Materiality on the authorities
57 The Minister submitted that in order for the notice under s 127 to be "invalid" it would be necessary to demonstrate a factual and causal relationship between non-compliance with the provision on the one hand and the matters that rendered an application to the Tribunal invalid on the other. It was submitted that the primary judge erred in failing to so construe the Act and in failing to identify the factual circumstance that rendered the defect in the notice issued to Mr Parata material on the facts of the case. The Minister's submissions were said to rely on principles bearing a "family resemblance" to cases concerning materiality of error by an administrative tribunal in exercising powers of review conferred upon it, as explained by the High Court in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123. Materiality in that context is concerned to identify whether a breach of a relevant condition on the Tribunal's powers is material in the sense that compliance with the condition could realistically have resulted in a different decision: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Bell, Gageler and Keane JJ (at [45]).
58 The present case is one in which an administrative decision maker concluded that it was not authorised to exercise the statutory powers of review conferred under Pt 5 of the Act and so did not embark on a review at all. The context is important. In this case, discernment of jurisdictional error requires identification of the conditions that must exist in order for the Tribunal to embark upon a review, that is, to correctly assume jurisdiction. Of course, the preconditions to the exercise of the Tribunal's powers under Pt 5 are to be discerned as a matter of statutory construction, as are the limits of its powers once its jurisdiction is properly enlivened: see Hossain, Kiefel CJ, Gageler and Keane JJ (at [23], [27]). But an erroneous failure to identify that the preconditions for the conferral of jurisdiction exist will invariably result in the Tribunal wrongly refusing to exercise the powers of review that are conferred upon it under s 348 of the Act. The issue of materiality, in the sense of the seriousness of a breach by the Tribunal of an inviolable limitation governing the conduct of the review will not arise (SZMTA at [45]). Proof of the erroneous denial of jurisdiction is sufficient, without more, to demonstrate jurisdictional error.
59 In this appeal, the Minister's point about "materiality" arises at a different stage in the inquiry. It is not about whether any error made by the Tribunal was material. It is a submission that the Minister's departure from the notification requirements in s 127(2) had no adverse consequences in fact for Mr Parata. This is said to mean that a time limit, after which Mr Parata could not invoke the Tribunal's jurisdiction, started running and that time limit expired before Mr Parata made an application complying with s 347.
60 This raises a question of statutory interpretation. The Minister acknowledges that there is no authority binding on this Court that bears directly on whether there is to be inferred in the statute a requirement to show a material causal connection between the instance of non-compliance with a notice given under s 127 and the instance of non-compliance with s 347(1)(b) to support an argument that time has not commenced to run. Within that vacuum, the Minister submits that this Court should adopt the approach of French CJ, Gummow, Hayne, Crennan and Bell JJ in Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 as applied by the Full Court of this Court in SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129.
61 SZIZO concerned the consequences of a tribunal's non-compliance with statutory procedures in the conduct of a review in a context where there was no question that the jurisdiction to embark upon the review had been properly invoked. The procedures in question concerned a subsequent notice of the hearing of the Refugee Review Tribunal (RRT). The appellants had in fact received timely notice of the hearing, and attended it, but after the RRT made a decision adverse to them they claimed it was vitiated by the fact that the addressee of the notice was not the addressee required by the terms of the Act. Their Honours said:
34 In combination, ss 425A and 441G ensure that an applicant for review receives timely and effective notice of the hearing. They impose obligations which facilitate the conduct of a procedurally fair hearing. However, the manner of providing timely and effective notice of hearing is not an end in itself. The procedural steps dealing with the manner of giving notice are to be distinguished from other components of the statutory statement of the hearing rule, including the obligation to give particulars of adverse information (s 424A(1)) and to invite the applicant to appear to give evidence and to present arguments relating to the issues arising in the decision under review (s 425).
35 While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal's obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal's omission and they do not take issue with the Full Court's characterisation of the result in the circumstances as being 'rather absurd'. The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case.
36 Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal's jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.
(footnotes omitted)
62 In this way, the High Court determined that statutory provisions about the manner of notification of a hearing in the course of the RRT's exercise of review jurisdiction should not be interpreted in a way that would deny legal effect to the RRT's decision in cases where divergence from the prescribed manner does not in fact deprive an applicant of fair notice of the hearing, and therefore does not give rise to any practical injustice. It concerned the application of provisions that were different to the ones under consideration in this case, in the context of the conduct of the review.
