Federal Court of Australia    

BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The respondent pay the appellant's costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES J:

1    The sole issue in this appeal is whether the Minister can issue a second invitation to a person under s 501CA(3)(b) of the Migration Act 1958 (Cth) outside the period of 28 days provided in reg 2.52(2)(b) of the Migration Regulations 1994. The primary judge found that the Minister did not have power to issue a second invitation, but that, if the Minister did have such power, his decision made on 24 April 2020 under s 501CA(4) not to revoke the earlier cancellation, mandated by force of s 501(3A), of the appellant’s Class XB Subclass 202 (Global Special Humanitarian) visa on 22 June 2017, was affected by jurisdictional error and should be set aside.

The statutory context

2    Relevantly, s 501(3A) requires the Minister to cancel the visa of a person if he or she is serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory, and the Minister is satisfied that the person does not pass the character test because of his or her substantial criminal record (within the meaning of s 501(6)(a) and (7)(a), (b) and (c)) or a conviction or finding of guilt in an Australian or foreign court of one or more sexually based offences involving a child.

3    Once such cancellation occurs under s 501(3A), the Minister must act under s 501CA that provides:

501CA     Cancellation of visa-revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)     This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)      For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)     would be the reason, or a part of the reason, for making the original decision; and

(b)      is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)     As soon as practicable after making the original decision, the Minister must:

(a)     give the person, in the way that the Minister considers appropriate in the circumstances:

(i)     a written notice that sets out the original decision; and

(ii)     particulars of the relevant information; and

(b)     invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)     The Minister may revoke the original decision if:

(a)     the person makes representations in accordance with the invitation; and

(b)     the Minister is satisfied:

(i)     that the person passes the character test (as defined by section 501); or

(ii)     that there is another reason why the original decision should be revoked.

(5)     If the Minister revokes the original decision, the original decision is taken not to have been made.

(6)     Any detention of the person that occurred during any part of the period:

(a)     beginning when the original decision was made; and

(b)     ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)     A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

(bold emphasis added; italic emphasis in original)

4    Regulation 2.52(2)(b) provides that representations under s 501CA(3)(b) must be made within 28 days after the person is given the notice and the particulars of relevant information under s 501CA(3)(a).

5    The Acts Interpretation Act 1901 (Cth) applies to all Acts, unless a provision of an Act is subject to a contrary intention (s 2(2)). It provides that, in any Act, words in the singular number include the plural and vice versa (s 23(b)). Importantly for present purposes, s 33(1) provides:

33     Exercise of powers and performance of functions or duties     

Powers, functions and duties may be exercised or must be performed as the occasion requires

(1)     Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.

Background

6    The appellant was serving an aggregate sentence of seven years and three months imprisonment for two convictions for sexual intercourse without consent that the District Court of New South Wales had imposed on 12 March 2015.

7    On 22 June 2017:

    a delegate of the Minister cancelled the appellant’s visa pursuant to s 501(3A) based on the appellant’s then imprisonment and his substantial criminal record, being the sentence of more than 12 months imprisonment (s 501(7)(c));

    the delegate wrote to the appellant (the June 2017 letter) at Bathurst Correctional Centre (Bathurst jail) and informed him of, first, the cancellation of his visa, secondly, the information comprising the judge’s sentencing remarks, a conviction, sentences and appeals report from the prison authority dated 21 June 2017, thirdly, his right to make representations to the Minister to revoke the mandatory cancellation of his visa, fourthly, the terms of reg 2.52 and that it was essential that the appellant complete and lodge the enclosed revocation request form within 28 days after he was taken to have received the June 2017 letter. The letter enclosed a copy of Direction 65 made under s 499 of the Act and told the appellant that he should address each paragraph in Part C; and

    the appellant received the June 2017 letter in prison. He rang his mother that day to tell her about it.

8    Accordingly, under reg 2.52, the appellant had until 20 July 2017 to make any representations in response to the invitation under s 501CA(3)(b).

9    On 24 June 2017, the mother travelled to Bathurst jail. She collected the June 2017 letter and attachments from her son.

10    On 27 June 2017, the mother attended an appointment at the Sydney office of Legal Aid on 27 June 2017 where an officer of Legal Aid interviewed her. The mother then went about obtaining documents, including references from family members and others, while keeping in touch with the officer.

11    On 18 July 2017, the mother attended the office of Legal Aid to ascertain the status of the revocation application for the appellant. She was told that the officer would email, rather than mail, the application to the Department. However, as the primary judge found, the officer only emailed the application to the Department on 4 September 2017, for reasons that did not appear in the evidence.

12    On 5 September 2017, the Department acknowledged receiving the application on the previous day but informed the appellant that the Minister could not consider it because the representations had been made after the 28 day period for doing so had expired.

13    On 14 November 2017, following further correspondence, the Department wrote to the appellant informing him that it had “determined” that the application was too late and the Minister could not consider it.

14    On 23 November 2017, the appellant sought review of the “decision” of 14 November 2017 in the Administrative Appeals Tribunal. The Tribunal subsequently made directions for the parties to file submissions as to its jurisdiction to conduct such a review. Before the time for the Minister to file his submissions, a solicitor acting for him had a telephone conversation with the appellant’s solicitor. During their conversation the Minister’s solicitor discussed a proposal that the appellant withdraw the application for review “because the Minister’s Department had accepted that the representations had been made within time”.

15    On 23 March 2018, the Department wrote to the appellant informing him that it considered that he had made representations in accordance with the invitation in the June 2017 letter and that he would be notified when a decision had been made about whether the cancellation of his visa would be revoked. As a consequence, he withdrew the application to the Tribunal.

16    On 1 February 2019, the appellant’s solicitor emailed the Department to enquire about progress of the revocation application. The Department replied by email on 1 February 2019 saying that its assessment of cases under s 501 was currently taking a significant time and that it could not provide any indication of when the appellant’s case would be finalised.

17    On 11 April 2019, the Department wrote to the appellant and his solicitor (the April 2019 letter). The April 2019 letter stated that:

    the June 2017 letter had notified the appellant of the cancellation of his visa under s 501(3A) and invited him to make representations about the revocation of the cancellation pursuant to s 501CA(3);

    the Department had received the appellant’s representations on 13 November 2017;

    it attached a personal circumstances form that he should complete and return;

    the Department had received, and invited his comments on, further information which might be taken into account when making a decision under s 501CA(4), being a national criminal history check issued on 5 March 2019;

    it attached a copy of Direction 79, made under s 499 of the Act, which had replaced Direction 65 on 28 February 2019, and told him that he should address each paragraph in Part C of the new Direction, adding that the amendments emphasised that crimes of a violent nature against women or children were viewed very seriously regardless of the sentence imposed;

    any response to the April 2019 letter had to be received by the Department within 28 days after the appellant received it, which would be taken to have been on the same day.

18    On 8 May 2019, the appellant’s solicitor responded to the April 2019 letter providing his representations and saying that he was doing so “pursuant to s 501CA”.

The Minister’s decision

19    On 24 February 2020, the Minister made a statement of reasons for his decision not to revoke the cancellation of the visa in which he said:

[The appellant] failed to make representations within the prescribed period and sought merits review at the Administrative Appeals Tribunal (AAT); a decision was subsequently made by the department to accept the revocation request and supporting documents were received from [the appellant] on 4 September 2017. These representations were deemed to have been made within the period and in the manner ascertained in accordance with the regulations. Thus, I conclude that [the appellant] has made representations in accordance with the invitation, as required under s501CA(4)(a) of the Act.

(emphasis added)

20    On 17 March 2020, the appellant filed his originating application seeking constitutional writ relief against the Minister’s decision.

