Jackson and Minister for Immigration and Citizenship [2011] AATA 60 (4 February 2011)

Last Updated: 4 February 2011

CATCHWORDS – PRACTICE AND PROCEDURE – refund of application fee –
remittal to Minister in the course of the proceeding – citizenship granted – proceeding to continue or applicant to withdraw – whether termination can be certified to be favourable if application is dismissed upon withdrawal or if decision under review is affirmed or affirmed by consent – application made prior to amending regulations - whether full refund or reduced refund amount – timing of favourable termination – current regulations apply.

WORDS AND PHRASES – making an application for review; lodging an application for review.

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151
Hong Ye v Minister for Immigration and Multicultural Affairs [1998] FCA 341
North Australian Aboriginal Legal Aid Service Inc [2004] HCA 31; (2004) 218 CLR 146; 206 ALR 315; 78 ALJR 977
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330; 151 ALR 147; 72 ALJR 152; 96 LGERA 330
Re Gallagher and Minister for Immigration and Citizenship [2011] AATA 10
Re Ha and Australian Community Pharmacy Authority [2009] AATA 305

Acts Interpretation Act 1901, s 13(3)
Administrative Appeals Tribunal Act 1975 ss 2A, 3(1), 29, 29(2), 29(3), 29(4), 29(1)(d), 29(5), 29(6), 29(7), 29A, 29A(1), 29A(2), 42A(1A) & (1B), 42C, 42D, 42D(2), 42D(4), 42D(4)(b), 42D(5), 43, 43(1)(a), 68, 68(2) and 70
Administrative Appeals Tribunal Amendment Act 2005 ss 2(1) and 3
Australian Citizenship Act 2007
Financial Management and Accountability Act 1997, ss5 and 24N(3) and (4)
Legislative Instruments Act 2003 ss 4(1), 5, 12(1)(a), 12(2), 13(1), 15 and 15(c)
Local Government Act 1958 (Vic)
Magistrates Act (NT), s 4(3)
Migration Act 1958 s 478

Administrative Appeals Tribunal Amendment Regulations 2010 (No 1)
Administrative Appeals Tribunal Amendment Regulations 2010 (No 2) rr 2, 3 and 4
Administrative Appeals Tribunal Regulations 1976 rr 9, 9(1), 19(1), 19(1)(a), (2) and (3), 19(4), 19(5), 19(6), 19(6)(a), 19(6)(b), 19(6)(c), 19(6A), 19(7), 19(8), 19(8)(b), 19A and 19B
Financial Management and Accountability Regulations 1997 r 15(1), Schedule 1, item 101

DECISION AND REASONS FOR DECISION [2011] AATA 60

ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/3191
GENERAL ADMINISTRATIVE DIVISION )

Re: PAUL JACKSON

Applicant

And: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal: Deputy President S A Forgie

Place: Melbourne

Date: 4 February 2011

Decision: The Tribunal;

1. adjourns further consideration of the matter to a directions hearing to be held on Wednesday, 16 February 2011 at 9.30am.

S A Forgie
Deputy President

REASONS FOR DECISION

The Minister for Immigration and Citizenship (Minister) refused
Mr Paul Jackson’s application for Australian citizenship under the Australian Citizenship Act 2007(AC Act). He did so on the basis that he was not satisfied that Mr Jackson understood the nature of the application, possessed a basic knowledge of the English language and had an adequate knowledge of Australia and of the responsibilities and privileges of Australian citizenship.[1] Until Mr Jackson sat a test approved in a determination under s 23A in the manner specified in s 21(2A), the Minister decided that he could not be satisfied of those matters. After Mr Jackson had applied to this Tribunal for review of that decision and paid an application fee of $777, he and the Minister agreed that the Tribunal should remit the decision to the Minister under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act) for reconsideration. Mr Jackson sat the test and the Minister was satisfied of the relevant criteria. As a consequence, the Minister set aside his decision and substituted a decision granting Mr Jackson Australian citizenship.

2. Although successful in obtaining the outcome he wanted, Mr Jackson is now faced with a dilemma as to how he should proceed in order to obtain a refund of his application fee. Regulation 19(8)(b) of the Administrative Appeals Tribunal Regulations 1976 (Regulations) provides that a person who has paid an application fee is entitled to a refund of that fee if “... the Tribunal certifies that proceedings have terminated in a manner favourable to the applicant.” Once the Minister made his decision on the remittal and did so under s 42D(2) of the AAT Act, s 42D(4)(b) gave
Mr Jackson the choice of proceeding with his application for review on the basis that the Minister’s substituted decision was the decision under review or of withdrawing his application.

3. Review of a decision already favourable to him would be pointless. The best outcome that Mr Jackson can hope for from any review of the decision is that the Tribunal affirm it under s 43(1)(a) of the AAT Act or that, by consent, the Tribunal make a decision under s 42C(1). More importantly from the point of view of the refund, the question arises whether an affirmation can lead to the conclusion that the “... proceedings have terminated in a manner favourable to the applicant”. The second path of withdrawal is not necessarily attractive either but for different reasons. It leads to his application being deemed to have been dismissed. That is the effect of ss 42A(1A) and (1B) of the AAT Act. If the application has been deemed to have been dismissed, how can it be said that the “... proceedings have terminated in a manner favourable to the applicant”? I have decided that it can be and that, if Mr Jackson should choose to withdraw his application, I will certify that the “... proceedings have terminated in a manner favourable to the applicant”.

4. In the course of coming to my decision, I have considered the provisions of the AAT Act and of the Regulations relating to the payment of prescribed fees, including application fees, before certain applications to the Tribunal may be lodged. The relevant provisions in the Regulations have recently been amended by the Administrative Appeals Tribunal Amendment Regulations 2010 (No 2) (Amendment Regulations). Those amendments, which commenced on 1 November 2010,[2] are relevant to the Tribunal’s power to refund Mr Jackson’s application fee, or any part of it, as is an understanding of the relationship between the relevant provisions of the AAT Act and of the Regulations.

5. In so far as I have considered the amount of refund to which Mr Jackson will eventually be entitled, I am mindful that the payment of the refund and the amount of that refund is not my task to determine. It is the responsibility of the Registrar and his delegates. He is the Chief Executive of the Administrative Appeals Tribunal under the Financial Management and Accountability Act 1997 (FMA Act).[3] The Tribunal in relation to which he is given those responsibilities is not the Tribunal established under the AAT Act but the prescribed agency identified in Schedule 1 to the Financial Management and Accountability Regulations 1997.[4] Under the FMA Act, the Registrar as Chief Executive is given responsibilities for dealing with public money and property. At the heart of the Chief Executive’s responsibilities is his responsibility to manage the affairs of the Tribunal in a way that promotes proper use of the Commonwealth resources for which he is responsible.[5] As “proper use” means “efficient, effective and ethical use that is not inconsistent with the policies of the Commonwealth”, the Chief Executive’s responsibilities must extend to refunding from the Consolidated Revenue Fund[6] an amount that is a correct amount. If a refund is to be paid, it is paid from the Consolidated Revenue Fund.[7] Whether the Registrar or his delegate chooses to refund to Mr Jackson $777 or, as I think he should, $677 is ultimately a matter for him. I have set out my reasons for concluding that it should be $677 to assist him in reaching his own decision and reasons for it. As with any decision, he will do that as a matter of course as part of his responsibilities but this is a more complex issue and he may be called on in an audit to justify his decision.

