Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, JAGOT AND BEECH‑JONES JJ

JOSEPH MILLER APPELLANT

AND

MINISTER FOR IMMIGRATION, CITIZENSHIP

AND MULTICULTURAL AFFAIRS & ANOR RESPONDENTS

Miller v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] HCA 13

Date of Hearing: 14 February 2024

Date of Judgment: 17 April 2024

S120/2023

ORDER

1. Appeal allowed.

2. Set aside the orders made by the Full Court of the Federal Court of Australia on 15 November 2022 and, in their place, order that:

(a) the appeal be allowed;

(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.

3. The first respondent pay the appellant's costs of the appeal to this Court.

On appeal from the Federal Court of Australia

Representation

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)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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).