21    On 29 June 2020, about 3 weeks before the hearing was listed before the primary judge, the Minister first gave notice that he now considered, and would contend to his Honour, that because the appellant had not made his representations within 28 days of receipt of the June 2017 letter, the Minister had no power to deal with those representations. As the primary judge noted, that attitude was completely at odds with the Minister’s position that had obtained since 23 March 2018.

The primary judge’s reasons

22    The primary judge said that s 501CA(4)(a) prescribed, as a jurisdictional fact, the criterion for the Minister to be able to exercise the power of revocation, namely that “the person makes representations in accordance with the invitation”. The primary judge followed Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 139 [43] in holding that, if this criterion were not satisfied, any further attempt to exercise the power would be without statutory authority.

23    The primary judge noted that reg 2.52(2)(b) did not specify the time in which representations had to be made by reference to the giving of the invitation under s 501CA(3)(b). Rather, reg 2.52(2)(b) made time run from the giving of the notice and relevant information required by s 501CA(3)(a). Because it was possible for the Minister to give the notice and information separately from the invitation, his Honour held that the time prescribed in s 501CA(4)(a) for the person to make representations in accordance with the invitation had to be calculated from when he or she had received everything that both s 501CA(3)(a) and (b) required. He found that 20 July 2017 was the last day on which the appellant could make representations to the Department and that since he had only done so on 4 September 2017, he was out of time.

24    His Honour rejected the appellant’s argument that the April 2019 letter was a fresh invitation. That was because it did not constitute either a notice under s 501CA(3)(a) or the particulars of relevant information under s 501CA(3)(b). He held that the use, in s 501CA(4)(a), of the definite, rather than indefinite, article in describing “invitation” meant that “the invitation” referred to but one invitation. Accordingly, the primary judge held that, however the April 2019 letter could be characterised, s 501CA(3) only permitted the Minister to issue one invitation.

25    Thus, the primary judge construed s 501CA(3)(b) as prescribing a single, inflexible time within which a person had to make representations. He said that this construction drew support from other indications in the Act, such as in s 198(2A) and (2B). Those provisions obliged an officer to remove an unlawful non-citizen from Australia as soon as reasonably practicable if certain conditions were met. The conditions included that the non-citizen had been invited to make representations in accordance with s 501CA and either he or she had not made representations “in accordance with the invitation and the period for making representations had ended” or had made them but the Minister had decided not to revoke the cancellation of the visa.

26    His Honour considered that it would introduce uncertainty contrary to the statutory scheme, if the person could make any representations after the period of 28 days from the first invitation under s 501CA(3)(b) had expired. He held that there was a need for certainty for when the representation had to be made, similar to that created by the time limits for seeking merits review of migration decisions in the Tribunal in Pts 5 and 7 of the Act, as McKerracher, Reeves and Thawley JJ had held in Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15 at 39 [82].

27    Accordingly, the primary judge held that the Minister had no power to consider the representations that the appellant had made on 4 September 2017.

The Minister’s argument

28    The Minister contended that the primary judge was correct for the reasons he gave. He argued that there was no power retrospectively to “reissue” the invitation in the June 2017 letter or for the Department to say, as it had in its 23 March 2018 letter, that it would treat the representations made on 4 September 2017 as satisfying the requirements of s 501CA(4)(a).

29    The Minister submitted that the April 2019 letter was not capable of being viewed as a second invitation under s 501CA because it did not comply with s 501CA(3).

30    He argued that s 501CA(3) required the Minister to give only one notice of the cancellation decision and the relevant information as well as invite the person to make representations within the period and in the manner ascertained in accordance with reg 2.52(2)(b) as soon as practicable after making the original decision. The Minister contended that those stipulations as to the timing of the steps to be taken evinced a legislative purpose of strict compliance with the times prescribed. He submitted that it would render those requirements otiose if the Act were construed as not requiring strict compliance. He argued that the time stipulations had a rule-like quality of the nature discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71] and that, ordinarily, statutory time limitations should be construed as mandatory, not directory, in nature.

31    The Minister did not object to the appellant’s relying on a new argument, first raised in his written submissions on this appeal, that s 33(1) of the Acts Interpretation Act applied to s 501CA(3) and (4). Indeed, shortly before the hearing of this appeal, the High Court decided Minister for Immigration and Border Protection v Makasa (2021) 386 ALR 200 that discussed the application of s 33(1) to the Minister’s power to cancel a visa under s 501(2) of the Migration Act. The Minister argued that the reasons of Mortimer J, with whom Perry J agreed, in Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31 supported his contention that s 33(1) did not apply to the power to give an invitation under s 501CA(3)(b). That was because, the Minister submitted, s 501CA read in the context of the Migration Act as a whole evinced a contrary intention to the application of s 33(1). He argued that once the time prescribed for the making of representations under reg 2.52(2)(b) had elapsed, s 501CA(4)(a) precluded the Minister from giving a further invitation.

32    The Minister contended that, read together, s 501CA(3)(b) and (4)(a) specified a mandatory time limit that was set in the Regulations and could not be dispensed with by the Minister, including by issuing a second invitation. He submitted that his power to revoke arose only if the person made representations “in accordance with the invitation”. He argued that s 501CA was not, as the appellant had suggested, akin to s 424B(2) of the Act, because the latter provision gave the Tribunal, if no time period were prescribed, power to specify a time within which a person could respond to its invitation to give further information or comment. Moreover, the Minister said, s 424B(5) authorised the Tribunal to make a decision if the person did not respond to its invitation within the time period, whereas, s 501CA(4)(a) created a precondition to the exercise of the Minister’s power to revoke the cancellation. That precondition was that, unless representations were made in accordance with the invitation, the Minister could not exercise power to revoke the cancellation decision. The Minister argued that the act of making representations is a jurisdictional fact, as Collier, Reeves and Derrington JJ held in Ali v Minister for Home Affairs (2020) 380 ALR 393 at 406 [40].

33    As the Minister noted, without objection, the appellant had not suggested to the primary judge that the March 2018 agreement to settle the proceeding in the Tribunal and the 23 March 2018 letter amounted to a “reissue” of the invitation. The Minister argued that this was not a procedure reflected in the Act, but that, in any event, the “reissue” contention was not substantively different from the appellant’s reliance on his argument that the Minister had power to issue more than one invitation under s 501CA(3)(b). The Minister submitted in response that his duty under s 501CA(3)(b) was not a continuing duty, but rather was a single duty, and that he could perform it only once. He based this construction on the temporal imperative in the chapeau to s 501CA(3) that he act “[a]s soon as practicable after making the original decision”. The Minister contended that s 501CA(3) could not be construed so as to permit the Minister to issue more than one invitation or to impose any form of continuing obligation on him. He submitted that his duty under s 501CA(3) was different from that of the Secretary under s 418(3), as interpreted in SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123, where Bennett and McKerracher JJ at 136 [57] held that the Secretary’s duty to provide documents to the Tribunal was a continuing one that bound him or her until completion of its review.

34    Both parties noted the infelicitous drafting of the definition of relevant information in s 501CA(2) and (3)(a)(ii) because s 501CA literally required the Minister to provide the person whose visa had been cancelled already with information that “would be the reason, or part of the reason, for making” that cancellation decision, after the making of the cancellation decision. Thus, since the decision had been made, it would be oxymoronic if the Minister had a duty to provide information that the use of the future conditional tense suggested “would be” all or part of the reasoning for something that was already a fact that had occurred. The use of the future conditional tense to describe an actual past reasoning process suggests an exercise focused on speculation rather than fact.

Consideration

35    It is important to appreciate that s 33(1) of the Acts Interpretation Act prescribes that, unless a contrary intention appears in the relevant statute, on the one hand, “a power… may be exercised… from time to time as occasion requires”, but, on the other hand, “a function or duty must be performed from time to time as occasion requires”. Thus, s 33(1) creates a presumption that the conferral of a power carries with it a discretion in the decision-maker as to the occasion or occasions on which to exercise it. In contrast, s 33(1) creates the presumption that the conferral of a function or duty imposes an obligation on the decision-maker to exercise the function or duty from time to time as occasion requires.

