The appellant's contentions
25 The only ground of appeal pressed in the submissions to this Court is that Kirk was wrongly decided, and that, as a result, the primary judge's conclusion regarding the consequences of failure to comply with s 347 was also erroneous.
26 Dr John Griffiths, who appeared on behalf of the appellant on a pro bono basis, submitted that s 347, upon its proper construction, did not prevent the Tribunal from reviewing an MRT-reviewable decision merely because the application for review, which was made in the approved form, and which was given to the MRT within the prescribed period, was not accompanied by the prescribed fee. He submitted that, although a failure to comply with the requirements of ss 347(a) or (b) would have that effect, a failure to comply with s 347(c) (within the prescribed period) would not.
27 Dr Griffiths put his case on two separate bases. He submitted firstly that, provided the prescribed fee was paid prior to the time fixed for the hearing of the review, there was no impediment to the MRT proceeding to determine the application. Alternatively, he contended that, provided the applicant sought a waiver of the prescribed fee within the prescribed period, the MRT could hear the matter, even if the waiver was refused after the expiration of the prescribed period but the prescribed fee was paid within a reasonable time thereafter.
28 In support of his first and broader submission, Dr Griffiths contended that the primary judge erred in principle; he had failed to undertake the task of construing s 347 in accordance with the approach laid down by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391. There McHugh, Gummow, Kirby and Hayne JJ criticised the continuing use of the "elusive distinction between directory and mandatory requirements". Their Honours approved, as "the better test" for determining the issue of validity, the approach which New South Wales courts had taken in recent years, namely:
"…whether it was a purpose of the legislation that an act done in breach of the provisions should be invalid…. In determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute."
29 Dr Griffiths submitted that, although the mandatory/directory distinction arose for consideration in Project Blue Sky in the context of the exercise by a public authority of a statutory power in breach of a condition, rather than in the context of the necessity for compliance with a procedural requirement, there was no reason to doubt that their Honours' comments concerning the mandatory/directory distinction were of general application. He submitted it was significant that several of the New South Wales cases cited with approval by their Honours in Project Blue Sky, as identifying and applying "the better test", were "procedural requirement" cases, for example Tasker v Fullwood [1978] 1 NSWLR 20; Hatton v Beaumont [1977] 2 NSWLR 211; and National Mutual Fire Insurance Co Ltd v Commonwealth [1981] 1 NSWLR 400.
30 Dr Griffiths referred to the following passage in Project Blue Sky at 390:
"The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the enquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory, and, if directory, whether there has been substantial compliance with the provision."
31 Dr Griffiths submitted that the primary judge's attention had apparently not been drawn to Project Blue Sky and its approval of "the better test" as applied in New South Wales. He said the same was true of the judgment of Lehane J in Kirk. Dr Griffiths also asserted the primary judge in the present case had focused exclusively upon the question whether s 347(1)(c) imposed a mandatory, rather than a directory, requirement. Having concluded that the requirement was mandatory, his Honour had assumed that non-compliance invalidated the application for review.
32 Dr Griffiths challenged the primary judge's finding that the requirement in s 347(1)(c) was mandatory. He submitted that his Honour had been unduly influenced by the use of the word "must" in the opening line of s 347(1). He submitted that the use of that word was a relevant but not determinative consideration. He referred to the observations of Hope JA in Hatton v Beaumont at 215:
"…although the language used in the statute or subordinate legislation must always be considered, most of the cases concerned with the distinction between mandatory and directory provisions have been cases where the language has not resolved the question. Although the statute uses the words 'shall', or appears to require the fulfilment of some condition, it does not say expressly what is to happen if the requirements are not complied with. In order to decide whether 'nullification' is to be implied, the courts have looked to the scope and object of the statute and in so doing have considered, inter alia, the importance of the provision that has been disregarded and the relation of that provision to the general object intended to be secured by the legislation."
33 Dr Griffiths noted that the decision of the New South Wales Court of Appeal in Hatton v Beaumont had been upheld by the High Court - see Hatton v Beaumont (1978) 20 ALR 314 at 319 where Jacobs J, with whom Gibbs ACJ, Stephen and Aickin JJ agreed, referred to the reasons of Hope JA with approval.
34 Dr Griffiths submitted that the primary judge had also failed to appreciate the significance of s 348. Section 348(1) provides that the MRT is obliged to review an MRT-reviewable decision "if an application is properly made under s 347 for review". Section 348(2) provides that the MRT is prohibited from reviewing, or continuing to review, a decision in one specified circumstance only, namely where the Minister has issued a conclusive certificate under s 339. Section 348 is silent as to the effect of a failure to comply in a timely manner with s 347(1)(c). That was said to be in stark contrast with the provisions which were considered in Wielgus v Removal Review Authority, referred to in Kirk. The legislation there relevant expressly provided that the review body must not consider an appeal unless, inter alia, the notice of appeal was accompanied by the prescribed fee. It was submitted that the Commonwealth legislature could have adopted that approach, but had conspicuously failed to do so.
