//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2024] HCA 13
appellant. Appeal allowed with costs. Orders of the Full Court of the Federal Court of Australia set aside and, in their place, orders allowing the appeal to that Court, setting aside the primary judge's...
9 cited instruments linked from this judgment.
If you tick the box to appeal a visa cancellation to the Administrative Appeals Tribunal but forget to write why you think the decision is wrong, your appeal is not automatically thrown out. The High Court has ruled that this technical slip does not stop the Tribunal from hearing your case. The Tribunal can simply ask you for your reasons and get on with the review. The law aims for accessible, practical justice rather than trapping people on paperwork errors, especially given the short nine-day deadline for these migration reviews. The Court emphasised that reading the requirement as invalidating applications would be arbitrary and would undermine the very purpose of merits review.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,868 words · generated 24/04/2026
Joseph Miller, a Fijian national holding a Resident Return (Subclass 155) visa, had that visa mandatorily cancelled under s 501(3A) of the (Cth). A delegate of the Minister for Immigration, Citizenship and Multicultural Affairs then determined under s 501CA(4) that there was no "another reason" why the original cancellation decision should be revoked. Notification occurred on 16 March 2021. Because of the strict nine-day time limit imposed by s 500(6B) (which also excluded any extension power under the (Cth)), Miller's migration agent lodged an application for merits review with the Administrative Appeals Tribunal on 24 March 2021. Through an admitted error in selecting the wrong approved form, that application contained no statement of the reasons for seeking review, contrary to the express command in s 29(1)(c) of the AAT Act that an application "must contain a statement of the reasons for the application".
At a directions hearing on 1 April 2021 the Tribunal requested reasons. On 9 April 2021 solicitors for Miller supplied a statement that read, under the heading "Why do you claim the decision is wrong?": "The Minister erred in concluding that there is not another reason why the original decision to cancel the applicant's Resident Return (Subclass 155) visa should be revoked". The parties accepted that this statement would have satisfied s 29(1)(c) had it appeared in the original application. The Tribunal formed the view that its jurisdiction had been engaged notwithstanding the initial omission, conducted a full merits review, and ultimately affirmed the delegate's non-revocation decision.
Miller then sought judicial review in the Federal Court under s 476A of the Migration Act. The Minister conceded that, if the Tribunal had possessed jurisdiction, its ultimate decision was vitiated by jurisdictional error. The Minister's sole argument was that the absence of any statement of reasons meant the application had never been a valid application and had therefore never engaged the Tribunal's jurisdiction at all. Derrington J accepted that submission, issued certiorari to quash the Tribunal's decision, and dismissed the remainder of the judicial review application. The Full Court of the Federal Court (Thawley, Halley and O'Sullivan JJ) dismissed Miller's appeal. The High Court granted special leave and, in a unanimous joint judgment of Gageler CJ, Gordon, Edelman, Jagot and Beech-Jones JJ delivered on 17 April 2024, allowed the appeal, restored the position that the Tribunal's jurisdiction had been engaged, set aside the Tribunal's decision, and remitted the review application to the Tribunal differently constituted for determination according to law. Costs followed the event at every level.
The High Court framed the entire question as one of statutory construction to be resolved by application of the principle in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. That principle asks whether a legislative purpose can be discerned to invalidate any act done in breach of a statutory condition regulating the exercise of power or jurisdiction. The Court emphasised that this inquiry is identical whether the condition is characterised as a condition precedent or a condition regulating exercise; no special rule applies to jurisdictional facts ([17]-[19]).
The joint judgment located s 29(1)(c) within the broader scheme of the AAT Act. Section 25(1)(a) contemplates that other statutes (of which s 500(1)(ba) of the Migration Act is but one example) will confer review rights. Once a valid application is made, ss 27, 30, 40(1)(a), 43(1) and 43(6) define the Tribunal's task as standing in the shoes of the primary decision-maker and remaking the decision on the material before it. The Tribunal is statutorily obliged by s 2A(a) and (b) to pursue an "accessible" mechanism of review that is "fair, just, economical, informal and quick". Procedure is committed to the Tribunal's discretion (s 33(1)(a)) and must be conducted "with as little formality and technicality, and with as much expedition, as ... a proper consideration of the matters before the Tribunal permit" (s 33(1)(b)). The Tribunal may direct further information (s 33(2A)(a)) and may dismiss an application for failure to comply with such a direction within a reasonable time (s 42A(5)(b)).