36    Here, s 501CA(3) creates a duty that the Minister must perform “as soon as practicable after making the original decision”. The performance of the duty to give an invitation pursuant to s 501CA(3)(b) is the source that can enliven the Minister’s ability to exercise the broad discretionary power, that s 501CA(4)(b) confers, to revoke the mandatory cancellation of a visa under s 501(3A), if the person makes representations in accordance with the invitation.

37    As Lord Penzance observed of an analogue of s 33(1) of the Acts Interpretation Act in Lawrie v Lees (1881) 7 App Cas 19 at 29:

The words “from time to time” are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction. The meaning of the words “from time to time” is that after he has made one order he may make a fresh order to add something to it, or take something from it, or reverse it altogether…

(emphasis added)

38    In Scarfe v Federal Commissioner of Taxation (1920) 28 CLR 271 at 275 – 276, Isaacs J, giving the judgment of the Court (Knox CJ, Isaacs, Gavan Duffy, Rich JJ), explained that, if the exercise of a power or function, or the performance of a duty that an Act confers or imposes, can be seen as “definitely settling” a state of affairs, then the legislation will evince a contrary intention so as to displace the operation of s 33(1) of the Acts Interpretation Act.

39    Thus in SZOIN 191 FCR at 136 [57], Bennett and McKerracher JJ said that the obligation of the Secretary under s 418(3) of the Migration Act:

is not an obligation which continues indefinitely but it is an obligation to produce documents which the Secretary considers to be relevant to the review and continues until the review is completed. Were it otherwise, an unequivocally ‘crucial’ document destroying or advancing a claim arriving the day after the Secretary had complied with the initial obligation to forward documents (or a file) to the Tribunal could simply be disregarded and withheld.

(emphasis added)

40    The Parliament’s purpose in imposing the duty on the Minister in s 501CA(3) was to afford the person affected procedural fairness in providing him or her with an opportunity to make representations that will enliven the Minister’s power to revoke the cancellation, provided the person makes representations in accordance with s 501CA(3)(b). Once the person makes representations under s 501CA(4)(a), in accordance with the invitation, the Minister’s exercise of his discretionary power under s 501CA(4)(b)(ii) is substantively at large.

41    There is nothing in s 501(3A) that requires the Minister to act within any time period. For instance, he need not wait until after the hearing or determination of any appeal from the imposition of a sentence of imprisonment to which it applies. Thus, if the Minister acted to cancel a visa under s 501(3A) immediately after a person received and began to serve a sentence of more than 12 months imprisonment, he would then be bound to perform his duty under s 501CA(3) “as soon as practicable”. That scenario requires consideration of the position if circumstances change after the person failed either to satisfy the Minister under s 501CA(4) that he ought to revoke the cancellation, or to make any representations in accordance with the invitation.

42    Indeed, s 501CA(4)(b)(i) expressly contemplates that, in the representations, the person may be able to satisfy the Minister that he or she passes the character test. That would be possible because s 501(10) requires that a sentence or conviction, that actuated the mandatory cancellation under s 501(3A), be disregarded “for the purposes of the character test” if the conviction concerned has been quashed or otherwise nullified or the person has been pardoned in relation to it and the effect of the pardon is to deem him or her as never having been convicted of the offence. The scheme of the Migration Act recognises the real possibility of the occurrence of any of those events at a time after the issue of an invitation under s 501CA(3)(b) or the making of an adverse decision under s 501CA(4). This consideration suggests that s 33(1) of the Acts Interpretation Act can apply consistently with the legislative purpose of s 501CA to each of the duty in s 501CA(3) and the power in s 501CA(4).

43    Nor do s 198(2A) and (2B) of the Migration Act evince a contrary intention to s 33(1) of the Acts Interpretation Act applying to the duty and power in s 501CA. In Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542 at 547 [23]–[25], 561–563 [130]–[141], Hely J and Lander J each held that the Minister’s analogous power in s 501C, to revoke a cancellation of a visa, was conferred to deal with the particular situation where the Act authorised the original decision to be made without according the visa holder procedural fairness. As Lander J noted, that fact suggested that other provisions, such as that in s 501(2), that gave the Minister power to cancel a visa after affording procedural fairness, did not attract the application of s 33(1) of the Acts Interpretation Act to enable the Minister subsequently to revoke a cancellation.

44    There is no reason to think that a construction of s 501CA as attracting the operation of s 33(1) would create uncertainty in the operation of s 198(2A) or (2B). That is because the duty of an officer to remove an unlawful non-citizen whose visa has been cancelled under s 501(3A) is conditioned on the objective fact that the person has been invited to make representations under s 501CA(3) and either did not do so or did make them, but the Minister did not revoke the cancellation. While that objective state of affairs exists, the duty of the officer to remove the person continues. If the Minister puts the process under s 501CA in train again, the officer’s duty to remove the person under s 198(2A) or (2B) will cease to operate.

45    The Minister can be expected to exercise his duty to issue an invitation under s 501CA(3)(b) as soon as practicable after the person is sentenced so as to cause his visa to be susceptible to mandatory cancellation under s 501(3A). If he issues an invitation under s 501CA(3)(b) timeously, and the sentence remains in place when the Minister considers the exercise of his discretion under s 501CA(4), the Minister may decide that the person’s failure to pass the character test outweighs any other reason favouring revocation of the mandatory cancellation.

46    But, the Parliament must have been aware of the real possibility that the sentence could be reduced to below 12 months, or the conviction quashed or the person pardoned, subsequently to the Minister making such a decision. Ordinarily, in such a new factual scenario, s 33(1) of the Acts Interpretation Act would be expected to apply so as to require the Minister to invite the person to make representations in light of what might be decisive new information or circumstances that, if known earlier, would have denied the availability of the power of cancellation under s 501(3A). As explained above, such new circumstances can occur well after cancellation under s 501(3A) and the exhaustion of all the processes under s 501CA so as to make it “practicable” under s 501CA(3), once again, for the Minister to perform the duty under s 501CA(3) so that he could consider the exercise of his discretion under s 501CA(4)(b) if s 501CA(4)(a) were satisfied.

47    In Makasa 386 ALR at 208–209 [45], Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ explained that s 33(1) overcomes an inconvenient and somewhat ill-defined common law doctrine that a power conferred by statute was exhausted by its first exercise. They said that s 33(1) itself did not confer any power but rather required, in the absence of a contrary intention, construing the conferral of a power in an enactment as authorising the exercise and re-exercise of that power from time to time. They added that the expression “as occasion requires” recognises that the repository of the power must still comply with the terms of the statute and the incidents of the power when exercising it.

48    Their Honours noted that there is, what they described as, an “unresolved” controversy in this Court as to whether s 33(1) contemplates that a statutory power can be used to revoke a previous exercise of the power that altered legal rights, as seems to have been suggested by Mortimer J, with whom Perry J, agreed in MJD Foundation 250 FCR 31 over the dissent of Perram J. The High Court left open the correctness of Watson 145 FCR at 546–547 [18]–[24], where Hely J (and each of Dowsett J and Lander J in separate reasons) held that once the Minister had cancelled a visa under s 501(2), s 33(1) did not operate to allow the re-exercise of the power to undo the cancellation (Makasa 386 ALR at 209 [47]).

49    Importantly, each of Hely J and Lander J drew on the existence of the specific power in s 501C(4), which is analogous to that in s 501CA(4), to cancel the revocation of a visa as supporting his conclusion that s 33(1) of the Acts Interpretation Act did not apply to the construction of s 501(2). He held that the power to cancel under s 501(2) could not be exercised more than once (Watson 145 FCR at 547 [24]–[25] per Hely J; and 561–562 [133]–[134], 563 [139]–[140] per Lander J).

