ALJ22 v Minister for Immigration and Multicultural Affairs [2025] FCAFC 182

1. During the appeal hearing, the appellants were granted leave to rely on a second further amended notice of appeal that consolidated the issue to a single ground of appeal:

The primary judge erred in finding that the Minister's power to substitute a more favourable decision under s 417 of the Migration Act 1958 (Cth) did not arise in respect of a decision by the Tribunal that it lacked jurisdiction to determine an application for merits review of a Part-7 reviewable decision because it was out of time.

1. The Minister also sought leave to file a Notice of Contention to the effect that the primary judge's conclusion that the Tribunal had an implied power to determine its own jurisdiction was better understood as the Tribunal having the competence and authority to form an opinion as to the limits of its jurisdiction and for the purpose of moulding its conduct to accord with the law. While leave was granted at the hearing for the Minister to file the Notice of Contention, we consider that it seeks merely to frame the argument on the appeal in a different way rather than raising another ground of review.

1. The appellants' primary submission was that the Tribunal's power to determine its jurisdiction was implied into s 415. Accordingly, they submitted that a decision made in the exercise of that implied power would be "a decision of the Tribunal under section 415" for the purpose of enlivening the Minister's power under s 417 to substitute a more favourable decision.
2. The appellants developed their primary submission in the following way:

(1) The text of ss 417(1) and (2) was indicative that Parliament intended to provide the Minister an expansive discretionary power:

(a) The concluding text to s 417(1) permitted the Minister to substitute a more favourable decision in place of a decision of the Tribunal "whether or not the Tribunal had the power to make that other decision".

(b) In making a decision, the Minister was not bound by Subdivision AA or AC of Division 3 of Part 2 of the Migration Act, or the Migration Regulations: s 417(2). That can be contrasted with the confined power of the Tribunal which could not make a decision under s 415 that was not authorised by the Migration Act or the Migration Regulations: s 415(4).

(2) A broad construction of s 417 also accords with its nature as a non-delegable "dispensing" power conferred personally on the Minister and exercisable in the public interest: relying on Minister for Immigration and Multicultural Affairs v MZXGJ [2006] FCA 1594 at [17]‍-‍[20]; Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; [2012] HCA 31 at [30]. The purpose of such a power is to provide the Minister with a flexible power to provide compassionate and humanitarian relief without being constrained by the substantive or procedural strictures of the statutory scheme, including the strict deadline for making an application to the Tribunal.

(3) A broad construction is also supported by the extrinsic materials. The power which became s 417 was originally introduced as s 166BE of the Migration Act. The relevant explanatory memorandum stated that the power was an "extraordinary" one to substitute a new decision "whether or not the [Refugee Review Tribunal (RRT)] could have made the new decision, when the Minister considers it in the public interest to do so": Explanatory Memorandum, Migration Reform Bill 1992 (Cth) at p 72. It was submitted that it would be inconsistent with the broad and beneficial purpose of the "extraordinary" power to construe s 417 as being subject to the strict procedural requirements applicable to the Tribunal.

(4) The primary judge was incorrect to conclude that the power to determine whether the Tribunal had jurisdiction was not to be found in s 415 of the Migration Act. The power cannot be implied in a vacuum, and s 415 was the principal provision governing the Tribunal's powers upon a review. Section 415 lists, non-exhaustively, what the Tribunal was empowered to do upon receiving an application for review of a Part 7‑reviewable decision.

1. In the alternative, the appellants argued that the words "a decision of the Tribunal under s 415" were words of connection and identification, not limitation, and extended to any decision taken by the Tribunal when presented with an application for review of a Part 7‑reviewable decision. It was argued that this construction emerged from a consideration of the legislative history of the dispensing powers in s 417 and, in relation to Part 5‑reviewable decisions, in s 351:

(1) Section 64U (now repealed) was introduced to establish merits review for a newly established Immigration Review Tribunal (IRT). That system did not include review of a decision that a person did not have the status of a refugee. Section 64U (which was later renumbered to s 137) provided for a broad power for the Minister to set aside a decision of the Tribunal and substitute a more favourable one.

(2) In 1992, merits review was then extended to applicants for refugee status to be determined by the newly established RRT. Section 137 was repealed and, in its place, Parliament enacted s 121 (which later became s 351 and related to non-refugee applicants) and s 166BE (which later became s 417 and related to refugee applicants).

