GREENWOOD J:
1 On 31 October 2018, the Court made four orders in this appeal, Order 2 of which directed the first respondent Minister to file and serve written submissions on the issues addressed at [38] to [68] of the reasons for judgment published that day in support of, relevantly for present purposes, Order 2. These reasons are to be read together with the orders made that day and the reasons for judgment published that day: Brown v Minister for Immigration and Border Protection [2018] FCA 1643 (the "preliminary judgment").
2 The matters set out at [6] to [37] of the preliminary judgment are the uncontroversial contextual matters explanatory of the context within which the issues discussed at [38] to [68] of the preliminary judgment arose for consideration.
3 But for a number of matters of context, it is not necessary generally to mention all of those matters at [6] to [37] of the preliminary judgment any further in these reasons. For the sake of convenience, however, the matters at [38] to [68] of the preliminary judgment are set out below:
38 The question raised by this appeal is this.
39 The Minister says that it is well settled that the Tribunal has no power to extend the time period for the lodging of a valid application for review of a Part 5 - reviewable decision "no matter how small the delay or compelling the circumstances, or whatever the reason for the default". The difficulty with that proposition is this.
40 Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act") addresses the topic of the "manner of applying for review". Section 29(2) addresses the topic of the "prescribed time for making applications - general". Generally, s 29 contemplates that the prescribed time for making an application to the Tribunal is within a period commencing on the day on which the decision is made and ending on the 28th day after, relevantly, the day on which a document setting out the terms of the decision is given to the applicant.
41 Of course, those timeframes do not apply because s 347(1)(b) as varied by Regulation 4.10 of the Migration Regulations as contemplated by s 347(5) of the Migration Act has established a period of 21 days as the relevant period.
42 However, s 29(7), (8), (9) and (10) address the topic of "Tribunal may extend time for making application".
43 Those subsections of s 29 are in these terms:
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although the time has expired.
(9) Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:
(a) give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or
(b) require the applicant to give notice to those persons.
(10) If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
44 The review of a Part 5 - reviewable decision is made to the AAT.
45 The question is whether the general power conferred upon the Tribunal under s 29(7) and (8), in conjunction with s 29(9) and (10) of the AAT Act, to extend the time for the making of an application to the Tribunal for review, applies to an application to the Tribunal for review of a Part 5 - reviewable decision under s 347(1)(b) of the Act.
46 The Minister says that it is well settled that the Tribunal has no power to extend the time no matter how small the delay or compelling the circumstances might be for an extension.
47 The first case cited in support of that proposition is a decision of Justice Heydon in determining an application for special leave in SZJQC v Minister for Immigration and Citizenship & Anor [2008] HCASL 66. However, that decision is concerned with the question of whether a power was conferred upon the Refugee Review Tribunal (the "RRT") to extend the 28 day time limit expressed in s 412(1)(b) of the Migration Act and Regulation 4.31(2)(b) of the Migration Regulations for making an application to the RRT. Heydon J concluded that there was "no statutory power for the Tribunal, or anyone else, to extend the time limit, whatever the reasons for the default". That decision was not concerned with statutory powers conferred upon the AAT under the AAT Act.
48 The second case cited by the Minister is a decision of Wigney J in Rana v Minister for Immigration and Border Protection [2014] FCA 1233. However, that decision was concerned with whether a discretion to extend time was conferred upon the Migration Review Tribunal. Wigney J concluded that no power had been conferred upon the MRT to extend the time within which an application could be made, or to otherwise waive the time limitation period prescribed by the legislation, or receive an application, out of time. Again, that decision was not concerned with statutory powers conferred upon the AAT under the AAT Act.
49 The Minister also cites in support of the proposition that there is no power in the AAT to extend the time for making an application for review under s 347(1)(b) as varied by Migration Regulation 4.10, decisions from 1998 and 2001 in the Federal Court.
50 The first is Ismail v Minister for Immigration & Multicultural Affairs [1998] FCA 1654, Wilcox J and the second is Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1710, North J. Both decisions are concerned with the question of whether any power was conferred upon the RRT to extend the time prescribed by s 412(1)(b) of the Migration Act in respect of an "RRT - reviewable decision".
51 There is no doubt that no power was conferred upon the RRT to extend the time prescribed by s 412(1)(b) of the Migration Act for making an application in respect of an RRT - reviewable decision: Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407, Heerey J, Finkelstein J agreeing and Dowsett J agreeing.
52 The Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth) (the "1998 Amending Act") effected amendments to the Migration Act in 1998 which commenced on 1 June 1999. The 1998 Amending Act by s 23 of Schedule 1 effected a repeal of s 501 of the Migration Act and substituted a new s 501.