6. In the course of reaching my decision, I considered the recent decision of Deputy President Groom in Re Gallagher and Minister for Immigration and Citizenship[8] (Gallagher). I agree with him that, in interpreting legislation it is necessary to examine both the language of the relevant provision and that of the whole enactment bearing in mind the object of both.[9] I also agree with his conclusion that, in the case of an application for review of a decision under s 501 of the Migration Act 1958 (Migration Act) by a person within the migration zone, it is enough that the application was lodged within time even though the prescribed fee was not paid within that time.

7. It is with regret that, even though I agree with his conclusion, I do not agree with his interpretation of s 29A or with his reasoning that led to his conclusion. I set out my reasoning below but make two general observations regarding the areas where my reasoning differs from that adopted by Deputy President Groom. To my mind, s 29A is not a section requiring an applicant to take certain steps so that consideration can be given to whether that applicant has substantially complied with it.[10] It is instead a section that sets out consequences. It determines how certain events will be viewed. It can be contrasted with a section such as s 29 of the AAT Act which requires a would be applicant to take certain steps in lodging an application. In s 29, Parliament has used the words “make” and “lodge”, or derivatives of them, with some care and, it seems to me, for a purpose. That purpose is to distinguish between lodgement and the making of an application. The former is the action of a person wanting to give the Tribunal documents and the latter refers to an application that has not only been lodged but also meets other criteria prescribed by the AAT Act or by the Regulations in relation to an application. Lodgement is only one of those criteria just as the payment of a prescribed fee is only one of those criteria.[11]

8. My attention has also been drawn to a Fact Sheet available on the Tribunal’s website at aat.gov.au. It is entitled Changes to AAT fees and contains a statement that:

“Fee exemptions, waivers and refunds for applications lodged before 1 November 2010 will be dealt with in accordance with the AAT Regulations as in force prior to 1 November 2010.”

I agree with the statement in so far as fee exemptions are concerned for r 4 of the Amendment Regulations specifically provides that rr 19(6)(a) and (b) as in force on 31 October 2010 apply to proceedings commenced before 1 November 2010. As in force before their amendment, rr 19(6)(a) and (b) provided for fee exemptions.

9. Fee waivers and refunds are a different matter. I have set out my reasons for reaching my conclusions in more detail below and merely summarise them in this and the following three paragraphs. Before their amendment, r 19(6)(c) dealt with waiver of prescribed fees and r 19(7) with refunds. Both were repealed by the Amendment Regulations, which commenced on 1 November 2010. With one qualification, I agree with the Fact Sheet with regard to waivers. For the reasons I give below, I think that the waiver provisions in the repealed r 19(6)(c) will apply to applications lodged before 1 November 2010 if the decision whether to waive or not waive is made before that date.[12] In so far as a prescribed fee is concerned, that means that it must either be paid on or before 31 October 2010 or be waived. To that point, I agree with the Fact Sheet.

10. I also agree with the statement in the Fact Sheet in circumstances in which an application has been lodged on or before 31 October 2010 and the applicant has given the Registrar or a District Registrar or Deputy Registrar information relating to his or her income, day to day living expenses, liabilities and assets. The applicant would have accrued a right to have the issue of waiver considered on the basis of financial hardship and decided on that information.

11. Where we disagree is on the following point. If the fee was not waived, the prescribed fee was not paid and information relating to his or her income, day to day living expenses, liabilities and assets was not provided on or before 31 October 2010, the power to waive cannot be exercised after 31 October 2010. The power to waive no longer exists. It ceased to exist when the regulation granting that power, r 19(6)(c), was repealed. Any obligation to exercise the power did not arise because there was no factual basis on which it could arise. The person lodging the application will then have to pay either the application fee or the fee payable instead of the application fee in accordance with the Regulations as amended with effect from 1 November 2010.

12. Finally, I do not agree with the unqualified statement in the Fact Sheet that the Regulations apply in their unamended form to refunds when an application has been made before 1 November 2010. Refunds were previously regulated by r 19(7) but that provision was repealed by the Amendment Regulations. Regulation 19(7) is not a provision that was the subject of the transitional provisions in r 4 of the Amendment Regulations. If the entitlement to a refund arises before the repeal of r 19(7) and so on or before 31 October 2010, then the provisions of r 19(7) apply. Such an entitlement will arise under r 19(7)(a) if an application was lodged and a prescribed fee was not payable. It will only arise under r 19(7)(b) if the Tribunal certifies on or before 31 October 2010 that the proceedings had terminated in a manner favourable to the applicant. That is an entitlement under r 19(7)(b) but it cannot arise on or after 1 November 2010 in respect of applications made before that date for the simple reason that the provision is no longer in force. Entitlement to refunds on and after 1 November 2010 is now the subject of rr 19(7), (8) and (9) of the Regulations as amended with effect from that date. Where a prescribed fee was not payable, it will be refunded as before but now under r 19(7). Where a fee instead of an application fee was payable but an application fee was paid or in circumstances in which the Tribunal certifies that the proceedings have terminated in a manner favourable to the applicant, the person is entitled to a refund. That is the effect of r 19(8) but the amount of the refund, which is prescribed by r 19(9), is the amount of the application fee less $100.

LEGISLATIVE BACKGROUND

Lodging and making an application

13. Section 25(1) of the AAT Act provides that:

“An enactment may provide that applications may be made to the Tribunal:

(a) for review of decisions made in the exercise of powers conferred by that enactment;

(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”

Section 25(6) is also relevant:

“If an enactment provides for applications to the Tribunal:

(a) that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications; and

(b) those sections and subsections have effect subject to any provisions so included.”

14. Section 52 of the AC Act is an example of a provision referred to in s 25(1) of the AAT Act. It provides that “An application may be made to the Administrative Appeals Tribunal for review of the following decisions ...”, which it then specifies. The language used in s 52 is that of s 25 and it is the language of “making”. It is consistent with the form used in a myriad of other enactments.[13]

15. The language of lodgement appears in s 29(1) of the AAT Act when it requires certain criteria to be met by “An application for review of a decision”. Among those criteria is that the application be in writing[14] and, if the decision was recorded in writing, that it be “lodged within the prescribed time.”[15] In the case of the AC Act, the prescribed time is 28 days from the day on which a document setting out the terms of the decision is given to the applicant.[16] Section 29A refers to the payment of prescribed fees. If a prescribed fee is payable, the effect of s 29A is that an application is not taken to be made unless it has been paid. Where the fee has been waived and so is not payable, lodgement and the making of the application are taken to occur at the same time.

16. If s 29 is read alone and without regard to s 25, there might be thought to be confusion in the use of the language of “lodgement” used in s 29(1) to that of “making” used in s 29(7). This is particularly so if regard is had to the headings to the sub-sections of 29. They were added to the section with effect from 16 May 2005 by the Administrative Appeals Tribunal Amendment Act 2005 [17] “... to enhance the readability and user-friendliness of the Act.”[18] I note that the headings to ss 29(2),[19] 29(3)[20] and 29(4)[21] use the word “making” in the heading even though each of the provisions that follows the headings uses the word “lodge” in one form or another and makes no reference to “make’ in any of its forms. Each of the provisions is concerned with determining what is, for the purposes of s 29(1)(d), the prescribed time within which an application “shall be lodged with the Tribunal” (emphasis added). The heading to s 29(7)[22] also uses the word “making” rather than the word “lodging”. Section 29(7) itself provides that the Tribunal “may ... extend the time for the making ... of an application to the Tribunal for review of a decision ...” (emphasis added). In the absence of any provision in the AAT Act to the contrary, the headings to a section and so within it are, of course, not taken to be part of that legislation.[23] Therefore, I will not consider them further.

