Federal Court of Australia

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

ORDERS

THE COURT ORDERS THAT:

1.    The second respondent’s decision dated 23 October 2020 be quashed.

2.    The coming into effect of Order 1 be delayed until:

(a)    the expiry of the period within which to seek special leave to appeal to the High Court of Australia from these orders; or

(b)    (if an application for special leave to appeal is made) the determination of the application for special leave to appeal filed by the first respondent; or

(c)    (in the event that special leave to appeal is granted) the determination by the High Court of Australia of the appeal.

3.    Unless the applicant or first respondent takes steps in accordance with Order 4, the first respondent pay one-half of the applicant’s costs, as agreed or taxed.

4.    Within one week hereof, if the applicant or first respondent opposes Order 3:

(a)     the opposing party has leave to file and serve written submissions, not exceeding two pages in length, as to why a different costs order should be made;

(b)    the other party has leave to file and serve any written submission in reply, not exceeding two pages in length, within five business days after any submissions are filed in accordance with order 4(a); and

(c)    the issue of costs will otherwise be determined on the papers.

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

REASONS FOR JUDGMENT

THE COURT:

1    This matter, which is in the Court’s original jurisdiction, was heard together with the appeal in Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NSD 1301 of 2020).

2    An order was made under s 20(1A) of the Federal Court of Australia Act 1976 (Cth) that the matter be heard by a Full Court constituted by three Justices.

3    The hearing in both matters commenced on 3 May 2021. At that time the Court raised the potential relevance to both matters of the High Court’s decision in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 388 ALR 351 and the Full Court’s earlier decision in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196. The matters were then adjourned to enable the parties to give consideration to that issue.

4    When the matters resumed on 20 August 2021, the applicant in the present proceeding relied on a further amended originating application dated 19 August 2021, reliance upon which was not opposed by the Minister. Most of the grounds were directed to a decision dated 23 October 2020 by the Administrative Appeals Tribunal. The Tribunal found that it did not have jurisdiction to review the delegate’s decision dated 30 June 2020 not to revoke the mandatory cancellation of the applicant’s visa on 13 August 2019. The cancellation occurred because the applicant did not satisfy the character test in s 501(6) of the Migration Act 1958 (Cth). The Tribunal’s finding of lack of jurisdiction was based on the Tribunal’s view that the applicant had not made representations within the specified time as required by s 501CA(4)(a), which was an essential precondition to the Tribunal having jurisdiction to review the delegate’s decision.

5    These matters will be elaborated upon by reference to the broader background history of the matter.

Background matters summarised

6    The applicant was born in South Sudan in 1985. He came to Australia in 2003 along with some family members, having been granted a Global Special Humanitarian visa. The applicant’s criminal offending commenced approximately two years after he arrived in Australia. That offending included various driving offences, which then escalated to more serious offences including malicious wounding, affray, stealing, recklessly causing grievous bodily harm, fraud and drug offences. Some of the applicant’s offending occurred while he was on bail for prior charges. In June 2019, the applicant was convicted in the Local Court of New South Wales for several offences, including possessing stolen goods in custody, possessing a knife, possessing a forged prescription and identity information, possessing prohibited drugs and possessing housebreaking implements. He was sentenced to an aggregate term of imprisonment of 15 months.

7    This triggered the mandatory cancellation of the applicant’s visa on 13 August 2019, at which time he was serving a sentence of imprisonment on a full-time basis in a custodial institution. On 14 August 2019, a Departmental officer sent by prepaid post to the applicant at the Dawn de Loas Correctional Centre notification of the visa cancellation, as required by s 501CA(3) of the Act (first notification letter). That letter was then returned to the Department by the Correctional Centre on the basis that the applicant had been taken to a different prison. Accordingly, on 2 September 2019 the Department sent a second notification to the applicant, this time by email, including to an email address of the South Coast Correctional Centre, where the applicant was then incarcerated (second notification letter). The letter was marked “by hand”. The applicant signed a receipt for the second notification letter on 5 September 2019, which was the date on which it was handed to him. As will shortly emerge, the letter contains important information regarding the timeframe within which the applicant needed to make any representations. As matters transpired, through his representative the applicant did make representations in support of his request that the visa cancellation be revoked, but the representations were not received by the Minister until 4 October 2019 which, on the Minister’s case, was one day too late.

8    It is desirable to set out the relevant parts of the second notification letter which, as noted above, is dated 2 September 2019:

Dear [EPL20]

Notice of visa cancellation under section 501(3A) of the Migration Act 1958

Purpose of this notice

You were granted a Class XB Subclass 202 Global Special Humanitarian visa on 14 March 2003 (your visa). The purpose of this notice is to advise you that on 13 August 2019 your visa was cancelled under s 501(3A) of the Migration Act 1958 (the Act).

Section 501(3A) of the Act is a mandatory cancellation power, and provides that the Minister must cancel your visa if:

•    the Minister is satisfied that:

○    you do not pass the character test under s501(6)(a) because you have a ‘substantial criminal record’ according to s501(7)(a), (b) or (c) of the Act; or

○    you do not pass the character test under s501 (6)(e) because a court in Australia or a foreign country has convicted you of one or more sexually based offences involving a child; or the court has found you guilty of such an offence or found a charge for such an offence proved against you, even though you were discharged without a conviction; and

•    you are serving a full-time sentence of imprisonment in a custodial institution because you have committed an offence or offences against Australian law.

The full text of s501 of the Act, including s 501(3A) (mandatory cancellation power), s 501(6) and s 501(7) (character test), are included in Attachment 1.

Particulars of relevant information

Failure to pass the character test

Based on the information before the Department, the decision maker (who is a delegate of the Minister) was satisfied that you do not pass the character test on the following ground:

You have a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) of the Act.

