Federal Court of Australia

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The applicant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

KATZMANN J:

1    This application is concerned with the harsh consequences of a failure to adhere to the time limit for making representations to the Minister to revoke the mandatory cancellation of a visa under s 501CA of the Migration Act 1958 (Cth).

Background

2    Andrew Sillars is 33 years old. He has lived nearly all his life in Australia, having arrived at the tender age of five months. He never took out Australian citizenship. That means that he may only reside lawfully in Australia if he holds a valid visa. In 1994 he was granted a Class BF Transitional (Permanent) visa.

3    Mr Sillars has a long criminal history. This made him vulnerable to a decision by the Minister to cancel his visa on character grounds. In 2014 the Minister considered whether to do so but decided against it, warning Mr Sillars that cancellation might be reconsidered if he were to commit further offences or otherwise breached the character test. Mr Sillars continued to offend and his visa was cancelled. But the Minister acceded to a request from Mr Sillars to revoke the cancellation decision, at the same time putting him on notice that his case could be reconsidered if he were to reoffend. Mr Sillars reoffended and, on 6 September 2018, he was sentenced to a term of 12 months imprisonment, with a non-parole period of eight months, backdated to 12 August 2018. Consequently, his visa was cancelled again. Mr Sillars made representations to the Minister seeking to have the decision revoked. This time a delegate of the Minister decided not to revoke the decision and Mr Sillars applied to the Administrative Appeals Tribunal for a review of the delegate’s decision. The Tribunal affirmed the delegate’s decision. Mr Sillars now applies to this Court to have the Tribunal’s decision set aside and his application remitted to the Tribunal for determination according to law.

The statutory framework

4    The relevant provisions of the Act are to be found in Pt 9 Div 2.

5    Section 501(3A) provides that:

The Minister must cancel a visa that has been granted to a person if:

(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)    paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

(ii)    paragraph (6)(e) (sexually based offences involving a child); and

(b)    the person is 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.

6    For the purpose of s 501 a person does not pass the character test if, amongst other things, the person has a substantial criminal record as defined by subs (7). That is what appears in para (6)(a). Paragraph (7) defines the circumstances in which, for the purpose of the character test, a person has a substantial criminal record. One of those circumstances is that the person has been sentenced to a term of imprisonment of 12 months or more. That is what appears in para 7(c).

7    As Mr Sillars had been sentenced to a term of imprisonment of 12 months, there is and could be no issue the Minister was obliged to cancel his visa.

8    Section 501CA of the Act relevantly provides as follows:

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

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

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

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

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

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

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

(ii)     particulars of the relevant information; and

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

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

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

(b)     the Minister is satisfied:

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

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

…

9    The period during which the person may make representations under para 501CA(3)(b) is set out in reg 2.52 of the Migration Regulations 1994 (Cth).

10    Regulation 2.52 relevantly provides:

(1)    This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.

(2)    The representations must be made:

(a)    …

(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(3)(a) of the Act.

…

11    No provision is made for an extension of time in any circumstances.

12    Regulation 2.55 prescribes the manner in which documents relating to a proposed cancellation, cancellation or revocation of cancellation may be given to a person. Insofar as it is relevant it provides:

(1)    This regulation applies to:

…

(c)    the giving of a document to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.

(2)    However, this regulation does not apply in relation to:

…

(b)    a person who is in immigration detention.

Note:        See regulation 5.02.

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

(a)    by handing it to the person personally;

(b)    by handing it to another person who:

(i)    is at the person’s last residential or business address known to the Minister; and

(ii)    appears to live there (in the case of a residential address) or work there (in the case of a business address); and

(iii)    appears to be at least 16 years of age;

(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;

(d)    …

…

(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.

13    Regulation 5.02 provides that:

For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.

The undisputed facts

14    On 7 November 2018 the Minister’s Department wrote to Mr Sillars giving him notice that his visa had been cancelled that day under s 501(3A) and inviting him to make representations to have the cancellation decision revoked. The notice emphasised that, if he decided to make representations to the Minister to revoke the mandatory cancellation, it was essential that he complete and lodge the Revocation Request Form within 28 days after he is taken to have received the notice “as this timeframe cannot be extended”. It informed him that he is taken to have received the notice seven working days after the date of the notice.

15    The notice was dispatched to Mr Sillars by registered mail at the Metropolitan Remand and Reception Centre in Silverwater, New South Wales.

16    Mr Sillars apparently completed a request for revocation form on 17 November 2018 but the representations were not lodged until 27 December 2018. Nevertheless, the Minister’s Department overlooked the fact that the request was lodged outside the prescribed period and processed his request. On 11 February 2020 a delegate of the Minister decided not to revoke the cancellation decision and Mr Sillars, who by then was resident in the Villawood Immigration Detention Centre, was informed of the decision the following day. In the letter from the Department informing him of the decision, a copy of which was enclosed, he was told, amongst other things:

You were invited to make representations to the Minister about revocation of the original decision, and you made representations within the period and in the manner specified.