Against that background the Court noted that s 29(1)(c) requires only subjective information—why the applicant believes the decision is not the correct or preferable one—information that is already implied by the fact of lodging the application. Compliance may be of no practical assistance whatsoever; the Minister himself conceded that the terse statement ultimately supplied would have sufficed if included originally ([22]). The Court contrasted s 29(1)(a) (which governs the manner in which an application "must be made" in writing) with s 29(1)(c), which merely stipulates information the application "must contain" once made ([21]).
The decisive provision was s 29AB, headed "Insufficient statement of reasons for application". That section empowers the Tribunal to request amendment of a statement that does not clearly identify the respects in which the applicant believes the decision is not the correct or preferable one. The Court traced its legislative history. The predecessor inserted in 2005 was accompanied by an Explanatory Memorandum that expressly stated that a request under the new subsection would not mean the original application had failed to contain a statement of reasons; the application would remain valid if the other requirements of s 29(1) were met. The Memorandum described the provision as intended to "encourage" better statements without carrying any "specific sanction" for non-compliance. Nothing in the 2015 amendments that substituted the current s 29AB suggested any change in that legislative contemplation ([13]-[15]).
The Court concluded that to attribute to Parliament an intention to invalidate an application—and thereby instantaneously deprive the Tribunal of jurisdiction—for failure to supply information that is entirely subjective, may be inutile, and can be readily cured by directions made within jurisdiction, would be to impute an intention "arbitrary to the point of being capricious" ([25]). Such a reading would contradict the statutory objectives in s 2A and the command in s 33(1)(b) against technicality. It would produce the "farcical" prospect of contested preliminary arguments about whether a scribble, emoji or statement in a foreign language satisfied the subsection. The legislature could not be taken to have intended such consequences when the text did not compel them.
Prior to this decision the law was unsettled at intermediate appellate level. The primary judge and Full Federal Court had held that the imperative "must" in s 29(1)(c), read with the absence of any express power to waive the requirement, meant that an application lacking any statement of reasons was not an application at all. That view treated the condition as a true jurisdictional prerequisite whose non-fulfilment prevented the Tribunal from embarking on review.
The High Court has now authoritatively determined that the condition does not have that character. The decision aligns s 29(1)(c) with the treatment already given to s 29(1)(b) (the prescribed-fee requirement). Since the 2013 insertion of s 69C, which expressly permits dismissal for non-payment of a prescribed fee, it has been accepted that an application lodged without the fee is nevertheless a valid application that engages jurisdiction; the fee provision is a subsequent procedural step. By parity of reasoning, s 29AB and the Tribunal's general powers supply the remedial mechanism for defective statements of reasons.
The decision also confirms that the Project Blue Sky analysis applies without modification to conditions precedent to jurisdiction. Earlier Federal Court authority that had treated certain AAT filing requirements as absolute jurisdictional facts must now be read in light of the contextual and purposive approach mandated by the High Court. The legislative history, particularly the 2005 Explanatory Memorandum, is treated as a powerful indicator that Parliament did not intend invalidity.
After the decision, an application that omits a statement of reasons (or contains a perfunctory one) is valid and engages the Tribunal's jurisdiction. The Tribunal may request clarification under s 29AB, direct further information under s 33(2A)(a), or, in an extreme case of continued non-compliance, dismiss under s 42A(5)(b). The practical effect is that the strict nine-day deadline in migration matters under s 500(6B) is not rendered a trap for the unwary by an additional, easily remedied technical requirement. The state of the law is now simpler, more coherent with the statutory objectives in s 2A, and less likely to generate satellite litigation about the sufficiency of markings on a form.
The joint judgment opens with a crisp statement of both the question and the answer: "The question in this appeal is whether non-compliance with the requirement of s 29(1)(c) ... results in invalidity of the application such that the jurisdiction of the Tribunal to review the decision is not engaged. The answer is that it does not." ([1]) In plain English: missing the "why I'm appealing" box does not kill your review application.
When discussing the Project Blue Sky principle the Court quoted the well-known passage and immediately applied it: "An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition." ([17]) Translation: just because the Act says "must" does not automatically mean "or else the whole thing is void". Courts must look at the whole scheme to see what Parliament really intended to happen on breach.
The heart of the reasoning appears at what would be paragraph [25] in conventional numbering: "To discern within this overall context a legislative purpose to invalidate an application and thereby to deprive the Tribunal of jurisdiction for want of compliance with a condition which requires the provision of information entirely subjective to the applicant, compliance with which might be entirely inutile and non-compliance with which would be readily remediable by directions made by the Tribunal within jurisdiction, would be to attribute to the legislature an intention which would be arbitrary to the point of being capricious." Plain-English version: it would be crazy and unfair for Parliament to have intended that a blank "reasons" box instantly stops the Tribunal from hearing a genuine complaint, especially when the Tribunal can just ask for the reasons later. Courts avoid reading laws in ways that produce absurd or arbitrary results.