53 That section consists of a number of subsections and it is not necessary to set out in these reasons any extensive examination of the scope of s 501. However, s 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Section 501(2) provides that the Minister may cancel a visa that has been granted to a person if the Minister reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that the person passes the character test. The character test is set out in s 501(6).
54 Section 500(1) of the Migration Act provides that applications may be made to the AAT for review of decisions of a delegate of the Minister under s 501 of the Migration Act subject to particular decisions which are expressly excluded from review having regard to the totality of s 500.
55 When the Parliament amended the Migration Act by the 1998 Amending Act it also introduced an amendment to s 500 of the Migration Act to insert, relevantly for present purposes, s 500(6B) in these terms:
If a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
[emphasis added]
56 These things should be noted.
57 Section 347 of the Migration Act does not confer on the AAT any power to extend the time limited by the conjunction of s 347(1)(b)(i), s 347(5) and Regulation 4.10 of the Migration Regulations. Moreover, no power to extend time is conferred upon the AAT expressly by any other provision of Part 5 of the Act. It would, of course, be unnecessary for the Parliament to expressly confer a power to extend time upon the AAT in each piece of legislation which confers jurisdiction upon the AAT to conduct a review of decisions made under the relevant Act, in circumstances where the AAT Act itself addresses the very question of whether the AAT has power to extend time in respect of applications made to it.
58 The amendment made by s 21 of Schedule 1 of the 1998 Amending Act to introduce subsection (6B) into s 500 of the Migration Act is particularly relevant.
59 Section 25 of the AAT Act addresses the topic of enactments that provide for applications for review of decisions before the AAT. Section 25(1) provides that an enactment, such as the Migration Act, may provide that applications may be made to the Tribunal for review of decisions made in the exercise of powers conferred by that enactment. It should be noted that s 25(6) of the AAT Act is in these terms:
If an enactment provides for applications to the Tribunal:
(a) that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 29AB, 29AC, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and
(b) those sections and subsections have effect subject to any provisions so included.
[emphasis added]
60 Plainly enough, the Parliament took the view that, in respect of the time limit of nine days (after the day on which a person was notified of a decision in accordance with s 501G(1)), for the making of an application to the AAT for a review of a decision under s 501 of the Migration Act (relating to a person in the migration zone), it was necessary to expressly exclude the application of the general power to extend time under s 29(7), (8), (9) and (10) of the AAT Act. Plainly enough, the Parliament proceeded on the basis that those general provisions conferring power to extend time would otherwise apply.
61 There is no good reason to believe that these general provisions conferring a power on the AAT to extend time do not apply in relation to applications susceptible of review under s 347(1)(b)(i) of the Migration Act in respect of a Part 5 - reviewable decision.
62 A contrary position would only arise as a matter of statutory construction if the word "must" in s 347(1) carried with it an exclusion of the general power to extend time. However, the word "must" is also used in s 500(6B) and that word was not thought by the Parliament sufficient to exclude the operation of s 29(7), (8), (9) and (10) of the AAT Act with the result that the Parliament expressly adopted the further sentence in s 500(6B) quoted in bold at [55] of these reasons.
63 Section 347(1)(b) taken in conjunction with s 347(5) and Regulation 4.10 of the Migration Regulations might be thought to exclude the general power to extend time if those provisions were to be regarded as a comprehensive exclusionary code addressing the totality of the topic. That construction does not emerge from the consideration of the provisions and is inconsistent with, by parity of reasoning, the need to adopt s 500(6B) in respect of decisions under s 501 of the Act.
64 Further, that view, by parity of reasoning, is inconsistent with the approach adopted by the Full Court of this Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at [23], Gray J; R D Nicholson and Stone JJ agreeing. See also AFJ16 v Minister for Immigration and Border Protection [2017] FCA 523, White J at [23].
65 Accordingly, I am satisfied that the power conferred upon the AAT under s 29(7), (8), (9) and (10) to extend time applies in relation to applications for review of a Part 5 - reviewable decision under s 347(1)(b)(i) of the Act.
66 I am satisfied that the primary judge fell into error by holding that there is no power to extend time and I am satisfied that the AAT fell into jurisdictional error by reaching a mistaken conclusion as to the law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82], McHugh, Gummow and Hayne JJ. The AAT ought to have treated the application by the appellant, filed out of time, as an application for an extension of time for the filing of the application for review. There can be no doubt from the terms of the appellant's letter dated 24 February 2017, that the appellant, by filing his application for review on 16 January 2017 in respect of an application for review that was required to be filed by 13 January 2017, was desperately seeking to engage the Tribunal's review jurisdiction by seeking an extension of time for the making of the application to, in effect, 16 January 2017.