After careful consideration of the representations you made, the decision-maker (who is a delegate of the Minister) decided, under s501CA(4) of the Migration Act, not to revoke the original decision.

Therefore, your visa remains cancelled and you do not hold a visa authorising you to travel to, enter or remain in Australia.

The Tribunal proceeding and decision

17    The application for review was prepared without regard to the problem posed by the fact that the representations were made outside the prescribed time. Four days before it had been set down for hearing, however, the Minister raised what the Tribunal described as a “procedural issue”. He contended that, because the representations had been made outside the prescribed period, the Tribunal had no power to revoke the cancellation decision. After hearing from the parties, the Tribunal upheld the Minister’s contention.

18    The Tribunal reasoned that the power to revoke is “predicated”, amongst other things, on the making of representations in accordance with the Minister’s invitation and this is a “mandatory prerequisite” or precondition to the exercise of the revocation power, which could not be waived, varied or otherwise dispensed with. The Tribunal concluded that the representations were not made in accordance with the Minister’s invitation as required by s 501CA(4)(a). It explained that the invitation gave rise to an obligation on Mr Sillars to make representations to the Minister about revocation of the original decision “within the period and in the manner ascertained in accordance with the regulations”. It said that the phrase “in accordance with the regulations”, which appears in s 501CA(3-)(a), was a reference to reg 2.52(2), which requires that the representations be made within 28 days after the notice is given, and “does not connote flexibility or permissiveness”.

19    Since reg 2.55(7) deems the invitation to have been received by Mr Sillars seven working days after the date of the notice, the Tribunal decided that Mr Sillars had 28 days from 16 November 2018 to make representations. That meant that time expired on 14 December 2018. Since the representations were not made until 27 December 2018, the Tribunal found that they were not made in accordance with the invitation. The Tribunal noted that Mr Sillars had written “I got this on 18-11-2018” on a copy of the notice but observed that, even if it were accepted that that was the date he received the notice, the last day he would have had to make representations would have been 17 December 2018 and he would still have been out of time.

20    The Tribunal decided that it was not estopped from reviewing the delegate’s decision but, since the power to revoke the cancellation decision was not enlivened, the only available course was to affirm the delegate’s decision.

The present application

21    The originating application, supported by an affidavit from Mr Sillars, was filed one day outside the statutory period. Mr Sillars applied for an extension of time. The application was not opposed and I granted it.

22    By an amended originating application, Mr Sillars contends that the Tribunal’s decision was affected by jurisdictional error for two reasons: first, because it failed to find that the invitation to make representations to the Minister was defective (ground 1) and secondly, because the Tribunal had misconstrued s 501CA(4)(a) (ground 2).

23    Mr Sillars’ position, as outlined in the submissions filed on his behalf, is that the invitation issued in the notice was defective for four reasons:

(1)    Since he was in immigration detention at the time notice was given, reg 5.02, not reg 2.55 applied, which meant that the deeming provision did not apply, notice and particulars had to be given to him or his authorised recipient, and that did not occur, on the evidence, until 18 November 2018.

(2)    Even if reg 2.55 applied, the notice was not dispatched to Mr Sillars’ last known residential address.

(3)    There was no evidence before the Tribunal that the notice and particulars were dispatched within three working days of the date of the document, as required by reg 2.55(3)(ii), and the Tribunal’s failure to consider this question meant that it could not have been satisfied that reg 2.55(7) (the deemed receipt provision) applied.

24    The basis for the proposition that the Tribunal misconstrued s 501CA(4)(a) was that there is an implied discretion to extend the time to make representations and that non-compliance with the prescribed time limit does not deprive decision-makers of the power to revoke a mandatory cancellation decision.

25    None of these propositions was advanced before the Tribunal where Mr Sillars appeared without legal representation. On this application Mr Sillars was ably represented by Dr Tully, who, in the finest traditions of the Bar, accepted a referral from the Court for legal assistance.

The evidence

26    Both parties adduced evidence on the application. Mr Sillars read his affidavit affirmed on 31 July 2020. The Minister filed and read an affidavit, affirmed on 25 August 2020, from Tom Hillyard, a solicitor employed by Sparke Helmore, the lawyers for the Minister in this case.

