Does non-compliance with s 29(1)(c) render AAT application invalid?

Section 29(1)(a)-(c) of the AAT Act provided as follows:

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)   if the decision is reviewable in the Social Services and Child Support Division--in writing or by making an oral application in person at, or by telephone to, a Registry of the Tribunal; and

Note:   For oral applications, see also section 29AA.

  (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 ...

Some of the questions to the High Court (HCA) were as follows:

Question 1: Can it be said that, "whilst the ultimate question in the circumstances giving rise to the appeal results from the operation of s 500(6B) of the Migration Act, the question itself is one going to the general operation of s 29(1)(c) of the AAT Act"?

Question 2: Is the consequence of non-compliance with s 29(1)(c) of the AAT Act for the validity or invalidity of an application for review of a decision made under s 501CA(4) of the Migration Act "different from the consequence of such non-compliance for the validity or invalidity of an application for review of other decisions in other legislative contexts"?

Question 3: In providing for an application to be dismissed for non-payment of any prescribed fee, can it be said that s 69C of the AAT Act "necessarily assumes that an application that is not accompanied by any prescribed fee is a valid application"?

Question 4: Does the requirement of s 29(1)(c) of the AAT Act, that an application contain a statement of the reasons for the application, need to be understood in light of s 29AB of the AAT Act?

Question 5: May the breach of a condition regulating the exercise of a statutory power which does not result in invalidity nevertheless result in an unlawful act capable of being restrained by injunction?

Question 6: If the answer to Question 5 is 'yes', can it "be taken to indicate that a condition which, if breached, does not result in invalidity can only ever be a condition which is otherwise capable of enforcement by a court"?

Question 7: Is s 29AB of the AAT Act a provision designed to "encourage" and to carry no specific "sanction" for non-compliance?

Question 8: Does the principle of statutory construction expounded in Project Blue Sky operate "in the same way in respect of a condition that is a condition precedent to the exercise of a statutory jurisdiction as it does in respect of a condition that is a condition of the exercise of a statutory jurisdiction"?

Question 9: Does the mere use of imperative language to express a condition import a presumption that non-compliance with the condition is intended to result in invalidity?

Question 10: If the answer to Question 9 is 'no', is that "to deny that juxtaposition of an imperative term ("must") with a permissive term ("may") to express different requirements of the one statutory scheme might in an appropriate statutory context indicate that the imperative term is used to express a legislative intention that non-compliance is to result in invalidity whilst the permissive term is used in contradistinction to express a legislative intention that non-compliance is not to result in invalidity"?

Question 11: May identical imperative language "be used in a particular statutory scheme to express a suite of requirements, some of which will admit of one answer to the Project Blue Sky question and some of which will admit of another answer"?

Question 12: Can it be said that the information to be provided in compliance with s 29(1)(c) of the AAT Act "is not as to any objective circumstance but is limited to the subjective reason of the applicant for making the application"?

Question 13: Does the information to be provided in compliance with s 29(1)(c) need to be information of the slightest assistance to the Tribunal or any other party to the proceeding?

Question 14: Is non-compliance with s 29(1)(c) of the AAT Act intended to result in the invalidity of a Tribunal application?

Question 15: Is the attribution of a legislative intention to produce a consequence which appears to be "absurd" or "capricious" or "irrational or unjust" to be avoided where the statutory text is not intractable?

The HCA answered those questions as follows: