Federal Court of Australia

Minister for Immigration, Citizenship and Multicultural Affairs v EVE21 [2023] FCAFC 91

ORDERS

THE COURT ORDERS THAT:

1.    Appeal allowed.

2.    The Appellant file an amended notice of appeal within 7 days.

3.    Set aside the orders made by the Federal Circuit Court on 2 September 2022 and in lieu thereof order that:

(1)    The decision of the Second Respondent made on 30 November 2021 be quashed.

(2)    The Second Respondent now determine the Applicant’s review application according to law.

(3)    The Applicant’s originating application dated 26 April 2022 be otherwise dismissed.

(4)    The Applicant pay the First Respondent’s costs of the proceeding as taxed or agreed.

4.    The First Respondent pay the Appellant’s costs of the appeal as taxed or agreed.

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

REASONS FOR JUDGMENT

PERRAM J:

Introduction

1    This appeal concerns the validity of reg 2.55(3)(c) of the Migration Regulations 1994 (Cth) (the ‘Regulations’) which deals with the manner in which documents relating to the cancellation of a visa are to be given to the holder of the visa. Two documents are involved. One is a letter dated 17 March 2017 addressed to the First Respondent requiring him to show cause why his visa should not be cancelled. The other is a subsequent letter dated 27 June 2017 notifying him that his visa had, in fact, been cancelled. The first letter was sent by pre-paid post to the First Respondent at the private bag address of the Metropolitan Remand and Reception Centre at Silverwater (‘Silverwater Prison’) where, it is not disputed, he was then incarcerated. The second letter was sent to the First Respondent at the post office box address of the Long Bay Correctional Complex (‘Long Bay Prison’) where, again it is not in dispute, he was then imprisoned. Each letter stated that the First Respondent was deemed to have received the letter seven working days after the date of the letter.

2    The visa cancellation power used was the power in s 109 of the Migration Act 1958 (Cth) (the ‘Act’). It is a power which is enlivened in a variety of circumstances. In this case, it was used to cancel the First Respondent’s visa on two bases. First, it was said that his original visa application had contained incorrect answers contrary to s 101. Secondly, it was said that he had filled out two passenger cards incorrectly contrary to s 102. A passenger card is a card completed by travellers on departure from and arrival at a port within the Commonwealth. The power to cancel a visa for a breach of either section is conferred by s 109 but can only be exercised after a show cause procedure set out in s 107(1) is followed and a determination of non-compliance is made under s 108. The letter dated 17 March 2017 was the show cause notice under s 107(1) and the letter dated 27 June 2017 was a notification, required by regulation, of the cancellation decision under s 109(1).

3    An important feature of both s 107(1) and s 109(1) is that neither prescribes any method by which the visa holder is to be notified of the action taken under those provisions. Section 107(1) is in these terms:

107    Notice of incorrect applications

(1)    If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)    giving particulars of the possible non-compliance; and

(b)    stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)    if the holder disputes that there was non-compliance:

(A)    shows that there was compliance; and

(B)    in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance—shows cause why the visa should not be cancelled; or

(ii)    if the holder accepts that there was non-compliance:

(A)    give reasons for the non-compliance; and

(B)    shows cause why the visa should not be cancelled; and

(c)    stating that the Minister will consider cancelling the visa:

(i)    if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)    if the holder gives the Minister a written response within that period—when the response is given; or

(iii)    otherwise—at the end of that period; and

(d)    setting out the effect of sections 108, 109, 111 and 112; and

(e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)    requiring the holder:

(i)    to tell the Minister the address at which the holder is living; and

(ii)    if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non-compliance by the holder—to tell the Minister the changed address.

4    This provision requires the Minister or, as here, the Minister’s delegate, to give the notice but it does not say how the delegate is to do this. Section 109(1) is in these terms:

109    Cancellation of visa if information incorrect

(1)    The Minister, after:

(a)    deciding under section 108 that there was non-compliance by the holder of a visa; and

(b)    considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

(c)    having regard to any prescribed circumstances;

may cancel the visa.

(2)    If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

5    A feature of this provision is that it does not require the delegate to notify the visa holder of the cancellation. That obligation is instead contained in reg 2.42(1), which is in these terms:

2.42    Notice of decision to cancel visa under s 109

(1)    If the Minister cancels a visa under section 109 of the Act, the Minister must notify the former holder of the visa in writing that the visa has been cancelled.

6    This provision too does not say how the written notice is to be given to the former visa holder. Why does this matter? Depending on the kind of visa which has been cancelled, different merits review mechanisms exist for challenging a decision to cancel a visa. In this case, the First Respondent’s visa was a protection visa. A decision to cancel a protection visa may be reviewed by the Administrative Appeals Tribunal (‘Tribunal’) under the provisions of Part 7 of the Act: s 411(1)(d). The time within which a decision to cancel a protection visa may be challenged in the Tribunal only commences to run from the date at which the decision has been notified, for s 412(1)(b) provides that an application for review in such a circumstance must ‘be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision’. The regulations fix the period within which a review application must be filed by distinguishing those visa holders who are in immigration detention from those who are not. Whilst the First Respondent was being held in New South Wales prisons, he was not being held in immigration detention (since he held a visa). Consequently, the relevant period was fixed by reg 4.31(2) at 28 days.

7    The letter informing the First Respondent that his visa had been cancelled was dated 27 June 2017. The letter stated that it was taken to have been given to the First Respondent seven working days after the date of the letter. 27 June 2017 was a Tuesday. Seven working days after 27 June 2017 was therefore Thursday 6 July 2017. The First Respondent filed an application for a review of the cancellation decision on 10 September 2021. This was several years out of time.

8    There are two issues in the appeal. The first is whether the First Respondent was notified of the cancellation decision. The Minister says that the First Respondent was notified of the cancellation decision because it was sent to him in accordance with reg 2.55(3)(c) of the Regulations. Regulation 2.55(1)(a) provides that reg 2.55 applies to, inter alia, ‘the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act’. Regulation 2.55(3)(c) provides:

2.55    Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation

…

(3)    Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:

    …

(c)    by dating it, and 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;

    …

9    There is no dispute that the letter of 27 June 2017 was dispatched by pre-paid post within three working days of 27 June 2017. Where reg 2.55(3) is utilised then reg 2.55(7) deems the document to have been received at a clearly defined date. It provides:

(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.