(3) Sections 121 and 166BE were in materially identical terms, except that:

(a) section 121 stated that the Minister may "substitute for a decision of the Tribunal under s 119" (a reference to a decision of the IRT); and

(b) section 166BE stated that the Minister may "substitute for a decision of the Tribunal under s 166BC" (a reference to a decision of the RRT). After amendment, the cross-reference became one between ss 417 and 415.

(4) It was submitted that the intent and effect of the additional words of cross-reference were to replace one dispensing power with two, with the words serving to connect each dispensing power with the respective tribunals. Nothing in the text suggested an intention to reduce the dispensing power originally found in s 64U. Accordingly, the words "a decision of the Tribunal under s 415" were a reference to "a decision of the Tribunal in respect of an application for review of a Part 7‑reviewable decision".

1. The Minister submitted that the primary judge was correct to conclude that the Tribunal's power to make decisions pursuant to s 415 was only conferred "for the purposes of review of a Part 7‑reviewable decision" thereby precluding the appellants' construction of s 415.
2. In accordance with its Notice of Contention, and consistently with what the High Court said in Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [23]‍-‍[24], the Minister sought to re-characterise the Tribunal's "decision", that it did not have jurisdiction, as the formation of an opinion and conduct in conformity with that opinion. It was submitted that the formation of that opinion was not a "decision" made pursuant to the grant of power under s 415 of the Act. The "implied power" of the Tribunal was to be understood as authority and competence to form an opinion as to the limits of its jurisdiction and mould its actions accordingly. Accordingly, s 417(1) of the Act had no operation in those circumstances.
3. At the hearing, although the Minister disputed that the Tribunal's authority to make a decision as to its jurisdiction needed to be implied from a specific provision of the Migration Act, counsel for the Minister identified s 412, which prescribes the form of a valid application, as the source of the limitation on the Tribunal's jurisdiction.

1. In our view, the primary judge was correct to conclude that s 417(1) did not empower the Minister to substitute a more favourable decision for the appellants. That is because there was no "decision of the Tribunal under section 415" and, consequently, the enlivening condition in s 417(1) was not satisfied. That conclusion follows from the text and statutory context of the relevant provisions and is supported by a proper understanding of the character of the Tribunal's authority to determine its jurisdiction.

1. As Kiefel CJ, Nettle and Gordon JJ said in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14], "[t]he 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". That context is informed by legislative history and extrinsic materials "if and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself": Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. As noted by French CJ and Hayne J in Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [25], "[t]he purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted". Hence, legislative history and extrinsic materials cannot change the meaning that is revealed from a consideration of the text and informed by statutory context and purpose.

1. The power in s 417(1) was enlivened where the Tribunal had made a "decision ... under section 415" (emphasis added). The word "under" is generally used to mean "pursuant to" or "by virtue of": Pearce, Statutory Interpretation in Australia (10th ed, 2024) at [12.15], referring to Chan v Cresdon Pty Ltd (1989) 168 CLR 242; [1989] HCA 63 at 249. As Wilcox J said in Elmslie v Commissioner of Taxation (Cth) [1993] FCA 549; (1993) 46 FCR 576 at 592, "the word 'under' usually imports a direct connection between the relevant act and the instrument": referred to in Pearce at [12.15]. Accordingly, the text of s 417(1) imports a direct connection between the Tribunal's decision and s 415. It follows in our view that, in order to enliven the Minister's power in s 417(1), the decision must have been one that found its statutory source in s 415.

