protection visa and had that application determined. A further condition upon the invocation of s 417 is that the non-citizen has applied to and been the subject of a decision by the RRT. Section 351 only applies to a non-citizen who has made an application for a visa, had the application determined, applied for review before the MRT, and had that application determined. (emphasis added)
The words "been the subject of a decision by the RRT" refer to an application, properly made, and determined by the [predecessor] Tribunal. The words of s 417 make it clear that the determination must be one under s 415. The cases make it clear that the words "whether or not the Tribunal had the power to make that other decision" refer, not to jurisdictional matters, but to the ability of the applicant to satisfy substantial or procedural requirements (see Plaintiff S10 at [23]). But to get to that point, the right to apply under s 417 must be enlivened. Here it has not been.

Orders

The question in [50(d)] above, "In determining that the Tribunal had no jurisdiction to review the decision because of the invalidity of the application, was there a 'decision of the Tribunal under section 415'?" is "no".
Accordingly, the application should be dismissed. The applicants should pay the respondents' costs as agreed or taxed. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.

repealed) Administrative Appeals Tribunal Act 1975(Cth)

Acts Interpretation Act 1901(Cth)s 33, s 33(2A)

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Undershaft (No 1) Ltd v Federal Commissioner of Taxation (2009) 175 FCR 150; [2009] FCA 41 Ward v Williams (1955) 92 CLR 496 Yasmin v Attorney-General of the Commonwealth of Australia (2015) 236 FCR 169; [2015] FCAFC 145

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