10    Pausing there, the effect of reg 2.55(7)(a), if valid, is that the letter of 27 June 2017 was deemed to have been received on 6 July 2017. As I have observed above, this is what the letter of 27 June 2017 in fact said.

11    The First Respondent denies that the document was lawfully given to him because he says that reg 2.55(3)(c) is invalid. It is invalid, so he submits, because it is inconsistent with s 494A(1) of the Act. It provides:

494A    Giving documents by Minister where no requirement to do so by section 494B method

(1)    If:

(a)    a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and

(b)    the provision does not state that the document must be given:

(i)    by one of the methods specified in section 494B; or

(ii)    by a method prescribed for the purposes of giving documents to a person in immigration detention;

the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).

12    The first issue in the appeal turns on whether reg 2.55(3)(c) is inconsistent with s 494A(1) and therefore invalid.

13    The second issue in the appeal, which assumes that reg 2.55(3)(c) is valid, is whether the cancellation letter of 27 June 2017 was sent, as reg 2.55(3(c) required it to be, to the First Respondent’s post office box address. Here the First Respondent submits that the post office box address of Long Bay Prison was not his post office box address.

Validity

14    The issues concerning validity are the same for both letters and attention may be confined to the cancellation letter dated 27 June 2017. It contained two portions which are relevant to the issues in dispute. These are:

(1)    The Address: The letter was sent by registered post to the following address (although in these reasons, as required by s 91X of the Act, the First Respondent’s name has been redacted so as not to identify him as a person who sought refuge in Australia in the event that he is repatriated to his country of origin):

[Name of First Respondent] MIN [######] MSPC Long Bay Correctional Complex P.O. Box 13 MATRAVILLE NSW 2036

(2)    The Time of Receipt Section: The letter explained when it was taken to have been received in these terms:

As this letter was sent by mail from a place in Australia to an address in Australia, you are taken to have received this letter seven (7) working days after the date of the letter.

15    The First Respondent submits, and the trial judge found, that reg 2.55(3)(c) was inconsistent with s 494A(1). It was therefore invalid because the regulation making power in s 504(1) of the Act only authorised the making of regulations which were ‘not inconsistent with this Act’.

16    Respectfully, I do not agree although for reasons which were not advanced to the learned trial judge. It is true that the preconditions to the operation of s 494A(1) were met. Both s 107(1) and reg 2.42(1) (which contains the obligation for the Minister to notify a former visa holder of a visa cancellation under s 109) meet the negative requirements of ss 494A(1)(b)(i) and (ii). Neither provision stipulates a method specified by s 494B (so as to bring them within s 494A(1)(b)(i)) and the First Respondent was not in immigration detention so s 494A(1)(b)(ii) had no relevance.

17    Where, as here, its preconditions are met s 494A(1) permits, but does not require, the Minister to give a document to a person by any method thought appropriate. This is because the word ‘may’ indicates the presence of a discretionary power. Section s 33(2A) of the Acts Interpretation Act 1901 (Cth) provides that where an Act provides ‘that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.’ Section 33(2A) is subject to the terms of the particular legislation in question exhibiting ‘a contrary intention’: s 2(2). These provisions reflect the common law position which was generally that, unless the context otherwise requires, the word ‘may’ means ‘may’ rather than ‘must’: Ward v Williams (1955) 92 CLR 496 at 505; Ex parte Gleeson [1907] VLR 368 at 373 per Cussen J; Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 288 FCR 565 at [94]-[95] per Besanko J (‘CWY20’). In any event, the inquiry is the same: the word ‘may’ is facultative in s 494A(1) unless the terms of the Act indicate a contrary intention.

18    The First Respondent resists this conclusion and contends that the word ‘may’ means ‘must’; that is to say, that the statutory context requires that once the preconditions to the operation of s 494A(1) are established, the word ‘may’ casts an immediate duty upon the Minister then to select a method of delivery which he or she considers ‘appropriate’. The difference between these two positions may seem slight but, as will be seen, it has a distinct impact upon the question of whether reg 2.55(3)(c) can be inconsistent with s 494A(1) in a case where the Minister has not exercised the power in s 494A(1).

19    The First Respondent submits that ‘may’ is to be read as imposing a duty rather than a discretion for two reasons. First, he submits that if it is not read that way then the provision does nothing which the Act does not already do and, in that sense, is redundant. I would accept that if reading ‘may’ as conferring a discretion would operate so as to give s 494A(1) a redundant or otiose operation then this would be a compelling reason not to embrace such a construction: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 382 [71] per McHugh, Gummow, Kirby and Hayne JJ, quoting Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ.

20    What then is the suggested redundancy? Where ‘may’ is construed to confer a discretion the First Respondent accepts, correctly with respect, that s 494A(1) then contains two discretions. The first discretion is whether to utilise s 494A(1) at all whilst the second is a discretion, arising only after the first discretion is affirmatively exercised, to choose any delivery method which the Minister considers appropriate.

21    Section 494A(1) is, of course, a provision which operates by reference to other provisions which, loosely speaking, require or permit the Minister to give a document to a person without at the same time specifying how this is to be done. In this case, the relevant provision was s 107 which permitted the Minister to give a notice to the First Respondent. The First Respondent submits that the meaning of the word ‘give’ in s 107 is such that the Minister could act within its metes and bounds only by selecting a method of delivery he or she considers appropriate. I have framed this submission by reference to s 107 but the breadth of the submission is such that it applies to any provision that requires or permits the Minister to give a document to a person and, I am prepared to assume, to those which use other similar words such as ‘notify’ (as in reg 2.42(1)) or ‘inform’ rather than ‘give’.

22    The last and critical step in the submission was to observe that this conclusion had the consequence that the decisional freedom afforded by s 494A(1) and any provision using the word ‘give’ was the same. It followed that construing ‘may’ as conferring a discretion made s 494A(1) redundant. For example, in this case it meant that the Minister could decide to use the power in s 494A(1) and then select any method of delivery he or she thought appropriate. But, if the Minister decided not to use s 494A(1), precisely the same choice would then arise under s 107 by reason of the word ‘give’. On this view, s 494A(1) added nothing to the Act.