27    Insofar as it concerns the issues, Mr Sillars deposed that he received the notice and accompanying documents, while he was in prison, on 18 November 2018. He also said that he partially completed a request for revocation form. He acknowledged that he had signed and dated the form 17 November 2018 but was unable to explain the inconsistency between the date he had recorded beside his signature and his evidence as to the date he claimed to have received the notice. He also deposed that he arrived at Villawood Detention Centre on or about 10 June 2019.

28    Mr Hillyard deposed that on 18 August 2020 he received an email from a legal officer in the Minister’s Department to which a number of documents were attached and that on 25 August 2020 he received a second email which attached another document sent on 10 June 2019. The attachments to the two emails were annexed to the affidavit. These documents went to the first and third issues. I shall refer to them as and when they are relevant.

The issues

29    The application therefore gives rise to the following issues:

With respect to the alleged defective invitation:

(1)    whether the Tribunal erred by applying reg 2.55, rather than reg 5.02, or, put another way, whether Mr Sillars was in immigration detention at the time of the cancellation decision;

(2)    whether the Tribunal erred in finding that the notice was sent to Mr Sillars’ last known residential address;

(3)    whether the Tribunal failed to consider whether the notice had been dispatched within three working days of the date of the document; and, if not, whether the evidence proved that it was.

With respect to the question of whether the Tribunal misconstrued s 501CA(4)(a):

(4)    whether the Tribunal nevertheless had a discretion to revoke a decision where representations were made outside the prescribed time.

Was the invitation defective?

Issue (1): Did the Tribunal err by applying reg 2.55?

30    Regulation 2.55 prescribes the various ways in which a document relating to the revocation of the cancellation of the visa may be given to a holder or former holder of a visa. One of those ways is by dating and dispatching the document within three working days of the date it bears by prepaid post to the person’s last known residential, business or post box address. If that is done, then, and the document was dispatched to and from an Australian address, the person is taken to have received the document within seven working days of that date. But reg 2.55 does not apply where the holder or former holder of the visa is in immigration detention. In such a case, reg 5.02 applies and the parties agreed that “giving” a document within the meaning of reg 5.02 requires “actual delivery” to the detainee: see Sook v Minister for Immigration & Multicultural Affairs (1999) 86 FCR 584 (FC). In Sook at [6] Burchett J explained:

That some such special provision might be thought appropriate, where detention imposes restrictions on a person’s freedom to make arrangements regarding the receipt of mail, is obvious, and is illustrated by the facts of this very appeal. In the context, the “giving to the person himself or herself, or to another person authorised” requires actual delivery to the one or the other of those persons. If it were not so, the department could rely on the mistakes of its own employees to cut off the rights of the detained. … [Regulation] 5.02 is a special provision for the case of service of documents (of various kinds including letters and notifications: reg 5.01) on a person in immigration detention, designed to allow for the disabilities of such a person and to discharge the Minister’s responsibility as his custodian. …

31    Mr Sillars contended that he was in immigration detention at the time of the cancellation decision. If he is right, then reg 5.02 applied and no deeming provision operates.

32    Mr Sillars’ contention turned on the definition of “immigration detention” in s 5 of the Act, which by s 13(1)(b) of the Acts Interpretation Act 1901 (Cth), applies equally to the same expression in the Regulations.

33    Unless the contrary intention appears, “immigration detention” is defined in s 5 to mean:

(a)    being in the company of, and restrained by:

    (i)    an officer; or

   (ii)    in relation to a particular detainee—another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or

(b)    being held by, or on behalf of, an officer:

   (i)    in a detention centre established under this Act; or

(ii)    in a prison or remand centre of the Commonwealth, a State or a Territory; or

   (iii)     in a police station or watch house; or

(iv)    in relation to a non-citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or

(v)    in another place approved by the Minister in writing;

but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).

(Emphasis added.)

34    Subject to any contrary intention, the definition of “officer” in the same section incorporates any person included in a class authorised in writing by the Minister to be officers for the purposes of the Act, including a person who becomes a member of the class after authorisation is given. Apparently employees of State and Territory correctional services or prisons departments or their equivalent were so authorised on 29 August 2000. Mr Sillars submitted that, with respect to the duties imposed on them by the Act and the requirements of procedural fairness, “there are few differences in the circumstances and duties of prison officers at state correctional facilities and officers at dedicated immigration detention centres”. He continued:

For example, handing documents to a State correctional officer within the required time period constitutes a legally effective means of transmitting documents to the Minister: AMK16 v Assistant Minister for Immigration and Border Protection [2016] FCA 1557. Here, a corrective services officer was asked to hand deliver and confirm delivery of the s 501(3A) notice (CB519). This officer is acting “on behalf of” the first respondent to effect visa cancellation.