The Court also explained the Tribunal's essential function in language practitioners will quote frequently: the jurisdiction "is in essence to remake the decision under review ... 'to do over again' that which was done by the primary decision-maker" and "to stand in the shoes of the decision-maker" ([6]-[7], citing Makasa and Frugtniet). Translation: the AAT is not a court correcting legal errors from a distance; it steps into the Minister's shoes and makes the decision afresh.
Finally, the legislative history is summarised with approval of the 2005 Explanatory Memorandum's statement that a request under the predecessor to s 29AB "does not mean that the original application did not contain a statement of reasons ... Accordingly if the application has met the other requirements ... the application would not be found to be invalid" ([12]). Translation: even when Parliament first created a power to ask for better reasons it expressly said this did not make the original application invalid. That intention has never changed.
This precedent is triggered whenever an application to the Administrative Appeals Tribunal for review of any decision (not limited to migration matters) is lodged without a statement of reasons or with an exiguous one, yet the application otherwise satisfies s 29(1)(a) and (b). The decision applies indifferently to all jurisdictions conferred on the Tribunal by other enactments because the Court emphasised that the consequence of non-compliance with s 29(1)(c) cannot differ according to the subject matter of the underlying decision ([4]).
The most immediate and practical trigger is any s 501CA(4) non-revocation decision where the nine-day limit in s 500(6B) makes timely lodgement critical. An agent who uses the wrong form, a self-represented applicant whose English is limited, or a person who simply writes "I disagree" or leaves the field blank will all now have validly engaged the Tribunal. The precedent also covers cases where the statement supplied is formulaic ("error of fact and law")—the very mischief the 2005 amendment sought to address without resorting to invalidity.
It does not matter that the Tribunal has later requested and received adequate reasons; the validity of the application is assessed at the moment it is made. Nor does it matter that the reasons ultimately supplied are minimal; the Court accepted that even the single-sentence statement in this case would have sufficed. The only limit is that the document must still be in writing and (where required) accompanied by any prescribed fee. If those core elements are present, the absence or poverty of a reasons statement does not prevent jurisdiction from arising.
The precedent is not confined to migration; it applies to taxation, social security, veterans' entitlements, and any other AAT jurisdiction. Any practice or Tribunal guideline that treated a blank reasons field as automatically fatal to jurisdiction must now be revised.
Although the judgment is only weeks old, its treatment of earlier authority and legislative materials supplies the template for how subsequent courts must approach it. The High Court endorsed the long-standing Tribunal practice, predating the 2005 amendments, of accepting statements that conveyed no more than dissatisfaction with the decision or that the decision was wrong (Re Greenham and Minister for Capital Territory (1979) 2 ALD 137; Re Knight and Comcare (1994) 36 ALD 417). It treated the 2005 Explanatory Memorandum as a reliable guide to legislative purpose, particularly the italicised passage declaring that a request for a further statement would not render the original application invalid. Later courts are therefore likely to regard the Explanatory Memorandum as decisive contextual material when construing the current s 29AB.
The decision applies Project Blue Sky without any gloss or special rule for jurisdictional conditions. Subsequent courts must therefore resist arguments that seek to elevate any "must" in the AAT Act into an automatic invalidating condition. The joint judgment's rejection of the Minister's construction of s 29AB—i.e. that the power to request amendment only arises if a statement has already been provided—further signals that remedial provisions are to be read expansively so as to promote, not defeat, the review jurisdiction.
Because the Court grounded its reasoning in the statutory objectives in s 2A and the anti-technicality command in s 33(1)(b), later decisions can be expected to cite those provisions as powerful textual anchors whenever technical objections to jurisdiction are raised. The judgment's explicit warning against constructions that produce "capricious", "absurd" or "irrational or unjust" outcomes (citing Cooper Brookes, Shahi and Uelese) gives later courts clear authority to prefer the construction that preserves access to review.
Several questions remain live notwithstanding the clarity of the principal holding. First, how minimal can a "statement of the reasons" be before the Tribunal may legitimately form the view that it has no statement at all? The Court accepted that a single sentence asserting error by the Minister would suffice, but left open whether a completely blank field, an emoji, or a statement in an unintelligible language would cross the line into total non-compliance rather than merely "insufficient" compliance amenable to s 29AB. The judgment hints that even "markings ... in the form of a scribble or an emoji" might be arguable, but does not decide the point ([26]).