23    I do not accept this submission for three reasons. The first relates to important elements in the scheme of which s 494A(1) is but a part. Section 494A(1) permits, but does not require, the Minister to choose one of the methods specified in s 494B to effect the delivery of the document. That is to say, it is possible for the Minister to decide to exercise the power in s 494A(1) and thereafter to choose a method of delivery which is not one of the methods set out in s 494B.

24    However, where the Minister decides in the exercise of the power under s 494A(1) to utilise one of the methods in s 494B to give a document to a person, s 494C then contains provisions which specify when the document is taken to have been given to the person. For example, where a document is sent by pre-paid post it is taken to have been received seven working days after the date it bears: s 494C(4).

25    No such result can be achieved through a provision such as s 107 which merely uses the word ‘give’. If the Minister chooses a method of delivery to give a document to a person relying upon the word ‘give’ in s 107 that provision lacks any mechanism for determining when the ‘giving’ took place. Put another way, provisions such as s 107 lack certainty as to timing whereas the machinery of s 494A(1) allows the Minister to determine with certainty when a document is given to a person by utilising the methods set out in s 494B. Thus it is not correct to say that provisions such as s 107 have the same content as s 494A(1). Even if the word ‘give’ in provisions such as s 107 confers the same decisional freedom as s 494A(1), the latter is not therefore otiose because of the important timing stipulations it permits to be made through s 494B.

26    The second reason I do not accept the submission relates to the different legal principles governing the word ‘give’ in s 107 and those governing the formation of the state of satisfaction required by s 494A(1). In the case of the former, whether the Minister has ‘given’ a document to the person will turn on the meaning of the word ‘give’ and will be a question to be answered by seeking to construe that word. Whether any particular method of delivery constitutes, as a matter of law, the giving of the document to the person within the meaning of s 107 will not in any way be a function of whether the Minister considers the method an appropriate one.

27    On the other hand, s 494A(1) is explicit that any method may be selected by the Minister so long as it is one that he or she considers appropriate. The ambit of s 494A(1) is therefore delimited only by the Minister’s consideration of what is appropriate. The formation of that opinion is, of course, not entirely without limit. It may be reviewed where it appears there has been a failure to address the correct question, a material mistake of law, the taking into account of extraneous or irrelevant matters or a failure to take into account relevant considerations or where the decision is illogical, irrational or plainly unreasonable: see the cases collected by Besanko J in CWY20 at [142]. Nevertheless, the critical point is that the ambit of the word ‘give’ in s 107 is not in any way affected by the Minister’s views as to what is appropriate whereas s 494A(1) makes the Minister’s state of the mind the central focus of the provision.

28    The third reason is that any redundancy in s 494A(1) is not avoided, even on the Appellant’s argument, by the word ‘may’ being read as ‘must’. This is because the purported redundancy arises from the contention that the method selection contemplated by s 494A(1) is the same as the method selection contemplated by a provision such as s 107. Were that observation correct, it would be correct regardless of whether ‘may’ means ‘must’ in s 494A(1).

29    For those reasons, I do not accept that s 494A(1) is redundant if construed so that ‘may’ confers a discretion. Its exercise potentially enlivens significant deeming provisions about timing and its substantive content differs from the word ‘give’ in s 107 (and other such provisions).

30    The First Respondent’s second submission was that reading ‘may’ as conferring a discretion in s 494A(1) led to the limitation contained in that provision being potentially outflanked. The suggested limitation in s 494A(1) was that the method of delivery had to be one considered by the Minister to be appropriate. As I understood the argument, the point was that if the Minister could decide not to utilise s 494A(1) then a method of delivery might be selected which was not one which the Minister considered to be appropriate.

31    For the reasons I have already given, this submission is correct inasmuch as it correctly identifies that s 494A(1) operates by reference to the formation of an opinion of the Minister. However, I part company with the submission where the First Respondent characterises the formation of that opinion as a limitation which could be outflanked by other provisions if s 494A(1) need not be utilised and is merely facultative. Here the thinking can only be that a provision such as s 107 which uses the word ‘give’ would, but for s 494A(1), authorise a wider range of delivery methods than might possibly be considered by the Minister under s 494A(1) to be appropriate.

32    I do not think that is the effect of the provision. The meaning of the word ‘give’ in s 107 takes its meaning from the ordinary meaning of the word informed by the statutory context of s 107. By contrast, the meaning of the word ‘give’ in s 494A(1) takes its meaning from its statutory context which includes the fact that whatever else it means it includes the meanings in s 494B.

33    Thus, for example, s 494A(1) permits, through s 494B(1A), a document to be given to a minor by providing it to a person who is at least 18 years old who the Minister reasonably believes has the day-to-day care of the minor. It is doubtful that such an outcome can be achieved through the ordinary meaning of the word ‘give’ in s 107. Further, s 494B(5A) contemplates that a document may be given by making it available on an online account which it may be doubted constitutes the giving of a document in ordinary parlance (although it would probably constitute a communication).

34    These extensions to the ordinary meaning of ‘give’ and the fact that the available methods of selection under s 494A(1) include but are not exhaustively delimited by these extensions suggest that the word likely has a broader meaning in s 494A(1) than it bears in s 107. They certainly provide no succour for the First Respondent’s submission that s 494A(1) is narrower in scope than s 107.

35    Consequently, I do not accept that either of the First Respondent’s submissions provide any sufficient reason to read ‘may’ as not conferring a discretion. In that circumstance, s 494A(1) is merely facultative and the Minister has a discretion whether to exercise it or not. The discretion to exercise this power is, as I have already noted, distinct from the further discretion conferred by this section, which allows the Minister, having decided to exercise the power, to choose a method that he or she considers appropriate. Whether, in any particular case, it has been exercised is a question of fact. The terms of the letter of 27 June 2017 show that the delegate who issued it did not exercise the discretion to rely on s 494A(1) to choose an appropriate method. Rather, it shows that he understood himself to be exercising the power in reg 2.55(3)(c) for it was not possible to achieve the timing stipulations stated in the letter under s 494A(1). Although both parties on appeal accepted that the delegate had acted under reg 2.55(3)(c) rather than s 494A(1) it is worth explaining why this must be so.