17. In ordinary usage, the meanings of the word “lodge” include “to deposit” and those of “make” include “... to cause, bring about or create something by one’s actions ...”.[24] It would seem, then, that Parliament intended them to have different meanings. To bring something about may require more than simply depositing a document and I think that this is how Parliament intended to differentiate between the two words.

18. If I put aside the headings to the subsections, I think that Parliament has chosen its words with care to convey these different things. Having regard to the word “lodge”, I think that it is intended to convey the meaning of a person’s putting a document that otherwise meets all the requirements of an application in the possession of the Tribunal. It is the putting into possession that is lodgement whether that is done by physically leaving it with the Tribunal’s Registry or by some other means including mail, facsimile or electronic mail.[25] “Make”, on the other hand, requires something more. That something more is that it meets all of the other criteria prescribed in the AAT Act.

19. Section 29(1) sets out what is required of an application. In most instances, an application shall or must be in writing, contain a statement of reasons and be lodged within the prescribed time. Sections 29(2) and (3) set out how to work out what is the prescribed time for the purposes of s 29(1)(d). Section 29(4) and its related provision, s 29(5), require the Tribunal to consider whether an application has been “lodged within a reasonable time after the decision was made”. If it is satisfied that it was not lodged within a reasonable time, it shall “refuse to entertain an application for review of the decision”. There is no reference to the making of an application; only to its lodgement. The same is true of s 29(6) which permits the Tribunal to entertain an application if it is of the opinion that there are special circumstances that justify its doing so.

20. Parliament first chooses to use the word “make” in s 29 when it enacts s 29(7). That is the provision that gives the Tribunal power to extend the time “for the making ... of an application to the Tribunal for a review of a decision”. Before it may exercise that power, the person seeking the extension must make a written application for that extension. It is important to note that the Tribunal’s power is to extend the time “for the making” of an application and not for lodging an application. This is in contrast to ss 29(2) and (3) and related provisions in which Parliament has dealt with the prescribed time for lodging an application.

21. There must be a reason for this. By choosing the word “making” in
s 29(7), it might be thought that Parliament has simply avoided the word “lodge” and its derivatives because s 29(7) is concerned with the situation in which an application either has not or will not be lodged within the prescribed time as provided for in ss 29(1)(d), (2) and (3). When regard is had to other provisions of the AAT Act, though, this thought is dispelled. Sections such as s 29A and, in relation to an application for review of a security assessment, s 29B make it clear that the reference to an application’s being made is a reference to an application that has not only been lodged (whether within the prescribed time or the extended time) but also meets the requirements of s 29(1)(a), (b) and (c). An application that has met all of those requirements is an application that has been “made” and not simply “lodged”.

22. Parliament uses the two words in this way in s 29A of the AAT Act. Section 29A provides:

“(1) Subject to subsection (2), an application to the Tribunal, whether for a review of a decision or otherwise, is not taken to be made unless the prescribed fee (if any) in respect of the application is paid.

(2) An application in respect of which a fee is waived under the regulations, whether at the time of lodgment or later, is taken to be made at the time it is lodged with the Tribunal.”

23. Section 29B of the AAT Act imposes an obligation on the Tribunal if “an application is duly made” to the Tribunal for review of security assessment. That obligation is to cause a copy of the application and a copy of the statement lodged with the application and required by ss 29(1)(ca) or (cb) to be sent to the Director-General of Security. Again, the section assumes that the application has been lodged but does not tie the Tribunal’s obligation to lodgement but to the making of the application. That must be a reference to its meeting all of the criteria. If, for example, s 29B did not require the application to meet the criterion in s 29(1)(a) that it be in writing, the Tribunal would not be able to comply with its obligation to send a copy of it to the Director-General.

24. On its face, s 29A(1) is not concerned with lodgement. On its face, its effect is to add another criterion to the four criteria already specified either in s 29(1)(a)-(d) or in ss 29(1)(a)-(c) and 29(7) in order to make an application for review of a decision other than a security assessment. The ordinary meanings of the word “unless” include “... except when; except if”.[26] An application is not taken to be made except when, and so unless, the prescribed fee has been paid. Section 29A(1) assumes that the application has been lodged but does not, on its face, tie the making of the application to its lodgement for that is only one of the criteria. Until the application fee has been paid, the application has not been made.

25. That this is the correct interpretation becomes clear when regard is had to the requirement to pay a prescribed fee at all. Section 70(2) is concerned specifically with fees. Section 70(2)(a)(i) provides that the regulations may make provisions “prescribing fees to be payable in respect of applications to the Tribunal”. Regulation 19 of the Regulations is concerned with prescribed fees in respect of applications for review of a decision other than taxation decisions dealt with in Part IIIAA[27] and two other types of applications.

26. Regulation 19 has recently been amended by the Amendment Regulations but I will consider first the provisions that prevailed when Mr Jackson lodged his application and later paid the application fee. Regulation 19(1)(a) is relevant in this matter. It provided:

“Subject to this regulation, a fee of $500[[28]] (in this regulation called an application fee) is payable for lodging with the Tribunal of:

(a) an application for review of a decision ...”

27. A connection was clearly made between lodgement and payment of the fee. That connection is emphasised by r 19(4) when it provides:

“Subject to subregulations (5) and (6), an application fee payable for lodging an application must be paid before lodgment.”

Clearly, payment of the application fee is one of the criteria that must be met. As it must be paid before lodgement, there is an argument that an application is not taken to have been lodged, let alone made, before it has been paid. If that argument is correct, there would be no need for the deeming provision in s 29A(1) of the AAT Act. Whether it is or is not correct, the effect of s 29A(1) is that, until the application fee has been paid, the application has not been made.

28. The qualifications to this position were found in rr 19(5) and (6) and did not alter this conclusion. Each was concerned with prescribing a circumstance in which an application fee is not payable. Regulation 19(5) did that in relation to multiple applications. Regulation 19(6) did it by reference to a person’s particular circumstances and also by reference to that circumstance in which the Registrar, a District Registrar or a Deputy Registrar has waived payment of the fee in accordance with r 19(6)(c).

29. A consequence of waiver is the subject of s 29A(2) of the AAT Act. Once payment of an application fee has been waived, the time at which the application is deemed to have been made is tied to the date of its lodgement. That must be so because an application fee that has been waived is an application fee that is not payable for lodging an application. The time of lodgement then becomes the time at which it is made. Section 29A(2) does no more than state what would be so in any event in so far as the payment of a prescribed fee is concerned. The reference to “an application” in s 29A(1) and to “an application for review of a decision or otherwise” in s 29A(2) are intended to be read as an application that meets the criteria specified in s 29(1).