1. At the relevant time, Parts 5 and 7 of the Migration Act dealt with the review by the Tribunal of, respectively, Part 5‑reviewable decisions and Part 7‑reviewable decisions. Each Part contained relevantly similar provisions for the application to, and review by, the Tribunal of those decisions. Section 415(1) took its place in Part 7 of the Migration Act and must be understood within the scheme established by that Part for the review of Part 7‑reviewable decisions.
2. Relevantly to this appeal, s 411 defined the classes of decisions that were (s 411(1)) and were not (s 411(2)) "Part 7‑reviewable decisions". There was no dispute in this case that the visa refusal decision was a Part 7‑reviewable decision.
3. Section 412 identified various conditions to be satisfied for "[a]n application for review of a Part 7‑reviewable decision". Relevantly, s 412(1)(b) provided that a Part 7‑reviewable decision "must ... be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision". By virtue of reg 4.31(2) of the Migration Regulations, the time for giving the review application to the Tribunal was 28 days. It is not in dispute that the appellants failed to satisfy that requirement.
4. Section 414(1) provided that the Tribunal "must review" a Part 7‑reviewable decision "if a valid application is made under section 412" (emphasis added). There are three significant matters relating to the operation of s 414(1) for the purposes of this proceeding.
5. First, for the reasons set out at [24] above, the use of the words "valid application" and "under" imported a direct connection between the application and the conditions set out in s 412, so that an application would only be "valid" if the conditions in s 412 were satisfied. It follows that a precondition to a valid application was that the review application was given within the prescribed time.
6. Secondly, s 414(1) operated to impose an obligation on the Tribunal to review a Part 7‑reviewable decision and to define the authority or jurisdiction of the Tribunal to undertake that review. The obligation to undertake the review was subject only to the express exclusion in s 414(2) for a "decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3)". In our view, s 414 exhaustively defined the jurisdiction of the Tribunal to review a Part 7‑reviewable decision: if a valid application was made and the relevant decision did not fall within the exclusion in s 414(2), then there was an obligation on the Tribunal to review the decision; however, if a valid application was made and the relevant decision did fall within that exclusion, then there was an obligation on the Tribunal not to review the decision. In either case, the obligation on the Tribunal was conditioned on the existence of a valid application.
7. Thirdly, on a correct construction of the provisions, the Tribunal had authority or jurisdiction to review a Part 7‑reviewable decision only where there had been a "valid application ... made under section 412": see also SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91 at [30] (Black CJ and Allsop J). Contrary to what was argued by counsel for the appellants in oral submissions, we do not accept that there is another category of invalid applications relating to Part 7‑reviewable decisions for which the Tribunal had authority or jurisdiction to entertain, but in relation to which it could make a determination under s 415 that it had no jurisdiction. With respect, that is not a plausible construction of the provisions. No provision was identified as conferring authority on the Tribunal to entertain such applications. The appellants' submissions in this respect fail to differentiate between, on the one hand, the conferral on the Tribunal of review authority or jurisdiction and, on the other hand, the powers that were conferred on the Tribunal upon the exercise of that review authority or jurisdiction.
8. Once the operation of s 414(1) is properly understood, it is clear from the text of s 415(1) that the powers and discretions conferred by that section were vested in the Tribunal "for the purposes of the review of a Part 7‑reviewable decision". It was only if the preconditions to a valid application were satisfied, thereby enlivening the authority of the Tribunal under s 414(1), that the powers and discretions under s 415 were exercisable. That conclusion is consistent with the terms of ss 430(1)(a) and (b) which provided that, where the Tribunal "makes its decision on a review", the Tribunal must by written statement set out its decision "on the review" and the reasons for the decision.
9. In summary, it follows from the above analysis of the text and statutory context of the relevant provisions that, if a review application was not given to the Tribunal within time:

(1) A precondition in s 412(1) was not satisfied for an application for review of a Part 7‑reviewable decision;

(2) There was no "valid application ... made under section 412" for the purposes of s 414(1);

(3) The Tribunal had no authority to review the Part 7‑reviewable decision under s 414(1); and

(4) The powers and discretions in s 415 were not exercisable.

1. It is thereby clear from the statutory scheme that a determination by the Tribunal that it did not have authority to review a Part 7‑reviewable decision, on the basis that the application was given to the Tribunal out of time, was not one sourced in s 415. As already explained, s 415 conferred powers and discretions on the Tribunal which were exercisable only if the Tribunal had authority to review a Part 7‑reviewable decision. Where the review application had been made to the Tribunal out of time, the Tribunal had no such review authority.

The characterisation of a determination that the Tribunal has no jurisdiction

1. Our conclusion reached on the basis of the text and context of the statutory scheme is supported by what was said by Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ in Citta about the character of the authority of a tribunal to determine its own jurisdiction. Having explained that a tribunal must observe the legislated limits of its jurisdiction, and is amenable to restraint by an appropriate legal remedy, their Honours said (at [21], citations omitted):

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".

1. In comparing the position of courts and non-judicial bodies in this respect, their Honours said (at [23]‍-‍[24], citations omitted):

A court in which judicial power is invested therefore "has jurisdiction to determine - and to determine judicially - whether it has the jurisdiction to entertain a particular application or to make a particular order". The court, in other words, has "jurisdiction to decide its own jurisdiction" in the performance of which it exercises judicial power.