36    There are only three possible scenarios concerning the sending of this letter. First, the delegate could have decided that he would exercise the power in s 494A(1) by selecting a method consisting of sending the letter by prepaid post to the post office box address of the prison. There is no doubt that the power in s 494A(1) would have permitted this. However, if this were done the deeming provision in reg 2.55(7) which deemed the letter to have been received seven working days after the date that it bore would not have been enlivened since the letter would have been sent under s 494A(1) and not reg 2.55(3)(c).

37    Consequently, if this is what occurred the letter incorrectly stated that it was deemed to have been received on the seventh working day after the date that it bore.

38    Secondly, the delegate could have decided under s 494A(1) to use one of the methods in s 494B to send the letter by prepaid post. The relevant method is set out in s 494B(4):

494B    Methods by which Minister gives documents to a person

…

Dispatch by prepaid post or by other prepaid means

(4)    Another method consists of the Minister dating the document, and then dispatching it:

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

(b)    by prepaid post or by other prepaid means; and

(c)    to:

(i)    the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or

(ii)    the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or

(iii)    if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.

39    Had this been done, this would have engaged an equivalent deeming provision in s 494C(4). It provides:

494C    When a person is taken to have received a document from the Minister

…

Dispatch by prepaid post or by other prepaid means

(4)    If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document 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.

40    Thus, if s 494B(4) could have been engaged then s 494C(4) would have authorised the timing stipulations in the letter and, specifically, the statement that it was taken to have been received seven working days after the date that it bore. However, whilst in this scenario the deeming provision would operate, the problem is that s 494B(4) could not apply to the present situation. Unlike reg 2.55(3)(c), s 494B(4) contains no reference to a post office box address and unlike reg 2.55(3)(c) it does not operate on the last address known to the Minister but rather on the last address provided to the Minister. It was not suggested by the Minister that the First Respondent had provided the post office box address of the prison as his address.

41    Thirdly, the delegate could have decided not to exercise the power in s 494A(1). At this point, he was then required to send the letter in accordance with reg 2.55(3) since the terms of that regulation are not optional. He elected to send it by post thereby engaging reg 2.55(3)(c) and amongst the options provided by that subsection he exercised a discretion to choose to use the post office box address of the prison. On this view, the letter is correct in every particular since, being an exercise of power under reg 2.55(3)(c), the deeming provision in reg 2.55(7) was engaged.

42    The terms of the letter are, therefore, only consistent with the power in s 494A(1) not having been engaged. As the parties therefore agreed, the power in s 494A(1) was not, as a matter of fact, exercised.

43    The question which then arises is whether reg 2.55(3)(c), under which the delegate understood himself to be acting, is invalid. If it was invalid, then it will not have authorised the delegate’s actions which will, subject to questions of materiality, most likely be invalid too.

44    The First Respondent submits that reg 2.55(3)(c) is invalid because it is inconsistent with s 494A(1). The validity of the regulation turns upon whether it is supported by the regulation making power contained in the Act which is s 504(1). That provision authorises the Governor-General to ‘make regulations, not inconsistent with this Act’ of various kinds including, relevantly, regulations ‘making provision for and in relation to … the giving of documents to … any other person or body, for the purposes of this Act’: s 504(e)(i). There is no doubt that reg 2.55(3)(c) answers that description so that the subject matter of the regulation is in principle authorised. The only question then is whether it nevertheless falls outside the regulation making power because it is inconsistent with the Act (i.e., in the language of s 504(1), not ‘not inconsistent with this Act’). An important consideration in judging inconsistency is ‘the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned’: Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 at 410; Plaintiff M47/2012 v Director-General of Security [2012] HCA 46; 251 CLR 1 (‘Plaintiff M47/2012’) at 41-42 [54] (French CJ), 64-65 [133]-[134] (Gummow J).

45    I would accept that reg 2.55(3)(c) is outside the power conferred by s 504(1)(e)(i) in cases where the Minister decides to exercise the power in s 494A(1). Once the power in s 494A(1) is exercised, there can be no room for the operation of any regulation and it is not necessary to inquire into whether the regulation is inconsistent with the actual method selected by the Minister under s 494A(1). The First Respondent submitted that there was another direct inconsistency between s 494A(1) and reg 2.55(3) even where the power in the former had not been enlivened. Here the argument was that the effect of the regulation was to bind the Minister not to exercise the power in s 494A(1). I am doubtful that, properly construed, reg 2.55(3) purports to bind the Minister not to exercise the power in s 494A(1). It does not address itself to the topic of the exercise by the Minister of other powers he has under the Act. Rather, it simply regulates the giving of documents. As a matter of text, I would not therefore read reg 2.55(3) as purporting to limit the Minister in the exercise of the power in s 494A(1).

46    Even if, however, there were some slight textual hook for the First Respondent’s submission, it would be necessary to construe reg 2.55(3) ‘subject to the enabling legislation as in force from time to time’: Legislation Act 2003 (Cth), s 13(1)(c) (‘Legislation Act’). In light of that injunction, I would not construe reg 2.55(3) as purporting to prevent the Minister from exercising the power under s 494A(1) even if it were ambiguous.

47    Even if that were wrong, it would simply give rise to a reading down problem. If the First Respondent’s contention were correct, then reg 2.55(3) would be inconsistent with s 494A(1) because it would purport to prevent it from being exercised. Being inconsistent with s 494A(1), it would not therefore be valid for it would lie outside the grant of power in s 504(1). However, s 13(2) of the Legislation Act would then require the regulation to be read down so that it would be ‘taken to be a valid instrument to the extent to which it is not in excess of that power’. This would mean that reg 2.55(3) would not be read as purporting to prevent the exercise of the power in s 494A(1).

48    Consequently, the First Respondent’s submission does not go anywhere. Regulation 2.55(3) does not, in my view, purport to prevent the power in s 494A(1) being exercised; even if it was ambiguous in that regard, it would not be construed that way because of s 13(1)(c) of the Legislation Act and, even if, properly construed, it did purport to prevent the power in s 494A(1) being exercised it would be invalid and would be read down under s 13(2) so that it did not have that effect. Consequently, I do not accept that reg 2.55(3) prevents the Minister from exercising the power in 494A(1).

49    It will follow from the foregoing discussion that I would accept that there are circumstances in which reg 2.55(3)(c) may be invalid. The issues then become these: first, can reg 2.55(3)(c) be read down in point of principle; secondly, if so, does it have a valid operation; and, thirdly, does the present case fall within the regulation so read down?