30. The drafting of the Regulations in their form before their amendment by the Amendment Regulations is consistent with this understanding of the distinction between “make” and “lodge”. Regulations 9(1) and (2) set out the Registrar’s duties when a document is “lodged or received” at his office and r 9(3) complements s 68 of the AAT Act with regard to the manner in which a document may be lodged. No reference is made to a document’s being “filed”. Therefore, the heading to r 9 referring to “lodging or filing of documents with the Registrar” is not an accurate reflection of the substance of the regulation. It is not relevant, though, for there is no suggestion in the Regulations that the headings form part of them.[29]

31. The amendments made to r 19 by the Amendment Regulations do not lead me to alter my mind in relation to the distinction between making an application and lodging an application. What they do, though, is to render s 29A(2) ineffective on and after 1 November 2010. I have set the amendments out below[30] but the important thing to note in this context is that the amendments to r 19(6), the insertion of r 19(6A) and the amendment of r 19(8) have meant that the Registrar, a District Registrar and the Deputy Registrar no longer have the power to waive an application fee or a fee prescribed under the Regulations in respect of an application. In the absence of a power to waive, s 29A(2) has no work to do. Under the new regime in which either a fee or a fee instead of an application fee is payable, either fee will necessarily be a prescribed fee for it has been prescribed in the Regulations in reliance of the power under s 70 of the AAT Act. That means that an application is taken not to be made unless the application fee or the fee payable instead of the application fee is paid. In the absence of the power to waive the fee, there will never be a circumstance in which an application will be taken to have been made at the time it is lodged with the Tribunal.

32. It seems to me that, in distinguishing between making and lodging an application, Parliament had intended nothing different from the situation that exists in a court such as the Federal Court. In that court, the language is of filing and lodging. Lodging is an act of a person coming to the court with an originating process. Filing is an act of the Registry in dealing with an originating process in proper form and meeting all requirements. It is explained by the Full Court of the Federal Court in Hong Ye v Minister for Immigration & Multicultural Affairs[31] in s 478 of the Migration Act 1958:

“ What is meant by the word “lodged” in the phrase “lodged with a Registry of the Federal Court”? The first matter to notice is that s 478 is concerned with an act of a party and not with an act of the Court or an officer of the Court. This distinction is an important one. By the Rules of the Federal Court a proceeding in the original jurisdiction of the Court is commenced by the “filing” of an application (see Order 4 rule 1(1)[[32]]) and an appeal is instituted by the “filing” of a notice of appeal (see order 52 rule 12[[33]]). “Filing” is the word used to describe the process of placing a document in the records of a court or its registry: see Purden Pty Ltd v Registrar in Bankruptcy (1982) 43 ALR 512 at 515. Because s 478 is concerned with an act of a party it cannot be supposed that the word “lodge” is synonymous with the word “file”. A party who is required to “lodge” a document does not have the power or ability to “file” that document among the records of the Court or its registry.

What will suffice to satisfy that requirement that a document be “lodged” with a registry? The word “lodge” appears to us to have no special or technical meaning. It is then to be given its ordinary meaning. A reference to the Oxford English Dictionary shows that the word has a number of meanings but two appear apposite. They are:

“c Deposit in a specified place of custody or security

e Deposit in court or with an official a formal statement of (a complaint, objection, etc); bring forward, allege, (an objection etc).”

In accordance with these meanings an application to review will be “lodged” when it comes into the possession of a Registry or the staff of a Registry. The means by which possession is obtained does not matter. It could come about when an application is delivered into the hands of the Registry staff or, if the application is posted, when it is received by the Registry. When an application to review is sent by facsimile transmission to a facsimile machine that is located in the Registry the application will be in the possession of the Registry when the transmission is complete: compare Talbot v NRMA Holdings Ltd (1996) 139 ALR 755.

Two authorities to which we will now refer support this conclusion The first is Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) [1988] FCA 339; (1988) 19 FCR 477. The question that arose in that case was whether an application to the Administrative Appeals Tribunal for the review of a decision of the Collector of Customs made under the Customs Tariff Act 1982 (Cth) had been lodged with the Tribunal within time. The application had been sent to the Tribunal by post but because it was not accompanied with the prescribed fee it was returned to the applicant. Section 68 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that “where a document is required by the Act to the lodged with the Tribunal, the document shall be lodged at the office of the Registrar or of a Deputy Registrar”. The Full Court held, by majority, that the application had been lodged when first it was received at the Registry notwithstanding that it had been returned to the applicant. In the course of his reasons Northrop J said at 488-489:

“Thus, in s 68 of the Act, the word ‘lodged’ is used in the sense of placing or depositing a document at the office of the Registry or a Deputy Registrar. It appears to be the practice of the Tribunal to allow this to be done by post. Whether the lodging is done by post or by depositing the document at the office, a concept of acceptance is required in a sense similar to that required with respect to the presentation of a document. There must be a physical acceptance of the document by an officer of the Registry. Thus, if an application is posted but not delivered to a Registry, the application is not lodged. In all probability, it is lodged when it is received at the office of the Registry. Similarly, a document deposited on a counter at the office of a Registry may not be lodged, but if taken by an officer, or in other words received by that officer, it is accepted for the purpose of lodging.”

The reasons of Sweeney J are to the same effect. It is to be noticed that Northrop J considered that lodgment comprised two acts, namely the delivery of an application to review and the acceptance of it by an officer of the Registry. What his Honour meant by “acceptance” in this context is a little unclear. Earlier in his reasons (at 488) his Honour suggested that “acceptance” meant “physical acceptance” and in the passage cited his Honour appears to equate “acceptance” with the physical receipt of the document. Provided “acceptance” is understood to mean that the Registry had obtained possession of the document, we agree with his Honour’s views.”[34]

33. I note that the distinction is a distinction that Parliament itself has continued to make. I refer, for example, to s 500(6B) of the Migration Act that was the subject of consideration in Gallagher. That section provides:

“If a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.”

34. Parliament has clearly set the time limit by reference to the time of lodgment and not to the time the application is made. What that means is that a person who lodges the application within the nine day time limit will be within the time permitted by s 29 of the AAT Act as modified by s 500(6B) of the Migration Act. The effect of s 29A of the AAT Act,[35] is that the application will not be taken to have been made until the prescribed fee is paid. The consequence of that is that the application will have been taken to have been lodged but the Tribunal and its Registry will not be required to take any further steps until it is made. As Northrop J said in Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) the position will be this:[36]

“... Once an application has been lodged with the Tribunal in the sense that it has been received by an officer of the Registry, officers are required to determine whether the application is in the prescribed form and whether a fee is to be paid. If all is in order, internal procedures apply, for example an identifying number is given to the application, and, under s 29(1)) of the Act, the relevant officer is required to give notice in writing of the application to the person who made the decision. The procedures required for the determination of the application for review are thus set in motion. If the officer decides that the application is not in proper form or if the required fee has not been lodged, he is not required to set in motion the procedures just described. ...”[37]

Mr Jackson’s application

35. On 29 July 2010, Mr Jackson lodged an application for review of the Minister’s decision. He paid the application fee on 10 August 2010. His application met the criteria of s 29(1) of the AAT Act. Therefore, he made his application on
10 August 2010.

36. The parties attended a conference before a Conference Registrar and had discussions between themselves. They agreed that the Minister’s decision should be remitted to him for reconsideration. That process is relevant to the issue I must consider.

Remittal of matters to decision-maker for further consideration under s 42D

37. An application for review of a decision is a “proceeding” within the meaning of s 3(1) of the AAT Act as are other applications and incidental applications referred to in that section. That, however, cannot be the sense in which the word “proceeding” is used in s 42D(1) for it would not make sense. That section provides that:

“At any stage of a proceeding for a review of a decision, the Tribunal may remit the decision to the person who made it for reconsideration of the decision by the person.”