Under s 501(7)(c) a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

On 08 March 2013 you were convicted of Destroy Or Damage Property > $2000 & < = $5000, Recklessly Cause Grievous Bodily Harm; Fail To Stop And Assist After Vehicle Impact Causing Grievous Bodily Harm and Take and Drive Conveyance Without Consent Of Owner and sentenced to an aggregate term of four years and seven months imprisonment.

The information based on which the decision maker was satisfied that you do not pass the character test is the Sentencing Remarks of the District Court of New South Wales on 08 March 2013.

Imprisonment on a full-time basis

Based on the information available, the decision maker was also satisfied that, at the time of the decision, you were serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory.

On 04 June 2019 you were convicted of Possess housebreaking implements- T2, Possess prohibited drug (two counts) and Goods suspected stolen in/on premises (not m/v) and sentenced to 15 months imprisonment.

In particular, regard was had to the Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 08 July 2019 and File Note dated 13 August 2019.

Your visa status

Your visa has been cancelled and you no longer hold a visa. Additional information in Attachment 2 explains the consequences of the cancellation of your visa.

Opportunity to seek revocation of the original decision to cancel visa

While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations to the Minister about revoking the decision to cancel your visa under s501(3A) (‘the original decision’).

You are hereby invited to make representations to the Minister about revoking the original decision. The representations must be made in accordance with the instructions outlined below, under the headings ‘How to make representations about revocation of the original decision’ and ‘Timeframe to make representations about revocation’.

The original decision may be revoked by the Minister under s 501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that:

•    you pass the character test (as defined by s 501 of the Act); or

•    there is another reason why the original decision should be revoked.

The full text of s 501 CA of the Act is included in Attachment 1.

How to make representations about revocation of the original decision

If you decide to make representations about revocation of the original decision, your representations must comply with the requirements set out in Regulation 2.52 of the Migration Regulations 1994 (‘the Regulations’), which is reproduced in Attachment 1.

In particular, in accordance with Regulation 2.52(4), your representations must include the following information:

(a)    your full name;

(b)    your date of birth;

(c)    one of the following:

(i)    your client number, which is [XX];

(ii)    your file number, which is [XX];

(iii)    the number of the receipt issued by the Department when the visa application was made;

(d)    if the visa application was made outside Australia—the name of the Australian mission or the office of the Department at which the visa application was lodged;

(e)    a statement of the reasons on which you rely to support the representations.

Further, in accordance with Regulation 2.52(5), any document accompanying your representations must be:

(a)    the original document; or

(b)    a copy of the original document that is certified in writing to be a true copy by:

(i)    a Justice of the Peace; or

(ii)    a Commissioner for Declarations; or

(iii)    a person before whom a statutory declaration may be made under the Statutory Declarations Act 1959; or

(iv)    if the copy is certified in a place outside Australia:

(A)    a person who is the equivalent of a Justice of the Peace or a Commissioner for Declarations in that place; or

(B)    a Notary Public.

Under Regulation 2.52(6), if a document accompanying the representations is in a language other than English, the document must be accompanied by an accurate English translation.

To help ensure your representations contain all the information and documentation required by Regulation 2.52 as specified above (‘the Required Information’), it is recommended that you make your representations by completing the attached Revocation Request Form and sending the completed form to the Department.

Timeframe to make representations about revocation

Under Regulation 2.52(2), any representations you may wish to make in relation to the revocation of the original decision must be made within 28 days after you are given this notice. That means, in order for your representations to be considered, the Required Information (see explanations above) MUST be received by the Department within 28 days after you are taken to have received this notice.

As this notice was given to you by hand, you are taken to have received it when it was handed to you.

Providing the Required Information

If you decide to make representations to the Minister to seek revocation of the original decision, it is essential that the Required Information is received by the Department within 28 days after you are taken to have received this notice as this timeframe cannot be extended. (As mentioned above, it is recommended that you provide the Required Information by completing the attached Revocation Request Form.) If the Required Information is received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider your representations because they would not have been made in accordance with the invitation (as set out in this notice), as required by s 501CA(4)(a) of the Act.

…

9    For reasons which will shortly emerge, it is important to note the terms of the second notification letter under the heading “Timeframe to make representations about revocation”. In particular, it should be noted that the applicant was informed that any representations he wished to make must be received by the Department within 28 days after he was taken to have received the notice. He was also told that because the notice had been given to him by hand, he was taken to have received it when it was handed to him. These are the matters which potentially attract the effect of the decisions in EFX17 and Stewart.

10    As previously noted, through his representative the applicant purported to make representations under s 501CA(4). They were sent by an email dated 4 October 2019 and received by the Minister on that day. The Minister’s delegate did not take any point about the timing of the representations and the delegate decided on 30 June 2020 not to revoke the visa cancellation.

11    On 9 July 2020, the applicant applied to the Tribunal for review of the delegate’s decision. It was not until shortly before the Tribunal hearing that the Minister then raised for the first time the issue of timing. He submitted that the Tribunal lacked jurisdiction to review the delegate’s decision because the representations had not been received on 3 October 2019, which he contended was the correct deadline.

12    Referring to relevant provisions in both the Act and the Migration Regulations 1994 (Cth), the Tribunal held that it lacked jurisdiction because the applicant’s representations had to be received by no later than 3 October 2019, being 28 days from 5 September 2019, when the applicant received the second notification letter. The Tribunal noted, correctly, that the time-limits imposed by the Regulations did not provide for any relaxation or extension.

13    The Tribunal’s decision that it lacked jurisdiction is the primary, but not the only, object of the present judicial review challenge.