50    As to the first issue, s 10(1)(a) of the Legislation Act declares regulations to be legislative instruments. As such, the interpretation of reg 2.55(3) is subject to s 13(2) of that Act which provides:

13    Construction of legislative instruments and notifiable instruments

…

(2)    If the making of a legislative instrument or notifiable instrument would, apart from this subsection, be construed as being in excess of the power to make the instrument, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.

51    Consequently, reg 2.55(3)(c) is to be read down, if possible, to bring it within the power conferred by s 504(1). It therefore becomes necessary to identify whether reg 2.55(3)(c) has a valid operation. If it does, then s 13(2) requires it to be taken as valid to that extent.

52    Combining the language of s 504(1) and s 13(2) of the Legislation Act, it will be seen that a regulation will be invalid to the extent that it is inconsistent with its enabling Act but will be otherwise valid. This may be contrasted with the language of s 109 of the Constitution which deals with the invalidity of state laws which are inconsistent with Commonwealth laws:

109    Inconsistency of laws

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

53    I do not suggest that the inquiries thrown up in the case of a regulation which is inconsistent with its empowering statute are entirely the same as those which obtain under s 109. For example, a regulation derives its legislative effect from the statute under which it is made. By contrast, a State law does not derive its legislative effect from a law of the Commonwealth with which it is said to be inconsistent but, rather, ultimately from s 106 of the Constitution which continues the constitutions of the States as at the date of Federation. As such, in any inconsistency analysis, there is a relationship between an Act and a regulation which is absent in the s 109 context. There are other differences, too. The principles which govern the interpretation of the two statutes involved in a s 109 context may not necessarily be the same since each is governed by its own interpretation legislation. By contrast, an Act and a regulation made under it are usually interpreted in the same way. Because a regulation is a legislative instrument s 13(1)(a) of the Legislation Act applies the Acts Interpretation Act 1901 (Cth) to the regulation as if it were an Act.

54    There may also be structural features of the relationship between an Act and a regulation which impact on any inconsistency analysis. For example, the scheme of an Act may make evident that the legislature intended that the scheme would be carried into effect by detailed regulations made under very broad statutory powers. In other cases, the fact that regulations were made at the same time as a statute was enacted may make it possible to discern an intention on the part of Parliament that, notwithstanding any inconsistency between the Act and the regulation, the regulation was intended to be valid. In such cases, it may be possible for such contemporaneously prepared regulations to be an interpretative tool where there is ambiguity in the meaning of the statute: Hanlon v Law Society [1981] AC 124 at 193-194 per Lord Lowry; Elazac Pty Ltd v Commissioner of Patents (1994) 53 FCR 86 at 90 per Heerey J; PIPE Networks Pty Ltd v Commonwealth Superannuation Corporation [2013] FCA 444; 212 FCR 542 at [93] per Tracey J; Pearce, Statutory Interpretation in Australia (LexisNexis, 9th ed, 2019) at 126; cf Dietman v Brennan-Kuss [2015] SASCFC 73; 123 SASR 24 at [45]-[46] per Kourakis CJ, Bampton J and Muecke DCJ agreeing. For myself, I would reserve for an occasion when it arises whether this principle requires for its enlivenment the fact that the regulation was tabled before the relevant parliament at the time that the legislation was passed: see, e.g., Plaintiff M47/2012 at [56] per French CJ; Neill v Glacier Metal Co Ltd [1965] 1 QB 16 at 27 per Sachs J; Bailey and Norbury, Bennion, Bailey and Norbury on Statutory Interpretation (LexisNexis, 8th ed, 2020) at 768, citing Legal Services Commission v Loomba [2012] EWHC 29 (QB); 2 All ER 977 at [51], as affirmed in R (CXF) v Central Bedfordshire Council [2018] EWCA Civ 2852 at [24]; Greenberg, Craies on Legislation (Sweet & Maxwell, 12th ed, 2020) at 1118. Without expressing a concluded view, it may be difficult to discern parliamentary approval for the regulation if it cannot be shown that the legislature knew of it.

55    Accepting all of these differences, however, I do not think that any are material to the present appeal, at least not in a way which assists the First Respondent. Thus some benefit may be obtained by considering how facultative powers such as s 494A(1) have been approached in the context of s 109 of the Constitution, whilst keeping in mind the fact that the present question is concerned with the wording of s 504(1) (‘not inconsistent with this Act’) and s 13(2) of the Legislation Act (‘is taken to be valid to the extent to which it is not in excess of that power’).

56    So far as facultative powers in Commonwealth statutes are concerned, it has generally been concluded that no conflict with a State law arises until such time as the Commonwealth facultative power is exercised. In Victoria v Commonwealth (1937) 58 CLR 618 (‘The Kakariki’) the High Court held that a Victorian authority might proceed to exercise its statutory authority to remove the wreck of the steamship Kakariki in the absence of any intervention by the federal authority to exercise the power conferred by the Navigation Act 1912 (Cth) for the removal of wrecks. That approach to facultative powers has been repeatedly referred to with approval: R v Winneke; Ex parte Gallagher (1982) 152 CLR 211 at 216-217 per Gibbs CJ, 221 per Mason J, 233 per Wilson J; Flaherty v Girgis (1987) 162 CLR 574 at 588 per Mason ACJ, Wilson and Dawson JJ, 602 per Brennan J; Commonwealth v Western Australia (Mining Act Case) [1999] HCA 5; 196 CLR 392 at 417 [62] per Gleeson CJ and Gaudron J, 439-441 [138]-[145] per Gummow J, 478 [258] per Hayne J; Momcilovic v The Queen [2011] HCA 34; 245 CLR 1 at 112 [248] per Gummow J.

57    Of course, even where a Commonwealth facultative power is involved it may nevertheless be the case that the surrounding statutory context may make discernible an intention on the part of the Commonwealth Parliament to exclude the operation of any State law, a point made by Latham CJ in Carter v Egg and Egg Pulp Marketing Board (Vic) (1942) 66 CLR 557 at 574. In such a case, a consideration of the Commonwealth law as a whole may indicate that the Parliament intended to cover the field. Whilst the particular power might be facultative, the fact that it had not been exercised would not on this view be material since the field had been covered by the terms of the Commonwealth law viewed as a whole. A similar approach is discernible in the case of an Act and regulations made under it: see Plaintiff M47/2012 at 41-42 [133]-[134] per Gummow J.