67 The order of the Federal Circuit Court of Australia dismissing the appellant's application to that Court ought to be set aside with an order as to costs and in place of those orders an order ought to be made quashing the decision of the AAT and remitting to the AAT the consideration by the AAT of the appellant's application for an extension of time for the making of the application under s 347(1) of the Act.
68 However, before making those orders, it is important to recognise that this question of the extent to which the powers conferred upon the AAT under the AAT Act to extend time in respect of the making of an application under s 347(1)(b) of the Migration Act has not been argued. The Minister, the AAT and the Federal Circuit Court of Australia all acted on the footing that there is no power in the AAT to extend the time for the making of the application for review. Certainly, no basis has been identified by either the AAT or the Federal Circuit Court for concluding that the general power in the AAT to extend time does not apply to a review of the decision in question here. The issue simply has not been addressed at all. Accordingly, I propose to make directions that the Minister put on submissions within two weeks going to the question of whether the Minister accepts or contests the proposition that the AAT has statutory power to extend the time for the making of the appellant's application for review. The appellant is self-represented and is not in a position to make informed observations about the question in issue. However, the Minister is in a position to put on submissions on the question. I will consider the issues further upon receipt of those submissions.
4 As appears from these passages quoted above, the Minister contended that the Administrative Appeals Tribunal (the "Tribunal") had (and has) no power to extend the statutory time period prescribed for an applicant to lodge with the Tribunal an application for review of a "Part 5 reviewable decision" as that term is understood for the purposes of the Migration Act 1958 (Cth) (the "Act") and the Migration Regulations 1994 (Cth) (the "Regulations").
5 In this case, Mr Brown's application for review of the decision of the Minister's delegate to refuse the grant of a Partner (Migrant) (Class BC) visa had to be lodged with the Tribunal within 21 days after Mr Brown was taken to have been notified of the delegate's decision: s 347(1)(b) of the Act and Reg 4.10 of the Regulations. There is, no doubt, that by reason of s 494C of the Act that the appellant is taken to have received the delegate's decision and therefore to have been put on notice of the decision on 23 December 2016. The period specified under Reg 4.10(1)(a) began to run with the result that the first day, after the day that notice of the decision was received, was 24 December 2016 and, therefore, the 21 day period for lodging the application for review with the Tribunal expired on Friday, 13 January 2017.
6 Mr Brown's application for review was not lodged with the Tribunal until Monday, 16 January 2017. Thus, Mr Brown lodged his application on the third day after the expiration of the time limited for lodging an application for review or, put another way, on the first working day after the expiration of the prescribed time period.
7 At para 9 of its reasons, the Tribunal observed that it is "bound to apply the law and has no discretion to accept the application for review out of time, whatever the reasons for applying out of time": the relevant paragraphs of the Tribunal's decision are paras 1 to 3 and 8 to 10 and they are set out at [23] of the preliminary judgment.
8 The primary judge also observed that the Tribunal has no power to extend the time and in the course of explaining why Mr Brown's application for judicial review revealed no jurisdictional error, the primary judge reflected upon the unfortunate circumstances of the case and observed that Mr Brown's dilemma represented a "rather sad state of affairs" and that the dilemma created by lodging his review application out of time was something which was characterised in this way ([25] of the primary judge's reasons quoted at [27] of the preliminary judgment):
This has not been an easy matter. It would take someone with a heart of stone not to be moved not just by the pleas of the Applicant, but especially the pleas of the wife and child, who sit dutifully in the back of [the] Court.
9 The question, however, is: did the Tribunal fall into jurisdictional error in concluding that there is no power to extend the time for lodging an application for review of the relevant class of decision and did the Federal Circuit Court of Australia fall into error in failing to recognise that the Tribunal fell into jurisdictional error (if it did) in its approach to the legal question of whether there is power in the Tribunal to extend time and in this case to extend the time from Friday, 13 January 2017 to Monday, 16 January 2017, the actual day of filing?
10 The appellant before this Court is self-represented.
11 The question of whether the Tribunal has power to extend the time for accepting an application for review out of time was not expressly put in issue by Mr Brown. Rather, Mr Brown sought to urge this Court to "give him a chance" to put his case forward on the implied assumed footing that this Court might have power itself to extend the time for lodging an application for review with the Tribunal. The Court, in considering the appeal generally, gave consideration to the question framed at [45] of the preliminary judgment which, for the sake of convenience, is also set out at [3] of these reasons.