The further amended originating application

14    The further amended originating application dated 19 August 2021 seeks judicial review relief not only in respect of the Tribunal’s decision on jurisdiction but also the anterior decision of the Minister’s delegate not to revoke the visa cancellation. There is considerable force in the Minister’s contention that the applicant’s judicial review application fails clearly to express the decisions which he challenges, or the basis upon which those decisions are challenged. Although that contention was directed to the amended originating application, it applies equally to the further amended originating application, the grounds of which are as follows (without alteration and noting that tracked changes indicate amendments made after the original hearing on 3 May 2021):

Grounds of application

7.    The Second Respondent [the Tribunal] erred and in doing so acted without and in excess of its jurisdiction for not accepting that the Applicant has met the requirement for the representation to be made pursuant to subsection 501 CA of the Migration Act 1958.

Particulars

a)    On 13 August 2019 , the Department of Home Affairs issued a Notice of Visa Cancellation (Exhibit R1, G41,228) on the basis that he did not satisfy the character test in reliance on Local Court decisions in NSW under subsection 501 ( 3A) of the Migration Act 1958.

b)    On 6 September 2019 at a time which was not as soon as reasonably practicable after the decision of 13 August 2019 was made the Applicant received notice by hand by prepaid means of the proposed cancellation decision of the Minister but without receiving the documents required by sections 501CA nor 501G of the Migration Act 1958.

c)    On 4 October 2019, the applicant’s representative sent by email a request for revocation of the Mandatory visa cancellation. A Personal Circumstances document was signed by the applicant on 4 October 2019.

d)    Applicant’s contention is that 4 October 2020 is the 28th day for the representation to be made or is not otherwise restricted lawfully as such day. Migration Reg. 2.52 states that “(b) for a representation under paragraph 501CA(3)(b) of the Act ---within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(a) of the Act.”. The emphasis is on “after the person is given notice.”

e)    The Respondents led no evidence as to by whom, with what documents and when, or by what means the cancellation documents required by Migration Act 1958 and Migration Regulation 2.55 and/or 2.52 were given to the Applicant or any invitation was issued to him.

8.    The Tribunal made a jurisdictional error that having decided the first issue for determination it did not take into account or decide the other issues for determination in this review application.

9.    The Tribunal erred without or in excess of its jurisdiction in finding that the Minister complied with the requirements of service specified by Migration Regulations 1994 [Cth] Reg 2.55(3)(a) in circumstances when there was no evidence of the finding.

10.    The Tribunal erred without or in excess of its jurisdiction in relying on Migration Regulations 1994 [Cth] Reg 2.55(3)(a) in that no written submission was made by the Respondents in reliance on the Regulation but instead the Respondents relied on Reg 2.55(3)(b) and /or (6) and /or (9).

11.    The Tribunal erred without or in excess of its jurisdiction in ordering the separate determination on 17 9 2020 of the preliminary point raised by the Respondents to the prejudice of the Applicant having regard to the time infrastructure of Chapter 9 Migration Act 1958.

12.    The Tribunal erred without or in excess of its jurisdiction in not considering the developed argument of the Applicant with respect to the interpretation and application of Migration Regulations 1994 [Cth] Reg 2.55 and /or Reg 2.52.

13.    Migration Regulations 1994 [Cth] Reg 2.55 and/or 2.52 is invalid in that it is inconsistent with and/or unauthorised by Migration Act 1958 [Cth] sections 501CA, 501G and 504(1) and/or the requirements of procedural fairness.

14.    Further or alternatively to Migration Act 1958 [Cth] chapter 9 and in particular section 501CA is invalid insofar as it purports to apply to the Applicant who at all material times and in particular in 2019 was not an alien and/or restricts the free exercise of the Christian religion.

15.    The Tribunal erred in holding that the Minister’s first and second invitations and notices under Migration Act 1958 section 501CA(3) dated 13 8 2019 and 2 9 2019 respectively are sufficient and/or are valid, and that each was duly served upon and given to the Applicant.

15    It is convenient to address the applicant’s case with reference to the following five primary components of his case (which is the basis upon which the parties conducted the hearing, including with reference to a “Skeleton Argument” which was handed up by the applicant’s counsel at the commencement of the resumed hearing):

(a)    Whether the Tribunal fell into error in finding that there had been compliance with the requirements of reg 2.55 of the Regulations in notifying the applicant of the visa cancellation decision and inviting him to make representations (Construction issue).

(b)    Whether Pt 9 of the Act (or parts thereof) are invalid as offending s 116 of the Constitution (s 116 Constitutional issue).

(c)    Whether Pt 9 of the Act (or parts thereof) are invalid, or not authorised, under s 51(xix) of the Constitution (aliens issue).

(d)    Whether regs 2.55 and/or 2.52 are invalid because they are inconsistent with and/or unauthorised by the Act and/or the requirements of procedural fairness (validity of regs 2.55 and/or 2.52).

(e)    A contention which is referred to in the s 78B notices (but not squarely raised in the further amended originating application), namely whether ss 501 and 501CA of the Act are invalid or should be read down to the extent that each provision impairs an asserted constitutionally recognised implication of natural justice (validity of ss 501 and 501CA).

The legislation summarised

16    It is desirable to summarise the relevant parts of the Act and the Regulations.

17    As soon as practicable after making a decision to cancel a person’s visa under s 501(3A) of the Act, the Minister is obliged by s 501CA(3) to:

(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 (as defined); 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.

18    The way in which the Minister must give a notification of a decision under s 501(3A) is set out in reg 2.55 of the Regulations. Regulation 2.55(3) provides that the Minister may give a document by a number of means, including the following:

…

(c)    by dating it, then dispatching it:

(i)    within 3 working days (in the place of dispatch) of the date of the document; and

(ii)    by prepaid post or by other prepaid means;

to the person’s last residential address, business address or post box address known to the Minister; or

(d)    by transmitting the document by:

(i)    fax; or

(ii)    email; or

(iii)    other electronic means;

to the last fax number, email address or other electronic address known to the Minister.

...

19    Sub-regulations 2.55(7)-(8) provide:

(7)    If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:

(a)    if the document was dispatched from a place in Australia to an address in Australia – 7 working days (in the place of that address) after the date of the document; or

(b)    in any other case – 21 days after the date of the document.