58    However, that principle has no analogy with the present case. The terms of the Act do not show an intention on the part of Parliament to deal with the topic of how documents are given to persons to the exclusion of any regulation. On the contrary, the terms of the Act show that regulations on this topic were foreseen and intended since the regulation making power in s 504(1)(e) provides for regulations ‘making provision for and in relation to: (i) the giving of documents to … any other person … for the purposes of this Act’.

59    Once it is accepted that the making of regulations about that topic is not excluded by terms of the Act, there is nothing to distinguish the facultative power in s 494A(1) from facultative powers of the kind considered in The Kakariki. The First Respondent submitted, however, that this case could be distinguished from The Kakariki. Here the point was that in The Kakariki there were two decision makers acting under separate enactments. By contrast, in this case there is but one decision maker potentially acting under two different provisions. Whilst I accept this is a difference I do not accept that it is a relevant difference. In particular, I do not think that the outcome would have been any different in The Kakariki if the State power had been conferred on the federal body as an exercise of co-operative federalism: Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 130-131 and Re Wakim; Ex parte McNally [1999] HCA 27; 198 CLR 511 at 576-577 [113] per Gummow and Hayne JJ. The State power to remove the wreck would remain available until such time as the federal power was exercised. I do not therefore accept that the present situation can be distinguished from The Kakariki on the suggested basis.

60    Consequently, and consistent with that line of authority starting with The Kakariki, no question of inconsistency between s 494A(1) and reg 2.55(3)(c) can arise until the power in s 494A(1) has actually been exercised. Since it has not been exercised, there can be no inconsistency.

61    Since no question of invalidity arises in this case, I do not think it is necessary or appropriate to enter upon the extent to which reg 2.55(3)(c) might need to be read down pursuant to s 13(2) of the Legislation Act. That question should await a case where the power in s 494A(1) is exercised.

62    For completeness, two further matters should be noted. The first is the decision of Mortimer J (as her Honour then was) in Butt v Minister for Immigration and Border Protection [2014] FCA 1354; 227 FCR 359 (‘Butt’). In that case, her Honour concluded that ss 494A-494C could not apply, as a matter of construction, to a provision of the Act which required the notification of a cancellation decision to be given to a person in a ‘prescribed way’ (s 127(1)). I respectfully agree with this conclusion. Thus, whilst I accept that the regulations cannot validly operate where the power in s 494A(1) has been exercised, Butt demonstrates that the power in s 494A(1) is not available to be exercised in cases where the provision in question refers to the giving of a document in a ‘prescribed way’.

63    The evidence before Mortimer J involved two notifications and both could be seen, at least as a matter of text, as exercises of power under both ss 494A-494C and reg 2.55. On the facts, her Honour found that the first notification had been validly given under the regulation. There was, therefore, no occasion for her Honour to consider the question posed by this appeal which is whether there is any inconsistency between the regulation and s 494A(1) where the latter has not been exercised.

64    The second matter is the Full Court’s decision in Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151; 161 FCR 419 (‘Zhang’). There the Full Court rejected an argument that s 494A overrode reg 2.55. Although the application of Zhang to this case would lead to the same conclusion I would reach, namely, that the notification was validly given to the First Respondent under the regulation, I would prefer not to rely upon Zhang to arrive at that conclusion. There are a number of aspects of Zhang which appear to me to be problematic and I would reserve the correctness of that decision to an occasion when it is necessary to decide it.

65    In those circumstances, I would reject the First Respondent’s contention that reg 2.55(3) is invalid. The facultative nature of the power in s 494A(1) was raised by the Court with the parties after the conclusion of the hearing and supplementary submissions were received. In due course, the Minister should have leave to amend his notice of appeal to raise the argument.

66    For those reasons, in my respectful opinion, the trial judge erred in concluding that reg 2.55(3) was invalid although, as I have said, the facultative nature of s 494A(1) was not put to him. For the same reasons, the conclusion of Driver J in EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436 that there was an inconsistency between reg 2.55(3) and s 494A(1) is incorrect and must be overruled.

Post Office Box Address

67    Since reg 2.55(3)(c) validly operated in this case the next question is whether its terms were complied with. Only one issue arises here and it concerns the First Respondent’s contention that the post office box address of the Long Bay Prison could not also be the post office box address of the First Respondent (the requirement of reg 2.55(3)(c)). The question is thus whether a prison’s post office box address can also be the post office box address of one of its inmates. Having decided that the regulation was invalid, the trial judge did not have to decide this issue but his Honour expressed a preference for the view that it could not be.

68    Regulation 2.55(3)(c) requires that the document be delivered to any of three places last known to the Minister: the person’s residential address, their business address or their post office box address. Where the document is sent by post the terms of reg 2.55(3)(c) are exhaustive as to the addresses to which it may be sent. I would resist, if possible, a construction of reg 2.55(3)(c) which results in it being impossible to send a document by post to a person. Whilst different statutory contexts may require a different conclusion, in the context of the machinery of reg 2.55(3)(c) an interpretation of ‘residential address, business address or post box office address’ which permits receipt of letters by post seems to me preferable.

69    In Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313 at [54]-[57], Katzmann J was persuaded to the position that the prison’s address was the inmate’s residential address because the prison was where the prisoner resided. Her Honour’s decision was reversed on appeal on other grounds but not in relation to this question: Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174; 288 FCR 180. In the context of reg 2.55(3)(c) I respectfully agree with her Honour. I see no particular problem with concluding that the resident of a nursing home resides in that nursing home or that a person who lives in a residential college of a university resides at that address. The situation in relation to prisons is analogous except for the important matter that residence at a prison is not, generally speaking, a matter of choice.

70    There are statements in some authorities which lend support for the idea that the concept of residence may have a voluntary aspect to it. For example, in R v Barnet London Borough Council; Ex parte Shah [1983] 2 AC 309 (‘Shah’s Case’), Lord Scarman said at 344:

For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.