50    Here, the construction of s 501(2) that arose in Watson 145 FCR 542 is different to that of s 501CA which specifically confers both a duty to give a notice, information and invitation and a power to revoke a cancellation. Section 501CA envisages at least three differing situations that might warrant the exercise of the duty and the power, namely, first, the cancellation decision under s 501(3A) was made on an incorrect understanding of the character test, secondly, while the decision under s 501(3A) was correct at the time it was made, subsequently the person’s conviction or convictions have been quashed or he or she has been fully pardoned or, thirdly, there is another reason why the original decision should be revoked.

51    Contrary to the Minister’s argument, s 501CA confers a duty and a power each of which is capable of being exercised more than once. That is because the subject matter of representations addressing the issues under each limb of s 501CA(4)(b) can involve changed circumstances that arise after the making of the mandatory cancellation decision under s 501(3A).

52    The Parliament conditioned the Minister’s duty under s 501CA(3) as one that arose “as soon as practicable”. That is not the same temporal imperative as a requirement to act either as soon as possible or as soon as reasonably possible. The phrase “as soon as possible” in a statute ordinarily will require a higher degree of expedition than a requirement to act within a reasonable time. Dixon CJ, McTiernan, Webb, Fullager and Kitto JJ said in Vines v Djordjevitch (1955) 91 CLR 512 at 522 that a paraphrase of “as soon as possible” was “with all reasonable expedition of which circumstances allow”.

53    In Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 305, Stephen and Mason JJ said that one meaning of “practicable” was “capable of being carried out in action, feasible” (citing the Shorter Oxford English Dictionary). The Oxford English Dictionary online defines “practicable” as including, pertinently, “able to be done or put into practice successfully; feasible… useful, practicable, effective”: see also Snedden v Minister for Justice (2014) 230 FCR 82 at 103 [116] per Middleton and Wigney JJ, cf: Allsop v Incorporated Law Institute (1944) 44 SR (NSW) 132 at 136 per Jordan CJ.

54    The use of the expression “as soon as practicable” in s 501CA(3) to condition the performance of the Minister’s duty to give a person the notice, particulars of cancellation, and an invitation to make representations, is directed to whether all of the circumstances of which the Minister is aware at the particular time make it feasible, useful or effective for him to perform that duty. However, the scenarios in which it is possible for the Minister’s duty to arise can occur more than once after a mandatory cancellation under s 501(3A), if or as circumstances change.

55    There is no obvious reason why the Parliament would have intended that the Minister’s duty under s 501CA(3) should only be performed once when, if that occurred, the Minister could never revoke a cancellation that later could not be justified because of a change in circumstances that occurred after the occasion on which the Minister performed the duty to tell the person the fact of the cancellation of the visa under s 501(3A), and was not in the person’s control (such as the quashing of his or her conviction).

56    This is not to say that the Minister’s duty must be exercised on every possible or asserted change in circumstances. The duty is conditioned by the words “as soon as practicable”. If, having performed his duty once in accordance with s 501CA(3), a subsequent event occurs or further information comes to hand (such as the quashing of a conviction) that makes it feasible or useful for the Minister to give the person a second or subsequent notice, provide up to date particulars and an invitation under s 501CA(3), then the Minister’s duty is re-enlivened so that he can consider any representations as to why the automatic cancellation decision should be revoked; cf Masaka 386 ALR at 209 [48], 211 [57]. Such a construction promotes the ongoing availability of the Minister’s powers to revoke a cancellation that in the new circumstances cannot, or in his discretion should not, be justified having regard to new circumstances or if the Minister considers, in his discretion, that the earlier process under s 501CA has miscarried (as in this matter) so that it would be feasible or useful that the person should be given a further opportunity to make representations; cf Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 at 632 – 633 [40] – [41] per Crennan, Kiefel, Bell, Gageler and Keane JJ.

57    The purpose of the process that the Parliament provided in s 501CA is to enable a person, who met the criteria in s 501(3A) that required the mandatory cancellation of his or her visa at that particular time, to satisfy the Minister at a later time that the person, in fact, passed the character test at the time of the mandatory cancellation of the visa under s 501(3A), or that, when the representations are before him, a change has occurred so that the person does pass that test because of the operation of s 501(10) or a reduction in sentence on appeal, or there is another reason why the cancellation should be revoked.

58    The terms of each of s 501(3A) and s 501CA(3) require the Minister to act within temporal constraints. Section 501(3A)(b) requires the Minister to cancel a visa while the person is in prison serving his or her sentence, regardless of the outcome of any appellate or possible pardon process that, when the outcome later becomes known, could result in s 501(10) requiring the conviction to be disregarded or the sentence no longer being one to which any of s 501(6)(a)–(c) applies. Those events are not in the control of either the Minister or the person. Yet, a construction of s 501CA(3) that excludes the operation of s 33(1) of the Acts Interpretation Act would give the Minister no power to revoke the cancellation if, after acting promptly under s 501CA(3) and allowing its processes to run their course (either by the Minister considering and not being satisfied by any representations or because no representations were made in accordance with the invitation) subsequently, the foundation of the cancellation under s 501(3A) has ceased to exist.

59    In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69], McHugh, Gummow, Kirby and Hayne JJ said:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute (see Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ). The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, "in the context of the legislation read as a whole"). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 390 at 397), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed (Toronto Suburban Railway Co v Toronto Corporation [I915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J).

(emphasis added)

60    The Minister’s argument advanced no intelligible reason why s 501CA(3)(b) should have an inflexible, once for all, construction when s 501(10) expressly contemplated that a person might not pass the character test on one day, but because of a subsequent new event, could pass it on the next day. In Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 at 338 [34]–[35], Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ explained that, if the literal meaning of a statutory provision is to be displaced, that a plausible alternate meaning ought be formulated.

61    The Minister’s argument that s 501CA(3) should be construed as imposing on the Minister a single duty that must be exercised both only once and timeously would lead to unfair and unjust consequences. Those would occur if the person whose visa was cancelled could not have a real opportunity to use the process that s 501CA creates to satisfy the Minister that the cancellation should be revoked because of events over which he or she had no control that occur after the first use of that process has run its course.

62    For these reasons, I am of opinion that there is no evident legislative purpose in construing s 501CA(3) to exclude the application of s 33(1) of the Acts Interpretation Act and as imposing a duty on the Minister that he can exercise only once for all so as to preclude him from affording a person adversely affected by a mandatory cancellation of his or her visa under s 501(3A) a further opportunity to satisfy him though representations that he should exercise the power under s 501CA(4) to revoke that cancellation.

The April 2019 letter

63    The question then arises as to whether the April 2019 letter that I summarised in [17] above is capable of being characterised as an invitation given to the appellant in accordance with s 501CA(3)(b).

64    The primary judge found that the April 2019 letter did not set out the original cancellation decision or particulars of the relevant information so as to satisfy s 501CA(3). His Honour found that while the April 2019 letter constituted an invitation, it was not “the invitation” to which s 501CA(4)(a) referred, being that given in the June 2017 letter under s 501CA(3)(b).

65    I am of opinion that, having regard to the application of ss 23(b) and 33(1) of the Acts Interpretation Act, which was not a matter argued before the primary judge, his Honour took too narrow a view of the construction of s 501CA and the characterisation of the April 2019 letter.

66    First, s 501CA(3)(a) requires the Minister to give a written notice that sets out the original decision and particulars of the relevant information (as defined) “in the way in which the Minister considers appropriate in the circumstances”. That task requires the Minister to have regard to what he considers to be the appropriate way to make the communication. Here, those circumstances included the fact, as was made self-evident in the April 2019 letter, that the appellant had not made his representations in 2017 in accordance with the invitation in the June 2017 letter.