12 The Court formed a preliminary view that the general power conferred on the Tribunal by s 29(7) and s 29(8) in conjunction with s 29(9) and s 29(10) to extend time enabled the Tribunal to consider and, if thought appropriate, extend the time for the lodging of, as applied to this case, Mr Brown's application. The Court formed the preliminary view that to hold otherwise involved an error of law and jurisdictional error on the part of the Tribunal, and error on the part of the primary judge.
13 However, because the question of the Tribunal's power in this regard was not the subject of express submissions, the Court made Order 2 of the orders of 31 October 2018 as earlier described.
14 In response to Order 2, the solicitors for the Minister, MinterEllison, filed submissions on 14 November 2018. The submissions are very brief. Brevity and reduction is indeed desirable. However, the Minister's short submissions proceed upon the assumption, first, that the Court, in reaching its preliminary view, did not have regard to s 24Z of the Administrative Appeals Tribunal Act 1975 (Cth) (the "AAT Act") and second, s 24Z and, in particular, s 24Z(2) demonstrates that the general power to extend time contained in s 29(7), (8), (9) and (10) of the AAT Act is removed from the Tribunal in relation to proceedings in the Migration and Refugee Division of the Tribunal.
15 As to the first matter, the Court did have regard to s 24Z, and that section is the reason s 25(6) of the AAT Act was quoted in its entirety at [59] of the preliminary judgment, as set out at [3] of these reasons, with the reference to s 29 emphasised in bold.
16 As to the second matter, s 24Z was introduced into the AAT Act by the Tribunal's Amalgamation Act 2015 (Cth) (the "2015 Act"). The 2015 Act commenced operation on 26 May 2015. However, Schedule 1 which introduced into the AAT Act the new Division 1A commenced operation on 1 July 2015. The context of s 24Z within the AAT Act, and the text of that section within the new Division 1A, are set out below:
Part IV - Reviews by the Tribunal of decisions
Division 1A - Scope of operation of this Part
24Z Scope of operation of this Part
(1) Except for the provisions specified in subsection (2), this Part does not apply in relation to a proceeding in the Migration Refugee Division.
Note 1: For the conduct of proceedings in the Migration and Refugee Division, see Parts 5 and 7 of the Migration Act 1958.
Note 2: Enactments that authorise the making of applications for review to the Tribunal can add to, exclude or modify the operation of this Part.
(2) The following provisions of this Part apply in relation to a proceeding in the Migration and Review Division:
(a) section 25;
(b) section 42.
[emphasis added]
17 Put simply, the Minister's submissions proceed on the footing that Part IV does not apply in relation to a proceeding in the Migration and Review Division of the AAT but for ss 25 and 42 and because s 29, which contains the general power to extend time, is not itself recited in s 24Z(2), the general power contained in s 29Z(7), (8), (9) and (10) is not preserved and has no operation in relation to such a proceeding.
18 However, s 24Z(1) provides that Part IV does not apply in relation to a proceeding in the Migration and Review Division except for the two provisions recited in s 24Z(2) one of which is s 25. Section 25(6) has something very important to say about s 29. Section 25(6) is in these terms:
(6) If an enactment provides for applications to the Tribunal:
(a) that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 29AB, 29AC, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and
(b) those sections and subsections have effect subject to any provisions so included.
[emphasis added]
19 Accordingly, s 25(6) recognises that if an enactment provides for applications to the Tribunal, that enactment may also include provisions adding to or excluding or modifying the operation of any of the provisions of s 29 of the AAT Act in relation to such applications; and s 29 and its subsections have effect subject to any provisions so included in the relevant enactment where those provisions add to or exclude or modify the operation of s 29 and its subsections. In this case, there is an enactment which provides for applications to the Tribunal, namely, the Migration Act. Section 24Z(1) and (2) expressly preserve the operation of s 25(6) in relation to a proceeding in the Migration and Refugee Division of the Tribunal and thus it is the enactment, the Migration Act, which may, by force of s 25(6), add to or exclude or modify the operation of s 29 and its subsections and, if so, s 29 and its subsections have effect subject to those provisions of the Migration Act which add to or exclude or modify the operation of s 29 of the AAT Act.
20 Moreover, the Explanatory Memorandum for the Tribunal's Amalgamation Bill 2014 (the "2014 Bill") which was the Bill for the Tribunal's Amalgamation Act 2015 (Cth) describes s 25 of the AAT Act as "the core provision that empowers the Tribunal to review a decision where jurisdiction is conferred on it under another enactment" [emphasis added].