(8)    If the Minister gives a document to a person by transmitting it by fax, email or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.

The parties’ submissions

20    To avoid adding unduly to the length of these reasons for judgment we will address the parties’ primary submissions in the next section of these reasons for judgment.

Consideration and determination

21    We will address in turn each of the five primary components of the applicant’s case, before then addressing an additional complaint raised by him.

(a) Construction issue

22    Determination of this issue primarily turns on whether either or both EFX17 and Stewart apply to the second notification letter.

23    Before summarising each of those judgments, it should be noted that notwithstanding that the Minister acknowledged (for the first time) in his outline of submissions dated 4 June 2021(i.e. post the initial Court hearing) that the first invitation letter was invalid (having regard to the fact that EFX17 had now been squarely raised and the Minister accepted that the first notification letter was not an effective notification because it failed to crystallise the period within which any representations had to be made), the applicant pressed his contention that the first invitation letter was ineffectual, relying inter alia on EFX17 and Stewart. It became evident that his reason for doing so related to his wish to rely upon the Full Court’s decision in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91. It was held there by majority (Banks-Smith and Jackson JJ, Rares J dissenting) that, on a proper construction of relevant provisions of the Act, the Minister was not permitted to issue a second invitation to a person to make representations under s 501CA.

24    Significantly, however, BDS20 related to circumstances where the first notification letter was held to have been validly issued (see at [75]). It was against that critical background fact that Banks-Smith and Jackson JJ reasoned that a second notification letter could not be issued. The position is different here given that the Minister has now acknowledged that the first notification letter was invalid and ineffectual. There is no scope for BDS20 to apply to the circumstances of the present matter. It is necessarily implicit in what the High Court said in EFX17, particularly at [42], that a failure to comply with the statutory obligations regarding notification and inviting representations as required by s 501CA(3)(b) gives rise to jurisdictional error and results in the purported notification and invitation being invalid.

25    Attention will now be focused on the applicant’s challenge to the second notification letter. It is convenient to start with a brief analysis of the judgments in EFX17 and Stewart.

EFX17 and Stewart summarised

(i) EFX17

26    In EFX17, the High Court (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ) upheld the Minister’s contention that the majority of the Full Court erred in holding that:

(a)    s 501CA(3) of the Act required that the recipient be capable of understanding the information and invitation provided for in that provision; and

(b)    the information invitation had to be given to the recipient by the Minister, or the Minister’s delegate, personally.

27    More significantly for current purposes, the High Court upheld the respondent’s notice of contention on the basis that the Full Court’s decision was correct because the invitation to make representations in that matter did not provide a way to ascertain the period within which the representations was required to be made by the Regulations.

28    In EFX17, the respondent received a letter dated 3 January 2017 from the Department which purported to comply with the relevant legislative requirements regarding notification of the mandatory cancellation decision. The letter included a section under the heading “Time-frame to make representations about revocation”. The letter stated that representations had to be made within the prescribed timeframe, which was said to be “within 28 days after you are taken to have received this notice”. The letter then added:

As this notice was transmitted to you by email, you are taken to have received it at the end of the day it was transmitted.

29    It was uncontroversial that the notification letter was sent to the Brisbane Correctional Centre on 3 January 2017, where the respondent was incarcerated. It was also uncontroversial that the letter and its enclosures were handed to the respondent by an officer of the Queensland Department of Corrective Services on 4 January 2017. The respondent signed the formal acknowledgement of receipt and dated it 4 January 2017.

30    It is sufficient to focus on the High Court’s reasons for upholding the notice of contention and the timeframe for making representations as specified in the notification letter. After noting that it was common ground that if the notification letter and enclosures complied with s 501CA(3) then the 28-day period started to run from 4 January 2017 when the letter and enclosures were physically handed to the respondent, the High Court explained at [40] and [41] why the notification letter and invitation failed to crystallise the period within which representations had to be made (footnotes omitted):

40    The obligation in s 501CA(3)(b) of the Migration Act required the Minister to invite the respondent to make representations about revocation to the Minister “within the period and in the manner ascertained in accordance with the regulations”. The letter from the delegate of the Minister contained an invitation to make representations in the manner ascertained in accordance with the regulations: for instance, it provided that the representations must be in writing and in English or accompanied by an English translation, referring to reg 2.52. And it correctly referred to the 28‑day timeframe for making representations, which could not be extended. But in the absence of any manner of ascertaining that 28‑day period, and by incorrectly saying that the respondent was “taken to have received [the letter] at the end of the day it was transmitted [by email]” (which was 3 January 2017), the letter did not invite representations “within the period ... ascertained in accordance with the regulations”.

41    The Minister submitted that s 501CA(3)(b) did not require the Minister to specify the date by which representations must be made and he submitted that the period during which representations must be made may be left to the respondent to determine. These submissions can be accepted. But the words of s 501CA(3)(b) which require the Minister to invite a person to make representations “within the period and in the manner ascertained in accordance with the regulations” also require that there be sufficient information on the face of the invitation to permit the person to determine this period correctly. This conclusion is further supported by the condition upon the Minister’s power to revoke the cancellation decision that representations be made within the prescribed time limit. It can hardly be supposed that Parliament intended that a person whose visa had been cancelled would not be given the information that would reveal the date by which representations must be made if the person is to avoid the strict consequences of failing to make representations.

31    The High Court confirmed at [42] that for an invitation to make representations “within the period … ascertained in accordance of the regulations”, the invitation must crystallise the period either expressly or by reference to correct objective facts from which the period could be ascertained on the face of the invitation. The Court gave as an example a notification which included an invitation to make representations within “28 days from the day that you were handed this document”, whereas the notification letter in that case failed to do that.