67    The April 2019 letter gave the appellant notice of the original decision by reciting the fact that the June 2017 letter included a notice of the cancellation of the visa. Of course, the April 2019 letter repeated that information but that repetition was nonetheless, or, if you will, another, written notice of the original cancellation decision in a way that the Minister considered appropriate in the circumstances. The April 2019 letter also contained, through incorporation by reference, the relevant information required in s 501CA(3)(a), comprising the material in the June 2017 letter, being a way that the Minister considered appropriate in the circumstances.

68    The Minister was seeking to act in good faith in accordance with what the Department had told the appellant in March 2018, namely that he wished to give the appellant a lawful means to overcome the failure of Legal Aid, through no fault of his, to make representations originally in accordance with the invitation in the June 2017 letter. Consonant with that good faith, the Minister gave the appellant notice of new circumstances about which he invited representations in accordance with the April 2019 letter.

69    Once it is accepted that s 33(1) of the Acts Interpretation Act applies to s 501CA, the April 2019 letter can be readily characterised as giving a second notification, further relevant information and an invitation under s 501CA(3)(a) and (b) in a way that the Minister considered was appropriate in the known circumstances.

70    Secondly, the April 2019 letter invited the appellant to make representations about why the cancellation of his visa should be revoked by reference to the new Direction 79, the 5 March 2019 criminal history check and the enclosed personal circumstances form within 28 days, being the period prescribed under reg 2.52. The April 2019 letter satisfied all of the requirements in s 501CA(3)(a) and (b), even if it was not expressly drafted with the objective of doing so in mind.

71    There is no prescribed form for the Minister to follow in performing his duty under s 501CA(3). Here, the substance of what the April 2019 letter did amounted to the giving of a notification, information and an invitation afresh under s 501CA(3). As the Minister stated in his reasons, he considered that the appellant should have had the opportunity to make representations under s 501CA(4) because of the circumstances in which he had tried, but failed to do so. The duty under s 501CA(3) to give a notification, relevant information and an invitation can be performed more than once, and the Minister intended this to occur here.

Conclusion

72    The appellant responded to the April 2019 letter within time. The Minister’s volte face before the primary judge was unfortunate and, for the reasons above, misconceived. The Minister accepted that the primary judge was correct to find that he had committed a material jurisdictional error in failing to consider, first, which, if any, non-refoulement obligations were owed to the appellant and, secondly, the consequences of returning him to Sierra Leone in breach of Australia’s treaty obligations.

73    For the reasons above, the primary judge’s orders dismissing the proceeding below must be set aside and in lieu the Minister’s decision must be quashed and the matter remitted to him to be heard and determined according to law. The Minister should pay the costs of the appeal. He did not seek to disturb the primary judge’s order that in the unusual circumstances, he pay the costs of the trial.

Associate:

Dated:    7 June 2021

REASONS FOR JUDGMENT

BANKS-SMITH AND JACKSON JJ:

74    We have had the advantage of reading the reasons of Rares J. His Honour's account of the facts, the legislation and the arguments of the parties permits us to move directly to consider the question of statutory interpretation which, in our view, determines the appeal.

75    The question may arise when the Minister (we adopt Rares J's defined terms) has issued an invitation in accordance with s 501CA(3)(b) of the Migration Act 1958 (Cth) for a person to make representations as to why the cancellation of his or her visa should be revoked. The question is whether, after that has occurred, the Minister has the power to issue another such invitation (or to reissue the first invitation) so that it is effective for the purposes of s 501CA(4)(a) of the Migration Act, which enables the person, by making representations in accordance with the invitation, to enliven the Minister's power to revoke the cancellation of the visa.

76    For the reasons that follow, we respectfully differ from Rares J in how we answer that question. In our view, the Minister has no power to issue a further invitation or re-issue a previous one. We therefore consider that the appeal must be dismissed. Since the arguments put to us on appeal were different to those put to the primary judge, our reasons are different to those of his Honour, albeit consistent with them.

The text of s 501CA

77    Although we do not need to set out the legislation again in full, it is convenient to restate the key provisions of s 501CA:

(1)    This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)    For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for making the original decision; and

(b)    is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3)    As soon as practicable after making the original decision, the Minister must:

(a)    give the person, in the way that the Minister considers appropriate in the circumstances:

(i)    a written notice that sets out the original decision; and

(ii)    particulars of the relevant information; and

(b)    invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(4)    The Minister may revoke the original decision if:

(a)    the person makes representations in accordance with the invitation; and

(b)    the Minister is satisfied:

(i)    that the person passes the character test (as defined by section 501); or

(ii)    that there is another reason why the original decision should be revoked …

78    To start with the text of the section, s 501CA(1) and s 501CA(2) define the 'original decision' and the concept of 'relevant information'. The original decision is one under s 501(3A) which imposes on the Minister a mandatory requirement to cancel a person's visa if the Minister is satisfied that the person does not pass the character test in certain ways. Section 501CA(3) requires the Minister then to communicate two things 'as soon as practicable after making the original decision' to the person whose visa has been cancelled.

79    Section 501CA(3) thus identifies a time within which the communication must occur. The question of when that time expires - when it first becomes practicable to make the communication - may be an evaluative one which could vary depending on the specific facts of the case. It is also, no doubt, one which does not require absolute precision in the answer. But whatever the time in a particular case, it remains tethered to a single and clearly identifiable event from which it is calculated: the making of the original decision. And it is a time that occurs 'as soon as' the condition of practicability becomes fulfilled. If follows that whatever time is 'as soon as practicable' after that event, it is a time which occurs once. The soonest time that it is practicable is by definition a single time, and not one that can reoccur.

80    The two things that the Minister must do by that time are to give the person certain information about the original decision and to invite the person to make representations to the Minister. The invitation must be an invitation to make those representations within a certain period and in a certain manner, both ascertained in accordance with the regulations. Section 501CA(3) as a whole indicates that the time for both the Minister's obligation to make the invitation and the person's ability to respond to the invitation are not open ended. On its face, no discretion is conferred on the Minister about the period for the taking of either of those steps, other than whatever scope he may have in practice to determine when it is 'as soon as practicable after making the original decision'. Perhaps further discretion could have been conferred by way of the period prescribed in the regulations, but it has not been; the representations must be made within 28 days after the person is given the notice of the original decision and particulars of relevant information: Migration Regulations 1994 (Cth) reg 2.52(2)(b). The Minister has no power to change that.

81    Then, s 501CA(4) confers a power on the Minister to revoke the original decision. On its face the power can only be exercised if two preconditions are both fulfilled. The first is that the person has made 'representations in accordance with the invitation': s 501CA(4)(a). The second is that the Minister is satisfied either that the person passes the character test or that there is another reason why the original decision should be revoked: s 501CA(4)(b). These are expressed as necessary preconditions to the existence of the Minister's power to revoke the original decision. The power arises 'if' the matter stated in s 501CA(4)(a) has occurred and 'if' the Minister is satisfied as to one (or both) of the requirements in s 501CA(4)(b). In context, the 'if' must mean 'only if'. It is not to be supposed that the Minister may revoke the cancellation - a cancellation the statute requires him to effect - if no representations are made. The appellant thus accepted that s 501CA(4)(a) established an objective jurisdictional fact.

82    Viewed in that light, the reference to 'the invitation' in s 501CA(4)(a) is significant. That provision appears immediately after s 501CA(3)(b), which refers to an act of inviting, and which contemplates that there will be requirements as to the timing and manner of making representations in response to the invitation so extended. When s 501CA(4)(a) requires the representations to be made 'in accordance with the invitation', it is saying that compliance with the requirements laid down in the invitation is a necessary condition of the satisfaction of the pre-requisite in s 501CA(4)(a) for the existence of the power, at least in so far as those requirements are requirements as to timing and manner which are ascertained in accordance with the regulations. The inference is inescapable that 'the invitation' in s 501CA(4)(a) is the invitation which the Minister is required to extend by s 501CA(3)(b).