In this provision, the word “proceeding” is used in the sense of “an action”[38] or a “course of action”.[39]

38. If the Tribunal does remit the decision, the decision-maker may affirm the decision, vary it, or set it aside and make a new decision in substitution for it.[40] Section 42D(5) requires the decision-maker to make one or other of these decisions either within the time specified by the Tribunal when remitting the decision or, if none has been specified, within 28 days of remittal.[41] If the decision-maker does not make a decision on reconsideration within the appropriate time limit, the decision remitted is taken to have been affirmed.[42] If that is the case or if the decision-maker does affirm the decision, the “proceeding resumes”.[43] If the decision-maker sets aside the decision and makes a new decision in substitution for that decision, s 42D(4) provides:

“(a) the application is taken to be an application for review of the new decision; and

(b) the person who made the application may either:

(i) proceed with the application for review of the new decision; or
(ii) withdraw the application.”

A similar choice awaits the person who made the application when the decision-maker varies the decision.[44]

39. Although quite content with the decision made by the Minister on remittal, Mr Jackson has not yet made a choice. He does not want to do that until he understands the consequences, if any, of his choice on any right he might have to be refunded the application fee he paid.

The entitlement to a refund

40. At the time he paid his application fee on 10 August 2010, r 19(7) of the Regulations provided:

“A person who has paid an application fee is entitled to a refund of the fee if:

(a) the fee was not payable; or
(b) the Tribunal certifies that proceedings have terminated in a manner favourable to the applicant.”

The application fee was the figure prescribed in r 19(1) as increased in accordance with rr 19A and 19B. It was increased to $777 with effect from 1 July 2010 and that increase was reflected in amendments made for that purpose by the Administrative Appeals Tribunal Amendment Regulations 2010 (No 1). The prescribed fee remained the same after the amendments made by the recent Amendment Regulations.

41. What did not stay the same was r 19(6). It was amended so that it no longer provided that an application fee was not payable in the circumstances described in each of its three paragraphs. Instead, it was amended to read that “A fee of $100 is payable instead of an application fee if” one or other of the circumstances in what had been rr19(6)(a) and (b) arises.

42. Regulation 19(6)(c) was omitted and replaced by r 19(6A). Previously, r 19(6)(c) had read:

“An application fee is not payable if:

(c) the Registrar, a District Registrar or a Deputy Registrar, having regard to the income, day to day living expenses, liabilities and assets of the person liable to pay the fee, waives payment of the fee because, in his or her opinion, it would cause financial hardship to the person.”

Regulation 19(6A) now reads:

“If the Registrar, a District Registrar or a Deputy Registrar, having regard to the income, day to day living expenses, liabilities and assets of the person liable to pay the fee, considers that payment of the fee would cause financial hardship to the person, the Registrar, District Registrar or Deputy Registrar may order that a fee of $100 is payable instead of the application fee.”[45]

43. I note that there is no reference to any form of the word “waive” in this regulation. Its omission is understandable because the effect of the provision is to give the Registrar and others the power to order that a fee of $100 is payable instead of the application fee. Certainly, the basis on which the Registrar makes that decision is the same basis on which the Registrar previously decided whether to waive payment of the application fee i.e. financial hardship. The common basis, though, does not mean that the powers are the same. The power to waive is the power “... to refrain from insisting upon something; ... to refrain from enforcing ...”[46] the application fee. The power now conferred upon the Registrar – and it is a power he must exercise – is to choose one fee or the other. It is not a power to waive an application fee and impose a fee of $100 instead. This seems to me to be the plain meaning of r 19(6A). It cannot be altered by the proposition put forward in the Explanatory Statement to the Amendment Regulations that “The Regulations will also allow the Registrar to waive the application fee for a person ... and instead order that the person pay $100.”[47] It may be thought to be a matter of semantics but it becomes relevant when considering the continuing relevance, or otherwise, of s 29A(2). If r 19(6A) were read as conferring a power of waiver on the Registrar, s 29A would lead to the result that a person who was required to pay a fee of $100 instead of an application fee would be taken to have made the application at the time the application is lodged regardless of whether the fee has been paid. That cannot be what Parliament intended and, I respectfully suggest, is not what it has done.

44. Regulation 19(7) has also been repealed and replaced by the Amendment Regulations. Previously, it provided:

“A person who has paid an application fee is entitled to a refund of the fee if:

(a) the fee was not payable; or

(b) the Tribunal certifies that proceedings have terminated in a manner favourable to the applicant.”

It has now been repealed and a new s 29(7) substituted together with the addition of r 19(8). They now read:

“(7) A person who has paid an application fee or a fee mentioned in subregulation (6) or (6AA) is entitled to a refund of the fee if the fee was not payable.

(8) A person is entitled to a refund (the refund amount), if:

(a) the person paid an application fee but was liable to pay the fee mentioned in subregulation (6); or

(b) the Tribunal certifies that proceedings have terminated in a manner favourable to the applicant.

(9) The refund amount is the difference between the application fee and $100.”[48]

45. Although both r 19(7)(b) as the Regulations were previously drafted and r 19(8) as they now appear require me to consider whether the “proceedings have terminated in a manner favourable to the applicant”, the outcome will be different. If the Regulations as drafted at the time Mr Jackson made his application on 10 August 2010 apply, he is entitled to a refund of $777 if I find that the proceedings have terminated in his favour. If the Regulations apply in the form they have applied since 1 November 2010, an answer favourable to Mr Jackson will lead to his being refunded only $677 i.e. the difference between the application fee he paid and $100.

46. Am I to consider the question as the Regulations were drafted before or after 1 November 2010? I think that the answer is clearly after in this particular case but, in order to understand my reasons, it is necessary to consider circumstances beyond Mr Jackson’s case. Regulation 2 of the Amendment Regulations provides that they commenced on 1 November 2010. Regulation 4 provides:

“Paragraphs 19(6)(a) and (b) of the Administrative Appeals Tribunal Regulations 1976, as in force on 31 October 2010, apply to proceedings commenced before 1 November 2010.”

47. There is no provision in the Regulations that assists in determining the time at which “proceedings commenced”. None is found in the AAT Act where the word “commence” is used only in the context either of the commencement of the AAT Act or of a section of it[49] or of the commencement of a hearing of a proceeding.[50] It is not used to denote the commencement of a proceeding. The ordinary meaning of the word “commence” is “to begin”[51] and that would seem to be the sense it is used in the AAT Act as well as in r 4 of the Regulations. The word “proceeding” is a word that is given a wide meaning in s 3(1) of the AAT Act to include an application to the Tribunal for review of a decision as well as other applications to the Tribunal seeking other outcomes, any matter referred to the Tribunal for inquiry and/or review and an incidental application.

48. The commencement of a proceeding is the beginning of a proceeding such as one of these applications and matters. When that proceeding is an application, does it have its beginning in its lodgement or in its being made? In many cases, they will be simultaneous but the question arises when the application does not meet all of the criteria in s 29(1) and in the Regulations. It seems to me that the reference in r 4 of the Amendment Regulations is a reference to the lodgement of an application and not to its being made. It cannot be to its being made for that state is not achieved until either a prescribed fee has been paid, is not payable or, if the power is available and exercised, has been waived. Whether it is payable is dependent upon rr 19(6)(a) and (b). If the commencement of proceedings were to be identified by reference to an application’s being made, there would be no point to r 4. The application would have to have been considered to have met all the criteria, including an assessment of the payability of an application fee and the payment of any application fee found to be payable, on or before 31 October 2010. There would be no point in preserving the operation of rr 19(6)(a) and (b) in relation to proceedings commenced before 1 November 2010.