(ii) Stewart

32    Stewart pre-dated EFX17. Stewart is another case where the Minister belatedly raised a critical procedural point shortly before the hearing in the Full Court. The Minister contended that the applicant’s representations in that case were not received by the Minister and hence were not “made” within the meaning of s 501CA(4)(a) of the Act within the specified 28-day period. Accordingly, the Minister contended that the power to revoke the mandatory visa cancellation was not enlivened. The relevant question was when it is that a person “makes” representations within the meaning of s 501CA(4)(a). In relation to this question, the Full Court (Rares, Anastassiou and Stewart JJ) said at [12]:

… Is it only when the representations are received by or on behalf of the Minister, as contended by him, or is it at some earlier time such as when, as in this case, they are dispatched by being given to the prison authorities for posting, as submitted by the applicant?

33    The Full Court held that the word “made” does not mean “received” but rather means “dispatched” (at [43]).

34    The Full Court explained at [29] to [55] why that was the preferred construction, having regard to considerations of text, context and purpose. In brief, those reasons were as follows:

(a)    An important part of the statutory context is that a person who wishes to make representations under s 501CA will necessarily be in custody, which means that such a person is “entirely at the mercy of their gaolers” in terms of corresponding with the Minister (at [34]-[37]).

(b)    Acceptance of the Minister’s submission that a representation was not made until it was received by the Minister produced unreasonable consequences which assisted in the proper construction of the provision (at [38]).

(c)    Textual considerations included the fact that there was a contrast in language in the Regulations. While reg 2.52(2) referred to representations having to be “made” within the stipulated time period, this contrasted with the requirement in reg 2.53(1) that information or material referred to in s 501D of the Act must be “received” by the Minister within the stipulated time period. Although the Minister contended that the purpose of reg 2.52 was to create certainty and uncertainty would be created if the word “made” was construed as meaning “dispatched”, the Full Court said at [47] that a more compelling consideration is the uncertainty for a prisoner arising from the Minister’s preferred construction. That is because, having dispatched representations, including by giving them to prison authorities to dispatch, the prisoner does not know whether or not they have been received in time.

35    The core of the Full Court’s reasons is set out at [50] of its reasons for judgment:

Here, ss 501CA(3)(b) and 501CA(4)(a) and reg 2.52 are concerned with affording a person who is currently in prison a real opportunity, within a specified period, to make representations to the Minister as to why the cancellation should be revoked. The statutory context contemplated and intended that the prisoner would have a limited capacity to communicate with the Minister. That was because of the effect of the deprivation of the person’s liberty and consequent limitations on their ability to arrange for, or ensure, delivery of any representations that they might make. Rather, the legislative expressions “makes” and “made” in s 501CA and reg 2.52 focus on the act of the prisoner, not the position of the Minister as the intended recipient of the representations. It can readily be inferred that, in such a context, the statutory language contemplated and intended that the prisoner only do all that was reasonably in their power to “make” the representations within the prescribed period of 28 days after being given the notice of revocation.

36    Mr Lenehan SC (who appeared together with Mr Johnson for the Minister in the present proceeding) properly conceded that the second notification letter here was in the same terms as the relevant parts of the notification letter the subject of the Full Court’s decision in Stewart. Perhaps for this reason, the Minister’s primary contention in the present proceeding in respect of the first issue is that Stewart was “plainly wrong” and should not be followed by this Court. If that contention is rejected and the Court applies the reasoning in Stewart it necessarily follows that the second notification letter is invalid and the applicant should succeed on the first issue.

37    The meaning of the expression “plainly wrong” was recently the subject of a comprehensive judgment by Allsop CJ in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 at [1]-[32]. We respectfully adopt the Chief Justice’s statement of the relevant principles, which may be summarised as follows:

(a)    The expression “plainly wrong” is sometimes used as though it has a fixed content of meaning, which is not correct (at [3]).

(b)    Departing from an earlier Full Court decision should be done cautiously and only when the Court is compelled to conclude that the earlier decision is wrong (at [4]).

(c)    It will only be in infrequent and exceptional circumstances in which a departure from a previous Full Court authority will be justified (at [4]) (quoting Nguyen v Nguyen [1990] HCA 9; 169 CLR 245 at 268-269 per Dawson, Toohey and McHugh JJ).

(d)    Before an intermediate appellate court finds that it is appropriate to overrule one of its earlier decisions, it must entertain a strong conviction as to the incorrectness of the earlier decision (at [7]).

(e)    Much will depend upon the nature of the controversy, the strength of the arguments, and the particular circumstances relating to the case (at [9]).

(f)    A decision to depart from an earlier authority involves not only a consideration of the jurisprudential nature and character of the error that leads to the conviction of past error by the earlier Full Court decision, but also other considerations, such as whether the earlier decision rests on principle carefully worked out and whether the earlier decision had been otherwise acted upon subsequently by other courts (at [10]).

(g)    This does not mean that in all cases a Full Court must, or even should, engage in wholesale reconsideration of earlier intermediate appellate authority whenever a party challenges it as being plainly wrong (this is especially so in the Federal Court in the area of migration law which is so heavily regulated by complex and voluminous legislation which is frequently the subject of contest) (at [13]).

(h)    The considered decisions of Full Courts should not be lightly interfered with (at [14]).

(i)    Relevant considerations in determining whether not to apply an earlier Full Court decision include whether the matter is one of statutory construction, whether the error is clear or patent and not merely a difference of view as to meaning, and whether it has produced unintended and perhaps irrational consequences (at [18]).

(j)    Care should be taken to avoid, especially within a short interval, the re-opening and re-examination of issues that have been substantially decided by an earlier intermediate appellate decision in closely analogous circumstances (at [19]).

(k)    Adherence to earlier Full Court decisions by a later Full Court, unless convinced of error in the earlier decision and where circumstances make it appropriate not to follow the earlier decision, stems from regularity and consistency as attributes of the rule of law (at [22]).