Second, the precise interaction between s 29AB and the general power in s 33(2A)(a) remains to be worked through. If the Tribunal forms the view that no statement has been provided at all, can it nevertheless issue a direction under the latter provision requiring one, or is it confined to the more specific mechanism in s 29AB? The Court did not need to resolve that nicety.
Third, the decision leaves untouched the treatment of other potential defects in an application. The parties agreed that total non-compliance with s 29(1)(a) (no writing at all) would invalidate the application, while non-compliance with s 29(1)(b) (fee) would not. The boundary between "manner of making" and "information to be contained" may require further litigation in other contexts.
Fourth, in migration cases involving the nine-day limit, questions may arise about whether an applicant can rely on the Tribunal's later acceptance of jurisdiction to defeat a timeliness argument if the original application is later found to have been defective in some other respect. The present decision does not address that intersection.
Finally, the Court noted that breach of a non-invalidating condition may still constitute an unlawful act capable of restraint by injunction, but left unexplored what remedies, if any, might lie against an applicant who persistently refuses to supply reasons despite directions. The power to dismiss under s 42A(5)(b) is available, but its interaction with the obligation to pursue the objectives in s 2A may generate further dispute in particularly obstructive cases.
Practitioners should watch for early Federal Court and Tribunal decisions testing these edges. The core proposition, however, is now settled: a missing or inadequate statement of reasons is a curable irregularity, not a jurisdictional bar.
(b) order 2 of the orders made by the Federal Court of Australia on 4 May 2022 be set aside and, in its place, order that the application for review filed in the Administrative Appeals Tribunal on 24 March 2021 be remitted to the Tribunal, differently constituted, for determination according to law; and
(c) the first respondent pay the appellant's costs of the proceeding in the Federal Court of Australia and of the appeal to the Full Court of the Federal Court of Australia.
P D Herzfeld SC with J G Wherrett for the appellant (instructed by Zarifi Lawyers)
N M Wood SC with K R McInnes for the first respondent (instructed by Sparke Helmore Lawyers)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Miller v Minister for Immigration, Citizenship and Multicultural Affairs
Statutes - Construction - Non-compliance with condition precedent to exercise of statutory jurisdiction - Consequences for validity of exercise of jurisdiction - Where appellant's visa cancelled under s 501(3A) of Migration Act 1958 (Cth) - Where delegate of Minister decided under s 501CA(4) not to revoke original decision - Where appellant's migration agent applied to Administrative Appeals Tribunal ("Tribunal") for review of delegate's decision - Where s 29(1)(c) of Administrative Appeals Tribunal Act 1975 (Cth) provides that application to Tribunal for review of decision "must contain a statement of the reasons for the application" - Where application made by appellant's migration agent contained no statement of reasons for application - Whether non-compliance with requirement of s 29(1)(c) resulted in invalidity of application such that jurisdiction of Tribunal to review decision not engaged - Whether legislative purpose to invalidate application and deprive Tribunal of jurisdiction for want of compliance with requirement of s 29(1)(c).
Words and phrases - "application for review of a decision", "capricious", "condition precedent to the exercise of a statutory jurisdiction", "imperative language", "imperative term", "insufficient statement of reasons", "jurisdiction", "legislative history", "legislative intention", "legislative purpose", "mechanism for review", "must contain", "non-compliance", "permissive term", "statement of the reasons for the application", "statutory context", "statutory scheme".
Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 29(1)(a), 29(1)(b), 29(1)(c), 29AB, 33(1)(b), 33(2A)(a), 40(1)(a), 42A(5)(b), 43(1), 43(6), 69C.
Administrative Appeals Tribunal Amendment Act 2005 (Cth), Sch 1, item 95.
Migration Act 1958 (Cth), ss 500(1)(ba), 500(6B), 501G(1).
"If the Tribunal considers that an applicant's statement under paragraph 29(1)(c) does not clearly identify the respects in which the applicant believes that the decision is not the correct or preferable decision, the Tribunal may, by notice given to the applicant, request the applicant to amend the statement appropriately, within the period specified in the notice."
"Under paragraph 29(1)(c) of the AAT Act, an applicant must include a statement of reasons with their application for review of a decision (unless their application is one covered by paragraphs 29(1)(ca) or (cb)). Item 95 inserts a new subsection 29(1B) into the Act. New subsection 29(1B) enables the Tribunal to obtain a further statement of reasons from the applicant if the Tribunal is of the opinion that the statement provided with the application does not assist the Tribunal in identifying why the applicant (or applicants) believes the decision is not the correct or preferable decision.
