Kumar v Minister for Immigration and Border Protection

The High Court has allowed an appeal against a decision the Federal Court of Australia on the extension of time limits on visa applications that fall on a weekend. The appellant received the respondent’s application for a temporary student visa on a Monday and rejected it on the basis that the applicant must hold a temporary graduate visa, which for the respondent had expired on the Sunday immediately before. North J allowed the applicant’s appeal, holding that s 36(2) of the Act Interpretation Act 1901 (Cth), which provides that where an act ‘requires or allows a thing to be done’ and the ‘last day’ for doing it is a Saturday, a Sunday or a holiday, then the thing may be done on the next day that is not one of those days. Before the High Court the Minister contended that the sections in the Migration Act 1958 (Cth) relating to the application procedures do not impose a time limit or provide for a ‘last day’ for something to be done, but instead provide for particular legal consequences that follow depending on the status of the respondent at the time of the application.

The Court, by a 4:1 majority, allowed the appeal. The plurality (Bell, Keane and Gordon JJ) held that the Act did not impose a time limit either expressly or by necessary implication (at [25]). While North J and the respondents had relied on Zangzinchai v Milanta [1994] FCA 1361 (see at [11]ff),  which dealt with the predecessor wording of s 36(2) in the context of immigration decision review appeals, the plurality held that the 2011 amendments did not expand the scope of s 36(2) (at [20], see also [19]). Instead, those amendments, which substituted ‘require’ for ‘prescribed’ and broke up a single sentence into sub-paragraphs, did not, contrary to North J’s analysis, have any substantive effect on the operation of the provision and was merely aimed at making it more ‘”user friendly”‘ (at [20]). The explanatory memorandum notes accompanying the change did not provide any support to conclude that the amendments broadened the scope of s 36(2): at [22]. Consequently, where an Act ‘requires or allows a thing to be done’, expressly or by necessary implication, and the last day for doing it is a weekend day or public holiday, s 36(2) allows that the thing may be done on the next day that is not a Saturday, Sunday or holiday (at [24]). As applied here, no time limit was imposed on the making of an application for a 572 visa, and on the day that application was validly made, the respondent was not a holder of a 485 visa, and did not meet the criteria specified for the grant of a 572 visa (at [25]). While the last day on which the respondent could have applied was a Sunday, that does not engage s 36(2), which provides a rule on the time for the doing of a thing that an Act requires or allows to be done: ‘It does not otherwise alter the rights or obligations conferred or imposed by the Act’, and cannot be read as deeming something done at an earlier date: at [25]).

Gageler J agreed with the orders proposed by the plurality. His Honour emphasised that s 36(2) was a straightforward extension of time provision, applying to statutes that require or allow a thing to be done and extending the last day for doing that thing to the next day after a weekend or holiday (at [27]). After providing several illustrations of how the section operates (at [28]–[29]) and emphasising that it gives something done on the next day the same legal effect it would have had if the thing had been done within the period expressly required or allowed by the statute (at [30]), Gageler J noted that the respondent’s arguments effectively sought to make s 36(2) apply to his circumstances: this contention problematically conflated the thing allowed to be done by the respondent with the things required to be done by the Minister: at [32]. Whether the respondent had made the application on the Sunday, when he still held his 485 visa, or on the Monday, when that visa had expired, his making of a valid application had the same legal effect: the Minister would consider it under the relevant provisions, and criterion of holding a 485 visa could not be met, requiring the Minister to refuse to grant the visa (at [33]). ‘Section 36(2) was not engaged, and had no relevant operation’: at [33]. Gageler J also noted that, in his opinion, Zangzinchai was a different case as it related to the timing of an appeal to the Immigration Review Tribunal, rather than the criteria for the grant of a visa (at [34]).

Nettle J, in dissent, held that s 36 did operate to extend the application date to the Monday on which the respondent could make an application for a 572 visa that could be granted under the Migration Act. Nettle J stated that there was ‘some force’ in North J’s conclusion that the 2011 amendment substantially changed the meaning of s 36(2), noting, among other things that ‘prescription’ suggests a more explicit stipulation than the more general ‘require’ which replaced that term (see at [54]) and that the explanatory memorandum stated the amendment was ‘”intended to capture a broader range of situations”‘ (at [55]). But Nettle J held that it was unnecessary to decide this point, because even if the 2011 amendment did not alter the substantive effects of s 36(2), there were good reasons in this matter to depart from the reasoning in Zangzinchai on the application of s 36 to the 572 visa consideration provisions of the Migration Act. After reviewing several earlier authorities (see [58]), Nettle J drew from them (specifically Thomson v Les Harrison Contracting Co [1976] VR 238) a purposive principle that a time limitation section should not be artificially confined only to apply to sections that expressly use the term ‘the time limited’, but should apply also to ‘provisions which, not in terms or directly, but in substance or indirectly, limited the time in which something was to be done’: at [61]. As applied here (at [62]):

By allowing a non-resident to make an application for a visa of a particular class, and by providing that an application not be capable of grant under s 65 unless it satisfies the criteria prescribed by the Regulations (one of which was, in this case, that the applicant be the holder of a current Subclass 485 visa), ss 45 and 65 together ‘allow’ a non-citizen who is the holder of a current visa as required by the Regulations to make a visa application and indirectly limit the time in which that may be done to the period during which the applicant’s current visa remains in force.

Moreover, in argument the Minister did not confront the reasoning or precedent relied on by Nettle J here (at [63]). Nettle J then rejected the arguments that ss 45 and 65 would a deeming or fiction in making the applicant still a holder of a 485 visa that had expired (at [65]ff), rejected the Minister’s comparisons with other decisions on s 36(2)’s operation on bankruptcy and life insurance statutes (at [70]ff), and finally rejected the contention that the Court here should not depart from the approach in Zangzinchai as the 2011 amendments substantially enacted the construction adopted in that case, because the Zangzinchai approach ‘does not appear to be correct’ (at [76]ff).

High Court Judgment [2017] HCA 11 8 March 2017
Result Appeal allowed
High Court Documents Kumar
Full Court Hearing [2016] HCATrans 297 9 December 2016
Special Leave Hearing [2016] HCATrans 197 2 September 2016
Appeal from FCA [2016] FCA 177 23 February 2016
Trial Judgment, FCCA
[2015] FCCA 2573 14 September 2015
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About Martin Clark

Martin Clark is an PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor in legal theory, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.

One thought on “Kumar v Minister for Immigration and Border Protection

  1. This is a lot of effort to solve an administrative anomaly – reminds me of Save Our Suburbs v NSW Electoral Commissioner 2002 that resulted in retrospective legislation dealing with an exuberant Commissioner.

    (PS: the anti spam words were amusing in light of WA result – alp loped…

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