83    The singular nature of that invitation, that is, the fact that the legislation does not contemplate that there might be more than one, is confirmed by the requirement that the invitation be given as soon as - at the earliest time after - the happening of the singular event of the making of the original decision. For that reason, the text of s 501CA expresses a contrary interpretation to the rule in s 23(b) of the Acts Interpretation Act 1901 (Cth) that words in the singular number include the plural, so s 23(b) does not apply: see Acts Interpretation Act s 2(2).

The statutory context of s 501CA including the regime of which it is a part

84    Of course, no statutory provision should be considered in isolation. While the text may be the starting point for the ascertainment of the meaning of a statutory provision, it is the text of the statute as a whole, and at the same first stage of the inquiry regard must be had to its context and purpose in the widest sense: see SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ). So we turn immediately to the context and purpose of s 501CA as part of the Migration Act as a whole.

85    It is curious that a provision with such a potentially large effect on people's lives is found in Part 9 Division 2 of the Migration Act, that is, 'Miscellaneous' - 'Other'. This means that its place in the overall structure of the Migration Act is of little assistance. More specifically, though, it is part of a group of provisions (s 501 to s 501HA) which variously permit or require the Minister to refuse a visa or to cancel a visa if the Minister is satisfied that the visa applicant or visa holder does not pass the character test (or the Minister suspects that the person does not pass it, and is satisfied that other criteria such as that of the national interest apply - see e.g. s 501(3)). The group of sections contains ancillary provisions which restrict the ability of a person whose visa has been refused or cancelled to apply for or obtain other visas (s 501E and s 501F) and impose requirements about the notification of certain adverse decisions (s 501G).

86    Section 501CA thus forms part of a regime governing processes by which persons who are not citizens of Australia, and who have engaged in criminal or other conduct, or have characteristics, which mean that it is undesirable that they remain in Australia, are deprived of visas authorising them to stay here. That may be seen as part of the wider objects of the Migration Act, which include the regulation in the national interest of the coming into, and presence in, Australia of non-citizens, and the removal of non-citizens whose presence in Australia is not permitted by the Act: s 4(1) and s 4(4).

87    The concept of the 'character test', which identifies the conduct and characteristics which may lead to the refusal or cancellation of a visa, is found in s 501(6). Some of the ways in which a person may not pass the character test require a substantial measure of judgment on the part of the Minister; for example s 501(6)(c), which applies where, having regard to one or both of the person's past and present criminal conduct and the person's past and present general conduct, the person is not of good character. Others are capable of more objective determination, such as where a person has a substantial criminal record (defined in s 501(7)) or has been convicted of or charged or indicted with certain serious crimes: see e.g. s 501(6)(a), (e) and (f).

88    If not satisfied that a person passes the character test the Minister may, in certain circumstances, refuse to grant a visa to the person (s 501(1) and s 501(3)(a)), or may cancel the person's visa (s 501(2) and s 501(3)(b)). And most relevantly, under s 501(3A), if the Minister is satisfied that the person does not pass the character test in certain specified ways, and the person is serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory, then the Minister must cancel the person's visa. Both the fact that the person is serving such a sentence, and the specified ways in which the person does not pass the character test are capable of ready identification. In the case of the latter, it is by possession of a substantial criminal record on the basis of three levels of sentence as defined in s 501(7)(a), (b) and (c) (death, life imprisonment or a term of imprisonment of 12 months or more), or by conviction or otherwise being found guilty of one or more sexually based offences involving a child (s 501(6)(e)).

89    Unlike the ways contemplated in s 501(1) to s 501(3) by which a person may be deprived of a visa because of the character test, under s 501(3A), the Minister has no discretion. If the Minister is satisfied that one or more of those readily ascertainable pre-conditions are fulfilled, and if the person is serving a term of imprisonment, the Minister must cancel the visa. It is evident that this reflects a policy on the part of the legislature that, prima facie, if a person has been found guilty in a court of law of certain serious crimes, they should not be permitted to remain in Australia. But that policy is reflected in s 501(2) as well. In confining s 501(3A) to objective criteria about the character test, the legislature should be taken also to have intended that in such clear cases, the person must start from the position of having a visa cancelled, and persuading the Minister why the visa should be restored. Section 501(5) thus exempts a decision under s 501(3A) from the rules of natural justice, so that the revocation can happen without notice to the person. And in applying only to persons who are in prison for 12 months or more, this reflects a legislative intention that persons whose visas have been cancelled because of those objective criteria should stay in prison or immigration detention until they are removed from Australia or their visa is restored. That latter objective finds expression in s 13-s 15 of the Act, which provide that when the non-citizen's visa is cancelled, he or she becomes an 'unlawful non-citizen', and s 189, which requires an unlawful non-citizen to be detained.

90    Those legislative intentions are confirmed by the second reading speech on 24 September 2014 of the Minister for Immigration and Border Protection for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) which introduced s 501(3A) and s 501CA, as follows:

The third key measure this bill seeks to introduce is mandatory visa cancellation under section 501 of the act where a noncitizen is serving a full-time sentence of imprisonment in a custodial institution and they are found to objectively not pass the character test on the basis of, for example, having been convicted of an offence or offences and sentenced to a term of imprisonment of 12 months or more, or having been convicted of, or found to have been guilty of, or had a charge proved against them for a sexually based offence involving a child. Under this process, a noncitizen will have their visa mandatorily cancelled without prior notice of an intention to cancel a visa, with a notification of the cancellation decision provided after the fact. Upon notification, the noncitizen will be provided with the opportunity to seek revocation of the cancellation decision. Where a decision is taken by a delegate to not revoke the decision, the former visa holder will have access to merits review. This will be a streamlined process which will deliver the key benefit of providing a greater opportunity to ensure noncitizens who pose a risk to the community will remain in either criminal or immigration detention until they are removed or their immigration status is otherwise resolved.

91    See also paras 32 and 34 of the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth):

This item ensures that the visa of a non-citizen who is in prison and objectively does not pass the character test because they have a substantial criminal record (as set out in subsection 501(7) of the Migration Act and amended by items 13 to 15 of this Schedule) or because of a sexually based offence involving a child (as set out in new paragraph 501(6)(e) inserted by item 12 of this Schedule) must be cancelled without notice to the visa holder.

…

The intention of this amendment is that a decision to cancel a person's visa is made before the person is released from prison, to ensure that the non-citizen remains in criminal detention or, if released from criminal custody, in immigration detention while revocation is pursued.

92    These materials thus confirm that the meaning of s 501(3A) and s 501CA(3) is the ordinary meaning conveyed by the text of the provision taking into account its context in the Migration Act and the purpose or object underlying the Act: see Acts Interpretation Act s 15AB(1)(a).

The purpose of s 501CA in context

93    Section 501CA, however, ameliorates the prima facie position by providing a process under which the non-citizen may, if he or she chooses, seek to have the Minister revoke the cancellation of the visa by putting representations to the Minister. Since the rules of natural justice do not apply to that original decision, one purpose of s 501CA(3) and s 501CA(4) is evidently to require the Minister to give the person an opportunity to be heard, albeit from the starting point that the visa has already been cancelled and that it is for the person to persuade the Minister that the cancellation should be revoked.

94    A particular purpose of s 501CA(3) is to ensure that the opportunity of the person to persuade the Minister is a meaningful one. Persons whose visas have been cancelled pursuant to s 501(3A) will be in prison or immigration detention and may have limited access to knowledge, resources and assistance to enable them usefully to make representations. Obviously they will not be able to make representations if they are not notified of the original decision at all. And there is in addition to that a requirement to give the particulars of 'relevant information'. This is limited in s 501CA(2)(a) to information that the Minister considers 'would be the reason, or part of the reason, for making the original decision'.