38    In brief, the Minister’s contention that Stewart is “plainly wrong” was put on the following grounds:

(a)    contrary to the Full Court’s statement at [32], the ordinary meaning of the compound term “make representations to the Minister” in the Act and the words “made representations to the Minister” and “must be made” in the Regulations necessarily involves delivery of the written material;

(b)    contrary to the Full Court’s statement at [34], it is not always the case that a person who wishes to make representations under s 501CA will be in custody;

(c)    contrary to the Full Court’s finding at [35], not all detainees who wish to seek revocation of a visa cancellation are at the mercy of their gaolers because some have the assistance of legal or other representatives and family members;

(d)    contrary to the Full Court’s observation at [42] that prisoners could not ensure that their representations were actually received by the Minister within a particular period, it was open to any such person to make inquiries on that topic, such as by telephone;

(e)    the Full Court’s reliance on the relevance of harsh consequences in the task of statutory construction was misplaced where the statutory scheme itself was rigid and had the potential to produce harsh outcomes;

(f)    the Full Court’s construction of s 501CA(4) failed to take into account that similar expressions were used elsewhere in the Act; and

(g)    the contention that “made” means “received” promotes the statutory purpose of achieving certainty of decision-making. The Minister submitted that the language and context of the Act assumes the Minister is going to be able to determine, with some precision, when representations are made and whether they are made within the prescribed time.

39    Having regard to the Chief Justice’s exposition of the relevant principles and proper approach in FAK19 in considering whether or not the previous Full Court authority is “plainly wrong”, we consider that this Court should apply Stewart. That is primarily because:

(a)    we are not convinced by the Minister’s arguments that the Full Court’s decision is plainly wrong. The Minister has failed to demonstrate that the Full Court’s construction of “made” in Stewart is affected by “clear” or “patent” error, rather than “merely a difference of view as to meaning” (FAK19 at [18], citing Telstra Corporation Ltd v Treloar [2000] FCA 1170; 102 FCR 595 at [28] per Branson and Finkelstein JJ and Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 at [29] per Black CJ, Hill, Sundberg, Marshall and Kenny JJ);

(b)    the proper construction of the relevant provisions as found in Stewart are the product of a comprehensive analysis of relevant provisions in the Act and attract the considerations identified by the Chief Justice in FAK19 regarding the unattractiveness of engaging in a wholesale reconsideration of such an analysis simply because a party challenges it as being plainly wrong; and

(c)    Stewart was published on 12 November 2020 and has been subsequently applied by the Federal Court (Law v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1726 at [14]-[15] per Stewart J), the Federal Circuit and Family Court of Australia (EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436) and in the Tribunal (Re GCRM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4850).

40    Finally, we do not accept the Minister’s submission that, even if the second notification letter contained an error in the way described in EFX17, when read with Stewart, the requirements in s 501CA(3) are not such that any departure there resulted in invalidity and there was a necessity to consider the extent and consequences of the departure. A sufficient response to that contention is that in EFX17, the High Court accepted that an error by one day in crystallising the period for making representations was sufficient to uphold the respondent’s notice of contention without any consideration of the extent or consequences of departure. This was despite the fact that EFX17 had never made, or sought to make, any representations to the Minister concerning the visa cancellation decision. Furthermore, contrary to the Minister’s submission, no particular significance should attach to the fact that the applicant had the advantage of being represented when the representations were made.

41    In our respectful view, this Court should follow and apply Stewart. The Minister has not persuaded this Court that there is any sound basis for distinguishing Stewart or EFX17 in this respect.

42    For these reasons, the applicant’s Construction issue should be upheld.

43    Contrary to the applicant’s contention, however, this does not mean that the invalidity of the second notification decision results in the mandatory cancellation decision itself also being invalidated. In brief, the applicant claimed that strict compliance with the notification obligations is a condition subsequent to the making of a mandatory cancellation decision. Accordingly, non-compliance with that condition subsequent necessarily invalidated the original mandatory cancellation decision. When asked by the Court to identify any authority in support of that proposition, the applicant’s counsel referred to North J’s decision in Santhirarajah v Attorney-General (Cth) [2012] FCA 940; 206 FCR 494 at [73]. This reliance is misplaced. The relevant provision there was s 22(2) of the Extradition Act 1988 (Cth), which imposed a duty on the Attorney-General to “as soon as is reasonably practicable, having regard to the circumstances” determine whether a person is to be surrendered. After noting that the construction of that provision raised “a finally balanced question”, North J concluded at [73] that the preferable construction was that once the time stipulated by the provision had passed, the Attorney-General no longer had the power to surrender a person under s 22(2).

44    That statutory context is far removed from the position here, not the least because the Act itself compels the visa cancellation in stipulated circumstances and then provides for a series of subsequent steps relating to the question whether that decision should be revoked. Santhirarajah is directed to a provision which constitutes a condition on a prospective power. There is nothing in the Act here which supports the applicant’s contention that the statutory notification obligations constitute a condition subsequent to the valid operation of earlier provisions forming part of the scheme of the Act for mandatory cancellation of visas on character grounds.

(b) The s 116 issue

45    The applicant made the bold contention that Pt 9.2 of the Act (and, in particular, s 501CA(3)), is invalid because their effect is to prohibit the applicant from exercising his Christian religion both in Australia and in his country of origin if he were to be removed. He contended that s 116 of the Constitution invalidated those provisions.

46    For the following reasons, we consider that these contentions are barely arguable and must be rejected.

47    It is desirable to set out the terms of s 116:

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

48    As the Minister pointed out, neither ss 501(3A) nor 501CA(3) is a law which prohibits the free exercise of any religion. Indeed, neither provision says anything about religion or the manner in which anyone might practise their religion.