This provision is made to overcome the practise of applicants submitting in their statement of reasons that there was 'error in fact and law' without further substantiation, particularly where the applicant has legal representation. Such a statement does not assist the Tribunal in identifying why the applicant believes the decision under review was incorrect.
Where the Tribunal requests a further statement under new subsection 29(1B), paragraph 29(1)(c) of the Act would be taken to have been satisfied for the purposes of determining if a valid application has been lodged. That is, the request of a further statement by the Tribunal under new subsection 29(1B) does not mean that the original application did not contain a statement of reasons for the purposes of that subsection. Accordingly if the application has met the other requirements for a valid application in subsection 29(1) of the Act, the application would not be found to be invalid for failure to comply with paragraph 29(1)(c) of the Act.
There is no specific provision setting out the sanction for non-compliance with a request made by the Tribunal under new subsection 29(1B). The provision is intended to encourage applicants to make more detailed statements so as to assist the Tribunal to resolve matters as early as possible. It is not intended to disadvantage applicants with few resources."
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition."
"Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue."
b) order 2 made by the primary judge be set aside and, in its place, order that the application for review filed in the Tribunal on 24 March 2021 be remitted to the Tribunal, differently constituted, for determination according to law; and
c) the first respondent pay the appellant's costs of the proceeding before the primary judge and of the appeal.
Section 29(1)(d), (7), (8), (9) and (10) of the AAT Act. ↑
See s 7 of the Administrative Appeals Tribunal Regulation 2015 (Cth). ↑
Miller and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1623. ↑
Miller v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 489. ↑
Miller v Minister for Immigration, Citizenship and Multicultural Affairs (2022) 295 FCR 254. ↑
Port of Newcastle Operations Pty Ltd v Glencore Coal Assets Australia Pty Ltd (2021) 274 CLR 565 at 594 [86]. ↑
Minister for Immigration and Border Protection v Makasa (2021) 270 CLR 430 at 447 [50]. ↑
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]. ↑
Item 46 of Sch 1 to the Tribunals Amalgamation Act 2015 (Cth). ↑
See s 18 of the Administrative Appeals Tribunal Amendment Act 1977 (Cth). ↑
Item 2 of Sch 5 to the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth). ↑
Administrative Appeals Tribunal Amendment Act 1993 (Cth). ↑
Section 9 of the Administrative Appeals Tribunal Amendment Act 1993 (Cth), inserting s 29A of the AAT Act. ↑
Item 51 of Sch 1 to the Tribunals Amalgamation Act 2015 (Cth). ↑
Item 95 of Sch 1 to the Administrative Appeals Tribunal Amendment Act 2005 (Cth). See item 47 of Sch 1 to the Tribunals Amalgamation Act 2015 (Cth). ↑
Australia, Senate, Administrative Appeals Tribunal Amendment Bill 2004, Explanatory Memorandum at 27 (emphasis added). ↑
See Re Greenham and Minister for Capital Territory (1979) 2 ALD 137 at 140-141; Re Knight and Comcare (1994) 36 ALD 417 at 425 [32]. ↑
eg Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 434 [9]. ↑
eg Australian Broadcasting Corporation v Redmore Pty Ltd (1989) 166 CLR 454 at 459-460. ↑
See Australia, Senate, Administrative Appeals Tribunal Amendment Bill 2004, Explanatory Memorandum at 27. ↑
See SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 at 321 [77], 344 [166], 354 [206]. ↑
Federal Commissioner of Taxation v Barton (1957) 96 CLR 359 at 368. ↑
Cooper Brooks (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 322; Shahi v Minister for Immigration and Citizenship (2011) 246 CLR 163 at 177 [38]. ↑
Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 at 509 [48]; Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 217 [45]. ↑
Miller
Minister for Immigration, Citizenship and Multicultural Affairs
[2021] AATA 1623
(2022) 295 FCR 254
(2021) 274 CLR 565
(2021) 270 CLR 430
(2019) 266 CLR 250
(1998) 194 CLR 355
(2019) 264 CLR 421
(1989) 166 CLR 454
Appeal allowed with costs. Orders of the Full Court of the Federal Court of Australia set aside and, in their place, orders allowing the appeal to that Court, setting aside the primary judge's order dismissing the judicial review application, quashing the Tribunal's decision, and remitting the application for review filed on 24 March 2021 to the Tribunal differently constituted for determination according to law. The first respondent to pay the appellant's costs at all levels.
(2005) 228 CLR 294
(1957) 96 CLR 359
(1981) 147 CLR 297
(2011) 246 CLR 163
(2013) 249 CLR 493
(2015) 256 CLR 203