A tribunal that is not a court and that is invested with non-judicial power correspondingly has authority - in the exercise of non-judicial power - to "make up its mind" or "'decide' in the sense of forming an opinion" about the limits of its own jurisdiction "for the purpose of determining its own action". The authority is not to "reach a conclusion having legal effect" but to form an opinion for the purpose of "moulding its conduct to accord with the law".

1. In our view, the present significance of these comments is that the power or authority of the Tribunal to decide, or form a view about, the limits of its review authority or jurisdiction corresponded with the investiture of that review authority or jurisdiction by s 414(1). Necessarily, it was a power or authority that was incidental to the investiture of jurisdiction, and was exercised antecedently to the exercise of the review authority or jurisdiction. It was not a power or authority that could have been implied from s 415 because the powers and discretions conferred by that provision were only enlivened where the Tribunal was exercising its review jurisdiction or authority in relation to a valid application.
2. In conclusion, the primary judge was correct to conclude that the Tribunal was not exercising a power or discretion under s 415 when determining that it had no review authority or jurisdiction. Consequently, the primary judge was correct to conclude that the Minister's power in s 417 was not enlivened.

1. We also agree with the primary judge's conclusion (PJ at [60]) in relation to Mansfield J's observations in SAAK. In that case, his Honour 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.

1. As the primary judge observed, the question determined in SAAK was not the question to be resolved on this appeal. It did not concern the question of whether a determination by the Tribunal that it did not have review authority or jurisdiction was a decision under s 415, thereby enlivening the Minister's power in s 417. Instead, as the primary judge explained at PJ [57], the question before Mansfield J was whether an application under s 417 was a form of review for the purposes of determining whether the applicant in that case could be removed from Australia under s 198 of the Migration Act. If it were a form of review, then the visa application would not have been finally determined and, consequently, the precondition in s 198(6)(c)(i) for the applicant's removal would not have been satisfied. Accordingly, his Honour's comments about the relationship between ss 415 and 417 were obiter. In any event, to the extent that they are inconsistent with our reasoning above, they should not be followed.

Migration Legislation Amendment Act 1989 (Cth)

1. Our conclusion is not displaced by the legislative history of s 417. The earliest forerunner of s 417 was contained in s 64U of the Migration Act which was introduced by the Migration Legislation Amendment Act 1989 (Cth). Under the scheme inserted by that Amendment Act, provision was made for the review of certain migration decisions by the IRT which was established by the newly inserted s 64ZJ.
2. It is not necessary to set out at length that legislative scheme for review. It is enough to note that s 64 (the forerunner of s 415) permitted powers to be exercised by the IRT in relation to the review of a reviewable decision. Section 64U appeared in Part III under the heading "Division 5 - Decisions of Tribunal". That Division commenced with s 64S, that was headed "Tribunal to record its decisions etc and to notify parties", and relevantly provided in subsection (1):

Where the Tribunal makes its decision on a review, the Tribunal shall prepare a written statement that:

(a) sets out the decision of the Tribunal on the review;

(b) sets out the reasons for the decision;

...

1. Subsection 64U(1) of the Migration Act provided:

Where the Minister thinks that it is in the public interest to do so, the Minister may set aside a decision of the Tribunal and substitute a decision that is more favourable to the applicant.

1. In that statutory context, and contrary to the appellants' submissions, it is not self-evident that a "decision of the Tribunal" under s 64U would have included a determination by the IRT that it had no authority or jurisdiction to review an application given to the Tribunal out of time. Instead, the statutory context might have supported the conclusion that the "decision of the Tribunal" referred to in s 64U was a "decision on a review". For similar reasons to those set out above, a "decision on a review" is unlikely to have included an antecedent determination that the Tribunal had no jurisdiction to undertake a review.
2. In any event, we agree with the Minister that the language deployed in s 64U is different to that used in s 417. Whatever might have been the position under s 64U, the interpretation of s 417 is determined by its text and statutory context.