35 Dr Griffiths invited this Court to have regard to the scope and object of s 347(1)(c), as well as the Act as a whole. He submitted that the primary judge ought to have had regard to the importance of timely payment of the prescribed fee to the entire legislative scheme, and to the relationship between that requirement and the general objects intended to be served by the Act. That approach, he submitted, might mean that different consequences would flow from a failure to comply with different procedural requirements, notwithstanding the fact that each of those requirements was prefaced by the word "must". Thus in Hatton v Beaumont it was held that the requirement in reg 14(a) of the Liquor Act Regulations (NSW) that an appellant "shall" lodge a notice of intention to appeal within 21 days of the date of adjudication was mandatory, but the requirement in reg 14(e) that an appellant "shall" within 7 days of lodging his appeal pay a deposit of $20.00 or give a recognisance in that amount was not mandatory.
36 Dr Griffiths submitted that it is one thing to conclude that an appeal is invalid if the appellant fails to give notice of intention to appeal within a prescribed period - that reflects the legislature's evident concern that migration appeals be brought promptly. It is quite another thing to say that an appeal is invalid if the appellant fails to pay a fee within the stipulated period - that requirement serves a different purpose. The purpose was explained in the Second Reading Speech to the Migration Legislation Amendment Act 1989 (Cth) which made provision, for the first time, for the making of regulations to permit the charging and recovery of fees for review applications. The then Minister said that the new provision for the charging of fees was intended to implement what he described as the "user pays principle". Dr Griffiths submitted that payment of a prescribed fee within the prescribed time for lodging an application for review was not essential to give effect to that principle, provided only that the fee was paid before the review was conducted. He referred to the observation of Hope JA in Hatton v Beaumont at 223 to the effect that the importance of timely compliance with the requirement of a deposit - which Dr Griffiths said was a requirement of the type contained in s 347(1)(c) - "to the appeals procedure, to the interests of the respondent or to the Licensing Court is small indeed".
37 Dr Griffiths also referred to the Second Reading Speech to the Migration Reform Act 1992 (Cth), which introduced s 117(1)(c) into the Act, that being the statutory precursor to s 347(1)(c). He submitted that it was evident from that speech that a central purpose of the new provisions, in both the 1989 and 1992 amendments, was to establish a system of review of migration decisions which was independent, fair, economical, informal and quick. The legislative reforms were said to constitute "an enhanced scheme of independent merits review" and to broaden review rights for visa applicants. He submitted that, in the light of such statements of purpose, the scope of the review regimes established by those Acts would be unduly restricted if non-timely compliance with fee requirements were permitted to nullify an otherwise valid review application.
38 Finally Dr Griffiths submitted that to attribute to the legislature an intention to nullify review for late payment of fees would sit uncomfortably with the fact that the legislature itself must have contemplated the possibility of late payment of fees when it enacted s 504(1)(b) of the Act, empowering the making of regulations concerning "the remission, refund or waiver of fees". Regulations have been promulgated in accordance with this provision - see reg 4.13 of the Regulations. Dr Griffiths submitted it would have been obvious to the legislature that the processing of applications for waiver of fees would inevitably take up some, if not all, of what is a relatively short prescribed period. He submitted that the fact that Mr Braganza was given advice in the letter of 14 October 1999 to lodge the prescribed fee within the prescribed period, even though he might have an application for waiver pending, could not bear upon the proper construction of s 347(1)(c).
39 In support of his second and narrower submission, Dr Griffiths contended that s 347(1)(c) should be construed in the context of the Act as a whole, and in light of the fact that the legislature had made express provision, in s 504(1)(b), for the making of regulations governing waiver of fees. He submitted that, when it enacted s 504(1)(b), the legislature must have recognised that it might not be possible in every case for the MRT to determine an application for waiver within the prescribed period. He submitted that s 347(1)(c) should be construed in a manner which recognised that fact, provided that the language of the section was open to that construction.
40 Dr Griffiths submitted that s 347(1)(c) could be so construed without doing violence to its terms. He submitted that the construction for which he contended was justified by the words in brackets "if any" in that paragraph . These words allowed for the possibility that, within the prescribed period, there would be an application lodged with the MRT to waive fees which could not be determined immediately, and which might only be determined after the expiration of that period. Whether or not that occurred was a matter entirely outside the control of the applicant.
41 Dr Griffiths submitted that, in construing the words of a statute, "the grammatical and ordinary sense of the words is to be adhered, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest" of the Act - Grey v Pearson (1857) 6 HLC 61 at 106 per Lord Wensleydale; see also Australian Boot Trade Employes' Federation v Whybrow & Co (1910) 11 CLR 311 at 341-342 per Higgins J; and Broken Hill South Ltd v Commissioner of Taxation (NSW) (1937) 56 CLR 337 at 371 per Dixon J. To construe s 347(1)(c) as the primary judge had done would produce just such an inconsistency, since the legislature could hardly have intended to confer upon an applicant a right to seek a waiver of fees which was incapable, in any practical sense, of being exercised. It was said to be highly unlikely that the legislature had intended that an impecunious applicant seeking review of an MRT-reviewable decision should be denied the right to that review unless he or she somehow procured the not insubstantial sum of $1,400, and paid it to the MRT within the prescribed period. It was also unlikely that the legislature intended that an application to the MRT for waiver of the fee, because it had caused or was likely to cause "severe financial hardship", should itself be accompanied by the fee which the applicant claimed not to be able to pay. It would be of little solace to an applicant in that position to be told that he or she might recover the fee later, if the waiver were granted.
42 Finally, Dr Griffiths referred to s 15AA of the Acts Interpretation Act 1901 (Cth) and submitted that the construction for which he contended promoted the underlying purpose or object of the Act and was therefore to be preferred to one which did not.