49. The practical effect of r 4 is that the new prescribed fee of $100 will only be payable in respect of applications lodged on and after 1 November 2010 in respect of applications for review of decisions (other than prescribed decisions) by persons[52] to whom the application fee would, on the Registrar’s consideration, cause financial hardship. Other applicants, including those who would previously not have had to pay an application fee, will be obliged to pay the application fee in respect of applications lodged on and after 1 November 2010. Those who have already lodged their applications on or before 31 October 2010 and who come within rr 19(6)(a) or (b) on or before 31 October 2010 will not be obliged to pay either the application fee or the fee imposed instead of the application fee retrospectively.

50. Do the repealed rr 19(6)(c) and (7) continue to have any operation after their repeal on 1 November 2010 so that they affect applications lodged on or before 31 October 2010? In light of the specific provision made in the Amendment Regulations in r 2 for the commencement of those Amendment Regulations and in light of the one qualification made in r 4 to the general proposition that they commence on 1 November 2010, it seems to me that the question must be answered in the negative. They were not part of the qualification to the general proposition for that qualification has been made only in respect of rr 19(6)(a) and (b). It seems to me that the remaining amendments are intended to commence operation on and from 1 November 2010 and to apply to all applications regardless of the date on which they were lodged.

51. My view is reinforced by the Legislative Instruments Act 2003. Section 12 is the starting point. Section 12(1)(a) provides that, subject to a qualification in s 12(2) that does not apply, “... a legislative instrument that is made on or after the commencing day ... takes effect from; (a) the day specified in the instrument for the purposes of the commencement of the instrument ...”. Regulations are a legislative instrument within the meaning of s 5 of the LI Act as they are of a legislative character and have been made in the exercise of a power delegated by Parliament i.e. s 70 of the AAT Act.[53]

52. The next section to consider is s 15 of the LI Act. It is relevant in deciding whether r 19(7) as it existed before the Amendment Regulations continues to have some effect after its repeal and so on and after 1 November 2010. What s 15 does is, in effect, to preserve the state of affairs as it was in respect of certain matters and to do so despite the repeal of the regulations that led to that state of affairs. It provides:

“The repeal of any legislative instrument, or of any provision of a legislative instrument, does not, unless the contrary intention appears in the Act or legislative instrument effecting the repeal:

(a) revive anything not in force or existing at the time at which the repeal takes effect;

(b) affect the previous operation of the instrument or provision of anything duly done or suffered under the instrument or provision; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the instrument or provision; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the instrument or provision; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or instrument had not been enacted or made.”

53. The first thing I notice about s 15 is that it does not preserve a power. In the absence of a contrary intention in the amending Regulations, what s 15 does not affect, and so preserves, is what has already occurred as a consequence of the relevant legislative instrument’s being in force before its repeal. What might have already occurred is the acquisition of rights or privileges together with the imposition of obligations and liabilities. The repealed r 19(6)(c) conferred a power on the Registrar and others to waive a fee. It is not the subject of the transitional provision in r 4 of the Amendment Regulations. As a power, it is not the subject of the saving provisions in s 15 of the LI Act but does it confer a right or privilege so that it comes within s 15(c)?

54. If it exists, such a right would be a right to have the Registrar consider whether to exercise the power to waive payment of the fee. The Registrar’s power is discretionary but, arguably, a right of that sort would arise if the Registrar had been given sufficient information on which it could be said that the issue of waiver raises itself. Lodgement of an application alone would not be enough for it would not provide an evidentiary foundation to which the Registrar could have regard. Compliance with the criteria in s 29 would be unlikely to reveal information relating to the applicant’s income, day to day living expenses, liabilities and assets. If the right arises at all, it will only arise if it is accompanied by, or incorporating, that type of information.

55. I think that such a right does arise. It is a right that corresponds with a duty of the sort found to exist by the High Court in North Australian Aboriginal Legal Aid Service Inc.[54] That case turned on the power given to the Administrator of the Northern Territory to determine, from time to time, the remuneration paid to a magistrate, including the Chief Magistrate, of the Northern Territory. The power to make a determination was given to the Administrator by s 4(3) of the Magistrates Act (NT). In the majority judgment, their Honours set out the provisions relating to the appointment of a magistrate including those relating to security of tenure and remuneration and allowances. Reference was also made to notions of judicial independence before they concluded that the Administrator was not permitted:

“... to fail to exercise the power under s 6 where that failure would produce an hiatus where no determination was in operation. A construction which permitted such a state of affairs would place the officeholder wholly at the favour of the executive government respecting a basic attribute of judicial independence the legislation was designed to promote. ...”[55]

56. I have also had regard to the earlier case of Pyrenees Shire Council v Day (Day).[56] The High Court decided that the Pyrenees Shire Council (Council) was liable to pay damages to the owners of a shop destroyed by fire. A fire authority had identified the shop’s chimney as unsafe. Subsequently, a Council building inspector had written to an owner and to a tenant identifying deficiencies in the chimney but had not exercised the powers under the Local Government Act 1958 (Vic) (LG Act) to ensure compliance. Brennan CJ considered the issue on the basis of whether the Council was under a public law duty to exercise its powers. His Honour considered previous authorities saying:

“ I respectfully agree that if a decision not to exercise a statutory power is a rational decision, there can be no duty imposed by the common law to exercise the power. I further agree that if it be contrary to the policy of the statute to confer a private right to compensation for non-exercise of a statutory power, the common law cannot create that right. A statutory power and its incidents are creatures of the legislature and the common law must conform to the legislative intention.

But the existence of a discretion to exercise a power is not necessarily inconsistent with a duty to exercise it. As Earl Cairns LC said in Julius v Lord Bishop of Oxford ...[[57]]:

“[t]here may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so.”

In Padfield v Minister of Agriculture, Fisheries and Food ...[[58]], Lord Reid cited this passage and proceeded:

“Lord Penzance said that the true question was whether regard being had to the person enabled, to the subject-matter, to be general objects of the statute and to the person or class of persons for whose benefit the power was intended to be conferred, the words do or do not create a duty, ...[[59]] and Lord Selborne said that the question was whether it could be shown from any particular words in the Act or from the general scope and objects of the statute that there was a duty. ...[[60]] So there is ample authority for going behind the words which confer the power to the general scope and objects of the Act in order to find what was intended.”

And in Commissioner of State Revenue (Vict) v Royal Insurance Australia Ltd ...[[61], I said with the concurrence of Toohey and McHugh JJ:

“When the power exists and the circumstances call for the fulfilment of a purpose for which the power is conferred, but the repository of the power declines to exercise the power, mandamus is the appropriate remedy even though the repository has an unfettered discretion in other circumstances to exercise or to refrain from exercising the power ...[[62]].”