63 The facts and provisions in SZOFE are closer to the present case. There, the Full Court was concerned with the consequences of a decision notification which was alleged to have failed to comply with s 66 of the Act in its incomplete specification of the places at which an application for review under Pt 7 of the Act may be lodged.
64 The notification of decision in SZOFE gave the applicant, who lived in Sydney, the addresses of registries of the RRT in Sydney and Melbourne but did not give addresses in Adelaide, Brisbane and Perth. The applicant lodged an application in Sydney in a manner that complied with the requirements of the Act, but subsequently sought to have the decision made on the review set aside because of the asserted non-compliance with the notification provisions. She submitted that the notification was not effective to commence time running under reg 4.13 of the Regulations which (together with s 412 of the Act), required an application to be given to the RRT within a period commencing on the day on which an applicant was notified of the decision. The assumption behind the submission was that an application for review could not validly be made to the RRT (and so could not validly invoke its jurisdiction) if it were made at any time prior to the receipt of a notice strictly complying with s 66. The Minister challenged that underlying assumption.
65 The application was heard by a Full Court, which unanimously dismissed it. Justice Emmett held that the omission to specify all the Registries of the RRT where an application could be made did not constitute non-compliance with the statutory requirement that the notification state "where the application for review can be made" [27] - [28]. His Honour went on to consider whether, if the notification had been non-compliant, the consequence would be that the applicant was not "notified" of the decision within the meaning of the Regulation which required any application to be made within 28 days of that notification. His Honour said at [30]:
… It is not possible to glean, from the language of the provisions in question, an intention on the part of the Parliament to invalidate a process simply because an applicant was not told that an application for review could be lodged at a place which was of no relevance or significance, so far as that particular applicant was concerned. While the Parliament may be taken to have intended that compliance with the requirements of s 66(2) would discharge the Minister's obligation with respect to the giving of timely and effective notice of a decision, it does not follow that it was the intention that any departure from those steps would result in invalidity, without consideration of the extent and consequences of the departure …
66 Buchanan and Nicholas JJ proceeded from the starting point that the Regulation prescribing the time to apply for review fixed both a start date and an end date, so creating a window of time in which a valid application for review could be made. Their Honours said (at [62]):
… the language of the Regulations (regs 4.10 and 4.31) appears to establish an envelope of time within which an application must be made. That is so because they state that the period within which an application may be made 'starts' (reg 4.10) or 'commences' (reg 4.31) when notification of the decision occurs. We do not accept the submission made by the Minister in the present case that if the Regulations have that effect they are inconsistent with the sections which empower them. Each of s 347 and s 412 permit a prescription of time which ends not later than 28 days after notification of the decision. Neither s 347 nor s 412 exclude the possibility that the period between the decision and notification of it will not be a period during which an application might be made. Perhaps that was not intended by the drafter of the regulation but the language is sufficiently clear and must take priority over assumed, or even expressed, intent (Saeed v Minister for Immigration and Citizenship (2010) 84 ALJR 507; 267 ALR 204 at [31]-[33]). It may be that it was not anticipated by those who drafted ss 347 and 412, or by the Parliament, that by delegated legislation a commencement to a prescribed period might be established, but neither section in our view excludes a regulation having that effect provided any period fixed does not extend beyond 28 days after notification of the decision. Neither reg 4.31 nor reg 4.10 has that effect.
67 It was in that context that their Honours considered the role of materiality in determining the legal consequences of an application having been made earlier than the date on which a notice complying with s 66 of the Act had been given. Their Honours said:
64 … The present case is an example of the necessity to test the question whether jurisdictional error has resulted from an alleged failure to comply with a statutory requirement by reference to the particular circumstances of the case in question. It is not necessary to decide in the present case whether the failure to draw to the attention of a potential applicant for review the facility of lodging an application at a registry of the AAT in Brisbane, Adelaide or Perth would constitute a jurisdictional error in some circumstances. It does not do so in the present case.
65 … The applicant's argument can only succeed if the procedural direction in s 66(2)(d)(iv) is first interpreted as requiring notification of all possible places of lodgment (whether with the RRT directly or through the AAT) to all potential applicants for review regardless of where they reside. Furthermore, the argument can only succeed if such a requirement is seen as fundamental to the exercise of any jurisdiction by the RRT even if a potential applicant is effectively notified of a decision and, in response, files an application for review in the required manner and within the required time. Neither premise should be accepted. The reasons why neither premise should be accepted are interconnected.