Migration Reform Act 1992 (Cth)

1. The Migration Reform Act 1992 (Cth) amended the scheme to allow for the review of certain migration decisions by the IRT and the RRT:

(1) Division 2 of Part 3 dealt with the review of IRT‑reviewable decisions by the IRT. Section 116 specified the decisions that were and were not IRT‑reviewable decisions. Section 117 set out conditions to be satisfied for the making of an IRT‑reviewable decision, including the period within which the application was to be given to the Tribunal. Subsection 118(1) provided that "if an application is properly made under section 117 for review of an IRT‑reviewable decision, the Tribunal must review the decision". Subsection 118(2) provided that a decision in relation to which the Minister had issued a conclusive certificate under ss 115A(3) or 116(4) "must not" be reviewed by the IRT. Section 110 dealt with the powers and discretions exercisable by the IRT "for the purposes of the review of an IRT‑reviewable decision". Section 121(1) then empowered the Minister to substitute another decision "for a decision of the Tribunal under section 119".

(2) Part 4A dealt with the review of protection visa decisions by the RRT established by the newly enacted s 166J. The scheme for review followed the pattern in Division 2 of Part 3. Section 166B(1) specified the decisions that were and were not RRT‑reviewable decisions. Section 166BBA set out conditions to be satisfied for the making of an RRT‑reviewable decision, including the period within which the application was to be given to the Tribunal. Subsection 166BA(1) provided that "if a valid application is made under section 166BA for review of an RRT‑reviewable decision, the Tribunal must review the decision". Subsection 166BA(2) provided that a decision in relation to which the Minister had issued a conclusive certificate under s 166B(3) "must not" be reviewed by the RRT. Section 166BC dealt with the powers and discretions exercisable by the IRT "for the purposes of the review of an RRT‑reviewable decision". Section 166BE(1) then empowered the Minister to substitute another decision "for a decision of the Tribunal under section 166BC".

1. It can be seen that the scheme for review in Parts 5 and 7 broadly followed the scheme set out in the Reform Act for the review of IRT‑reviewable decisions and RRT‑reviewable decisions. As was the case under ss 351 and 417, the Minister's powers in ss 121(1) and 166BA(1) to substitute more favourable decisions were tethered, respectively, to ss 119 and 166BC, each of which identified powers exercisable for the purposes of the review of the relevant reviewable decision. However, for the same reasons that we have outlined above in relation to s 417 (and, by parity of reasoning, to s 351) applications given to the respective tribunals out of time did not enliven the exercise of their review authority or jurisdiction.
2. Accordingly, we do not agree with the appellants' alternative submission that the legislative history of s 417 supports the view that the expression "a decision of the Tribunal under s 415" in s 417 "extends to any decision taken by the Tribunal when presented with an application for review of a Part 7‑reviewable decision; including a decision that the Tribunal lacks jurisdiction due to entertain [sic] an out-of-time application". While we accept that the expression "a decision of the Tribunal under s 415" contained words of connection or identification, the relevant connection was to a decision the source of authority for which was found in s 415. The power or authority to decide, or form a view, that the Tribunal lacked review jurisdiction or authority because the application was out of time did not find its source in s 415.

The purpose of s 417(1) and its concluding words

1. Finally, we also agree with the primary judge that the concluding words of s 417(1) - that is, "whether or not the Tribunal had the power to make that other decision" - do not affect our conclusion. Properly understood, the concluding words operated to identify the breadth of the Minister's power under s 417(1). They did not operate to expand the category of Tribunal decisions that enlivened the Minister's power.
2. In Plaintiff S10, French CJ and Kiefel J said of s 417 that it "stand[s] apart from the scheme of tightly controlled powers and discretions" and "confer[s] upon 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": at [30]. As the appellants emphasised, it has been described as "a general humanitarian power" (NATB v Minister for Immigration and Indigenous Affairs (2003) 133 FCR 506; [2003] FCAFC 292 at [58] (Wilcox, Lindgren and Bennett JJ)), the purpose of which is "to enable compassionate and humanitarian relief to be granted" (MZXGJ at [21] (Sundberg J)). As the appellants submitted, it was described in the Explanatory Memorandum to the Migration Reform Bill 1992 at p 72 as an "extraordinary" power.
3. It can readily be accepted that the dispensing power in s 417 had the purpose of giving the Minister a broad and extraordinary power exercisable in the public interest and unconstrained by substantive or procedural requirements set out elsewhere in the Migration Act. However, it remained a power the exercise of which was controlled by the text of the provision conferring the power. It cannot be interpreted in a way that would disregard the clear textual limits on the kinds of decisions that enlivened the power.

1. For the foregoing reasons, the appeal should be dismissed with costs.

I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Wigney, Stellios and Bennett.