35    But the mere fact that a State prison can be a place of immigration detention does not mean that Mr Sillars was in immigration detention in November 2018. There is a distinction between immigration detention and criminal detention, which the Regulations explicitly recognise. Regulation 1.09 relevantly provides that a person is in criminal detention for the purposes of the Regulations if he or she is serving a term of imprisonment following conviction for an offence. Regulation 2.22(1) provides that, subject to subreg (2), a non-citizen is taken to have applied for a Bridging D (Class WD) visa in certain circumstances, including if:

(a)    the non-citizen is in Australia but is not in immigration or criminal detention[.]

36    Similarly, Sch 1 Pt 3 of the Regulations, which deals, amongst other things, with Bridging A (Class WA), Bridging B (Class WB) and Bridging D (Class WD) visas, relevantly provides:

(f)    Applicant is not in immigration detention or criminal detention.

37    Likewise, with respect to Bridging C (Class WC), Sch 1 Pt 3 provides:

(e)    Applicant is not in immigration detention or in criminal detention and has not escaped from either immigration detention or criminal detention.

38    It follows that a person is not in immigration detention if the person is in criminal detention. Mr Sillars was in criminal detention and therefore not in immigration detention.

39    As the Minister submitted, a non-citizen only enters immigration detention as a result of an executive act taken pursuant to s 189 of the Migration Act. As long as the non-citizen is being detained in a prison serving a sentence, there is no reason for such action to be taken. Presumably the purpose of the extended definition of “immigration detention” in s 5 is to enable places other than detention centres established under the Act to be used when, for one reason or another, a detention centre is unavailable or inaccessible, such as where there is no room in the nearest detention centre or there has been a fire there or the only access is by air and it is too late to take a flight or the flights are fully booked.

40    If Mr Sillars were right, then, as the Minister pointed out, every prison inmate is in immigration detention. Recognising the absurdity of such a construction, at the hearing Mr Sillars accepted that a person could only be in immigration detention if the person had been detained in accordance with s 189 of the Act.

41    Section 189 relevantly provides in subs(1) that:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.

42    “Detain” is defined in s 5 to mean:

(a)    take into immigration detention; or

(b)    keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

Note:    This definition extends to persons covered by residence determinations (see section 197AC).

43    At first, Mr Sillars contended that he was in immigration detention from the time the mandatory cancellation decision was made because that decision transformed him from a lawful to an unlawful citizen. In other words, all that was required was a change in his status from lawful to unlawful citizen. Notwithstanding Mr Sillars’ submission to the contrary, this contention was no more than a reiteration of a submission rejected by the High Court in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333. In Falzon at [59] Kiefel CJ, Bell, Keane and Edelman JJ said:

Criminal detention cannot be “converted” into immigration detention. A person is imprisoned by order of the court which authorises his or her detention by the State following conviction for an offence against the laws of the State. A person so detained cannot be said to be detained by an officer acting under s 189 of the Migration Act.

44    Later, however, Mr Sillars accepted that some action had to be taken by an officer to detain the unlawful non-citizen under s 189. He contended that that action had been taken when a prison officer gave Mr Sillars the notice on or about 18 November 2018. He also relied on an email annexed to Mr Hillyard’s affidavit sent on 7 November 2018 (Annexure TH2), to which I shall return later in these reasons. This was an email sent to “Sentence Admin”, the Secretary of the Parole Board, and the Department of Justice in which, amongst other things, the Minister’s Department recorded that a delegate had cancelled the visa that day, written notification had been sent to Mr Sillars by registered post, and that it was “important for legal reasons that the full documentation sent to Mr … SILLARS is handed to him as soon as possible when it arrives”.

45    I cannot accept that contention either. Neither the handing of the notice nor the sending of the email constituted taking Mr Sillars into immigration detention. Nor did it amount to keeping or causing him to be kept there. It was entirely unrelated to his detention.

46    Furthermore, the very email on which Mr Sillars relied concluded with the following statement which is inconsistent with Mr Sillars’ submission:

Department of Home Affairs will make arrangements in respect of Mr Andrew Alexander SILLARS following their release from criminal custody, including immigration detention pending their removal from Australia, if necessary.

47    It is clear from a later email (Annexure TH8), also annexed to Mr Hillyard’s affidavit, that Mr Sillars was not taken into immigration detention until 10 June 2019. That email is addressed to the “NSW Prison Team” and others including VIDC Intel, which I take to be some person or office at the Villawood Immigration Detention Centre. The subject line begins:

Notification of s189(1) detention on 10/06/2019 | Mr SILLARS Andrew Alexander DOB 10/04/1987 ...

48    The email advised that Mr Sillars was taken into immigration detention from the prison in which he was then housed (John Morony Correctional Centre) at 8.52am that day, 10 June 2019, by Ken Chen, a Border Force officer and the author of the email.