66 In the case of an administrative tribunal, it is frequently necessary to consider the consequences of a departure from a statutory (or other) requirement before concluding that jurisdictional error has been committed (Craig v South Australia (1995) 184 CLR 163 at 179-180; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]; Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627 at [35]-[36] (SZIZO)). The exercise of jurisdiction by the tribunal must be, in some way, 'affected' by the error or failure alleged. Counsel for the applicant submitted that the principle had no application in the present case because the failure of which the applicant complained did not arise during the process set in train by her application to the RRT but, rather, prevented that process from being commenced. The failure to specify all places at which her application might be made was said to be fatal to any application by her even though there were no adverse consequences, procedural or otherwise, from the alleged failure.
67 However, in our view there cannot be an adequate assessment of whether the requirements of s 66 of the Act have been breached, or of whether the jurisdiction of the RRT was not engaged, without some examination of the consequences of the alleged non-compliance. The judgment of the High Court in SZIZO has expressly drawn attention to the need to evaluate the practical consequences of failure to comply with procedural obligations under the Act. …
(emphasis added)
68 Their Honours concluded (at [69]):
… On the facts of the present case the application made on 2 June 2009 would not have been ineffective to initiate a review by the RRT even if it had been lodged before the date of deemed receipt of the notification because no adverse consequence of any kind would be visited upon the applicant from early receipt of the application by the RRT. It is difficult to envisage a case where such a conclusion would ever be justified but it is not necessary to give a universal answer to that question.
69 Their Honours thus applied principles of materiality so as to conclude that the application in that case validly invoked the jurisdiction of the RRT, notwithstanding that it had been made before the earliest date mandated by reg 4.13. On the plurality's analysis, whether the jurisdiction of the RRT had been validly invoked depended upon whether the applicant was materially prejudiced by the RRT assuming jurisdiction to review the decision, that is, to exercise the powers of review conferred by Pt 7 of the Act.
70 The provisions concerning Pt 7 are cognate to the Pt 5 provisions under consideration in this case, including in respect of the Regulations prescribing the applicable time limits. Like the present case, SZOFE concerned the pre-conditions that must exist for a merits review tribunal to exercise jurisdiction. The question in SZOFE was whether jurisdiction had been wrongly assumed; the question in Mr Parata's case is whether jurisdiction has been wrongly refused. It is desirable that there be some uniformity in approach. Regretfully, however, we do not consider the reasoning in SZOFE should be followed, for two reasons.
71 First, we consider that a valid application for review of a Part 5-reviewable decision can be made to the Tribunal at a time before the review applicant has received a notice that complies with s 127 of the Act. That was Emmett J's view in SZOFE: see [33] - [35]. To the extent that such an application is made before the earlier side of the "window of time" provided for in reg 4.10, it is difficult to comprehend how or why that circumstance should render the review application invalid and so legally ineffective to enliven the Tribunal's powers. As the plurality observed in SZOFE it is difficult to envisage any factual scenario that might justify such a conclusion (assuming materiality to form a part of the test for validity of the review application). That is a compelling indicator that s 348 of the Act should be construed so as to include within the phrase "properly made" those applications that are made to the Tribunal before an expiry date fixed by the statute and that otherwise fulfil the essential conditions for a valid application.
72 The statutory text does not require any different conclusion. Regulation 4.10 speaks of "the period in which an application for review of a Part-5 reviewable decision must be given to the Tribunal". It is open to read that as referring to a period before the expiry of which an application must be made. While r 4.10 goes on to specify the period as having a start date and an end date, the start date is specified because it is necessary in order to calculate the end date, not because of any apparent intention that a person cannot invoke the Tribunal's jurisdiction before that start date. As for the Act itself, s 347(1)(b) requires an application to be made "within the prescribed period". But the constraint on the prescribed period it then imposes does not include a start date. Rather, the purpose and effect of the section is to set an end date, after which a valid application cannot be made. The Regulation can and should be read consistently with that purpose.
