THE APPEAL
38 In dealing with the application for extension of time, I have said that the Minister has strong prospects of success on an appeal. Having heard the argument on the appeal itself, I have concluded that the matters recorded at [16]‑[26] and [28] lead to the conclusion that the appeal should be allowed. It is necessary, however, to deal with the respondent's submissions on the appeal that were not deployed on the extension application.
39 The respondent submits that the Act does not prevent the Minister notifying a decision on more than one occasion, either because there is doubt whether the duty imposed by s 66 had been discharged or because it is expedient to do so. It was said that Minister for Immigration and Multicultural Affairs v Bahwadj (2002) 209 CLR 597 shows that where a person exercising statutory power realises a purported exercise is not legally effective, the person can re‑exercise the power. In that case an applicant's agent informed the Immigration Review Tribunal that the applicant was unable to attend a hearing and wanted a later hearing date. By error that information was not drawn to the attention of the member constituting the Tribunal, who made a decision adverse to the applicant. On discovering the error, the Tribunal held a further hearing and decided in the applicant's favour. The Minister's application to set aside the second decision on the ground that the Tribunal was functus officio once it had made the first decision was dismissed. Four members of the Court held that the Tribunal's first decision was made in jurisdictional error (denial of natural justice), did not constitute a review as required by the Act, and was of no legal effect.
40 The present case is quite different. Here the Tribunal found, correctly, that it did not have jurisdiction to entertain the appeal. Once it had done that, it was functus officio. If it had purported to re‑exercise its power, any "decision" would have been of no effect. The essence of Bahwadj is that the Tribunal's first decision was a nullity, and thus no obstacle to a fresh decision.
41 The respondent relied on s 33(1) of the Acts Interpretation Act 1901 (Cth) for the contention that the requirement in s 66 of the Act that the Minister notify an applicant of the decision whether to grant or refuse a visa can be exercised from time to time. That subsection provides:
Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as the occasion requires.
As I understood it, this provision was deployed in support of the contention that a subsequent notification could displace an earlier one.
42 Section 33(1) was mentioned in Bahwadj. There the Minister argued that the subsection does not confer any power to make a further decision, because the Act disclosed an intention to the contrary. The High Court held that once it was seen that the first decision was a nullity, the Tribunal was required to revisit the matter because its duty remained unperformed. At [53] Gaudron and Gummow JJ said this was so "regardless of s 33(1)". At [156] Hayne J said that s 33(1) did not require consideration because the Tribunal had performed its duty only once, by the making of the second decision.
43 Whatever the scope of s 33(1), it cannot in my view operate in the way in which the respondent seeks to have it apply, namely to invalidate or cancel the legal effect of an earlier performance of a duty. The subsection says nothing about displacing the legal effect of an earlier exercise of power or performance of duty. That it does not have that effect is supported by the contrast provided by subs (3):
Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by‑laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend or vary any such instrument.
44 In Dutton v Republic of South Africa (1999) 162 ALR 625 at [32] Branson J observed that s 33(1) does not refer to the withdrawal or cancellation of the exercise of a power. Her Honour pointed to the contrast between subss (1) and (3) in this respect.
45 The observations of Hely J in Minister for Immigration and Multicultural Affairs v Watson (2005) 145 FCR 542 at 547 are to the same effect:
In my view, s 33(1) … (assuming it applies) does not have the effect that once there is a valid exercise of the s 501(2) power to cancel a visa, the visa can be effectively restored to the former holder by a second exercise of that power. Whilst the Minister has a discretion whether or not to exercise the s 501(2) power, the power in question is simply a power to cancel a visa which, if validly exercised, results in the former holder acquiring the status of an unlawful non-citizen with the consequences prescribed by the Act. There is no occasion for the re-exercise of the power once it has been validly exercised.
46 In Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 626 the Minister refused to grant a temporary entry permit. Later the applicant asked that the refusal be reviewed in the light of additional material. That request was refused. The applicant sought judicial review of both refusals. The ground of review of present relevance concerned the second refusal, which was attacked on the ground that the decision maker erroneously concluded that he did not have power to reconsider his decision. French J considered whether the power to grant or refuse to grant an entry permit carried with it a power to reconsider an earlier exercise of the power. His Honour concluded it did not. He said at 444:
While it may be accepted that a power to reconsider a decision made in exercise of a statutory discretion will have the advantage of convenience, it cannot always claim the virtue of necessity. And in the context of the Migration Act as it presently stands with specific provisions for review of decisions and the making of regulations relating thereto, I do not consider, in the absence of clear words, that it would be proper to imply such a power.
47 French J did not refer to s 33(1). However, in Burgess v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 58 at 62 Katz J expressed the view that his Honour would have come to the same conclusion had he taken that provision into account.
48 If, contrary to my view, s 33(1) could in an appropriate statutory context operate in the manner sought by the respondent, it could not do so in the present case because the notification scheme of the Act, especially s 494C, discloses a contrary intention. The prescriptive timing regime that runs through the Act is inconsistent with the notion that, as the Minister put it, "you can reset the clock as often as you like by just sending a new letter".
49 In support of the contention that a subsequent notification cancels the effect of an earlier one, the respondent relied on H v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 153. There notification had first been sent to the appellant's agent and was later handed to the appellant in person. Notification to the agent gave the appellant more time in which to lodge his application for review. The Refugee Review Tribunal dismissed the application on the ground that it was out of time. The primary judge dismissed an appeal from that decision. The appellant's appeal was upheld by the Full Court. The Court agreed with the Tribunal's decision so far as it concerned personal notification, but said that the Tribunal had overlooked the notification to the agent. At [9] their Honours said:
On the basis of this notification, there are two alternative bases for concluding that the application for review was within time. The first is that the notification to the migration agent was the only relevant notification of the decision, so that the application for review could be lodged at any time before 14 November. This approach assumes that once the Minister first notified the appellant of the decision, that exhausted the Minister's obligation under s 66. If that be correct, any further "notifications" (for example, by personally serving the appellant with a copy of the decision), would not be notifications under the statute and would have no legal consequence.
The second basis for holding the application to be within time assumes that the second notification cannot be ignored, and that it brought into operation a second timetable within which the applicant could file a notice of review. In that event the applicant has been given two inconsistent timetables within which to make application for review and, in the absence of any statutory basis for giving one priority over the other, the appellant was entitled to choose the timetable that best suited him. That is what occurred in this case, albeit the appellant did not know he was making a choice.
50 In Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419 the appellant relied on the second basis in H, which the Full Court described at [23] as an "ambitious claim". At [25] their Honours said it was unnecessary to express any view on the correctness or otherwise of the second basis in H and in particular "whether there can be two operative and effective notifications made". They were of the opinion that in the case before them two methods of notification were not utilised giving rise to inconsistent timetables.
51 In my view the Full Court in H was not endorsing both alternative bases. Only one can be the correct approach. An assumption is part of each of them. I understand the Court to have said that on whichever of the two bases argued was the correct one, the application for review was within time. It was thus unnecessary to decide which was the true view. For the reasons I have given, the first basis is to be preferred. That would appear to have been the opinion of the Court in Zhang.