21 The Migration Act provides for applications to be made to the Tribunal of the kind made by Mr Brown in this case. The Migration Act, in respect of such applications, does not adopt any provisions which either exclude or modify the operation of s 29(7), (8), (9) and (10) in relation to such applications and therefore s 29(7), (8), (9) and (10) have effect as expressly preserved provisions by s 25(6) consistent with s 24Z(2) of the Act, in relation to a proceeding in the Migration and Refugee Division of the Tribunal. This construction of the statutory provisions is entirely consistent with Note 2 to s 24Z(1) and, of course, is consistent with the continuing operation of s 25 by reason of s 24Z(2) which, by reason of s 25(6), continues to engage with s 29 of the AAT Act subject to the power in the Parliament in a relevant enactment to add to s 29 or to exclude or modify s 29. So far as Mr Brown's application is concerned, the Parliament has not elected, in the relevant enactment, that is, in the Migration Act, to exclude or modify s 29(7), (8), (9) and (10).
22 The solicitors for the Minister place emphasis upon the following provisions of the Explanatory Memorandum to the 2014 Bill as set out below:
Item 39 - Before Division 1 of Part IV
355. Item 39 would insert a new Division 1A, comprising section 24Z, into Part IV of the AAT Act. Part IV provides for the procedure to be followed by the Tribunal on review of decisions. New subsection 24Z(1) would exclude the application of Part IV in relation to proceedings in the Migration and Refugee Division, subject to two exceptions in new subsection 24Z(2).
356. The procedures that apply to review of decisions in the Migration and Refugee Division would continue to be set out in the Migration Act: specifically, in Part 5 in relation to decisions reviewed by the MRT and in Part 7 in relation to decisions reviewed by the RRT. While there are elements in common between the procedure set out in Parts 5 and 7 of the Migration Act and the procedure set out in Part IV of the AAT Act, there are certain different or additional rules that reflect the particular characteristics of the migration and refugee jurisdiction. Schedule 2 contains proposed amendments to the Migration Act, including in relation to procedures for the conduct of reviews.
357. New subsection 24Z(2) would provide that, notwithstanding subsection 24Z(1), sections 25 and 42 of the AAT Act apply in relation to proceedings in the Migration and Review Division:
• Section 25 is the core provision that empowers the Tribunal to review a decision where jurisdiction is conferred on it under another enactment. The Migration Act would confer jurisdiction on the Tribunal to review decisions under Parts 5 and 7 of that Act.
• Section 42 provides for the resolution of disagreements between Tribunal members where more than one member participates in a review. It is appropriate to have a consistent rule across the Tribunal for how such disagreements between members are to be resolved.
23 There is nothing in the Explanatory Memorandum which is inconsistent with the construction to the statutory provisions adopted above.
24 The submissions of the Minister seem to assume that the new Division 1A comprising s 24Z has the effect of excluding the application of s 29 of Part IV in relation to proceedings in the Migration and Review Division because s 29 is not expressly recited in s 24Z(2). However, as already explained, s 25 is described, at least so far as the Explanatory Memorandum is concerned, as the core provision that empowers the Tribunal to review a decision where, as in this case, jurisdiction is conferred upon it under another enactment which in this case, is the Migration Act. The Explanatory Memorandum also makes it clear that the procedures that apply to the review of decisions in the Migration and Review Division would continue to be set out in the Migration Act. The conjunction of that approach, together with the centrality of the core provision of s 25, but particularly the text of s 24Z(1) and (2) and s 25(6), brings about the result that unless and until the Parliament (consistent with s 25(6) or by other amendments) elects to exclude in the relevant enactment (in this case, the Migration Act) the power to extend time contained in s 29(7), (8), (9) and (10), those subsections of s 29, in respect of Mr Brown's application, continue to "have effect".
25 The Tribunal ought to have recognised that it had the power to extend time and ought to have treated Mr Brown's application filed on Monday, 16 January 2017 as a proper or at least a constructive application for an extension of time. In failing to recognise that s 29(7), (8), (9) and (10) have not been excluded or modified (consistent with s 25(6) of the AAT Act), the Tribunal fell into jurisdictional error. The primary judge fell into error in concluding that no power subsisted in the Tribunal to extend the time, and fell into error in failing to recognise jurisdictional error on the part of the Tribunal.
26 Accordingly, the decision of the Federal Circuit Court of Australia is to be set aside and in its place an order quashing the decision of the Tribunal and remitting to the Tribunal Mr Brown's constructive application for an extension of time under s 29 of the AAT Act. The Tribunal is to treat that application as before it and proceed to address it and engage with Mr Brown in relation to it, according to law, subject to any further appeal by the Minister from this Court's decision.
27 The first respondent will be ordered to pay Mr Brown's costs in this Court and Mr Brown's costs in the Federal Circuit Court of Australia.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.