49    Even if Mr Sillars were right, however, on his own evidence he had been given the notice by 18 November 2018. Regulation 2.52(2) required that representations made to the Minister under para 501CA(3)(b) be made within 28 days of the date he had been given the notice and the relevant particulars. There was no dispute that the notice itself contained the relevant particulars. Nor was there any dispute that the representations were made after the 28-day period had expired. It follows that, in the absence of a discretion to extend the period, there would be no basis upon which the Tribunal’s decision could be set aside. I shall come to that issue in due course.

Issue (2): Did the Tribunal err in finding that the notice was sent to Mr Sillars’ last known residential address?

50    Mr Sillars submitted that, even if reg 2.55 were the correct regulation, the Tribunal erred in finding that the invitation was dispatched to the applicant’s last residential address. He noted that “residential address” is not defined in the Act but there are indications in the Act (such as s 52(3A)) that a residential address is a place where a person appears to be living. He argued that a prison was not the applicant’s residential address. He pointed out that the Personal Circumstances Form differentiates between a residential address (where an individual is living) and a place of custody. He also submitted that the invitation was dispatched to “Private Bag 144” and, in contrast to a post office box, mail is delivered to private bag holders.

51    These submissions must also be rejected.

52    First, I fail to see how the Personal Circumstances Form can be used to interpret the meaning of a term in legislation. In any case, the form does not distinguish between “custody” and “residential address”. It treats custody as a place of residence, recognising that the former visa holder could be residing in a prison at the time the form is completed. The form seeks contact details and asks, amongst other questions:

What is your current residential address? (if in custody, please state the name of the prison)

53    Second, in the absence of a statutory definition, it was common ground that “residential address” bears its ordinary meaning.

54    In its ordinary meaning, a residential address is the address of a residence, namely the place where a person resides. “Reside” is defined in the Macquarie Dictionary Online as “to dwell permanently or for a considerable time; have one’s abode for a time: he resided in Box Hill”. “Abode” is defined as:

1.    a dwelling place; a habitation.

2.    continuance in a place; sojourn; stay.

55    Mr Sillars had been a prisoner since 12 August 2018. At the time the notice was dispatched and delivered, Mr Sillars’ last place of abode and therefore his last residential address known to the Minister was Silverwater prison.

56    Third, while reliance on dictionary definitions may have its limits (see, for example, Polo/Lauren Company LP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266 at [24]), the context and purpose of the provision in question supports this meaning.

57    The purpose of the regulation is to ensure that the invitation reaches the visa holder or former visa holder. If the person in question is known to be serving a prison sentence, what is the point in sending the invitation to the place where the person lived before being taken into custody? Section 15AA of the Acts Interpretation Act provides that, in interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act is to be preferred to each other interpretation. This section applies equally to a provision in a regulation: Legislation Act 2003 (Cth), s 13(1)(a). Interpreting “residential address” in reg 2.55 to include the address of the prison in which a visa or former visa holder is residing would best achieve the purpose of the Act and Regulations.

58    During oral argument, Dr Tully drew attention to the following extract from Direction no. 79:

In considering whether a person is liable for mandatory cancellation, decision-makers should note … that the term “serving a sentence of imprisonment, on a full-time basis” does not include periodic detention or home or residential detention.”

59    Dr Tully submitted that this contemplates a distinction between a residential address and serving a full-time sentence of imprisonment. It says nothing, however, about a “residential address”. In any event, it provides no assistance in ascertaining the meaning of that term in the Regulations.

60    For all these reasons, the Tribunal did not err in finding that the notice was sent to Mr Sillars’ last known residential address.

Issue (3): Did the Tribunal fail to consider whether the notice had been dispatched within three working days of the date of the document? If not, does the evidence prove that it was?

61    It is common ground that there was no evidence before the Tribunal that the notice was dispatched within three working days of the date of the document. The Minister submitted that this was of no consequence because the question was not in dispute before the Tribunal and besides, the evidence is that the notice was dispatched within the prescribed time.

62    That evidence upon which the Minister relied, most of which was annexed to Mr Hillyard’s affidavit, consisted of:

    the email of 7 November 2018 indicating that the notice had been sent via registered post (Annexure TH2);

    a copy of the notice upon which a registered post sticker had been affixed together with the enclosures, which include a Revocation Request Form and a Personal Circumstances Form, a Court Order Notice from the Local Court of NSW at Blacktown dated 6 September 2018 recording Mr Sillars’ sentence, and a Conviction, Sentences and Appeals report from the NSW Department of Corrective Services dated 7 November 2018 which, amongst other things, shows that Mr Sillars was transferred to the Metropolitan Remand and Reception Centre at Silverwater on 1 November 2018 (Annexure TH3);

    a screen shot from a Departmental computer, which discloses that Mr Sillars was notified that his visa had been cancelled by letter sent on 7 November 2018 (Annexure TH4);

    another screen shot from a Departmental computer showing that the notice had been sent to Mr Sillars by registered post at the address given on the notice and recording the tracking number (Annexure TH5); and

    a copy of the Department’s Outgoing Registered & Express Post Register for 8 November 2018 which indicates that an item with the same reference number as the tracking number recorded in the previous annexure and on the copy of the notice in Annexure TH3 had been dispatched to Mr Sillars on 8 November 2018 (Annexure TH6).