Thus a duty to exercise a power may arise from particular circumstances, and may be enforceable by a public law remedy. Where a purpose for which a power is conferred is the protection of the person or property of a class of individuals and the circumstances are such that the repository of the power is under a public law duty to exercise the power, the duty is, or in relevant respects is analogous to, a statutory duty imposed for the benefit of a class, breach of which gives rise to an action for damages by a member of the class who suffers loss in consequence of a failure to discharge the duty. The general principles of public law establish the existence of the statutory duty to exercise the power and the statute prescribes the class of individuals for whose benefit the power is to be exercised.”[63]

57. Although I am concerned with a power to waive a prescribed fee otherwise payable by a single applicant and Day was concerned with a power that was directed to ensuring individual and public safety and a possible breach of a duty of care, the principles referred to in the judgment of Brennan CJ remain equally applicable. I have to look first at the discretionary nature of the power conferred by the relevant enactment and then look to that enactment to determine the purpose for which the power was conferred and the persons or class of persons for whose benefit the power was intended to be conferred. I should do that having regard to the principle stated by Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:[64]

“... The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.”[65]

58. The AAT Act has established the Tribunal to review a wide variety of administrative decisions on their merits. Its duty to review a particular decision arises when an application has been made. Its task may well be complex in a particular case

but:

“In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.”[66]

An interpretation of r 19(6)(c) that did not require the Registrar to consider whether to exercise the power to waive those fees when provided with relevant information would be inconsistent with the right given by the AAT Act to apply for review of a decision. There is nothing to suggest that the imposition of prescribed fees is intended to discourage applications. The power to waive a prescribed fee enables applications to be made that might otherwise be beyond the ability of impecunious applicants. Therefore, I have decided that the discretionary power conferred by r 19(6)(c) must be exercised when a person has lodged an application and has provided the Registrar with information of the sort that relates to his or her income, day to day living expenses, liabilities and assets.

59. The answer to the question whether an applicant, who has lodged an application on or before 31 October 2010 and who has paid an application fee, has a right to be refunded the entire amount of that fee also rests on a consideration of rights and duties. From a purely practical point of view, a refund is payable in situations in which no fee was payable regardless of whether the matter is decided under r 19(7)(a) in its repealed or substituted form. In strict terms, the applicant’s entitlement to the refund arises under the repealed r 19(7)(a). The entitlement arises immediately, and so on or before 31 October 2010, because it was never payable. That is so even if that was not found to be the case until a date some time after 31 October 2010. The entitlement is an accrued right to a refund of the fee within the meaning of s 15(c) of the LI Act is not affected by the repeal of r 19(7)(a).

60. In situations in which a prescribed fee was payable, the answer is different. A refund of the fee depends upon the Tribunal’s certifying that the proceedings have terminated in a manner favourable to that applicant. If an entitlement to a refund hinges on the Tribunal’s certification, that entitlement is dependent upon the making of the certification and the certification is dependent, in turn, on the proceedings’ having terminated in a manner favourable to that applicant. The entitlement cannot crystallise until then. Therefore, in Mr Jackson’s case, he could not have accrued a right to a refund of an application fee before the proceedings terminated. They have yet to terminate because he has not yet chosen whether to proceed with his application or to withdraw his application. If he chooses the former, they will terminate when the Tribunal gives a decision under s 43 of the AAT Act after a review of the Minister’s decision or a decision by consent under s 42C. The most favourable decision he can hope for in either case is a decision to affirm the decision he already has. He will be no better off. If he chooses the latter, they will terminate when he gives the Tribunal notification of his withdrawal for the Tribunal will then be taken to have dismissed the proceeding without proceeding to review the decision.[67]

Principles relevant in deciding whether proceedings have terminated in a manner favourable to an applicant

61. The question that remains is whether I can certify that the proceedings have terminated in a manner favourable to Mr Jackson regardless of the path he chooses to take. I considered this question in an earlier case of Re Ha and Australian Community Pharmacy Authority.[68] I said in part:

“28. The word “terminate” means “to bring or come to an end”.[69] Therefore, when r 19(7)(b) provides that a person is entitled to a refund of the application fee if the Tribunal certifies that the proceedings have terminated in a manner favourable to the applicant, the Tribunal must first certify that the application or the taxation of costs ordered by the Tribunal to be paid has ended in a manner favourable to the applicant. ...

29. What is meant by the word “favourable” in the context of the proceedings’ having terminated “in a manner favourable to the applicant”? The word was considered by Toohey J in Donovan v Repatriation Commission.[70] He did so in the context of s 107VZB of the Repatriation Act 1920 which provided that, where a decision of the Repatriation Review Tribunal (RRT) had been favourable to the applicant, the Repatriation Commission could submit further evidence and ask that Tribunal to rehear the proceeding.[71] Mrs Donovan had been granted a war widow’s pension but it had not been backdated to the date she had sought. Toohey J considered briefly whether a decision favourable to the applicant had to be a decision that was, in all respects, favourable. Toohey J noted that “The Shorter Oxford English Dictionary defines ‘favourable’, in relation to an answer as that which ‘concedes what is desired.”[72] He also noted that s 107VZB presupposed that there was something in the decision that the Repatriation Commission would want to challenge. Although it was unnecessary for him to decide the matter as the case was decided on another, his Honour thought that “A decision granting a pension is ... a decision favourable to an applicant and is therefore within the language of the opening words of s 107VZB.”[73] That was so even though Mrs Donovan had not been conceded all that she had desired.

30. I have looked also at the ordinary meanings of “favourable” in other

dictionaries:

“... 1 showing or giving agreement or consent. 2 pleasing; likely to win approval. 3 (favourable to someone) advantageous or helpful to them; suitable. ...”[74]

“... 1. affording aid, advantage, or convenience: a favourable position.
2. manifesting favour: inclined to aid or approve. 3. (of an answer) granting what is desired. ...”[75]

31. As I said in an earlier case of Re Kong and Minister for Immigration and Multicultural and Indigenous Affairs,[76] it seems to me that the question that Toohey J had to consider in Donovan v Repatriation Commission was a slightly different question from that which I am required to answer in the context of r 19(7) of the Regulations:

“... I do not have to consider whether an applicant has had a favourable answer to the application so much as whether the proceedings terminated in a manner favourable to that applicant. Perhaps the result is the same but it seems to me that whether they have terminated in that way depends on whether they have terminated in a manner that is advantageous or helpful to the applicant. Putting that another way, they have come to an end and have done so in a way that advantages or helps the applicant. Advantaging or being helpful, and so favouring an applicant, does not equate with total success. Some advantage or help is sufficient.”[77]

32. The focus of the question that must be asked under r 19(7) is upon the outcome of the termination. I feel that I would be hard pressed to conclude that a withdrawal of an application could be regarded as a conclusion to an application that is favourable to an applicant. It may be that there are arrangements made between the parties that are satisfactory and even favourable to an applicant but it is difficult to say that the application that is the proceeding has terminated in a manner favourable to him or her. What happens between the parties beyond the scope of the application is just that: beyond its scope and so not relevant in determining whether the application has terminated in a manner favourable to the applicant.”

62. These principles are equally applicable to this case. If Mr Jackson withdraws his application, the proceeding will have come to an end and so terminated. It will have terminated in a way that is favourable to Mr Jackson. The decision made by the Minister was made in the course of, and as a consequence of, steps taken by the parties in the course of the proceeding. The course of events that led to its being made are apparent on the face of the Tribunal’s file as is the favourable outcome that took the form of the Minister’s decision. That is a neater approach than either proceeding to a review and a decision of the Tribunal or a decision by consent although, perhaps, the result is the same.

