Must Does Not Always Mean Must
By Lorenzo Boccabella, Barrister-at-law, specialist in migration law, published on 26 April 2024
The High Court has determined that the word ‘must’ does not always mean must. This is outcome of Miller v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] HCA 13 (17 April 2024)
In the circumstances of this case, the High Court found that applying the word ‘must’ restrictively “would give rise to the farcical (and, in terms of public administration, highly inconvenient) prospect of a contestable preliminary issue in a proceeding before the Tribunal as to whether markings contained in an application (which might be in a language other than English or in the form of a scribble or an emoji), conveyed sufficient information to comply with s 29(1)(c)”. The High Court in a unanimous 5-nil decision stated:
1 “The question in this appeal is whether non-compliance with the requirement of s 29(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act") – that an application to the Administrative Appeals Tribunal ("the Tribunal") for review of a decision "must contain a statement of the reasons for the application" – 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.”
Loosening the handcuffs on the word ‘must’ may have implications elsewhere in migration law.
More expansively the High Court gave fresh momentum to what was said by the plurality in an earlier High Court decision Project Blue Sky Inc v Australian Broadcasting Authority, (1998) 194 CLR 355, [1998] HCA 28 at 388-389 at [91]:
"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."
So what does this guidance say about provisions, which say things like these, (for the subclass 888 Business Innovation and Investment (Permanent) visa):
888.224
Each Business Activity Statement required by the Commissioner of Taxation during the 2 years immediately before the application was made has been submitted to the Commissioner and has been included in the application.
Of particular significance is this:
“All criteria must be satisfied at the time a decision is made on the application.”
It could be considered ‘farcical’ if all the BAS were available and filed in the application at time of decision but could not be considered by the decision maker.
There are many provisions like this in the Migration Regulations.
Also useful was the fact that the High Court saw that the objects of the AAT had some work to do. At [15] the High Court stated:
15.In the exercise of that jurisdiction, the Tribunal is obliged by s 2A(a) and (b) of the AAT Act to pursue the objective of providing a mechanism for review that is "accessible" and that is "fair, just, economical, informal and quick". Section 25(4A) empowers the Tribunal to "determine the scope of the review of a decision by limiting the questions of fact, the evidence and the issues that it considers".
The case revives the old mandatory/directory argument whereby it was held that the failure to comply with some procedural provisions was not decisive. Useful is this regard is the discussion by the plurality in Wei v Minister for Immigration and Border Protection [2015] HCA 51 at [25], [26]),
“The analysis of Gleeson CJ in Plaintiff S157/2002 shows that, notwithstanding the note of caution sounded in Project Blue Sky Inc v Australian Broadcasting Authority, there remains utility in maintaining the traditional terminological distinction between an "imperative" (or "mandatory") duty on the one hand, and a "directory" duty on the other hand, for the purpose of describing whether or not a material breach of an antecedent statutory duty results in an invalid exercise of a decision-making power. That distinction was explained in Clayton v Heffron when it was said:
"Lawyers speak of statutory provisions as imperative when any want of strict compliance with them means that the resulting act, be it a statute, a contract or what you will, is null and void. They speak of them as directory when they mean that although they are legal requirements which it is unlawful to disregard, yet failure to fulfil them does not mean that the resulting act is wholly ineffective, is null and void."
Consistently with Project Blue Sky Inc, what is critical to be borne in mind is that assignation of one or other of those labels to a particular statutory duty imposed by a particular statutory provision marks "the end of the inquiry, not the beginning". To label a particular statutory duty either "imperative" or "directory" is to express the conclusion of a process of statutory construction. Central to that process of statutory construction is an inquiry as to whether the statutory purpose of the duty, when considered within the particular statutory scheme of which it forms part, would or would not be advanced by holding an exercise of decision-making power affected by breach of the duty to be invalid.
Notwithstanding the reasoning in Miller, always put the reasons for bringing the application, in the AAT application. Here is a template set of grounds you may find useful:
The decision of the delegate was unlawful
The delegate’s decision was unreasonable
The delegate failed to properly assess the evidence
The delegate failed to properly respond to or understand the applicant’s submissions and evidence.
The delegate failed to properly apply or wrongly interpreted the Migration Act and associated regulations.
Or in a character mandatory cancellation review the following example is appropriate as a ground:
"[t]he 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".
Note for no known practical reason, all reviews to the AAT about character cases must be filed in the General Division of the AAT NOT the Migration Refugee Division!
The other practice point in this case is that the applicant lost before the AAT, lost before Derrington J in the Federal Court at first instance on judicial review and lost three nil in the Full Federal Court. Then in the High Court the person who had his visa cancelled on criminal grounds, won five nil. The High Court remitted the case back to the AAT differently constituted, for proper consideration
For the full text of Miller go to:
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2024/13.html
Here is what s29 of the AAT Act says in total (as relevant) :
“29 Manner of applying for review
(1) An application to the Tribunal for a review of a decision:
(a) must be made:
(i) in writing; or
(ii) …; and
(b) must be accompanied by any prescribed fee; and
(c) unless paragraph (ca) or (cb) applies or the application was oral—must contain a statement of the reasons for the application; and