49    We also accept the Minister’s submission that the applicant’s real complaint focuses upon the effect of his removal from Australia, as is required by operation of s 198(2B) of the Act where the person is an unlawful non-citizen. The fundamental difficulty with the applicant’s case and its focus on the effect of his removal from Australia is that it is established that, by reasons of the word “for” in s 116 of the Constitution, attention should be directed to whether the Commonwealth has made a law in order to prohibit the free exercise of any religion: Kruger v Commonwealth [1997] HCA 27; 190 CLR 1 at 160 per Gummow J (with whom Dawson J agreed on this point and see also Brennan CJ at 40, Toohey J at 86 and Gaudron J at 132-133); see also Attorney-General (Vic); Ex rel Black v Commonwealth [1981] HCA 2; 146 CLR 559 at 579 per Barwick CJ, 615-616 per Mason J and 653 per Wilson J).

50    The applicant did not claim that the object or purpose of ss 501(3A) nor 501CA(3) was to prohibit the free exercise of any religion. As emphasised, his case focused on what he claimed to be the effect of that and other related provisions.

51    Finally, to the extent that the applicant contends that the administrative steps taken pursuant to any of the provisions in Pt 9.2 of the Act infringe s 116 of the Constitution, it is also established law that s 116 is directed only to the making of a law and not with its administration (see Ex rel Black at 580-581 per Barwick CJ).

(c) The aliens issue

52    This issue is also barely arguable and is rejected for the following reasons.

53    The applicant contended that he is not an alien and cannot be subject to the operation of provisions such as ss 501(3A) and 501CA(4). His basal contention that he is not an alien for the purposes of the Act is because he is stateless and owes no allegiance to any foreign power. He also contends that he has been absorbed into the Australian community. The applicant claimed that his position was supported by both Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 375 ALR 597 and Chetcuti v Commonwealth [2020] HCA 42; 385 ALR 1 per Nettle J. Neither authority supports his case. A central element of Love was that the applicants claimed to be Indigenous. No such claim is made by the applicant here, nor could he based upon the material before the Court.

54    In Chetcuti, Nettle J rejected an argument that because the plaintiff had the status of a British subject when he arrived in Australia, it was not open to find that he was an “alien” in the ordinary meaning of that term, and therefore he must be a non-alien and beyond the reach of s 51(xix) of the Constitution. Justice Nettle’s decision was affirmed on appeal (see Chetcuti v Commonwealth of Australia [2021] HCA 25). As Nettle J observed at [39], nothing in Love called into question the Court’s

established jurisprudence that, generally speaking, alienage has nothing to do with a person’s experience or perception of being connected to the Australian territory, community or polity, or with an actual or perceived absence of connection to another country”. (See also Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; 212 CLR 162 at [27] per Gleeson CJ and Pochi v MacPhee [1982] HCA 60; 151 CLR 101 at 110-111 per Gibbs CJ).

55    We accept the Minister’s submission that these authorities cannot be circumvented simply because the applicant either is, or considers himself to be, stateless and therefore “subject to the laws of no foreign country”. Even if the applicant is properly regarded as being stateless, that does not mean that he is not an “alien” in Australia and subject to any Commonwealth laws which regulate the entry and stay of non-citizens (see Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 at 29 per Brennan, Deane and Dawson JJ).

56    For these reasons the applicant’s aliens issue is rejected.

(d) The validity of regs 2.55 and/or 2.52 issue

57    The challenge to the validity of these two regulations is raised by Ground 13 of the further amended originating application. At the resumed hearing, the applicant’s counsel initially left unclear whether or not this issue was pressed. The issue was addressed briefly in the applicant’s written outline of submissions filed on 14 December 2020 (see at [6]) and in his written reply filed on 8 January 2021 (see at [11]-[13]). The applicant’s “Skeleton Argument”, which was handed up at the commencement of the resumed hearing, also cross-refers to his earlier written submissions in respect of all “Other Issues” (apart from the first issue), which might indicate that the validity of these regulations was still pressed.

58    However, in oral address at the resumed hearing, the applicant’s counsel said that it was not necessary for him to advance the validity of the relevant regulations further. When asked by the Court whether he no longer pressed the argument that the deeming provisions in the Regulations were invalid, the applicant’s counsel said that he did press the argument and that it was not necessary to decide it if the Court accepted the Minister’s concession that the first notification letter was not an effective notification under s 501CA(3). When asked to confirm that if the Court proceeded on the basis of the Minister’s concession, there was no need to address the applicant’s argument concerning the invalidity of the deeming provisions in the Regulations, the applicant’s counsel expressly acknowledged that that was the case.

59    Accordingly, there is no need to determine this issue. That is not to say, however, that the fact that the issue was raised by the applicant and was the subject of written submissions by both parties is irrelevant to the question of costs, to which we will return below.

(e) Procedural fairness issue

60    The applicant’s presentation of his case also left uncertain whether or not he raised and pressed an argument that ss 501 and 501CA of the Act are invalid, or should be read down, on the asserted basis that those provision impaired what the applicant described in his s 78B notice as a “constitutionally recognized implication of natural justice in Constitution Chapter III”. As the Minister correctly pointed out, the issue was not squarely raised in the further amended originating application and the applicant made only scant mention of it in his written outline of submissions filed on 14 December 2020. In [15] of those submissions, the applicant made the following claims (without alteration):

15.    A visa is a right of property, and entitles its owner to legal recognition and standing, a legitimate expectation that if the property is to be taken away it must be clearly authorised, and inter alia complying with the requirements of natural justice express or implied into the statute: Kioa v West [1985] 159 CLR 550; Re Refugee Tribunal; ex parte Aala [2000] 204 CLR 82. An ‘invitation’, at least in civilised society in Australia even today, is one that arrives and is responded to in good faith. It is in this case an element of natural justice which would otherwise invalidate the statutory provision. No such courtesy, although expressly recognised by the Parliament, was afforded the Applicant in this case.