95    While the use of the future conditional here is curious, the purpose is clear enough. Section 501CA(3)(a)(ii) together with s 501CA(2)(a) require the Minister to inform the non-citizen of why the visa was cancelled (albeit it only requires reasons specifically about the person or another person to be given). The evident intent is to permit the non-citizen to address those matters in the representations contemplated by s 501CA(4)(a), if he or she wishes. The relevant information may usefully inform the representations the non-citizen makes, especially any representations about the character test. If, for example, the Minister proceeded on the basis of an error as to the crimes of which the non-citizen has been convicted or the sentences imposed, that error can be exposed and addressed.

96    It is true that, as counsel for the appellant pointed out, one of the bases on which the Minister may be authorised to revoke the cancellation is satisfaction that the person passes the character test, which may require the Minister to consider criteria for that test which go beyond the limited objective criteria that require cancellation under s 501(3A). The other basis for revocation, in s 501CA(4)(b)(ii) - another reason why the original decision should be revoked - is even wider. But that is not a strong reason to disregard the plain meaning of s 501CA(2) as referring to information that concerns the original decision to cancel. The sub-section still performs the useful purpose of requiring the Minister to tell the person why the visa was cancelled. If the intention was to require the Minister to give information relevant to the revocation decision, one would expect the provision to have been placed after s 501CA(3), which provides for how the process of possible revocation can be commenced.

97    In our view, the true explanation of the curious wording is probably that it is an error caused by the importation of similar wording from other provisions in the Act that modify the principles of natural justice (e.g. s 424A(1)(A)) into the inapposite context of s 501CA. But the task of the court is not to determine what in fact happened in the making of the legislation, but to determine what meaning should be attributed to it. Understood in the purposive context, that can be done here without doing undue violence to the language. For example, there will be situations where the Minister has in fact cancelled the visa on the basis of a particular offence but there may have been other offences which could also have served as the basis for the cancellation. Fairness would require the Minister to tell the person of all the possible alternative bases, so that the person can frame their representations accordingly. In that sense, those alternative reasons can be understood as reasons that would be the reason for the original decision if the actual reasons were not sufficient. That construction does not fit the language comfortably, but it is preferable to the one advanced on behalf of the appellant, which requires one to simply ignore the clear choice of the drafter to refer to reasons for the 'original decision', a term defined in the preceding sub-section.

98    Returning to the legislative intention which emerges from s 501CA, considered in the context of the Migration Act as a whole, in our view the intention is that if a person does not pass the character test in certain objectively ascertainable ways and is serving a term of imprisonment, the person's visa is to be cancelled without natural justice. The mandatory cancellation of the visa provides the starting point for the process under s 501CA. That process then gives the person a limited opportunity to persuade the Minister why the cancellation should be revoked. It is limited in the sense that the person must invoke it within a certain period of time, and must do so in accordance with an invitation which must itself be made as soon as practicable after the original decision, and must comply with the regulations. No discretion is given to the Minister or anyone else as to when an invitation may be given and by when it must be responded to.

99    Since the obligation to make the invitation arises at a single time - 'as soon as practicable after making the original decision' - an invitation issued a second or subsequent time has, by that very fact, not been issued 'as soon as practicable', because it was the first invitation which met that requirement and so the second invitation was necessarily later than 'as soon as practicable'. Also, the obligation in s 501CA(3) is an obligation to confine the invitation so that it is an invitation to make the representations within a stated period, ascertained in accordance with the regulations. That period is defined in reg 2.52 of the Migration Regulations so as to end 28 days after the non-citizen is given the notice and the particulars of relevant information. So a second invitation, issued later than 'as soon as practicable', and/or after the expiry of that 28 days, would not be an invitation of the kind required by the provision. While the regulations could not modify the Act in this regard, they can govern the scope of the Minister's power and there was no suggestion that reg 2.52 was ultra vires the Act.

100    The appellant referred to SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123. There, the majority (Bennett and McKerracher JJ) held that the obligation in s 418(3) of the Migration Act, for the Secretary of the Department to give the Tribunal documents relevant to a review of a Part 7 reviewable decision 'as soon as practicable after being notified of the application', was an ongoing one: at [57], [72]. But their Honours did not specifically address the significance of the use of the phrase 'as soon as practicable', and the immediate statutory context of SZOIN was very different; it concerned review of protection visa decisions which did not engage the same considerations as s 501 and s 501CA, and it was directed to ensuring that the Tribunal, which was empowered to make a decision on the merits at the time that its decision was made, had all information in the Department's possession at the time of the Tribunal's decision.

101    The purpose and context of s 501CA are quite different and for reasons we have given they do not support the appellant's case. In our view the construction of s 501CA we have outlined is the ordinary meaning of the provision, and it is also consistent with the mandatory nature of the cancellation under s 501(3A) to read s 501CA(3) as imposing an obligation to initiate a process for possible revocation which is limited and goes no further than its express words authorise: compare Hely J's description in Minister for Immigration & Multicultural & Indigenous Affairs v Watson [2005] FCAFC 181; (2005) 145 FCR 542 at [24] of the 'specific and confined powers of revocation' under s 501C(4) of a decision to cancel a visa under the similarly structured s 501(3) and s 501A(3).

102    In Minister for Home Affairs v Brown [2020] FCAFC 21; (2020) 275 FCR 188 at [60] (affirmed in Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 386 ALR 200), Allsop CJ, Kenny and Banks-Smith JJ said of the power to cancel a visa under s 501(2):

Further, both Burgess [v Minister for Immigration and Multicultural Affairs [2000] FCA 926; (2000) 101 FCR 58] and VQAR [v Minister for Immigration and Multicultural and Indigenous Affairs] had regard to the nature of the subject-matter in the process of construction. In Burgess Katz J drew attention to the legislative emphasis on certainty in decision-making. In VQAR Heerey J drew attention to the fact that once deprived of a visa, the unlawful non-citizen has no right to remain in Australia and must be removed, as a consideration militating against the Minister having 'a floating inchoate power' extending indefinitely in point of time. Considerations of the same kind should be part of the process of statutory construction in this case.

103    In our view, similarly, it would be inconsistent with the subject matter of the legislative regime we have described for the Minister to have a floating inchoate duty, extending indefinitely in point of time, to issue a further invitation enlivening his jurisdiction to revoke, on the basis of new or newly apparent circumstances that are unspecified in s 501CA. Reading the duty that way could also lead to the result that a person who has unsuccessfully sought revocation could ask the Minister to reissue the invitation, and then apply for judicial review of any decision not to do so. That is inconsistent with a regime which is plainly intended to confine such review to merits review by the Tribunal (s 500(1)(ba)) followed by judicial review of that merits decision by this court (s 476A(1)(c)).

The appellant's arguments

104    Counsel for the appellant put the case on two main grounds. The first was that the curious wording of s 501CA(2)(a) ('would be the reason') should be construed to refer to information which would be the reason for not revoking the cancellation of the original decision. If so, then, as such information may come to the Minister's attention after the giving of the initial invitation, s 501CA(4) should be read as imposing a duty to give relevant information as soon as practicable after it comes to the Minister's attention. But we have already explained why we prefer a construction of s 501CA(2), the definition of 'relevant information', which does not untether it from the original decision. On our preferred construction, the appellant's argument about s 501CA(4) does not arise.

105    Also, if the appellant's construction is correct, and if it is accepted that s 501CA(3) is engaged every time new relevant information comes to light, that would require the Minister to perform the pointless task of giving the person a written notice again that sets out the original decision and particulars of all relevant information again (not just the new information) and an invitation again to do what had already been done. That is not a sensible interpretation of s 501CA.