73 As will be seen, the status of the applications that Mr Parata has to date made to the Tribunal (and hence the remedies that might be granted on the appeal) turns upon the answer to such questions. Plainly it is in the interests of the parties in the present case to have the status of those applications clarified. It will be necessary to return to this topic in due course.
74 Second, as we have said earlier in these reasons, proof of the erroneous denial of jurisdiction is sufficient, without more, to demonstrate jurisdictional error. In our view, whether the Tribunal had jurisdiction to review the cancellation decision depends on the existence of a jurisdictional fact: it ought not depend on the different or additional materiality test about the consequences of a non-compliant notification of a kind proposed by the Minister or applied by the Full Court in SZOFE.
75 The provisions contained in s 127 and s 347 form a part of a scheme that is intended to define with certainty the essential preconditions for the existence of the Tribunal's jurisdiction, that is, its very authority to decide. In that context, the question of statutory construction is: does the phrase "notification of a decision" in s 347(1)(b) refer only to a notice that complies with the mandatory requirements in s 127(2) objectively assessed, or does the phrase encompass a notice having defects that are not shown to be prejudicial to the review applicant on the facts of the particular case?
76 For the reasons that follow, the former construction is to be preferred.
77 Of critical importance is the circumstance that s 127 and s 347 are to be read together and are each expressed in objective and unqualified terms. Reading them together reveals a direct textual link. Section 347(1)(b) contemplates that the period within which an application must be made ends on a date calculated from "notification of the decision". That corresponds with the language in s 127(2), requiring that "Notification of a decision to cancel a visa must" contain certain information. The inference is that the notification referred to in s 347(1)(b) is a notification of the kind referred to in s 127(2) (while the specific time limit is prescribed in r 4.10, we have already explained why the use of the word 'notice' in that regulation is of no moment).
78 It is consistent with the structure and purpose of the statutory regime to construe these provisions so that a notification that does not comply with the requirements in s 127(2) cannot operate as "the notification" for the purposes of s 347(1)(b). On the Minister's argument (which for present purposes is accepted), non-compliance with s 347 of the Act has the fatal consequence that the application is not "properly made" and so will not enliven the Tribunal's obligation under s 348 of the Act to review the decision. Parliament has not conferred upon the Tribunal the discretion to extend the time limit in accordance with considerations of fairness or by reference to where the interests of justice might lie. In determining whether an application conforms to the requirements of s 347 of the Act, the Tribunal is not authorised to enquire into the circumstances as to why the application does not conform. That tells against a conclusion that Parliament implicitly intended the Tribunal to embark upon an enquiry into whether there exists a causal connection between any instances of non-compliance by the Minister with the mandatory notification requirements under s 127 and any instances of non-compliance by the review applicant with the mandatory requirements of s 347. Had Parliament intended the question of jurisdiction to turn on considerations of fairness assessed in each individual case, it may reasonably have been expected to make express provision for it, mostly logically by introducing some flexibility in the requirements for a valid review application in s 347 of the Act.
79 As mentioned earlier, express provision has been made in s 127(3) to the effect that a failure to give notice of a decision does not affect the validity of the decision itself. It indicates that Parliament had an eye to questions of validity that might arise as a consequence of non-compliance with the obligations in s 127(1) and (2). The construction advanced by the Minister is one that might easily have been expressly provided for in a similar fashion to the saving provision in s 127(3).
80 In our view, the objective and prescriptive text in s 127 and s 347 evinces an intention that ascertainment and enforcement of the time limitation should proceed from an objective assessment as to when the time limit should be calculated from and hence when it expired, based on objective facts that are immediately ascertainable at critical times. Considerations of certainty have been recognised by the Full Court as relevant in the process of statutory construction with respect to other provisions of the Act: Minister for Home Affairs v Brown (2020) 275 FCR 188, Allsop CJ, Kenny and Banks-Smith JJ (at [60]); see also VQAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 900, Heerey J (at [10]).
81 A construction that advances the object of certainty should be favoured, having regard to the significance of the consequences for the individual if the period prescribed under s 347 has expired. Whether a notice purportedly given under s 127 is "the notification" for the purposes of s 347 of the Act and reg 4.10 of the Regulations has real implications for a putative applicant (and, for that matter, the Tribunal) in real time. Considered in context, it is undesirable that the test for validity should turn on an enquiry based on developments subsequent to the notification to be explored in later curial proceedings, as is best illustrated by reference to the facts of Mr Parata's case.