61    The applicant’s counsel did not elaborate upon those claims in oral address.

62    Assuming that the claims are pressed, they should be rejected for the reasons set out in the Minister’s written outline of submissions filed on 23 December 2020. First, it is difficult to see how anything in Ch III of the Constitution has any relevance to this matter in circumstances where the judicial review challenge is directed to administrative decision-making under Ch II of the Constitution.

63    Secondly, the applicant’s reliance on Kioa v West [1985] HCA 1; 159 CLR 550 and Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 takes his case no further. Neither of those cases suggests that there is a Constitutional entitlement to procedural fairness in administrative decision-making. The source of the obligation lies either in the statute or in the common law, and it is not necessary to distinguish between those two possible sources (as to which see Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 at [74] and Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 at [97] per Gummow, Hayne, Crennan and Bell JJ).

64    Thirdly, putting those matters to one side, this Court is not inclined to determine the merits of the applicant’s constitutional argument (irrespective of its patent weakness) in circumstances where his judicial review challenge succeeds on a non-Constitutional ground (see Zhang v Commissioner of Police [2021] HCA 16; 389 ALR 363 at [21]; ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 5; 240 CLR 140 at [141] per Hayne, Kiefel and Bell JJ and Babington v Commonwealth [2016] FCAFC 45; 240 FCR 495 at [47] per Kenny, Perram, Robertson, Griffiths and Perry JJ).

(f) An additional ground of challenge

65    Finally, the applicant raised a separate point in [9] and [15] of the further amended originating application as to whether he had been duly served with either the first or second notification letters. Given the Minister’s concession that the first notification letter is ineffectual it is sufficient to address this part of the applicant’s case as it relates to the second notification letter. As elaborated upon by the applicant’s counsel in oral address, this argument is based upon an alleged failure to serve the applicant with copies of various documents which were described as “Enclosures” on the final page of the second notification letter. The applicant contended that there was no evidence that he had been served with any of those documents and he said that his handwritten acknowledgment of having received the “Notice of Visa Cancellation Documents” on 5 September 2019 did not extend to the “Enclosures” themselves.

66    The applicant’s claims regarding service of the second notification letter have no substance and must be rejected. They entirely overlook the fact that the relevant statutory obligation imposed by s 501CA(3)(a) of the Act is to give the person a written notice that sets out the original decision and provides “particulars of the relevant information”, as defined in s 501CA(2). That is what occurred here. The particulars of relevant information were set out in the body of the second notification letter under the express heading “Particulars of relevant information”. The applicant did not contend that those particulars were legally deficient. His complaint that he was not duly served with the second notification letter is baseless and is rejected.

Conclusion

67    For these reasons, the further amended originating application should be upheld, but only on one of the grounds raised by the applicant. All the other grounds are rejected.

68    It is the Court’s tentative view that this is an appropriate case to order the Minister to pay one-half of the applicant’s costs. Such an order appropriately reflects the applicant’s success on only one of the many grounds advanced by him, as well as the fact that it was only during the course of the resumed hearing that the applicant made clear that he did not press some parts of his case. We have also taken into account the timing of the Minister’s belated concession regarding the invalidity of the first notification letter. If either party seeks a different order as to costs, the parties will have liberty to file and serve brief written submissions within one week hereof as to why a different costs order should be made.

69    The applicant submitted that the appropriate form of relief was that set out in his further amended originating application (without alteration):

1.    Order that the decisions of the Tribunal and/or Minister be quashed.

2.        Writ of mandamus directed to the Tribunal or Minister requiring them or one of them to determine the applicant’s application according to law.

3.        Declaration that each decision of the Minister by his delegate was not made in accordance with law by reason of the ground/s of this application and/or is void and of no effect.

4.    Injunction restraining the Minister by himself or by his Department officers delegates or agents from making the future decision or taking the other action the subject of the proceedings.

4A.     Order that the Applicant be released from Villawood Detention Centre.

5.    Further or other relief.

6.    Costs.

70    Following the Court’s request at the oral hearing on 20 August 2021, the Minister provided a note on 27 August 2021 which set out what the Minister submitted was the appropriate relief if the Construction Issue was upheld:

 1.    The second respondent’s decision dated 23 October 2020 is quashed.

2.    The coming into effect of Order 1 above be delayed until:

(a)    the expiry of the period within which to seek special leave to appeal to the High Court of Australia from these Orders; or

(b)    (if an application for special leave to appeal is made) the determination of the application for special leave to appeal filed by the first respondent; or

(c)    (in the event that special leave to appeal is granted) the determination by the High Court of Australia of the appeal.

3.    Each party bears their own costs.

71    The applicant’s proposed orders are inappropriate because this Court has no jurisdiction to review the delegate’s decision, having regard to the terms and effect of s 476A(1) of the Act.

72    We consider that the appropriate orders are as follows:

1.    The second respondent’s decision dated 23 October 2020 is quashed.

2.    The coming into effect of Order 1 be delayed until:

(a)    the expiry of the period within which to seek special leave to appeal to the High Court of Australia from these Orders; or

(b)    (if an application for special leave to appeal is made) the determination of the application for special leave to appeal filed by the first respondent; or

(c)    (in the event that special leave to appeal is granted) the determination by the High Court of Australia of the appeal.

3.    Unless the applicant or first respondent takes steps in accordance with order 4, the first respondent pay one-half of the applicant’s costs, as agreed or taxed.

4.    Within one week hereof, if the applicant or first respondent opposes order 3:

(a)    the opposing party should file and serve written submissions, not exceeding two pages in length, as to why a different costs order should be made;

(b)    the other party should file and serve any written submission in reply, not exceeding two pages in length, within five business days after any submissions are filed in accordance with order 4(a); and

(c)    the issue of costs will otherwise be determined on the papers.

Associate:

Dated:    27 September 2021