63    Mr Sillars submitted that this evidence was insufficient to prove that the notice had been dispatched within the prescribed period. He argued that the best evidence was in Annexure TH6 but, in the absence of any indication from the Department of the details of the preparation of the document and, in particular, of the identity of the person who prepared it, what happened after the entry had been made on the Register, and how soon afterwards the package containing the notice had left the building, little, if any, weight should be attached to the annexure.

64    In oral argument, Dr Tully referred to Zhang v Minister for Immigration and Multicultural Affairs [2007] FMCA 594; 210 FLR 268 and Bataju v Minister for Immigration and Border Protection [2014] FCCA 2922 to support the proposition that “the testimony of the Department would be particularly a key item of evidence that would establish whether or not the letter had been dispatched within three working days”. But these cases turned on their facts. As Dr Tully conceded during oral argument, there is no “hard and fast rule” for the kind of evidence sufficient to establish that a document was dispatched within the prescribed period.

65    No doubt it would have been prudent for the Minister to have adduced evidence from a Departmental officer. Still, on the face of the information recorded on the Register and in the absence of evidence to the contrary or any challenge to the authenticity of the annexures, I am persuaded that more probably than not the notice was dispatched on 8 November 2018, which is comfortably within the prescribed period.

66    In any event, the only consequence in the present case of non-compliance with reg 2.55(3)(c), as the Minister submitted, is the inability to rely on the deeming provision in reg 2.55(7). That is because Mr Sillars’ own evidence is that he was handed the notice on 18 November 2018, and “handing it to the person personally” is an authorised mode of giving a document of this kind to a visa or former visa holder under reg 2.55(3). As the Tribunal observed, that would mean that the 28-day period during which representations could be made would run from that date, but that does not assist Mr Sillars because his representations were not made until after that period had also passed.

67    For completeness, I note that in his written submissions Mr Sillars referred to an observation by Stewart J in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 at [41] that it is the giving of the written notice setting out the cancellation decision and the particulars of relevant information to a person pursuant to para (a) of s 501CA(3) that starts time running and not the invitation under para (b). Mr Sillars submitted that the Tribunal failed to consider whether he had been given the notice and particulars of relevant information as required by s 501CA(3)(a) and r 2.52 and that, consequently, the 28-day period fixed by reg 2.52(2)(b) “did not commence to run against him”.

68    This submission is outside the scope of the application. It was not addressed in oral argument. In any event, the point is a purely technical one as there was no issue that the notice conformed to the requirements of s 501CA(3)(a). Indeed, a concession to this effect was made at the hearing.

Did the Tribunal misconstrue s 501CA(4)(a)?

Issue (5): Did the Tribunal have a discretion to revoke the cancellation decision despite non-compliance with the time limit for making representations?

69    That leaves the final issue: whether the Tribunal was wrong to conclude that there was no discretion to revoke the cancellation in the event of a failure to meet the time limit for making representations.

70    Mr Sillars accepted that there is no express discretionary power to extend the period, but he submitted that such a power is necessarily implied. In support of this argument, he relied on Ali v Minister for Home Affairs [2020] FCAFC 109 at [44]–[49] and GBV18 v Minister for Home Affairs [2020] FCAFC 17. He also relied on s 33(1) of the Acts Interpretation Act. Further, without reference to authority, he submitted that the exercise of the power under s 501CA(4) may be deferred and that compliance with the time limit could be waived. He argued that “the chapeau to s 501CA(4) confers a discretion, which necessarily implies the possibility of considering matters beyond merely the grounds on which the power and discretion are enlivened”. The Minister’s position was that there is no such discretion. In other words, once the terms of both paragraphs (4)(a) and (b) are satisfied, the effect is to impose an obligation on the Minister to revoke the cancellation.

71    The proposition that the Minister has a discretion to revoke the cancellation despite non-compliance with the time limit for making representations flies in the face of the judgment in BDS20, which is directly on point.