71    However, there was no issue before the House of Lords to which this remark related and it is an obiter dictum. The particular question in Shah’s Case was whether persons who were present in the United Kingdom for the purposes of study but who were subject to a visa condition that they should depart on the completion of their studies were ordinarily resident in the United Kingdom for the purposes of the Education Act 1980 (UK). It was held that they were. No question of the voluntariness of their place of abode therefore arose. Lord Scarman’s observation was quoted by Burchett J in Re Vassis; Ex parte Leung (1986) 9 FCR 518 at 525. Again, however, there was no issue in that case concerned with voluntariness. The actual question was whether Mr Vassis, who had fled to Greece to avoid his creditors, was ordinarily resident in Australia for the purposes of the Bankruptcy Act 1966 (Cth). He was.

72    I thus do not think that these two authorities provide much guidance in the present case. There may, of course, be particular statutory contexts where voluntariness may bear upon whether someone is resident for a particular purpose. For example, and without attempting to be definitive, there may be something to be said for the idea that a person is not resident for tax purposes in a jurisdiction to which they have been extradited and then sentenced to a term of imprisonment (to be quite clear, I express no concluded view on this issue).

73    In any event, whilst I accept that a lack of voluntariness is a significant distinction between a prison and a nursing home or residential college, in the context of reg 2.55(3)(c), I do not think it is a material one. The regulation is concerned with the topic of giving documents relating to the cancellation of visas to persons interested in that issue. If there were some reason to think that the involuntary nature of detention impacted on the ability of the inmate to receive mail sent to the address of the prison there might be some reason to approach the question differently. In this litigation, however, no evidence was led about the arrangements by which mail sent to prisoners in New South Wales prisons is delivered to them. Nor was any inquiry made into the state of the regulatory environment governing prisons in New South Wales insofar as it relates to the rights of inmates to receive mail.

74    Thus, whilst it is possible to speculate about what happens when a letter is sent to an inmate at the prison’s address, in this case that would be conjecture. On the state of the evidence, therefore, I am not prepared to infer that mail sent to an inmate at a prison is not delivered to the inmate. Consequently, I do not see the situation obtaining in relation to a prison as being relevantly different to that which obtains in relation to a nursing home or a residential college of a university. As such, I agree with Katzmann J that the address of a prison is also the residential address of its inmates.

75    In other contexts, this question may receive a different answer. For example, as a matter of Commonwealth electoral law the electorate in which the inmate is entitled to be enrolled is not the one in which the prison in which they are held is situated. Rather, there are a range of possible addresses used for that purpose including the electorate they were enrolled in at the time when the person began their sentence: Commonwealth Electoral Act 1918 (Cth), ss 96A(1)-(2). The policy reasons for this may be several. There may be sound reasons from a democratic perspective not to force a person to be in a particular electorate. There is also the difficulty which exists in permitting corrective services officials to determine the electorate in which an inmate is to reside.

76    Considerations of this kind, however, are absent from the mechanical provisions of reg 2.55(3)(c).

77    Of course, the question in this appeal is not whether the First Respondent’s residential address was the street address of the prison. It is whether the post office box address of the prison was also the post office box address of the First Respondent. However, once one accepts that the prison’s street address is also the inmates’ residential address, it is difficult to discern in point of principle why a different approach ought be taken to its post office box address.

78    I do not accept the First Respondent’s submission that support for the idea that a prison’s post office box cannot be an inmate’s post office box can be garnered from the Full Court’s decision in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; 281 FCR 578 at [35]. There the Court said this:

Such a person is not at liberty. They cannot do what people at liberty can do, and they cannot be expected to do what people at liberty can be expected to do. They are at the mercy of their gaolers and must depend on them to transmit, whether by some electronic or digital means or by post or other physical means, their representations in favour of revocation to the Minister.

79    So much may be accepted. The use to which the Court put this observation was to reject the Minister’s submission that a representation made by an inmate to the Minister was made at the time it was received by the Minister for the purposes of ss 501CA(3)(b) and (4)(a). Thus the question was the meaning of the word ‘make’ in those provisions. Here the question is the meaning of the expression ‘post office box address’ in reg 2.55(3)(c). The dependence of prisoners on their gaolers does not provide a reason for concluding that the post office box address of a prison is not also the post office box address of an inmate unless there is evidence that mail sent to such a post office box is not in fact delivered to inmates or may not lawfully be delivered to them. No attempt, however, was made to pursue such a case.

80    In the same vein, I do not accept that the High Court’s decision in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 271 CLR 112 requires a different conclusion. There the Court concluded that a letter which stated that it was taken to be received on the day it was sent by email was incorrect since, on the particular facts of the case, it was not possible for the letter to be sent by email in the manner it had been. In fact, it had been emailed to the prison and then printed off and given to the inmate. The Court concluded that it could be handed to the inmate in this fashion and thereby be given to him. However, the stipulation in the letter that it was taken to have been received when it was emailed was incorrect. It followed that the letter had failed to crystallise the time for a response to be given under s 501CA(4). I do not accept that this throws any light on whether the post office box address of a prison is also the post office box address of an inmate for the purposes of reg 2.55(3)(c).

81    In those circumstances, I conclude that the letter was sent to the First Respondent at his post office box address. This conclusion should not stand in the way, in another case, of a party seeking to prove, as a matter of fact, that mail sent to prisons (either at their street addresses or their post office box addresses) are not, in fact, delivered to inmates. If there were such evidence, the question might be answered differently.

82    In reaching this conclusion I would again prefer not to rely upon the Full Court’s decision in Zhang. There it was concluded that a street address could be a post office box address for the purposes of reg 2.55(3)(c). The Court reasoned that a post office box address was any address at which the recipient could be reached. This strikes me as, perhaps, a surprising conclusion. However, since it is not necessary to rely upon Zhang it is not necessary to consider it further.

Remaining issues

83    Having reached the conclusion that the letter of 27 June 2017 was sent to the First Respondent in accordance with reg 2.55(3)(c), it follows that the letter correctly stated when it was taken to have been received by the First Respondent. Consequently, the First Respondent’s review application to the Tribunal was filed out of time as I have explained above at [6]-[7] and the Tribunal was bound to dismiss it for want of jurisdiction.

84    In these circumstances, the validity of the notice given under s 107(1), which was sent to the private bag address of the Silverwater Prison, does not arise for determination. However, the reasoning above also necessitates the conclusion that reg 2.55(3)(c) applied to this letter. Whether the private bag address of Silverwater Prison was also the post office box address of the First Respondent does not need to be determined in this appeal. However, the reasoning above entails that the prison’s private bag address was also the First Respondent’s private bag address. There remains the deep question of whether a private bag is a post office box. I would defer consideration of that question to a case in which it arises for determination.