Decision

63. For the reasons I have given, I will certify that the proceedings have terminated in a manner favourable to Mr Jackson when and if he lodges a notice of withdrawal. I note that he will be entitled to a refund of $677 only and not to the full amount of his application fee.

64. It is, of course, a matter for Mr Jackson whether he wants to lodge a notice of withdrawal. He may choose one of the other courses. The fact that he has that choice creates a little difficulty for me in framing my order. What I have decided to do is to adjourn the matter to a directions hearing to be held on Wednesday, 16 February 2011. If Mr Jackson lodges a notice of withdrawal before that directions hearing, the application will be taken to be dismissed, I will certify that the proceedings have terminated in a manner favourable to him and the directions hearing will not proceed.

I certify that the sixty four preceding paragraphs are a true copy of the reasons for the decision herein of

Deputy President S A Forgie,

Signed: .......................................................................

Leah Berardi, Associate

Date of Hearing 17 January 2010

Date of Decision 4 February 2011

Applicant Mr Paul Jackson

Solicitor for the Respondent Ms Jan Cumming

Clayton Utz

---

[1] AC Act, ss 21(2)(d), (e) and (f) and 21(2A)
[2] Amendment Regulations, r 2
[3] FMA Act, s 5 and Financial Management and Accountability Regulations 1997, r 5(1) and Schedule 1, item 101.
[4] The Tribunal is a prescribed Agency, and so an Agency, for the purposes of the FMA Act For these purposes, the Tribunal comprises the Registrar, the District Registrars, the Conference Registrars, the Deputy Registrars and the staff of the Tribunal mentioned in subsection 24N (3) of the Administrative Appeals Tribunal Act 1975; and (c) persons made available to the Tribunal under subsection 24N (4) of that Act for Chief Executive for a prescribed Agency.
[5] FMA Act, s 44(1)
[6] FMA Act, s 28
[7] FMA Act, s 28
[8] [2011] AATA 10
[9] [2011] AATA 10 at [33]
[10] [2011] AATA 10 at [37]
[11] I note that different fee structures are prescribed in the Regulations in respect of applications for review of relevant taxation decisions, as defined in s 24AA of the AAT Act. I do not refer to these but note that there are no differences in their structure.
[12] Section 25(6)(a) provides that the enactment providing for applications to be made to the Tribunal may add to, exclude or modify the operation of the provisions of, among others, s 29 of the AAT Act.
[13] Section 105AAB(7) of the National Health Act 1953 and s 31(2) of the Civil Aviation Act 1988 are examples chosen entirely at random.
[14] AAT Act, s 29(1)(a)
[15] AAT Act, s 29(1)(d)
[16] AAT Act, s 29(2)(a)
[17] Act No 38 of 2005, s 2(1), item 2 and s 3, Schedule 1, items 96, 98 and 99
[18] Explanatory Memorandum, General Outline, (v)
[19] “Prescribed time for making applications – general”
[20] “Prescribed time for making applications – decision-maker’s failure to meet deadline”
[21] “What happens if there is no prescribed time for making applications”
[22] “Tribunal may extend time for making application”
[23] Acts Interpretation Act 1901, s 13(3)
[24] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[25] AAT Act, s 68(2) and Administrative Appeals Tribunal Regulations 1976, r 9
[26] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[27] These are the subject of r 19AA and are consistent with those in r 19.
[28] Regulations 19A and 19B provide for the prescribed fees to be increased on each biannual anniversary of 1996; hence an application fee of $777 has applied since 1 July 2010.
[29] Legislative Instruments Act 2003 (LI Act), s 13(1) provides that, in the absence of a contrary intention, the provisions of the Acts Interpretation Act 1901 applies to a legislative instrument as if it were an Act.
[30] See [40]-[46] below
[31] [1998] FCA 341; Burchett, Lehane and Finkelstein JJ
[32] Order 4 Rule 1(1) provides “Except as otherwise provided in these Rules all proceedings in the Court’s original jurisdiction shall be commenced by filing an application.”
[33] Order 52 Rule 12(1) provides “An appeal is instituted by filing a notice of appeal in accordance with Form 55.”
[34] [1998] FCA 341
[35] Section 29A is not listed among those provisions that may be modified: AAT Act, s 25(6)
[36] [1988] FCA 339; (1988) 19 FCR 477; Sweeney and Northrop JJ; Jenkinson J dissenting
[37] [1988] FCA 339; (1988) 19 FCR 477 at 489
[38] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[39] Macquarie Dictionary, 3rd edition, 2001, The Macquarie Library Pty Ltd and see also Shorter Oxford English Dictionary, 5th edition, 2002, Oxford University Press
[40] AAT Act, s 42D(2)
[41] AAT Act, s 42D(5)
[42] AAT Act, s 42D(7)
[43] AAT Act, s 42D(8)
[44] AAT Act, s 42D(3)
[45] Amendment Regulations, r 3, Schedule 1, item 5
[46] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[47] Explanatory Statement, eighth paragraph. A statement to the same effect is made in [4] of the Attachment to the Explanatory Statement in relation to the repeal of r 19(6)(c) but is not repeated in [5] when the effect of the newly inserted rr 19(7), (8) and (9) are dealt with. I also note that the fifth paragraph of the Explanatory Statement appears to acknowledge that the power to waive has been replaced when it states: “The purpose of the Regulations is to amend the Principal Regulations to replace fee exemptions and waivers with low flat fees.
[48] Amendment Regulations, r 3, Schedule 1, item 5
[49] e.g. AAT Act, ss 2, 3(1), 7A and 10B
[50] e.g. AAT Act, ss 20B(2), 21(1A), 23(2), 23A(2) and 33(2)
[51] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[52] Those persons might have previously come within the repealed rr 19(6)(a) or (b).
[53] LI Act, s 4(1)
[54] [2004] HCA 31; (2004) 218 CLR 146; 206 ALR 315; 78 ALJR 977; Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ
[55] [2004] HCA 31; (2004) 218 CLR 146; 206 ALR 315; 78 ALJR 977 at [56] per McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ
[56] [1998] HCA 3; (1998) 192 CLR 330; 151 ALR 147; 72 ALJR 152; 96 LGERA 330; Brennan CJ, Gummow and Kirby JJ; Toohey and McHugh JJ dissenting
[57] (1880) 5 App Cas 214 at 222-223
[58] [1968] UKHL 1; [1968] AC 997 at 1033
[59] (1880) 5 App Cas 214 at 229-230
[60] (1880) 5 App Cas 214 at 235
[61] [1994] HCA 61; (1994) 182 CLR 51 at 88
[62] Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997, esp at 1033-1034
[63] [1998] HCA 3; (1998) 192 CLR 330; 151 ALR 147; 72 ALJR 152; 96 LGERA 330 at [22]- [24] per Brennan CJ
[64] [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151
[65] [1981] HCA 26; (1981) 147 CLR 297; 35 ALR 151; at 320; 169 - 170
[66] AAT Act, s 2A
[67] AAT Act, s 42A(1B)
[68] [2009] AATA 305
[69] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[70] (1985) 58 ALR 634
[71] (1985) 58 ALR 634
[72] [1985] FCA 52; (1985) 58 ALR 634 at 638
[73] [1985] FCA 52; (1985) 58 ALR 634 at 638
[74] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[75] Macquarie Dictionary, 3rd edition, 1997
[76] [2005] AATA 552
[77] [2005] AATA 552 at [14]