72    In that case, after the applicant’s visa was cancelled under s 501(3A) and while he was in prison, he was served with the notice of decision and the invitation to make representations about revocation. He made representations after the expiration of the 28-day period. The Minister’s Department informed the applicant that his representations were made outside the prescribed period and that the Minister could not therefore consider revoking the cancellation decision. The applicant applied to the Tribunal for merits review and, before the Minister’s submissions were due to be filed, the review application was withdrawn by consent because the Department accepted that the representations had been made within time. In his reasons for deciding not to revoke the cancellation of the applicant’s visa the Minister concluded that he had made representations in accordance with s 501CA(4)(a). But three months after the applicant filed an application for judicial review, the Minister notified the applicant that he intended to argue that there was no power to revoke the cancellation because the representations had not been made within the requisite period. And so he did.

73    Stewart J upheld the Minister’s argument, holding that there was no discretion to receive representations outside the prescribed period. His Honour explained at [48]:

There are indications in the Act that the time period stipulated for the making of representations under s 501CA(3)(b) is inflexible and requires certainty. For example, under ss 198(2A) and 198(2B) an officer must remove as soon as reasonably practicable an unlawful non-citizen if certain circumstances exist including, relevantly, in a case where the non-citizen has been invited, in accordance with s 501CA, to make representations to the Minister about revocation of a decision to cancel a visa, and the non-citizen has not made representations “in accordance with the invitation and the period for making representations has ended”. It would introduce uncertainty contrary to the statutory scheme if even after the relevant period has expired and representations have not been made, the person could later make representations such as to enliven the power to revoke the cancellation.

74    The effect of his Honour’s decision is that representations made outside the statutory period are not representations within the meaning of s 501CA(4). His Honour remarked at [51] that there was a strong case to be made for the introduction of a discretion to extend time in appropriate cases but that would require legislative amendment.

75    The Minister submitted that the text of the statute, its context and its purpose supported the construction placed on the provision by Stewart J in BDS20. Consequently, Mr Sillars’ failure to make representations in accordance with the time limit prescribed by the Regulations means that the representations were not made in accordance with the invitation and an essential pre-condition for the valid exercise of the revocation power is not met. The Minister pointed out that, if the Parliament had intended that there be flexibility in the time it was permissible for the Minister to receive representations about revocation, it could, for example, have given the Minister the discretion to accept late requests or established a procedure for seeking an extension of time. If that were Parliament’s intention, the obvious way to achieve it would be to insert in reg 2.52 after the words “within 28 days” a clause like “or such further time as the Minister may allow”.

76    As a matter of judicial comity, it is well-established that a judge of this Court should follow an earlier decision of another judge unless satisfied it is plainly wrong: see Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [75] (French J) and the authorities referred to there; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492.

77    I am not satisfied that the decision in BDS20 is plainly wrong. Certainly nothing Mr Sillars put persuades me that it is.

78    First, neither Ali nor GBV18 is to the point, as Mr Sillars acknowledged during the hearing.

79    Second, the submission based on s 33(1) of the Acts Interpretation Act begs the question. Section 33(1) provides that “[w]here an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires”. Like all other provisions of the Act, however, it is subject to a contrary intention: Acts Interpretation Act, s 2(2). Mr Sillars submitted that there was no contrary intention here. But the time limits imposed by the Regulations, which do not provide for any relaxation or extension, indicate a contrary intention.

80    Third, Mr Sillars was unable to point to any authority to support his submission that there is a residual discretion in the chapeau to s 501CA(4) and conceded during argument that the authorities were against him. See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337 at [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [31] (Collier J, with whom Logan and Murphy JJ agreed at [59] and [60] respectively); Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at [73]–[74]; and GBV18 v Minister for Home Affairs [2019] FCA 1132 at [56]. See also Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21] (Besanko, Barker and Bromwich JJ). The effect of these authorities is that, properly construed, the word “may” in the chapeau to s 501CA(4) means that the Minister must revoke a mandatory cancellation if the conditions in both paragraphs are made out.

81    In Gaspar at [38] North ACJ held:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.

82    The argument in Gaspar which North ACJ rejected was that s 501CA(4)(b)(ii) involves a two-stage process by which the Minister must first identify whether there are matters that he is satisfied are reasons why the original decision should be revoked and secondly exercise a residual discretion as to whether or not to revoke the cancellation. The Minister’s argument, which his Honour accepted, was that “the section involves a single function by which the Minister must evaluate the material before him in order to reach, or not reach, a state of satisfaction that there is a reason or reasons why the original decision should be revoked”. His Honour observed at [35] that the “overriding difficulty” with the notion that there is a residual discretion in s 501CA(4)(b)(ii) is that the same discretion would also apply to s 501CA(4)(b)(i). That would mean that the Minister could refuse to revoke the cancellation even if the Minister found that the person passed the character test. As his Honour said, it is unlikely that Parliament intended such a result.