106    The second main argument advanced by the appellant was that there was a residual duty or power to invite further representations if circumstances change after the making of the first invitation. Counsel thus submitted that the use of the term 'as soon as practicable' meant that when first exercised, the notice, relevant information and invitation have to be given quickly but that does not, he said, undermine the proposition that there can be circumstances where it would be appropriate to re-exercise the power in 501CA(3)(b).

107    But there is no need to look into s 501CA(3) to find the Minister's duty to give the person notice of newly discovered information or changed circumstances. The rules of natural justice are not expressly excluded by s 501CA. And the existence of a 'necessary intendment' to exclude the principles of natural justice is not to be assumed or spelled out from 'indirect references, uncertain inferences or equivocal considerations': Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 at [14]. So if fairness requires the Minister to give the person certain information, and this is not excluded by the legislation, then the common law will imply a duty to do so: see Saeed at [12]‑[15]; see also Williams v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 814; (2020) 170 ALD 468 at [79].

108    If the Minister complies with that natural justice obligation, that is simply the provision of information which is relevant to the process of possible revocation of the cancellation of the visa which is already underway. Neither s 501CA nor common sense require that information to be accompanied by a second invitation to make representations and an invitation that enlivens the Minister's jurisdiction to revoke anew. The requirement to give an invitation in s 501CA(3)(b) is not a requirement to invite the person to make representations about the information provided under s 501CA(3)(a). It is a requirement to give an invitation to make representations about a broader subject: the revocation of the original decision. It is quite possible for the Minister to simply draw potentially relevant information to the person's attention without extending any further invitation. There is no reason to characterise it as a new invitation to make representations as required by s 501CA(3)(b). To the contrary, the invitation required by that provision is one to make representations within the period ascertained in accordance with the regulations. Whatever the regulations may prescribe, the Migration Act contemplates that the invitation would need to be one to make representations within a limited time period to enliven the jurisdiction to revoke. An invitation made after that time period cannot be an invitation to make representations within it.

109    The arguments of counsel for the appellant were ingeniously constructed out of the text and purpose of s 501CA. But with respect, they failed to have regard to the wider purpose and context evident from the scheme of the statute as a whole: cf. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

Other matters

Other provisions of the Migration Act

110    Our construction of the power conferred by s 501CA(3) is also consistent with other aspects of the Migration Act. The detention of the person which is mandatory under s 189 causes suffering to the detainee and cost to the Commonwealth. It should not be permitted to continue longer than necessary. This supports a view of s 501CA(3) that it provides a limited window of time within which the possibility of revocation, which will necessarily extend any immigration detention, is to be invoked.

111    It is also consistent with the text of another provision relevant to the duration of detention, s 198(2B), which provides:

An officer [e.g. such as an officer of the Department - see the definition in s 5(1)] must remove as soon as reasonably practicable an unlawful non-citizen if:

(a)    a delegate of the Minister has cancelled a visa of the non-citizen under subsection 501(3A); and

(b)    since the delegate's decision, the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and

(c)    in a case where the non-citizen has been invited, in accordance with section 501CA, to make representations to the Minister about revocation of the delegate's decision - either:

(i)    the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or

(ii)    the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate's decision.

Note:     The only visa that the non-citizen could apply for is a protection visa or a visa specified in the regulations for the purposes of subsection 501E(2).

112    Section 198(2B)(c) is describing the way that the obligation to remove the non-citizen can be deferred pending the outcome of a process to determine whether to revoke the cancellation of the visa. It implies that the process can only be commenced by an invitation 'in accordance with s 501CA'. Section 198(2B)(c) contemplates that the process can be deferred only by a single invitation, and that the deferral will end if the prescribed period for making representations ends, or if a decision not to revoke is made. The person will then need to be removed from Australia 'as soon as reasonably practicable'. That is all consistent with the view that the opportunity to seek revocation is limited in the way we have described.

113    Counsel for the Minister also argued that any uncertainty which may result from the idea that the Minister could issue an invitation under s 501CA(3) more than once could lead to uncertainty in the application of s 198(2B). We agree with Rares J that it would not have that effect. Nevertheless, for the different reason we have given, we consider that it supports our preferred interpretation of s 501CA.

Section 33 of the Acts Interpretation Act

114    In our view the legislative intention not to permit an invitation complying with s 501CA(3) to be made more than once emerges with clarity, and thus displaces - is an intention contrary to - s 33 of the Acts Interpretation Act. That contrary intention may appear not only in the particular provision in question but also in the Act as a whole: Pfeiffer v Stevens [2001] HCA 71; (2001) 209 CLR 57 at [20] (Gleeson CJ and Hayne J), [56] (McHugh J).

115    In Makasa at [45] the High Court explained the limitations of s 33 as follows (footnote removed):

… some aspects of the operation of s 33(1) of the A[cts] I[interpretation] Act ought to be noted. The section is enacted against the background of 'an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise'. The section counters that doctrine not by itself conferring any power but by requiring that a provision conferring a power be interpreted as authorising the power it confers to be exercised and re-exercised from time to time. The section does not alter the incidents of the power spelt out in the terms of the provision conferring the power. The words 'as occasion requires' acknowledge the need for the repository of the power to comply with the incidents of the power spelt out in the terms of the provision. They are not words of additional limitation.

On our preferred construction of s 501CA, it is an incident of the power to issue an invitation to make representations that it may only be exercised once. The 'occasion requires' at the time that is as soon as practicable after the making of the original decision, and not at any time thereafter.

Injustice

116    We do not consider that this construction of s 501CA is to be doubted because it may lead to an unjust result in some cases. If a person has been convicted of a serious criminal offence, but has a realistic hope of that conviction being quashed or pardoned, they can be expected to raise this with the Minister or the Minister's delegate in the representations they make in accordance with the invitation. The usual need for expedition in the determination of appeals against conviction means that there is a prospect that the result will be known by the time the decision on revocation is made anyway, and there is nothing inhibiting the discretion of the Minister or the delegate to await that outcome (we acknowledge the same cannot be said of the Tribunal). If the Minister or delegate decides not to wait for the outcome of that process before deciding not to revoke the cancellation, that may (depending on the circumstances) be an unfair exercise of the discretion, but it is not an unjust result of the legislation.

117    If the person's conviction is quashed after a decision not to revoke has been made but while the person is still in detention, the Minister may remove any injustice by exercising the special power to grant a visa under s 195A if the Minister thinks it is in the public interest to do so. This is a dispensing provision which gives the Minister a degree of flexibility: see Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; (2013) 252 CLR 336 at [33] and also [32], [39], [41] (French CJ, Crennan and Bell JJ).

118    Other hypothetical examples were put in submissions of situations where it was said that s 501CA(3)(b) would lead to injustice if it is construed to be exercisable only once. One was the example where, unbeknownst to the Minister, the person whose visa was cancelled was at the time of receipt of the invitation totally incapacitated from acting on it for medical reasons. It would be unfair to the person if the Minister could not issue the invitation again. We suspect there are other answers to the unfairness in that situation, such as an examination of whether it is indeed 'practicable' to give notice to a person who is incapable of receiving it in any meaningful way. But we do not need to explore such hypothetical situations here, because such extreme situations cannot control the proper meaning of the text of s 501CA, in context.

Conclusion and costs

119    The case here is a hard one. The initial problem was caused not by the appellant but by the unexplained omission of his legal adviser to make the representations within time. Then, the Department raised false hopes in purporting to solve the problem by exercising a power it did not have, and later changed its position so as to take those hopes away. But we feel compelled to agree with the Minister that he does not have that power, so that the appeal must be dismissed.

120    The Minister did not seek to disturb the primary judge's finding that in view of the Minister's conduct, the justice of the case required an order that the Minister pay the applicant's (now appellant's) costs of the application. But the Minister did seek the costs of the appeal. In our view the same considerations of justice identified by the primary judge apply to the prosecution of the appeal. There will be an order that the Minister pay the appellant's costs of the appeal.

Associate:

Dated:    7 June 2021