85    The appeal must therefore be allowed. The Tribunal dismissed the First Respondent’s review application on its merits under s 109(1). For the reasons I have given, it had no jurisdiction to enter upon those merits but was bound to dismiss the application. Consequently, its decision should be quashed. The Tribunal does, however, have jurisdiction to dismiss the review application for want of jurisdiction. I would not therefore prohibit any further proceeding before the Tribunal but it will be apparent from these reasons that any further consideration of the matter according to law will require the application to be dismissed for want of jurisdiction.

86    An oddity of this appeal is that the First Respondent also contended that the Tribunal’s decision should be quashed. However, his submissions to this effect involved a different path of reasoning. His contention was that the show cause letter of 17 March 2017 had not been validly sent. If that submission were correct it would, on his submission, have entailed that the delegate’s power to cancel his visa under s 109(1) had never arisen. Since the Tribunal stood in the shoes of the delegate, it too lacked power to cancel his visa. Had that position been vindicated (and the Minister has some additional arguments as to why it should not be), it would have meant that the Tribunal had no power to act under s 109(1). Since the delegate had purported to act under s 109, the Tribunal would have been obliged to set aside the delegate’s decision. In that circumstance, the Court would quash the decision remitting it to the Tribunal to determine the application according to law. However, the only result the Tribunal could then arrive at would have been to set aside the delegate’s decision for want of power to make it.

87    Thus, both the First Respondent and the Minister’s contentions in this Court lead to the quashing of the decision with an ancillary order that the Tribunal now determine the matter according to law. The difference between them is what that stipulation requires. Under the First Respondent’s position, part of the reasoning in this Court would have involved a determination that the delegate’s decision was invalid because the letter requiring him to show cause was not validly sent. Since the delegate’s decision was a ‘primary decision’ both this Court on appeal and the Court below lack jurisdiction to declare that it was invalid: s 476(2)(a). Since I would not enter upon the validity of the show cause letter, the question of whether this Court may collaterally determine its invalidity without making a declaration does not arise for consideration although it would appear likely that it could: see Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; 259 CLR 180 at 201-202 [60]-[62].

88    Under the Minister’s position, which I would uphold, this Court says nothing about the validity of the show cause letter. If the First Respondent wishes to challenge the validity of the show cause letter on the basis that a private bag address is not a post office box address only the High Court now has jurisdiction to entertain that point.

89    In those circumstances, the Minister is the successful party and should have his costs of the appeal. I would make the following orders:

Associate:

Dated:    13 June 2023

REASONS FOR JUDGMENT

ROFE J:

90    I have had the considerable benefit of reading in draft the reasons of Perram J. For the reasons that his Honour gives, I agree that the appeal should be allowed.

Associate:

Dated:    13 June 2023

REASONS FOR JUDGMENT

FEUTRILL J:

91    I have had the advantage of reading the reasons of Perram J in draft. I agree that the appeal should be allowed and that orders should be made in the terms Perram J has indicated in his reasons. Subject to the following observations concerning the operation of s 494A(1), I agree for the reasons Perram J has given that, in the circumstances of this case, there is no inconsistency in the operation of s 494A(1) of the Act and reg 2.55 of the Regulations. (For the purpose of these reasons, I adopt all the expressions or terms as defined or described in the reasons of Perram J.) I also agree for the reasons Perram J has given that written notice of cancellation of the first respondent’s visa was given to him in the way prescribed in reg 2.55(3)(c) (dispatch by prepaid post to his last ‘post box address known to the Minister’).

92    Section 494A(1) of the Act operates by reference to ‘a provision of this Act or the regulations’. Therefore, s 494A(1) may operate differently regarding s 107 of the Act, which permits the Minister to give a visa holder a notice, and s 109 of the Act, which makes no provision for giving notice to a former visa holder. In the case of s 109, it is the Regulations that make provisions requiring the Minister to give a former visa holder notice in writing. These provisions are contained in reg 2.42 and reg 2.55 of the Regulations.

93    Regulation 2.42 provides that the Minister ‘must notify the former holder of the visa in writing that the visa has been cancelled’. Regulations 2.55(1)(a) and 2.55(3) provide, subject to a qualification that is not here relevant, that the Minister ‘must give the [notice in writing] in one of the … ways’ set out in reg 2.55(3)(a) – (d). The reference in s 494A(1) to ‘a provision’ may be read as ‘provisions’: s 23(b) of the Acts Interpretation Act 1901 (Cth). Sections 504(1)(e) and 504(3) of the Act provide that the Governor-General may make regulations, not inconsistent with the Act, of the kind referred to in reg 2.42 and reg 2.55 of the Regulations.

94    The effect of reg 2.42 and reg 2.55 is that there are provisions of the Regulations that require the Minister to give a document to a person and those provisions do not state that the document must be given by one of the methods specified in s 494B or by a method prescribed for the purpose of giving documents to a person in immigration detention. Therefore, the provisions of reg 2.42 and reg 2.55 meet the pre-conditions for operation of the power of the Minister in s 494A(1) to ‘give the document to the person by any method that he or she considers appropriate’. Importantly, those pre-conditions are not met by considering reg 2.42 in isolation, but together with reg 2.55 which sets out the method by which the written notice referred to in reg 2.42 is to be given to a former visa holder and it is that method which is not one of the methods referred to in s 494A(1)(b).

95    Regulation 2.42 requires the Minister to ‘notify the former visa holder in writing’. That is mandatory. As the pre-conditions for the exercise of power in s 494A(1) are enlivened, the Minister ‘may’ give the written notice ‘by any method that he or she considers appropriate’. If that power is not exercised, then, failing giving written notice by a method the Minister considers appropriate, the Minister ‘must’ give notice by one of the methods described in reg 2.55(3). If no method were prescribed in the Regulations for giving notice, the Minister may be required to give the notice by a method he or she considers appropriate in order to fulfil the duty to give the notice, but that is not a question that arises for consideration in this appeal because, in the absence of the exercise of power under s 494A(1), the Minister was required to give the notice by one of the prescribed methods. Thus, there is no inconsistency in the operation of reg 2.55 of the Regulations with s 494A of the Act, in the circumstances of this case.

Associate:

Dated:    13 June 2023