83    In Marzano at [31] Collier J expressed her agreement with the analysis undertaken by North ACJ and endorsed the conclusion of the primary judge (Moshinsky J) that “‘may’ in s 501CA(4) (scil.) means ‘must’”.

84    In Viane at [73]–[74], with whom Reeves J agreed at [3], Colvin J independently came to the same conclusion. His Honour held:

[I]f the Minister is satisfied that there is a reason why the cancellation decision should be revoked then, given the way in which s 501CA(4)(b) is expressed, the Minister must revoke. As the failure to meet the character test will be the only reason why a person’s visa will be revoked under s 501(3A), it would be strange if the Minister was satisfied for the purposes of s 501CA(4)(b)(i) that the person passed the character test, yet there remained a discretion whether to revoke. Such a construction would mean that the power to revoke could be withheld even though the Minister was satisfied that the basis on which the visa had been cancelled was not actually satisfied. Equally, it would be strange if the Minister found that there was another reason for the purposes of s 501CA(4)(b)(ii) why the original decision should be revoked, but nevertheless retained a discretion to refrain from revoking the cancellation of the visa.

Therefore, the opening words to s 501CA(4) are in all likelihood an example of those cases where “may” means “must”: Marzano at [31]; Julius v Lord Bishop of Oxford (1880) 5 App Cas 214; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 134‑135, 138‑139 and Leach v The Queen (2007) 230 CLR 1 at [38]. If there remains a discretion once the Minister is satisfied as to one of the matters in s 501CA(4)(b) it would be a very narrow one that, in most circumstances, could not be reasonably exercised by refusing to revoke the original decision to cancel the visa.

85    These authorities were followed by Anderson J in GBV18 v Minister for Home Affairs [2019] FCA 1132.

86    While accepting during argument that the authorities were against him, in supplementary submissions Mr Sillars sought to distinguish the authorities, claiming that the conclusions reached by North ACJ in Gaspar were “limited to considering the existence or otherwise of a residual discretion in s 501CA(4)(b)”. He submitted that “the existence of a residual discretion subsisting in the chapeau to s 501CA(4) is yet to be adjudged”.

87    I do not regard the authorities as relevantly distinguishable. It is true that none of these cases considered the question in the context of a failure to make representations in accordance with the Minister’s invitation. But the meaning of “may” in the chapeau does not change according to the argument raised.

88    Finally, Mr Sillars also argued that, read in context, the adverbial phrase “in accordance with” in s 501CA(4)(a) means “in response to”, “pursuant to” or “consistently with”, not “in compliance with”. He contrasted the wording of s 501CA(4)(a) with s 501CA(3)(a), which uses the expression “within the period … ascertained in accordance with the regulations”. He claimed that a reasonable period in which to lodge representations ought to be implied and that strict compliance with the prescribed limit was not required.

89    I reject these arguments, too.

90    Dealing with the last point first, there is no scope for implying a reasonable period for making representations when a period is expressly provided for in the Regulations.

91    The ordinary meaning of “accordance” is agreement or conformity. Read in its statutory context, which includes s 501CA(3), it means conformity. The Macquarie Dictionary Online defines “in accordance with” as “in line with”. Representations which are in line with, or conform to, the invitation are those which are made in the manner and within the time stipulated in the invitation. The time stipulated in the invitation given to Mr Sillars was the time prescribed by reg 2.52. The invitation relevantly reads:

Time-frame to make representations about revocation

Any representations made in relation to the revocation of a mandatory cancellation decision must be made within the prescribed timeframe. The combined effect of s501CA(3)(b) and s501CA(4)(a) of the Act and Regulation 2.52 of the Regulations is that any representations MUST be made within 28 days after you are taken to have received this notice.

If you make representations about revocation of the visa cancellation decision but the representations are received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider the representations because they would not have been made in accordance with the invitation, as required by s501CA(4)(a) of the Act.

Lodging the Revocation Request Form

If you decide to make representations to the Minister to revoke the mandatory cancellation of your visa, it is essential that you complete and lodge the Revocation Request Form within 28 days after you are taken to have received this notice as this timeframe cannot be extended.

(Original emphasis and underlining)

92    In summary, I am not persuaded that the Minister has a discretion to extend, excuse or waive the time limit prescribed by the Regulations. The consequences of non-compliance with that limit are admittedly harsh. One cannot but have sympathy for Mr Sillars and others in a similar position. But that is the effect of the statutory scheme.

Conclusion

93    For all these reasons, the invitation to make representations was not defective and the Tribunal did not misconstrue s 501CA(4). The application must therefore be dismissed. Costs should follow the event.

Associate:

Dated:    15 September 2020